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

1. 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).

2. 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.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal by MS Teams Video on 8 November 2022 to give evidence and present arguments.  

5. The applicant was represented in relation to the review.  The representative did not attend the hearing.

6. 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

7. 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?

8. 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).

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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

15. 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.

16. 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

17. 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.   

18. 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

19. The Tribunal adopted the procedure in s 359AA of the Act to put to the applicant information from a copy of his enrolment record from the PRISMS database, a copy of which is on the Tribunal file. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal put to the applicant that according to the information from his PRISMS enrolment record, he was enrolled in the following courses of study:

    a.He was enrolled in a Diploma of Business Management and he finished this course on 11 July 2008.

    b.He was enrolled in a Diploma of Hospitality Management and he finished this course on 14 November 2009.

    c.He was enrolled in an Advanced  Diploma of Management and he finished this course on 22 July 2014.

    d.He was enrolled in a Bachelor of Business, but this enrolment was cancelled on 28 February 2019  due to Change to  course in the same sector, gap created at either start or end of course OR the study period of the new CoE shorter than the original.

    e.He was enrolled in a Bachelor of Business, but this enrolment was cancelled on 15 May 2018 and 17 May 2019 due to Deferment/ Suspension: Compassionate to compelling circumstances.

    f.He was enrolled in a Bachelor of Business, but this enrolment was cancelled on 28 August 2019 due to non-payment of fees.

    g.He is enrolled in a Graduate Diploma of Management (Learning) which commenced on 31 January 2022 and will end on 28 January 2024.

20. The Tribunal explained to the applicant that this information was relevant because it indicates that from 28 August 2019 until 6 December 2021, he did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether he breached the conditions of his student visa by not maintaining enrolment in a registered course of study. The Tribunal also explained that the information may also be relevant in considering the discretion to cancel the student visa, including in considering his purpose for remaining in Australia.

21. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to his PRISMS enrolment records and advised that he may be granted time to comment on or respond to the information if needed.

22. The applicant did not dispute the enrolments in PRISMS but disagreed with the reason for cancellation on 28 August 2019 and said he paid his fees. He said he completed two subjects but due to his health issues he took a deferment and returned to India. He said he requested the education provider continue his enrolment until he returned to Australia to continue his study. The applicant contended that the education provider said it wouldn’t cancel his CoE and would grant a deferment if he paid his fees in advance, which he did. The Tribunal put to the applicant that his contentions were inconsistent with the information recorded in PRISMS. In response he said that when he asked the education provider the reason PRISMS records a non-payment of fees, he said he was told it was due to a “systems error”.

23. The applicant told the Tribunal that he has studied many courses in Australia including trade, management and business courses. He said he finally realised that he needs a Bachelor degree to enable him to get a good job and he wants to undertake that study in the future.

24. PRISMS shows the applicant is currently enrolled in a Graduate Diploma of Management (Learning). He said he enrolled in this course after receiving an email from the Department about cancellation of his visa. The Tribunal notes that the Department’s Character and Cancellation Branch sent the applicant an email on 1 December 2021 requesting his current address, phone number and email address. Noting that he told the Tribunal that he wishes to study a Bachelor of Business, the Tribunal asked the applicant the reason he enrolled in the Graduate Diploma of Management (Learning). He said his agent advised him to enrol in this course and after the Department’s decision he could change his enrolment. He said his agent advised him that he could not enrol in a Bachelor course in December 2021.

25. As noted, the applicant’s enrolment was cancelled on 28 August 2019. He departed Australia on 26 November 2019 and returned on 13 February 2020. He again departed on 18 June 2022 and is offshore at the time of this decision.

26. The applicant told the Tribunal that when he returned to Australia in February 2020, he contacted his education provider and was advised that he could not enrol in a Bachelor of Business because he was too late. As noted, he did not enrol in another course until 7 December 2021. The Tribunal put to the applicant that he was not enrolled in a course for an extended period and that he would have been aware that he was in breach of his visa conditions. He conceded that he was aware of this but said the COVID-19 pandemic caused him stress because he was worried about his family in India and was therefore unable to concentrate. 

27. The Tribunal asked the applicant whether he contacted the Department during the period he was not enrolled in a registered course to regulate his immigration status. He said he did not do so because he was “ waiting for the right time” to enrol and continue his study. He said he did not know how long COVID-19 would continue and he was waiting for things to get better and safer.

28. In response to the Tribunal asking how he spent his time during the period from the date of cancellation of his enrolment on 28 August 2019 until he enrolled in another course on 7 December 2021, the applicant said he worked on a casual basis for Woolworths and worked as an Uber Ride driver and an Uber Eats delivery driver. He said the period from when he returned to Australia was very stressful because he wasn’t sure whether he should return to India to look after his parents.

29. In relation to the medical evidence provided, Dr Wimalaratne did not provide reasons for certifying that the applicant’s injury should be best managed in his home country. In relation to the evidence provided by Dr Rahman, the Tribunal notes that the applicant did not return to India until 26 November 2019 and therefore Dr Rahman’s observations were not based on a physical examination. The Tribunal put this to the applicant however his response was to refer to the Medical Certificate and say he was not fit to study or to work, which is not what was certified by Dr Rahman.

