MOHAMMED (Migration)

MOHAMMED (Migration) [2019] AATA 3585 (31 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr ABDUL QUADEER MOHAMMED
CASE NUMBER:  1703538
HOME AFFAIRS REFERENCE(S):           BCC2017/131788
MEMBER:Wendy Banfield
DATE:31 July 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 31 July 2019 at 12:03pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa –not enrolled in a registered course of study – breached condition 8202 – having failed in his studies– difficulties this caused with his father – didn’t take any action to ensure he did not breach condition 8202 – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48,116
Migration Regulations 1994 (Cth), Schedule 8
Education Services for Overseas Students Act 2000 (Cth)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 21 February 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had not maintained enrolment in a registered course of study as required by the conditions of his Student 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.
Background
The applicant is a citizen of India and is currently 32 years old. He was granted a Student Visa on 24 September 2014 to undertake a Master’s degree in Australia. The applicant completed a course in English for Academic Purposes and has been enrolled in Master’s programs; however, those enrolments have been cancelled.
The applicant appeared before the Tribunal on 26 March 2019 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
Evidence of the visa applicant
The applicant submitted the following evidence to the Tribunal in support of the application for review:
· Confirmation of Enrolment Certificate (COE) for a Master of Professional Accounting at Federation University from 16 November 2015 to 31 July 2017;
· Copy email from Federation University dated 5 August 2015 advising the applicant that his COE has been cancelled as he failed to re-enrol in Semester 2 of 2015;
The hearing
The applicant advised the Tribunal that his original plan in coming to Australia was to complete a Master’s degree. He said he had completed courses in India and decided to study in Australia because of the high standard and reputation. The applicant said he was told that after studying in Australia he would be able to get a job or run a business. He achieved 70% in his studies in India and decided to study in Australia on that basis. The applicant said he began by studying a 10 week English course then enrolled in a Master of Commerce (Professional Accounting).
According to the applicant he completed one semester but only passed one unit and failed three. When he asked his father for the fees for the second semester, his father questioned him about his first semester results and was upset with his results and would not give him any more money. He said it was his dream to complete a Master’s degree in Australia so he explained his situation to friends and asked for help with enrolment. However, because of his late enrolment his COE was cancelled. The applicant advised he was able to pay further fees and was re-issued a new COE. At the same time the name of the course was changed to a Master of Professional Accounting. He said he thought it was an active COE. When he told his father he had borrowed money from friends his father was ashamed of his failure and would not speak to him. He had not done this to anyone else and as a consequence, the applicant himself was homesick and unable to understand.
The applicant said he believed his second COE was active and he had not been told by his education provider that the second one was cancelled. It had been issued in August 2015 and according to the representative, the applicant has no idea what happened with it. It was meant to be for a course beginning in November 2015 until July 2017. It was claimed that if the COE was cancelled in February 2016, the applicant was not advised. It was further claimed the applicant only found out his COE was cancelled when his visa was cancelled.
The Tribunal pointed out the COE was for a course starting in November 2015 and the visa was not cancelled until February 2017. The applicant said he did not start the course in November 2015 even though he had paid course fees because his father would no longer support him. The Tribunal sought clarification on why the applicant did not commence the course since he had obtained the new COE; the applicant said he had to pay for four units and his father would not speak to him. The applicant said he eventually contacted his father and apologised and he is now prepared to help him again.
The Tribunal put to the applicant that he is not able to remain in Australia as the holder of a Student Visa and not study. In response he said he had recently apologised to his family and undertook to commit to his studies and complete his Masters. According to the applicant his father has accepted his apology and is prepared to assist him with at least 50% of the fees. The applicant said for the remainder of his fees he has saved money from working and he is assisted by friends. During the 12 months he did not study, the applicant said he was homesick and unable to socialise with friends because they would not speak to him due to his having failed in his course. The applicant said he is ashamed of himself and hardly went out. He said his family were not aware his visa may be cancelled if he could not pay for the course as they were not speaking to him.
