Mohammed (Migration)

[2020] AATA 4763

Mohammed (Migration) [2020] AATA 4763 (31 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Abdul Rafay Mohammed

CASE NUMBER:  1925336

HOME AFFAIRS REFERENCE(S):          BCC2019/3045941

MEMBER:T. Quinn

DATE:31 July 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 31 July 2020 at 8:33pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa –applicant has not been enrolled in a registered course of study – breached condition 8202 –no legitimate purpose to remain in Australia –decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 September 2019 made by a delegate of the Minister for Home Affairs (‘the delegate’) to cancel the applicant’s Subclass 500 (Student) visa (‘the visa’) under section 116(1)(b) of the Migration Act 1958 (‘the Act’).

2. The applicant arrived in Australia since 18 November 2016 on a student visa which was granted on 7 November 2016 with an original expiry date of 15 March 2020 providing for more than three years during which the applicant would be permitted to reside in Australia for the purposes of full time study.[1]  The applicant is from India with the intention to study a Bachelor of Accounting with a view to using those qualifications in obtaining a job in his home country.

   [1]           See delegate’s decision.

3. On 6 September 2019, the delegate cancelled the visa on the basis that the applicant had failed to comply with a condition of the visa as required by subsection 116(1)(b) of the Act, namely that the applicant had not complied with a condition of their visa. In this case, the applicant breached subclause 2(a) of condition 8202 of his visa in that he failed to maintain enrolment in a full time registered course. [2]  The applicant did not comply with this condition of his visa from 23 March 2018 to 6 September 2019.[3]  A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

   [2] As required by condition 8202(2)(a) of the Migration Regulations 1994 (‘the Regulations’).

   [3]           See delegate’s decision.

4. On 10 September 2019, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(3) and 347 of the Act.

5. The applicant appeared before the Tribunal on 29 July 2020 to give evidence and present arguments. 

6. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.

7. The Tribunal has had regard to all the information before it, including the Department File, all information and evidence provided by the applicant to the Tribunal.

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

   STATUTORY FRAMEWORK

9. The issue in this case is whether the applicant, as the holder of a student visa, has breached condition 8202 of the Regulations. If so, the ground for cancellation is made out and the issue then becomes whether the visa should be cancelled pursuant to section 116(1) of the Act.

10. Under section 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in subsection 116(1)(b) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the ground for cancellation exist?

11. A visa may be cancelled under section 116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 of the Regulations attached to the applicant’s visa. This condition requires that the applicant:

    a.be enrolled in a registered course, or in limited cases, a full-time course of study or training and that the registered course be undertaken at the required AQF level: 8202(1) and (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

    c.has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

12. 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 of study or training.

13. The applicant was enrolled in a Bachelor of Accounting.  This enrolment ceased on 23 March 2018 and the applicant was not enrolled in a full-time registered course of study from that date until his visa was cancelled on 6 September 2019. 

14. At the hearing, the applicant acknowledged and accepted that there are grounds for cancellation.

15. For these reasons, the Tribunal is satisfied that the ground for cancellation in section 116(1)(b) exists. As that ground does not require mandatory cancellation under section 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion to cancel the visa

16. 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’.

    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

17. The applicant arrived in Australia at the age of 18.  The applicant commenced the Bachelor of Accounting and undertook between six and eight subjects and did not pass any of them.  He then enrolled in a Diploma of Leadership  and Management in August 2019 but gave evidence at hearing that he did not study that course and when asked how he has been spending his time onshore since ceasing study in early 2018, he said he was previously working but could not recall when he ceased working and has otherwise been waiting for this hearing, undertaking no study whatsoever.  It seems to the Tribunal that if an individual is residing onshore based on an intention to study, such study should take priority over work.  There are financial requirements before such visas are granted.  It raises concerns about an individual’s true intentions in residing onshore if when doing so they are working but not studying, in breach of the conditions of a student visa upon which their right to reside is based.  Further, a particularly effective way for an applicant to demonstrate that they hold a genuine desire to study in Australia, while awaiting a review hearing, is to take positive steps towards achieving the educational qualification they had proposed in their original application. That is to say, an applicant should progress with their proposed course of study in Australia notwithstanding that their visa application has been cancelled.  In doing so, by the time the application on review proceeds to a hearing before the Tribunal, an applicant will be a position to produce compelling evidence at the hearing that shows their cancellation should be remitted.  In this case, there is no such evidence.  The Tribunal does not consider this to be the kind of behaviour that is consistent with that expected of a genuine applicant for entry and stay as a student in Australia.  In fact, if the applicant had even just engaged with his Diploma of Leadership and Management (despite this being inconsistent with the actual purpose of his stay in Australia which was to complete a Bachelor of Accounting), he would be due to complete this course in less than one month.  Instead, he has remained in Australia, not studying whilst claiming he wishes to remain onshore as a genuine student.  This evidence raises concerns for the Tribunal about the true nature of the applicant’s intentions

18. The applicant gave evidence that he was very sorry and that he was very young when he arrived and made a mistake.  He also made submissions that there have been family health and financial issues which resulted in his inability to afford his tuition fees and living expenses.  He also provided evidence in relation to a fall he had in early 2017 whereby he hurt his coccyx bone.  The medical evidence in this regard includes two medical certificates stating the applicant would not be fit for his normal occupation from 20-22 March 2017, 23 to 27 March 2017 and from 10-11 February 2019 and from 12-14 August 2019.  The medical certificates do not refer to the reasons for the applicant’s unfitness for work and the hospital records relating to his coccyx injury would appear to indicate only the first two medical certificates relate to that injury.  In any case, the Tribunal does not consider any of the periods in the medical certificates to justify a failure to maintain his enrolment condition.  On the contrary, they appear to indicate that the applicant was in fact working onshore between March 2017 and August 2019 and that the medical certificates were obtained in relation to that work, during most of the time the applicant was not studying.  The Tribunal reiterates its concerns in the immediately preceding paragraph in this regard.

