Mehdi (Migration)

[2019] AATA 1369

Mehdi (Migration) [2019] AATA 1369 (7 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Fazal Mehdi

CASE NUMBER:  1710531

HOME AFFAIRS REFERENCE(S):           BCC2017/1080638

MEMBER:Mark O'Loughlin

DATE:7 May 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 07 May 2019 at 11:40am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – significant period of non-compliance – mistakenly enrolled in a non-registered course on institution’s advice – full refund by institution – enrolled in an appropriate course as soon as possible after receiving delegate’s decision – studying full time since July 2017 – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 May 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not maintained enrolment in a relevant registered course for the purposes of condition 8202 of his visa and by reason of this failure was in breach of S116(1)(b) of the Act and further that the grounds for cancelling the visa outweighed the grounds for not cancelling. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 6 May 2019 to give evidence and present arguments.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

   Did the applicant comply with Condition 8202?

6. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

   ·be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

8. The applicant gave evidence, which the Tribunal accepts, that when he first came to Australia in February 2015 he was enrolled in a relevant registered course which he found too difficult.

9. He transferred to another relevant registered course at a different institution where he also had trouble.

10. He gave evidence, which the Tribunal accepts, that he transferred to a different course at a third institution in August 2016.  He says, and the Tribunal accepts, that he did not appreciate that the third course that he started was not a registered course and was not of an appropriate standard for a 573 visa.   

11. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

12. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

13. In relation to the purpose of the visa holder’s travel to and stay in Australia, the Tribunal heard and accepts that the visa holder has a compelling need to travel to and stay in Australia to study and the Tribunal accords this some weight in not cancelling the visa.   

14. The applicant’s non-compliance with condition 8202 was from August 2015 until July 2017.  The Tribunal regards this as a significant period of non-compliance and accords it no weight in not cancelling the visa.

15. The visa applicant gave evidence that he will experience hardship if his visa is cancelled because he will be restricted in his future career options, in particular although he intends to assist his father in the family farm and agriculture business, he has always intended to start a practice as an accountant and he will not be disadvantaged in doing so if he does not obtain Australian qualifications.  The Tribunal generally accepts this evidence and has regard to the statement provided by the applicant’s father in which he states that he believes that there will be advantages for his son in obtaining Australian qualifications.

16. Further, the applicant gave evidence that he believes that a return to Pakistan without qualifications would be a source of shame to him and to his family.  The Tribunal accepts this evidence but accords it little weight as it is not referred to by the applicant’s father who is presumably a better and more objective judge of this question.  The Tribunal therefore accords this consideration little weight in not cancelling the visa.

17. The applicant gave evidence that he does not plan to remain in or return to Australia other than for this course of study.  The Tribunal accepts this and finds that a restriction on him returning if his visa is cancelled does not attract any weight against cancelling the visa.

18. As regards the circumstances in which the ground for cancellation arose, the Tribunal accepts the applicant’s evidence that he was not aware that the third course that he started was not sufficient to sustain his visa.  The Tribunal heard from the applicant, and accepts, that he was advised by the institution with which he enrolled that the course was adequate for his visa when the matter arose after a visit home to Pakistan. 

19. The Tribunal accepts the applicant’s evidence that he was refunded his course fees by that institution and notes from their terms set out in the letter of offer that a refund is offered in the event of a Visa Application refusal but not for a visa cancellation.  The Tribunal accepts that the fact of the refund tends to suggest that the institution did not treat this matter as an ordinary cancellation which in turn tends to support the applicant’s evidence that he was led by the institution to believe that his enrolment was in order.

20. The Tribunal further notes that the applicant enrolled in an appropriate course within about 3 months of receiving the delegate’s decision and accepts the applicant’s evidence that he took the earliest enrolment he was able to get.  The Tribunal notes that he now has a confirmation of enrolment and that he has been studying full time since July 2017.

21. The Tribunal accepts that the applicant has generally maintained full time study while he has been in Australia and that even during the period of breach he was studying full time in a course that he mistakenly believed was adequate for his visa.

22. The Tribunal accepts that the applicant’s breach was inadvertent and he has now rectified his enrolment. The Tribunal accords this consideration substantial weight against cancelling the visa.

23. There is nothing in the information before the Tribunal to suggest that the applicant’s past and present behaviour towards the Department should weigh in favour of cancelling his visa.  The Tribunal accords this some weight against the cancellation.

24. There is no evidence before the Tribunal that any other persons in Australia will have their visas cancelled under s 140.  The Tribunal does not accord this factor any weight.

25. There is no evidence before the Tribunal that Australia has any international obligations that may be breached by reason of cancellation of the visa and the Tribunal does not accord this factor any weight.

26. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

27. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Mark O'Loughlin
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.