Mohammed (Migration)

[2020] AATA 3456

Mohammed (Migration) [2020] AATA 3456 (10 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zaheer Uddin Mohammed

CASE NUMBER:  2006902

HOME AFFAIRS REFERENCE(S):          BCC2019/5205754

MEMBER:Vanessa Plain

DATE:10 July 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 10 July 2020 at 4:06pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – compelling reasons for breach of condition – victim of educational scams – credible witness – extensive suite of contemporaneous documents – non-enrolment rectified – 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 23 March 2020 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 (the Act).

2. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course. 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 10 July 2020 to give evidence and present arguments.  The Tribunal also received evidence from Mr Furkhan Bin Nazeer Thrii, a witness for the applicant. 

4. The applicant was represented in relation to the review by his registered migration agent, Mr Rafi.

5. 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

6. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202(2)(a) 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?

7. 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)

   ·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).

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

9. An examination of the Delegate’s Decision Record reveals that the applicant was granted a Student (Temporary) (class TU) subclass 500 visa on 25 June 2018 for the purpose of undertaking a Masters of Engineering.  The applicant did no start this course. 

10. On 22 November 2018, the applicant enrolled in a Diploma of Business.  PRISMS indicated that the applicant’s last day of study in this course was on 5 April 2019 and the applicant’s enrolment was cancelled by the education provider on 30 May 2019, for unsatisfactory course progress. 

11. A Notice of Intention to Consider Cancellation (NOICC) of the visa was issued to the applicant on 19 February 2020.  The applicant did no respond to the NOICC.  He gave evidence that this was an oversight on his part.

12. On 11 March 2020, the applicant enrolled in a Diploma of Project Management and an Advanced Diploma of Program Management at Australian Harbour International College for the period 20 April 2020 to 5 February 2023.

13. On 13 March 2020, the applicant lodged an application for a Student (subclass 500) visa in order to study the aforementioned courses within vocational education and training sector and ensure compliance with condition 8202(2)(b).

14. At the hearing, the applicant acknowledged he was not enrolled in a registered course from 30 May 2019 to 11 March 2020.  He gave extensive reasons, supported by an extensive number of contemporaneous documents and written legal submissions, referred to below.

15. On the evidence before the Tribunal as set out above, the Tribunal is satisfied that the applicant did not maintain enrolment in a registered course of study from 30 May 2019 to 11 March 2020 and on that basis, he has not complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

16. 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.

17. 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’.

18. In support of his review application, the applicant filed detailed written submissions supported by nine documents in support of the factual matters set out in detailed statement dated 9 July 2020.  The Tribunal has had regard to that material.

19. In his sworn evidence at the hearing, the applicant provided detailed, consistent and concise reasons for the breach of the visa condition in this particular case.  The Tribunal subjected the applicant to extensive questioning throughout the course of the hearing.  The applicant’s evidence was not embellished, nor was it inconsistent with the contemporaneous documents provided.  The applicant was not prone to long speeches and he made reasonable concessions.  For these reasons, the Tribunal finds the applicant to be a witness of credit. 

20. The applicant gave detailed evidence as follows:

    ·He came to Australia on 29 June 2018 for the purpose of studying a Masters in Commerce, however, the day he left India, he was provided with a COE by his education agent for a Masters of Engineering.  This surprised the applicant, as his study background was a Bachelor of Commerce and he has extensive work experience in the UAE utilizing that academic background.  He wanted to undertake a Masters to increase his earning potential, to be able to work in higher levels of management, in the UAE.  He paid his agent in India $16,000 for his enrolment, when he was handed the COE in India at the airport by his agent he questioned why the enrolment was for an Engineering course and not a commerce course.  The agent told him not to worry about it and that it would be all sorted out after the applicant arrived in Australia. 

    ·He attended upon the University of New South Wales (UNSW) and proceeded to attend to enrolment, on the assumption that he would be enrolled in a Masters of Commerce degree which his agent would arrange for him now that he was onshore. 

    ·The UNSW student officer informed the applicant that his enrolment has been cancelled for non commencement.  The applicant questioned how that could be the case but says that he was not given a clear answer. 

