Mirza (Migration)

[2020] AATA 3582

Mirza (Migration) [2020] AATA 3582 (24 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Takreem Jamal Mirza

CASE NUMBER:  1924835

HOME AFFAIRS REFERENCE(S):          BCC2019/2694573

MEMBER:Vanessa Plain

DATE:24 June 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 24 June 2020 at 6:40pm
CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa –applicant did not comply with condition 8516 8202– applicant is not enrolled in a Higher Education level course of study –had not been enrolled in a registered course of study –decision under review affirmed

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), cls 573.223, 273.231, r 1.40A, Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 August 2019 made by a delegate of the Minister for Home Affairs 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 did not comply with condition 8516 attached to his visa, by his failure to continue to be a person who would satisfy the primary criteria for the grant of the visa.  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 24 June 2020 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu (Pakistan) and English languages.

4. The applicant’s registered migration agent did not appear at the hearing, but filed a written submission to which the Tribunal has had regard.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8516 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.

7. The ground for cancellation considered in this decision record under the Migration Act 1958

   (the Act) is:

   Section 116 Power to cancel

   (1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   (b)       its holder has not complied with a condition of the visa;

   (2)The Minister is not to cancel a visa under subsection (1), (1AA), (1AB) or (1AC) if there exist prescribed circumstances in which a visa is not to be cancelled.

   (3)If the Minister may cancel a visa under subsection (1), (1AA) or (1AB), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

   Particulars of the ground for cancellation

   It appears the visa holder may not have complied with condition 8516 of his Student visa, which states:

   “8516

   ‘The holder must continue to be a person who would satisfy the primary or
   secondary criteria, as the case requires, for the grant of the visa.’

   The criteria for the grant of the visa required you to meet, among other criteria, subclause 573.223(1A) or 573.231, which state:

   573.223(1A)

   If the applicant is, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

   (a)     the applicant gives the Minister evidence that the applicant has:

   (i)a level of English language proficiency that satisfies the applicant’s eligible education provider; and

   (ii)educational qualifications required by the eligible education provider; and

   (b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

   (ii)any other relevant matter; and

   (c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

   (i)the costs and expenses required to support the applicant during the proposed stay in Australia; and

   (ii)the costs and expenses required to support each member (if any) of the applicant’s family unit.

   eligible higher degree student means an applicant for a Subclass 573 visa in relation to whom the following apply:

   (a)the applicant is enrolled in a principal course of study for the award of: (ia) an advanced diploma in the higher education sector; or

   (i)a bachelor’s degree; or

   (ii)a masters degree by coursework;

   (b)     the principal course of study is provided by an eligible education provider;

   (c)if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study:

   (i)the applicant is also enrolled in that course; and

   (ii)that course is provided by the eligible education provider or an
   educational business partner of the eligible education provider.

   573.231

   If subclause 573.223(1A) does not apply:

   (a)the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and

   (b)the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:

   (i)     made under regulation 1.40A; and

   (ii)    in force at the time the application was made.

8. Information available to the Delegate in the Provider Registration and International Student Management System (PRISMS) indicated that the applicant was enrolled in a Bachelor of Business (Accounting) at La Trobe University which was cancelled on 9 April 2017 for non-commencement of studies.  The applicant’s student visa was granted for the purpose of undertaking this course.

9. Further, the applicant subsequently obtained an enrolment in a Bachelor of Business (Professional Accounting) with Elite Education Institute which was cancelled on 23 November 2017 for non-commencement of studies.

10. As at the hearing, the applicant stated in his evidence that he is not enrolled in a Bachelor degree and has not been enrolled in a Bachelor degree since 23 November 2017. 

11. Therefore, he is not enrolled in a course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under regulation 1.40A.  Based on the applicant’s evidence, the applicant has not continued to be a person who would satisfy either subclause 573.223(1A) or 573.231 and consequently has not continued to be a person who would satisfy the primary criteria for the grant of the visa.

12. On that basis of the above evidence, the Tribunal is satisfied that there are grounds for cancellation of the applicant’s visa section 116(1)(b) of the Act for non compliance with condition 8516.

    Consideration of the discretion to cancel the visa

13. 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 Procedural Instruction ‘General visa cancellation powers’.

14. The Tribunal notes that a Notice of Intention to Consider Cancellation (NOICC) dated 26 July 2019 was sent to the applicant.  In his evidence, the applicant stated that he sought legal advice about the document and was advised, in essence, that his study gap was too large and to take the matter to review and explain his reasons at that point.