30. The applicant told the Tribunal that the purpose of his travel to Australia was to obtain a good education and study through to graduation. He said he has studied many varied courses in Australia and now wants to study a Bachelor degree to enable him to get a good job. He said prior to 2019, he also worked in Australia as the holder of a Subclass 457 visa.  When asked whether there is a compelling need to travel to or remain in Australia, the applicant told the Tribunal that he needs to upskill himself and obtain a Bachelor degree. He said he is currently in India because his father is unwell. He said if his visa is not cancelled he will return to Australia as soon as possible and enrol in study. The Tribunal asked the applicant whether he has made any enquiries about availability of courses. He said his friends in Adelaide and Sydney have told him there are places available but he has not made any enquiries of education providers himself.

31. When asked about the hardship that may result from cancellation of his visa, the applicant said without a Bachelor degree he cannot have a good job or a good future and cannot support his family. The Tribunal asked him whether the qualifications he completed in 2008, 2009 and 2014 would assist him in finding employment. In response he said he needs to upskill and obtain a Bachelor degree.

32. The applicant told the Tribunal that he has always intended to study in Australia with the intention of having a better future. He said in 2020 things changed dramatically with COVID-19 and he stopped studying. He said he knew he was in breach of his visa conditions and although he was able to work, it was a very stressful time for him.

33. The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

34. The applicant first arrived in Australia to study on 4 August 2007, he was then granted several Student and Temporary Work visas before returning to study in 2019.

35. The applicant told the Tribunal his purpose in coming to Australia was to study. The applicant was granted a student visa on 17 January 2019 to study in Australia. The applicant did not complete any of the courses that he enrolled in after that that visa was granted. At the time the NOICC was issued the applicant had not been enrolled in a registered course for 2 years 3 months. The Tribunal accepts that he is currently enrolled in a Graduate Diploma of Management (Learning) however this enrolment was created on 7 December 2021 following receipt of an email from the Department at which time he had not been enrolled in a registered course since 28 August 2019.

36. The Tribunal finds the applicant’s breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.

37. The Tribunal questioned the applicant as to whether there was a compelling need for him to remain in Australia. In response he said he needs to upskill himself and obtain a Bachelor’s degree. The Tribunal does not consider this constitutes a compelling need.

38. The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

    The extent of compliance with visa conditions

39. The applicant has not complied with condition 8202 of his student visa because he has failed to maintain enrolment in a full-time registered course of study from 28 August 2019 to 6 December 2021. There is no evidence before the Tribunal that he has not complied with the other conditions attached to his visa.

40. The applicant’s non-compliance for an extended period of 2 years 3 months prior to the NOICC weighs in favour of visa cancellation.

    The degree of hardship that may be caused (financial, psychological, emotional or other hardship)

41. The Tribunal accepts that the cancellation of the applicant’s visa will be disappointing because he wishes to obtain a Bachelor’s degree for the purposes of future employment. The Tribunal gives this some weight against cancellation.

    Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control

1. The applicant’s visa was cancelled as a result of his failure to maintain enrolment in a registered course of study for 2 years 3 months. The applicant told the Tribunal that he suffered an injury and took a break from his study and returned to India. In May 2019, his course was deferred on compassionate grounds until 23 August 2019 however he did  not depart Australia during the deferment period. On 28 August 2019, his enrolment was cancelled due to non-payment of fees. The applicant disputed the PRISMS record in this regard and said the education provider agreed the record was incorrect and was due to a “systems error”. No evidence was provided to substantiate this contention and in the absence of such evidence, the Tribunal finds his enrolment was cancelled due to non-payment of fees.

2. The applicant told the Tribunal that after taking a break from study due to his injury, and on his return to Australia, he intended to return to studies in March 2020.  The medical evidence is dated in 2019 and  is consistent with the deferment recorded in PRISMS. However he told the Tribunal that he did not study on his return to Australia because of the stress he experienced due to COVID-19. He said he was waiting for the right time to commence study. Whilst the COVID-19 pandemic was beyond the applicant’s control, the Tribunal does not accept that his failure to enrol in a registered course in 2020 and in 2021 prior to 7 December 2021 was beyond his control. During this period the applicant maintained employment in various positions and no medical evidence was provided to show that the stress he claimed to have experienced precluded him from study. The delegate noted that the Universal Business School Sydney, where the applicant was previously studying, commenced delivering online learning to address the COVID situation in March 2020. During the hearing the applicant conceded that he was aware that online study was available during 2020 and 2021. As noted, the applicant also conceded that he was aware that he was in breach of his visa conditions when he was not enrolled in a registered course during the extended period prior to receiving the NOICC.  

3. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The Tribunal finds there are no extenuating or compassionate circumstances in this case and this weighs in favour of visa cancellation.

   Past and present behaviour of the visa holder towards the department

4. Nothing adverse is known about the applicant’s past and present conduct towards the Department. The Tribunal gives this some weight against cancellation.

   Whether there would be consequential cancellations under s 140

5. There is no one attached to the applicant’s visa and as such the Tribunal gives this factor no weight in its considerations.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

6. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s 189 and removed from Australia pursuant to s 198. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant and gives this some weight against cancellation.

   Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

7. There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation and the Tribunal gives this factor no weight in its considerations.

   Any other relevant matters

8. The Tribunal is not aware of any other considerations in relation to the cancellation.

   Conclusion

9. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of his visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant is not fulfilling the purpose of his travel to and stay in Australia as he is not undertaking the study for which his visa was granted during a 2 year 3 month period. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa. It will not be in breach of Australia’s international obligations. The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

10. 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

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

    Christine Kannis
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(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.