    ·He contacted his agent in India.  The agent said to him not to worry and that the agent would ‘fix’ it within 10 days.  The applicant was worried and contacted his parents, as he was concerned as to why his enrolment was cancelled given the fees he had paid to the agent.

    ·The applicant spoke to his agent against and the agent directed him not to contact UNSW again and he will organise another COE for him.  The applicant asked him why he gave him a COE for Engineering in the first place.  The agent said that this was the only thing he could obtain at the time and that it doesn’t matter because after one arrives in Australia it can be changed.  The applicant became angry, he demanded the return of his money, he understood that the $16,000 he paid the agent included the first component of the tuition fees for his course.  The applicant demanded the same thing in writing, but the agent did not respond. 

    ·The applicant candidly acknowledged that he did not ask the university for a return of the $6,000 tuition fee because he had paid that money to his agent and on that basis, thought that he was the person from whom he should receive the refund. 

    ·The agent refused to refund the applicant his money, he claimed that was his ‘fee for getting him to Australia.’  He told him not to ring him again.  He told the applicant that if he contacts UNSW again he will be in trouble with his visa, which caused the applicant great distress.  The applicant’s father called the agent and demanded the return of the money and he told his father not to call him again. 

    ·Th applicant became highly distressed and concerned, he was aware that he had to be enrolled in a course so as to not be in breach of his visa.  He immediately engaged an education agent in Australia who obtained an enrolment in a Diploma of Business for the applicant. HE started this course in November 2018, however, his mother became gravely ill in his home country (evidenced by medical documents submitted) and at the same time his father’s taxi business failed (evidenced by documents submitted) which put significant stress upon the applicant and his parents, both financially and emotionally.  These matters distracted the applicant from his studies and his enrolment was cancelled for unsatisfactory progress in May 2019. 

    ·By the time he received the NOICC, he had recovered financially from the what he described as the fraudulent conduct of the agent in India and he applied for a student visa at a lower AQF level to enable him to study project management, which was in a similar field to which he’d worked in the UAE.  HE also was of the view that a less academically rigorous course wold be better suited to him after the challenges that he and his family faced in 2019. 

    ·He is currently enrolled in a Diploma of Project Management which is scheduled to conclude in October 2021 and he has applied for a visa at that level, mindful that his current visa is not suitable for the Diploma level course. 

    ·The applicant described his detailed work history in reputable companies in the UAE (documentary evidence submitted) and it was his career aspiration to obtain a foreign qualification from an English speaking country to further enhance his career prospects in commence and management. 

    ·The reason he has been unable to re-enrol in a Masters degree is due to the financial hardship caused by the maters set out above.  He is undertaking the project management course because it complements his commerce qualification and he wishes to increase his earning capacity to be able to provide for a better future for his wife and 4 year-old son who reside in India. 

    ·The applicant stated that his whole family are dependent upon him and that he is distraught at having been unable to see his family for the past 2 years.  He partakes in video calls with his young son frequently who constantly enquires as to when the applicant is returning home. 

    ·The applicant has sufficient funds to complete his current course and desires to do so.  He is afraid that his family will be ashamed of him if he returns home, after leaving 2 years ago to obtain a qualification to assist all their futures.

21. The witness referred to above also gave evidence:

    ·He claimed that he found himself in the same circumstances with the same agent in India regarding a Masters of Professional Accounting degree at the UNSW.  He said that he paid the same fee to the agent and when he enrolled the UNSW told hi him that his enrolment had been cancelled, without providing clear reasons as to whey that was the case.  The witness was not notified of the cancelled COE in writing, nor did he receive a refund for the course fees. 

22. The applicant’s migration agent provided detailed written submissions that were succinct and of significant assistance to the Tribunal.  The Tribunal had further regard to oral submissions at the hearing, as follows:

    ·Students become unwittingly embroiled in educational scams between education agents who are politically connected in India and Pakistan who procure enrolments for students and provide incorrect advice as to those enrolments, take significant sums of money from students and when the student realises they are no longer enrolled, they are not in a position to challenge these agents because of the political and social disparity between the respective parties.