19. The Tribunal empathises with the applicant’s and the applicant’s family’s personal and financial difficulties but does not consider the applicant has provided a sufficient explanation for his failure to remain enrolled in a course of study, particularly when it appears he was working onshore and there are financial requirements that must be met before an individual is granted a student visa.

20. A Notice of Intention to Consider Cancellation dated 7 August 2019 (‘NOICC’) was sent to the applicant.  The applicant responded to this on 13 August 2019 in much the same terms as described above. 

21. The applicant stated that he was young when he first arrived in Australia and made a mistake and he passionately requested a second chance saying would be a failure if he cannot complete his study and could not show his face back home or to his parents and that he has not told his parents about these proceedings.  He stated he wished to complete a Bachelor of Accounting and look for a graduate program as an accountant.  The Tribunal is puzzled by the applicant’s decision to enrol in a Diploma of Leadership and Management given this evidence.

22. The Tribunal understands that a visa cancellation can be disappointing for visa holders and their families but does not consider this constitutes a compelling need to remain in Australia.  Further, the Tribunal notes that the applicant has been onshore for nearly four years and has not completed any qualification, or even successfully completed any units of any qualification in that time.  The Tribunal also considers he has options to complete further studies in India if he chooses.

23. The Tribunal considers the applicant does not have any compelling need to remain in Australia.  The Tribunal places some weight in favour of cancelling the applicant’s visa in this regard.

    Circumstances in which ground of cancellation arose

24. The applicant’s evidence at hearing has been outlined above. 

25. The Tribunal accepts that the applicant’s family may have faced health and financial difficulties and that the applicant himself had difficulty with the study in Australia which he was commencing at a young age, with English as his second language.  The Tribunal also accepts that the applicant had a fall and hurt his coccyx in early 2017 and that he has had to take intermittent periods of time off work since that time.  The Tribunal also accepts that the applicant is remorseful.  The Tribunal empathises with the applicant and his family in relation to their health and financial issues and understands this must have been challenging for all of them.  However, the option to return to India to avoid breaching his visa conditions was open to the applicant at all times.  Instead, he failed to resume any study at all, was issued with a NOICC and his visa was subsequently cancelled.  This is not the conduct one would expect of a genuine student who takes their responsibilities in residing onshore on the basis of a student visa seriously.

26. The Tribunal acknowledges the applicant’s family’s health and financial positions were out of the applicant’s control, but also considers that if an applicant is not in a position to comply with the conditions of their visa, it is their responsibility to take appropriate action to avoid breach of same.  It is the responsibility of a visa holder to ensure they are complying with the conditions of their visa.  The Tribunal gives equal weight in favour and against cancelling the applicant’s visa in this regard

    Extent of compliance with visa conditions

27. The Tribunal notes the applicant’s evidence that he has otherwise complied with student visa conditions.  However, on the evidence he supplied, the applicant has not made any academic progress which is not what one expects of a genuine student who has been onshore on the basis of a student visa.  Further, the applicant’s breach of the condition of the visa is extensive, being approximately seventeen months.  The Tribunal considers the seventeen month breach a significant breach and gives weight in favour of cancelling the applicant’s visa in this regard.

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

28. The applicant stated that he was young when he first arrived in Australia and made a mistake and he passionately requested a second chance saying would be a failure if he cannot complete his study and could not show his face back home or to his parents and that he has not told his parents about these proceedings.  He stated he wished to complete a Bachelor of Accounting and look for a graduate program as an accountant. 

29. The Tribunal accepts that the cancellation of a visa is disappointing.  It also accepts that a significant amount of money is invested in a person in order to set them up in a country to live independently in order to study.

30. The Tribunal recognises that the hardship is felt by family members who may also feel let down and disappointed.

31. The Tribunal is, however, mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition.  Whilst appreciating the hardship the applicant and his family may face regarding a cancelled visa, it does not outweigh the breach and the Tribunal gives these reasons limited weight in its considerations.

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

32. There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department.  The Tribunal gives some weight against cancelling the applicant’s visa in this regard.

    Whether there are persons in Australia whose visas would, or may, be cancelled under section 140 of the Act

33. This is not relevant to the applicant.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, 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

34. If the visa is cancelled, this will result in the following:

    a.the applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act;

    b.the applicant will have limited options to apply for further visas in Australia;

    c.the applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed.  The applicant could therefore be subject to a three (3) year exclusion period where they will not be eligible to have any temporary visa application approved if they apply for a visa that requires Public Interest Requirement 4013 to be met.

    The Tribunal gives little weight to this consideration in favour of the applicant because:

    ·these are the intended consequences of the legislation when a visa is cancelled under these grounds;

    ·it reflects the seriousness with which the Department takes this type of cancellation ground;

    ·the applicant will be eligible to apply for a bridging visa while they make arrangements to depart Australia and therefore the likelihood of detention is only in the event that they do not co-operate in applying for a bridging visa.

    Australia’s international obligations

35. There is nothing before the Tribunal to suggest that the cancellation of the visa would breach any international obligations.  The Tribunal places no weight on this in favour of or against the applicant.

    Any other relevant matters

36. Nil.

    CONCLUSION

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

    DECISION

38. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    T. Quinn
    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.