15. The applicant provided copies of his CoEs for the automotive courses he enrolled in from May 2019 onwards.

16. The applicant gave detailed evidence at the hearing, as to the reasons for his non compliance with condition 8516.  He stated that:

    ·He has no knowledge of migration laws and conditions and at all times he has relied upon migration agents for advice.

    ·When he came to Australia in June 2016, he was not aware of how fast life was, he was overwhelmed when he moved to Melbourne, he could not get a job and found living expenses difficult to meet.

    ·A acquaintance invited the applicant to live with him and assured him he would help him with his living expenses and help make life easier for him.  So in November 2016, the applicant left Melbourne and went to Sydney, but the man took advantage of him, he exploited him.  He forced the applicant to work with him and did not pay him for his work.  The applicant informed his parents of his situation, but as they knew the man, they thought the man was helping their son.

    ·Before the La Trobe CoE was cancelled, he obtained a CoE for a Diploma of Accounting leading to a Bachelor of Business at Elite Education.  He went to a few classes in December 2016 and January 2017 but then did not continue his studies, due to the difficulties he was dealing with, with the man he was living with. 

    ·He continue to suffer financial loss at the hands of the man he was living with, which caused him distress.  He was referred to a man who could procure him a security licence, but this turned out to be a fraud and he didn’t get his security licence.

    ·He did not attempt to defer his Bachelor studies at either education provider, because he thought each school would ask for documents to prove his situation, which he didn’t have, so that’s why he didn’t ask for a deferral at the time. 

    ·He obtained a CoE in a Diploma of Accounting and an Advanced Diploma of Accounting in October 2017 at Australian Harbour College.  But he didn’t do these courses either.  He went home to Pakistan for his sister’s wedding.  His CoEs were cancelled.  He asked for consideration to reinstate his CoEs but the college said they cancelled his CoEs because he wasn’t there and they would not reinstate them.

    ·At this stage, he had moved in with another roommate.  This roommate threatened him and he reported the matter to the police in Sydney.  The police did not do anything about the threats. 

    ·He moved back to Melbourne in 2017 and did not study at all in 2018, nor until he enrolled in the Certificate III in Light Vehicle Management in May 2019.

    ·He was also having family issues, which was part of the reason he couldn’t study. 

    ·He tried to re-enrol in 2018, but was advised by migration agents that he would receive a Bachelors CoE because his study gap is too big.

    ·He received from his difficulties, he did 4 months study and finished assignments and paid his fees until his visa was cancelled.

    ·He is the only son of his parents and if he is unable to finish his studies it will cause great shame to his parents.

    ·He wants to finish his education and doesn’t want to stay in Australia.  He must return home and look after his parents and he will not be good without education.

    Purpose of applicant’s travel to and stay in Australia

17. The applicant was granted a Student visa based on his intention to study in Australia at the Higher Education level, specifically to undertake a Bachelor course in Business (Accounting) at La Trobe University.

18. Based on the applicant’s evidence above, he has not been enrolled in a Bachelor level course since 23 November 2017.  On 27 May 2019 the applicant commenced study at the Certificate III level.  Therefore, the applicant has failed to maintain enrolment in a principal course of study within the Higher Education Sector level.

19. As the applicant is not enrolled in a Higher Education level course of study and has not evidenced an intention to re-enrol in a Bachelor course after his Certificate III, the Tribunal considers that there is no legitimate immigration purpose for him to retain his Higher Education Sector Student visa, the purpose of that visa has well and truly ended.

20. The Tribunal affords this consideration weight in favour of cancelling the visa.

    The extent of compliance with visa conditions

21. The applicant has not complied with visa condition 8516 of his Student visa because he has failed to maintain enrolment in a principal course of a type specified for the grant of a Higher Education Sector Student visa.

22. It is plain that the applicant’s period of non-enrolment in 2018 is also a breach of condition 8202 which attaches to the applicant’s visa, which requires that he maintain enrolment in a registered course. 

23. Based upon the applicant’s evidence, whilst the Tribunal acknowledges the difficulties the applicant endured as he described above, the Tribunal is not satisfied that the reason for the period of non enrolment was due to circumstances that were outside of the control of the applicant.

24. The Tribunal also considers it reasonable to expect that the applicant would have at least attempted to defer his studies for compassionate or compelling reasons if he was struggling to the extent that he describes, yet the applicant did not make any attempt at deferral which the Tribunal does not consider the applicant has an adequate explanation for. 

25. The period of non compliance with condition 8202 is extensive. 

26. The Tribunal gives this consideration some weight in favour of cancelling the applicant’s visa.

    The degree of hardship that may be caused to the visa holder and any family members

27. The Tribunal acknowledges that the applicant would suffer some emotional and financial distress and hardship if his visa were cancelled.  The Tribunal further acknowledges the applicant’s concern about the shame his parents will feel if he does not complete his studies.

28. The Tribunal takes into account the applicant’s desire to finish his studies, which will be prejudiced by a cancellation of his visa, yet the Tribunal notes that there is no material before to indicate that these courses could not be pursued in the applicant’s own country.

29. There is no evidence that any family members in Australia will be adversely affected by the cancellation of the applicant’s visa. However, the Tribunal acknowledge that the applicant will suffer some hardship and gives this consideration some weight against cancelling the visa. 

    The circumstances in which the ground for cancellation arose

30. The ground for cancellation arose as a result of the applicant failing to maintain enrolment in a principal course of study within the Higher Education Sector level. As a result, the visa holder has failed to meet subclause 573.231 or 573.223 (1A) since 23 November 2017 which led to his non­compliance with visa condition 8516.

31. The Tribunal acknowledges the difficulties and reasons for non compliance as set out by the applicant above, however, it is not satisfied that these reasons constitute matters that are outside of the control of the applicant. 

32. The Department considers that student visa holders who are no longer able to study in Australia at a Higher Education level, or who are unable to maintain enrolment at that level and do not hold active confirmation of enrolment in a CRICOS registered course at the Higher Education level may have their visas considered for cancellation and in these circumstances a  visa holder should seek to depart Australia, apply for a new visa or obtain new enrolment which is appropriate to their intended level of study after their enrolment cancellation date or completion of a course.

33. The Tribunal does not consider it to be a reasonable excuse on the part of the applicant that he was not aware of the migration laws or rules that apply to his visa.  The onus rests on an applicant to contact the Department before they take any action to significantly change their circumstances (such as ceasing studies without obtaining alternative enrolment at the same level or not commencing further studies at the level intended by the grant of the visa) and to clarify any consequences that may result from such a change.

34. It is clear that the applicant did not contract the Department to notify of his circumstances or seek clarification on these matters and the Tribunal accepts that he did not do so, because he relied upon the advice of migration agents.

35. Therefore, based upon the above, the Tribunal finds that there were no extenuating circumstances beyond the applicant’s control that led to the ground for cancellation arising. 

36. The Tribunal affords this consideration significant weight in favour of cancelling the visa holder’s

    The visa holder’s past and present behaviour towards the Department

37. The applicant did not respond to the NOICC but in fairness to him, he did not respond on the basis of legal advice he received.  There is no evidence before the Tribunal to suggest that the applicant has been uncooperative with the Department or departmental staff.

38. The Tribunal gives this consideration some minor weight against cancelling the visa.

    Whether there are any persons in Australia whose visas would, or may, be cancelled under s140

39. The circumstances of this case are not such that any person’s visa would be consequentially cancelled under s140 of the Act.  The Tribunal therefore does not give this factor any weight for or against a decision to cancel the visa for this consideration.

    Legal consequences of a decision to cancel the visa

40. If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if they do not voluntarily depart Australia. The applicant would also be affected by section 48 of the Act, which may prevent them from applying for certain visas while in Australia, and Public Interest Criterion 4013, which may exclude them from being granted a visa for a specific period of time in the future.

41. However, these are mandatory and intended consequences of the legislation and given that the circumstances giving rise to the breach were not due to extenuating circumstances beyond the control of the applicant, the Tribunal does not consider this to be manifestly unfair and the Tribunal therefore gives this consideration little weight against cancelling the visa.

    Australia’s international obligations

42. There is no evidence before the Tribunal to indicate the applicant has children in Australia, nor whether cancelling the visa would lead to a breach of Australia’s non-refoulement obligations. As there is no information before the Tribunal, the Tribunal does not give any weight for or against cancelling the visa for this consideration.

    Any other relevant matters

43. There are no other relevant matters before the Tribunal. 

44. Although the matters set out above do not reveal any bad faith on the part of the applicant, it is clear based on all the evidence set out above, that the reason for the breach of the visa condition was not due to a matter that was outside the control of the applicant.    

45. It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa being cancelled and I so find.

46. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

47. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

    Vanessa Plain
    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.