    ·The agent further contended that it is possible that top universities are entirely aware of these scams and that they benefit from them.  In support of that contention the agent made the observation that it was inexplicable as to why the UNSW would approve a COE in a Masters of Engineering for a student who had absolutely no background in Engineering. He said further that students are aware that a breach of the law in Australia is a serious matter and on that basis they seek out advice from people they are familiar with, who happen to be the very people who are taking advantage of them.        

    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      

23. The applicant arrived in Australia on a Student (subclass 500) visa for the purpose of undertaking study in a Masters of Engineering at the UNSW.

24. The applicant resided in Australia for an approximate period of 9 months without a valid enrolment, however, based upon the matters set out above, the Tribunal is satisfied that the applicant has established that his primary purpose for being in Australia is for the purpose of study, he has rectified his non enrolment when his circumstances permitted and he has applied for a visa at the appropriate study level/ 

25. Therefore, even though the purpose for which the applicant’s visa was granted ended in May 2019, the Tribunal gives these considerations very little weight towards the visa being cancelled.     

    The extent of compliance with visa conditions

26. The applicant has not complied with condition 8202(2)(a).  The applicant has given detailed and compelling reasons for the breach which are set out above, which are supported by contemporaneous documents, a witness who gave credible similar fact evidence and concise submissions. 

27. There is no evidence before the Tribunal as to non compliance with other visa conditions. 

28. The Tribunal accepts the applicant’s evidence as set out above.  It does so because that evidence is supported by an extensive suite of contemporaneous documents and a credible witness who gave credible similar fact evidence.  The Tribunal is satisfied that there are compelling reasons for the breach of the visa condition, not reasonably within the control of the applicant.

29. The Tribunal gives these considerations weight in favour of the visa not being cancelled.

30. Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

31. The applicant gave detailed evidence above as to the hardship he will suffer if his visa is cancelled.    

32. Based on the matters set out above, the Tribunal accepts that the cancellation has caused significant emotional, psychological and financial hardship for the applicant, which will undoubtedly be compounded by the continuation of the cancellation of the visa and the Tribunal gives this factor weight towards the visa not being cancelled. 

    Circumstances in which ground of cancellation arose

33. The ground for cancellation arose because the applicant did not maintain enrolment in a registered course of study for approximately 9 months.

34. Based on the evidence set out above, The Tribunal is satisfied that there are compelling reasons for the breach of the visa condition in this case, that were not reasonably within the control of the applicant.  The Tribunal places significant weight on the credibility of the evidence of the applicant and it does so because that evidence is supported by an extensive suite of contemporaneous documents and a credible witness who gave credible similar fact evidence. 

35. The Tribunal gives this consideration significant weight in favour of not cancelling the visa. 

    Past and present behaviour of the visa holder towards the Department

36. The applicant has conducted himself in good faith in his dealings with the Department and its staff.   The Tribunal gives this some weight in favour of the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

37. There is no evidence before the Tribunal of any consequential cancellations as a result of the applicant’s visa being cancelled.  The Tribunal therefore gives this factor no weight for or against cancelling the visa for this consideration.   

    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

38. If the visa were to be cancelled, the applicant would be excluded from making applications for certain types of visas and may be liable to detention and/or deportation if he does not depart the country.  Moreover, a cancellation of this visa would impact upon the applicant’s pending student visa application adversely.

39. Although these are mandatory consequences of the legislation, in view of the fact that I have found that the reason for the breach of the visa condition was not reasonably within the control of the applicant, these consequences would be manifestly unfair and the Tribunal gives this factor some weight in favour of the visa not being cancelled.   

    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

40. Not applicable.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

41. Not applicable.

    Any other relevant matters

42. There are no other relevant matters for consideration.   

43. The matters set out above do not reveal any bad faith on the part of the applicant and it is clear based on the evidence that the reason for the breach of the visa condition was not reasonably within the control of the applicant.

44. It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa not being cancelled and I so find.

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

    DECISION

46. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Vanessa Plain
    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.