The applicant was asked how he supported himself during the period when he did not study and he said he had 20 hours work rights so he worked “five to seven hours” just to pay his rent. The applicant said he consulted a migration agent and he was advised to pay his higher education by instalment with the help of his family. The applicant agreed he had not studied for 12 months due to financial issues. He said he came to know his visa may be cancelled when he received an email, but then said he had thought he had an active COE because he had paid some fees. Regarding the Department’s Notice of Intention to Consider Cancellation (NOICC) dated 2 February 2017, the applicant said he did not see it until 21 February 2017 which was too late to respond. The applicant conceded he had not been enrolled for a 12 month period and there were grounds to cancel his visa.
The Tribunal accepted the applicant’s purpose in coming to Australia was to study. Regarding a compelling need to remain in Australia, the applicant said he has to obtain a degree from Australia and needs to complete his Masters. He did not provide any detail about why he considers this to be a compelling reason, or what his plans were for his career in future. According to the applicant, local education options are not up to the same standard as in Australia. He said there were no other compelling reasons. The applicant declared he had complied with all other visa conditions.
The applicant was asked about any hardship that may result from his visa being cancelled. He referred to his father being the heart of the family and that failure in his studies was very upsetting. The applicant related again how his father had cut contact with him for several months due to his disappointment and need to assist the applicant’s other siblings. He said he intends to give his complete attention to his studies in future and will not waste his father’s money, since he will be assisting with 50% of the fees. The applicant advised that no one else holds a visa that is dependent upon him. The Tribunal explained some of the legal consequences of cancellation and gave the applicant the opportunity to comment. He referred again to having failed in his studies and the difficulties this caused with his father. The applicant does not have a partner or children and there is no evidence to indicate Australia has any international obligations in the applicant’s case.
The representative made submissions regarding the handling of the situation by the education provider, Federation University. He referred to the applicant having studied four units in his first semester but only passed one. It was claimed the education provider was obliged to offer assistance and guidance but nothing occurred before the COE was cancelled. The representative claimed the applicant was warned his COE may be cancelled the first time but not a second time when a COE had been re-issued. According to the submission, the applicant was not advised about poor academic progress or attendance.
The applicant’s representative referred to the NOICC issued by the Department on 2 February 2017. It was claimed the applicant believed he had an active COE which he would have submitted to the Department; however, he had stopped studying. The Tribunal reminded the representative the applicant had not studied for 12 months by the time the NOICC was issued but he claimed the applicant still believed his COE was valid during that period. He advised the applicant had demonstrated poor attendance but still needed to be warned his COE would be cancelled. The representative advised the applicant had “no clue” his COE was cancelled but then said “he believed it may have been cancelled because he never paid them”. The representative said that nevertheless, he should have had guidance from the college.
The representative acknowledged the applicant did not see or respond to the NOICC but speculated that if he had, he could have submitted the COE he still held to the Department. It was submitted that after cancellation of the visa, the applicant had tried to re-enrol but he had not been able to due to being on a Bridging Visa E. The representative went on to explain how the applicant will still be able to study a Master’s degree with the help of this father.
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 (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 registered course, or in limited cases, a full time course of study or training: 8202(2)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
The applicant gave evidence that he had been enrolled to study in Australia but due to having failed part of the course and his family’s withdrawal of financial support, he had not been able to continue. He did not dispute that while holding a Student Visa, he had not been enrolled to study for the relevant period, 16 February 2016 to 2 February 2017 when a Notice of Intention to Consider Cancellation was issued by the Department. On the evidence before the Tribunal, the applicant was not enrolled in a registered course as required by the conditions of his visa. Accordingly, the applicant has not complied with condition 8202(2) and the ground for cancellation has been made out.
Consideration of the discretion to cancel the visa
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 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
On the evidence before it, the Tribunal is satisfied that the applicant’s original purpose in travelling to and staying in Australia was to study.
The applicant was invited to make submissions regarding any compelling need to remain in Australia. In response the applicant gave a brief statement about it being necessary for him to have a degree from Australia and in particular, needing to complete a Master’s program. The applicant claimed the education options in his home country are not of the same standard as in Australia.
The Tribunal assessed the claims put forward in considering whether the discretion to cancel the visa should be exercised. The applicant’s submissions amount to a general claim that a post-graduate degree is essential and it is preferable to obtain that qualification in Australia. While the applicant may still have a desire to obtain qualifications in Australia, the Tribunal does not consider the applicant has demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.
