Naveed (Migration)

Naveed (Migration) [2019] AATA 2793 (4 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sajid Naveed
CASE NUMBER:  1716868
HOME AFFAIRS REFERENCE(S):           BCC2017/1999146
MEMBER:Stephen Witts
DATE:4 April 2019
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 04 April 2019 at 11:23am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) – Subclass 500 (Student) – not enrolled in registered course – issue with payment of fee – error by family members – failure to notify department – 80% completed his course – attempts to re-enrol in bachelor degree – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140, 189, 198
Migration Regulations 1994, Schedule 8, condition 8202
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 24 July 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant has not maintained enrolment in a registered course and the grounds for cancelling the visa outweigh the grounds for not cancelling the 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.
The applicant appeared before the Tribunal on 4 April 2019 to give evidence and present arguments.
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
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).
According to the delegate’s decision record dated 24 July 2017, provided to the Tribunal by the applicant, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course from 15 November 2016 until 18 July 2017.
On 4 July 2017 the applicant was notified of the intention to consider cancellation (NOICC). On 18 July 2017 the applicant provided a response where he stated that his COE had been cancelled due to non-payment of fees after a mistake made with bank account details and difficulties with his family.
The applicant also provided a statement to the Tribunal (AAT file folio 23):
“I would like to provide you some background of my case.
On 15/11/16 I had overdue fees to which Melbourne Polytechnic Institute cancelled my COE and gave me 23 days to pay fees. On 18/11/16 my fees was paid from overseas by my parents, I went to my enrolment section and spoke to them and provided them valid proof of paid me from overseas, they issued me that matter is resolved and allowed me to sit in exams, I appeared in exams and then reenrolled for next semester, I have been attending all of my classes and gave final tests as well, everything was fine but then they blocked my Moodle (on line learning portal) a month ago and upon asking I was told my fee is still overdue and they have cancelled my COE, I checked with my parents, we gave an application to bank to check and found that my parents entered slightly wrong details of my education provider mistakenly and went to wrong account. I wasn’t allowed to appear in exams as well, Dear sir/madam I am the only son of my parents and they support me a lot for studies, my dad has spent his life time savings on my studies to make me study abroad, he would never be able to bear this consequence of my visa being cancelled, I have been studying is a genuine student, I really want to graduate and make my parents and myself proud of myself, it was a big miscommunication between education provider and me, and I think it would be unfair to me when I wasn’t informed by my Institute and was even allowed to sit in exams and take classes which may be think that everything is sorted. I have proof of emails between myself and my tutors that I have regularly been attending classes, been submitting assignments and been given exams as well. Please consider my case again this would affect my life really bad. I really want to finish my degree in graduate soon, I can’t even get a job in my home country because I haven’t completed my degree yet, I want to graduate and get a higher rank job in my country as I have only six subjects left. I have already paid the price of getting my semester wasted please help me getting my visa back so that I can continue my studies. I promise this would never happen again, I would doublecheck everything myself from now.
I am attaching the payment receipt which was made to NMIT and email proof b/w myself and my tutors, I am trying to find more proof to support my case, I will keep you updated.
I will be highly obliged to this act of kindness.”
The Tribunal discussed with the applicant whether the delegate’s contention that he was not enrolled between 15 November 2016 and 18 July 2017 was correct.
The applicant stated that the delegate was correct and that his COE had been cancelled by his education provider on 15 November 2016 and that he has not been able to reenrol in his bachelor level course.
On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).
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 Tribunal has considered any submissions provided to the Department, and the Tribunal, and also the evidence taken at the Tribunal.
·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
The applicant arrived in Australia to study in September 2013 on a student subclass 500 visa.
The applicant stated that he wanted to achieve a Bachelor of Business (Accounting) in Australia as that qualification was highly thought of internationally.
The applicant stated that he has a mother and a father back in his home country and several uncles and aunts and cousins. He stated he also has a sister living in Sydney on, he presumed, a partner visa.
The applicant stated that his father is a lawyer who owns a property business which builds and sells homes.
The applicant stated that it was his intention coming to Australia to achieve a bachelor level accounting qualification and then return home to his home country and work in his father’s business maintaining his tax affairs and also managing the business cost structures.
The applicant provided evidence that he has successfully completed all but the last semester, that is six months, of his Bachelor of Business (Accounting). The applicant also provided evidence that should he be given back his student visa he would be able to reenrol and complete his bachelor level qualification in a few months. He stated that he would be able, if given his visa, to start his last semester in June this year and complete thereafter.
The applicant acknowledged that he was not enrolled during this period of time but provided evidence that he was more than 28 days late with one payment for one semester that led to the formal cancellation of his enrolment at that time. The applicant also provided evidence that he had a series of emails from his educational provider which did suggest that the provider would reconsider enrolment once that missed payment was received. On that basis the applicant stated that he thought he had actually successfully re-enrolled for a period of time once the provider resupplied him with his student card and with his library card. He provided evidence that he actually sat the exams and then realised afterwards that his reenrolment at that educational provider had not been processed.
