Mohammed (Migration) - [2022] AATA 4915

Mohammed (Migration) [2022] AATA 4915 (6 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Asif Ali Mohammed
REPRESENTATIVE:  Mr Mohammed Ismail Saud Mohammed Ismail Saud (MARN: 1909826)
CASE NUMBER:  2201875
HOME AFFAIRS REFERENCE(S):          BCC2021/2263915
MEMBER:Christine Kannis
DATE:6 December 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 06 December 2022 at 7:22am

CATCHWORDS
MIGRATION – cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – breached condition 8202 – applicant was not enrolled in a full-time registered course – shoulder injury – applicant maintained employment in various positions – no compelling need to remain in Australia – breach did not occur in circumstances beyond the applicant’s control – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000 (ESOS Act), s 19
Migration Act 1958, ss 116, 359
Migration Regulations 1994 (Cth), Schedule 8
CASES
Liu v MIMIA [2003] FCA 1170
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 4 February 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of his 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.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal by MS Teams Video on 8 November 2022 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative did not attend the hearing.
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
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 (Cth) (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?
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 full time registered course: 8202(2)(a)
·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mohammed (Migration)

Details

AGLC: Mohammed (Migration) [2022] AATA 4915
Case: [2022] AATA 4915
Decision Date: 6 December 2022

CaseChat Overview and Summary

This matter concerned an application for review of a decision to cancel the applicant's Student (Temporary) (Class TU) visa, subclass 500. The applicant, a holder of a student visa, was alleged to have breached condition 8202 of the Migration Regulations 1994 (Cth) by failing to maintain enrolment in a full-time registered course. The Administrative Appeals Tribunal (Cth) was required to determine whether the applicant had breached this condition and, if so, whether to exercise its discretion to cancel the visa.

The central legal issue was whether the applicant's enrolment status constituted a breach of condition 8202(2)(a) of the Migration Regulations 1994, which mandates that a student visa holder must be enrolled in a full-time registered course. The Tribunal also considered whether any breach occurred in circumstances beyond the applicant's control and whether there were compelling reasons to allow the applicant to remain in Australia, which would inform the exercise of the Tribunal's discretion to affirm or set aside the cancellation decision.

The Tribunal found that the applicant had breached condition 8202(2)(a) as their enrolment in a registered course had been cancelled on 28 August 2019 and they did not re-enrol until 7 December 2021, creating a period of over two years where they were not enrolled in a full-time registered course. While the applicant provided reasons for this period of non-enrolment, including a shoulder injury and the impact of the COVID-19 pandemic, the Tribunal concluded that these circumstances did not constitute a compelling need to remain in Australia or that the breach occurred in circumstances beyond the applicant's control. The Tribunal acknowledged the significance of visa cancellation but, on balance, affirmed the decision to cancel the applicant's visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 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 (Cth) (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? 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 full time registered course: 8202(2)(a)·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii). The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full-time registered course. Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2] [1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).[2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act. The information from PRISMS shows that the applicant was not enrolled in a registered course of study since from when his enrolment in a Bachelor of Business was cancelled on 28 August 2019, until he enrolled in a Graduate Diploma of Management (Learning) on 7 December 2021. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 28 August 2019 to 6 December 2021 and the Tribunal finds that he breached condition8202(2)(a) of his visa.

Decision

Reasons for decision

The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Class TU visa.Christine KannisMemberATTACHMENTMigration Regulations 1994…Schedule 88202(1) The holder must be enrolled in a full time course of study or training if the holder is:(a)a Defence student; or(b) a Foreign Affairs student; or(c) a secondary exchange student.(2) A holder not covered by subclause (1):(a) must be enrolled in a full time registered course; and(b) subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and(c) must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:(a) is enrolled in a course at the Australian Qualifications Framework level 10; and(b) changes their enrolment to a course at the Australian Qualifications Framework level 9.

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.Consideration of the discretion to cancel the visa 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’, as set out below. On 22 December 2021, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of his visa. Response to NOICC On 28 December 2021, the applicant responded to the NOICC and provided the following information:·He chose to study in Australia because it is a trusted international student destination and Australian graduates have high top-notch job placements in India.·He came to Australia on a student visa with the only intention to study here and then return to his home country and fetch a well-paid job in an MNC and settle down with his parents and wife. ·If his visa is cancelled this will bring him to a dead end when it comes to a career. ·He was studying a Bachelor of Business and took a break after the first semester due a shoulder injury. He travelled to India taking a break and was planning to return to study in March 2020. ·He sent an email to the college to confirm that he will return to study but in March 2020 the coronavirus issue started and he was unable to enrol. The world was in shock and everyone was scared, and he thought he was going to get infected and die.·All the school and colleges were closed and he was scared and he opted to stay inside and safe.·He spoke to an education agent and he suggested there is no problem in taking a break. ·Everyone, including government agencies, news, media were advising not to take unnecessary risks so he took the break for his safety. ·He doesn’t want to blame anyone because unintentionally he breached the condition. He is not from Australia and it takes time to adjust to new things and learn rules and regulations of a new country. He was not aware of the rules and regulations and breaching condition 8202. It happened only because of coronavirus and he was scared. ·He lives in Sydney and most of the time last year Sydney was in lockdown due to coronavirus and things were out of his hands and he was unable to get enrolled and study. At the time of responding to the NOICC the applicant provided:·A statutory declaration dated 21 February 2020, made by the applicant, in which he stated that he had a severe right shoulder injury and underwent medical treatment. He said his doctor advised him not to travel until he was fully recovered and therefore he did not travel until 12 February (year not stated).·A Medical Certificate dated 30 March 2019, from Dr Sarah Wimalaratne, which certified that the applicant had right shoulder pain requiring treatment and rest. The certificate stated that the doctor believed the issue should be best managed in the applicant’s home country, requiring rest until he recovered. ·A Medical Certificate dated 8 August 2019, from Dr Mir Zia ur Rahman in India, which certified that the applicant had undergone treatment for his “right shoulder strain icd 10 and have critical right shoulder injury and undergoing medical treatment with Neurologist and Orthopaedic” and that “As observing his medical condition he cannot travel until fully recovered”.Evidence at hearing