· the extent of compliance with visa conditions
There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account. However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a student visa and weighs against the applicant in this case.
· degree of hardship that may be caused (financial, psychological, emotional or other hardship)
During the course of the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. The applicant claimed he would suffer hardship because his father is the heart of the family and the applicant’s failure in his studies had been particularly upsetting. The applicant recounted the family issues he had experienced including his father cutting contact for several months due to disappointment with the academic results and also withdrawing financial support. The applicant undertook to give his complete attention to his studies in future and declared he will not waste his father’s money.
Apart from parental disapproval, the applicant did not indicate that there would be a significant degree of hardship resulting from his visa being cancelled. Nevertheless, the Tribunal acknowledges that cancellation of the visa would mean that the applicant would not be able to continue his studies in Australia and that this would cause him some degree of hardship. The Tribunal has given some weight in the applicant’s favour in this regard.
The Tribunal is mindful that the cancellation of the visa means the applicant would have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, this is an intended consequence of the legislation and does not weigh in favour of the applicant in the Tribunal’s discretion to cancel the applicant’s visa.
· circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but did not maintain enrolment in a course of study for a period of 12 months, from 16 February 2016 to 2 February 2017. The applicant provided reasons for his failure to maintain enrolment as follows:
·     In March 2015 the applicant was enrolled in a Master’s program and completed one semester of the course however, he only passed one unit and failed the other three;
·     When the applicant asked his father for the fees for the second semester of the course, he was questioned about his first semester results and due to the poor outcome; his father would not give him the money to re-enrol;
·     Due to not paying the required fees the applicant’s first COE was cancelled;
·     The applicant was later able to pay the initial fees for a new COE which was duly issued by the education provider. The start date for the course was then 16 November 2015;
·     Despite having a new COE the applicant did not begin the course in November 2015 because his father was still not supporting him and as a consequence, he could not pay the full amount required;
·     The applicant’s enrolment was cancelled on 16 February 2016 for non-commencement of studies and this was reported to the Provider Registration and International Student Management System (PRISMS);
·     Although he did not attend the course, the applicant believed his second COE was active because he had not been told by his education provider that it had been cancelled;
·     On behalf of the applicant it was claimed he was unaware his COE was cancelled but at the same time, he believed it may have been because he had not paid the full fees.
·     The applicant did not see or respond to the Department’s NOICC dated 2 February 2017 but if he had he would have provided the COE that he still thought was current.
The Tribunal has considered the evidence submitted regarding the circumstances in which the grounds for cancellation arose. The Tribunal does not accept the applicant’s bare assertions that his father’s lack of financial support was the sole reason he was unable to continue his course or maintain enrolment. Even if this was the case, visa holders in Australia must continue to satisfy the requirements for the grant of the visa including having adequate financial resources to continue their studies. In this case the applicant should have deferred or ceased his studies and returned to his home country until he was in a position to continue. Condition 8202 explicitly requires primary student visa holders to maintain enrolment in a registered course. This is a continuing requirement and does not allow the visa holder to cease to be enrolled in a course, even to the extent of a temporary gap in enrolment.
Regarding the applicant’s claims that he was not offered support or guidance by his education provider, the Tribunal is not required to investigate whether or not Federation University adhered to any obligations it had as an education provider enrolling international students.[1] However, the Tribunal did consider this claim as part of its overall assessment of the circumstances of this case and took it into account when determining whether to exercise the discretion to cancel the applicant’s Student Visa. The Tribunal notes the applicant did not provide any evidence or make any submissions to suggest his situation would have been alleviated by support or guidance from the college when the issue was his inability to pay for his Master’s program. For this reason the Tribunal does not consider a lack of support or guidance was the reason or contributed to the circumstances that led to a breach of visa conditions.