The applicant provided evidence that at this time his father became very ill and was undergoing brain surgery. He stated that he was relying on his father to make a correct payment which, he asserted, had originally gone into an incorrect bank account number. When asked by the Tribunal why he did not make other arrangements for payment the applicant stated that his mother was uneducated and that he was relying on his father who made a mistake. He then stated that he became confused about the status of his enrolment and acknowledged that he should have been more proactive at the time with both the educational provider and the Department to resolve his enrolment difficulties.
As stated above, the applicant provided evidence that he has largely completed his course with one semester to go prior to completion. The applicant provided academic transcript dated 17 August 2016 which demonstrates that he has largely completed his course and only has a few units left in one semester.
The applicant stated that if given his visa back he will complete this course and return to work in his father’s business. When questioned by the Tribunal why the applicant did not, subsequent to this cancellation, return home to his home country and be with his family and undertake his studies there, the applicant stated that he would have to begin again and spend another four years or so studying back in his home country to achieve his degree whereas it would only take him a few months here in Australia and the degree in any case would be more highly considered than one completed back in his home country.
On that basis the applicant stated that he had a need to remain in Australia on a student visa to allow him to finish this bachelor level degree.
· the extent of compliance with visa conditions
The applicant was granted a Student (Temporary) (class TU) Student (subclass 500) visa in order to study in Australia. As such his intention must be to study, maintain enrolment, attendance and achieved course progress.
The applicant also acknowledged that he did not contact the Department or make any effort to inform the Department that he was not enrolled and did not study during a significant part of his student visa period, specifically between 15 November 2016 and 18 July 2017.
The applicant acknowledged that he should have contacted the department at the time but after receiving an email from the Department in response to his NOICC response he did not know how to interact with the Department
·degree of hardship that may be caused (financial, psychological, emotional or other hardship)
As stated above the applicant provided evidence that he would suffer some hardship by wasting almost 4 years of bachelor level study by not being able to complete his degree and then return home and work in the career of his choice.
·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 stated that as a result of his father’s severe illness there was a mistake made in terms of a payment not being made for his study at his education provider.
The Tribunal therefore finds that there are grounds for cancellation beyond the visa holder’s control.
·past and present behaviour of the visa holder towards the department
There is nothing before the Tribunal to indicate that the applicant has not cooperated with the department or the Tribunal in his dealings. However, this is expected of all visa holders.
·whether there would be consequential cancellations under s.140
There is no evidence of consequential cancellations under s.140.
·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 Tribunal is mindful that the applicant could become an unlawful noncitizen and detained and removed from Australia pursuant to ss. 189 and 198, and it may be difficult to be granted further visas, and he may be subject to a three year exclusion period unless relevant Public Interest Criterion is met.
However, it is unlikely that the visa applicant will be detained but rather provided with a time-limited period in which he can leave the country or apply for review of the decision.
·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 nothing before the Tribunal to indicate any international obligations to consider.
·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
No such considerations are relevant in this case.
·any other relevant matters.
It is noted by the Tribunal that the applicant acknowledged that he was not enrolled during the period contended by the delegate. The applicant also acknowledged that he had a responsibility to ensure he maintained enrolment and that this was his responsibility because he did not actively engage with his educational provider and with the Department.
The applicant stated that he came to Australia to study for his accounting degree and that he could demonstrate that he had successfully completed 80% of this degree and that given the opportunity he will complete that degree over the next few months and leave Australia to return to his home country.
The Tribunal accepts the evidence by the applicant that he has almost finished his degree and that given the opportunity he would finish his final semester over the next few months and return home. The Tribunal also accepts the evidence by the applicant that his enrolment cancellation in November 2016 was due to a series of mistakes made by his family and himself which taken as a whole indicate that the applicant was acting in good faith but made a mistake in assuming that verbal conversations with the educational provider and an email trail would ensure that his re-enrolment was processed. The Tribunal is mindful that the applicant has come here to study a high level degree and has been largely successful in studying that degree. The Tribunal is also mindful that the applicant has, since this cancellation, tried on a number of occasions to a re-enrol in a bachelor level degree but has provided evidence that he has been unable to re-enrol as the education provider will not allow him to do so as his visa had been cancelled. It is also noted by the Tribunal that during this period the applicant did defer one semester because he returned home to be with his father during the time of his illness.
Considering the circumstances as a whole, the Tribunal concludes that the visas should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
Stephen Witts
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 2793

4 April 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Remedies

Statutory Construction