[1] Section 19(2) of the Education Services for Overseas Students Act 2000 (ESOS Act) requires the registered provider to ‘send the notice as soon as practicable after the breach’. This provision does not state who the registered provider is required to the information to, however it is required to be entered onto PRISMS which the Department has access to. Section 20 of the ESOS Act sets out the procedure for sending students notices of visa breaches, with s.20(2) similarly requiring the registered provider to send the student a notice ‘as soon as practicable after the breach’. Further, the National Code of Practice for Providers of Education and Training to Overseas Students 2018 sets out ‘standards’ which apply to registered providers. Relevantly, ‘Standard 8’ sets out requirements to monitor progress, attendance and course duration and report unsatisfactory progress/attendance (among other things).

The Tribunal also assessed the applicant’s claims that he was advised about the consequences of failing to enrol and attend his course prior to his first COE being cancelled but received no communication about the second. Again, the Tribunal considered this claim as part of an overall assessment of the circumstances of the case and took it into account when determining whether to exercise the discretion to cancel the applicant’s Student Visa. In this regard, even if the applicant was not informed prior to his second COE being cancelled as he claims, he nevertheless had prior knowledge from his first COE being cancelled that the consequences of failing to attend or meet the course criteria would be cancellation of the COE. The Tribunal finds that notification of the consequences of failing to attend the course would not have prevented the applicant from breaching the conditions of his student visa. Even if he had been warned, according to his evidence he did not have the financial resources to be able to pay for and attend the course.
The Tribunal does not find it at all credible that the applicant believed his second COE remained current when the Department issued a NOICC in February 2017 despite his failure to re-start the course or attend at all for more than 12 months. The applicant gave no indication he had any plans to resume his studies at any point during the 12 months when he did not study, despite stressing the importance of obtaining qualifications from Australia. It appears the applicant would have continued to stay in Australia, supporting himself with part-time work but not studying, if the Department had not informed him of the intention to cancel his visa.
The Tribunal is not satisfied the circumstances in which the ground for cancellation arose, that is, failure to maintain enrolment from February 2016 to February 2017, were beyond the visa holder’s control. It was open to the applicant to cease his studies and return to his home country to address the family conflict that he claimed was the cause of his problems in Australia. Instead the applicant chose to remain but not comply with the mandatory terms of his Student Visa. For these reasons, the Tribunal finds the circumstances in which the cancellation arose as submitted by the applicant weigh against him in relation to the Tribunal exercising its discretion to cancel the applicant’s visa.
· past and present behaviour of the visa holder towards the department
There is no evidence to indicate the applicant has not cooperated with the Department and the Tribunal has given this some weight in favour of the applicant.
· whether there would be consequential cancellations under s.140
There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.
· 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
The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequence of the legislation and do not weigh in favour of the applicant in the Tribunal’s discretion to cancel the applicant’s visa.
· 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
There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations including non-refoulement and the best interests of children.
· if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The Subclass 573 Student Visa is not a permanent visa.
· any other relevant matters
The applicant’s representative stressed on his client’s behalf the alleged failings of the education provider to inform the applicant of the consequences of not attending his course or offer adequate support or guidance. This claim has no bearing on whether the grounds for cancellation were made out and for this reason; the Tribunal considered the issue in the context of deciding whether to exercise the discretion to cancel the visa. It is noted the Departmental delegate cancelled the applicant’s Subclass 573 visa under s.116(1)(b) of the Migration Act on the basis that he had not complied with paragraph (2)(a) of condition 8202 which required the applicant to be enrolled in a registered course. The delegate did not base the decision on the applicant having breached condition 8202(2)(c) which occurs if the education provider has certified the visa holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress or attendance.
As discussed in this decision, even if the applicant was not formally advised about the consequences of failing to attend the course that recommenced in November 2015, the Tribunal considers he was well aware his COE would be cancelled by his education provider. Despite this he took no action to ensure he did not breach the conditions of his Student Visa such as deferring his studies and departing Australia. The student visa program in Australia enables people who are not Australian citizens or permanent residents to undertake study in Australia. The applicant remained onshore for an extended period without being enrolled or undertaking a course of study which was the purpose for which the visa was granted.
Conclusion
The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh heavily against the applicant. The Tribunal finds the length of time the applicant has spent in Australia having breached his visa conditions to be significant. The Tribunal considers it appropriate in this case to exercise the discretion to cancel the visa.
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.
Wendy Banfield
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.

[2019] AATA 3585

31 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice