Raheb (Migration) - [2022] AATA 3558

Raheb (Migration) [2022] AATA 3558 (8 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr MD Imtiaz Uddin Raheb
REPRESENTATIVE:  Mr Ishraque Ahmad
CASE NUMBER:  2201495
HOME AFFAIRS REFERENCE(S):          BCC2020/837923
MEMBER:Christine Kannis
DATE:8 October 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 08 October 2022 at 11:38am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – failure to comply with condition of visa – not enrolled in full-time registered course – discretion to cancel visa – multiple previous cancellations of enrolment for various reasons – financial hardship, mother’s health, COVID restrictions and applicant’s mental health – no approach to education provider or department – new enrolments in different subject area cancelled for non-payment and non-commencement – further new enrolments for current and future study – no supporting evidence provided – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 359AA
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)
Education Services for Overseas StudentsAct 2000 (Cth), s 19(3)
CASE
Liu v MIMIA [2003] FCA 1170
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 10 January 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).
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.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal by MS Teams video on 4 October 2022 to give evidence and present arguments.
The applicant was represented in relation to the review.
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 (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?
On 3 May 2019, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Raheb (Migration)

Details

AGLC: Raheb (Migration) [2022] AATA 3558
Case: [2022] AATA 3558
Decision Date: 8 October 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Raheb, an applicant for a Subclass 500 (Student) visa, whose visa had been cancelled by the Department of Home Affairs. The dispute centred on whether the applicant had breached condition 8202 of his visa, which requires a student visa holder to be enrolled in a full-time registered course. The applicant contended that the cancellation was unwarranted, citing personal difficulties including financial hardship, his mother's health, COVID-19 restrictions, and his own mental health challenges.

The Tribunal was required to determine if the applicant had complied with condition 8202 of his visa, specifically whether he had maintained enrolment in a full-time registered course as mandated by regulation 8202(2)(a) of the Migration Regulations 1994. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, notwithstanding that the ground for cancellation did not mandate it.

The Tribunal found that the applicant had breached condition 8202(2)(a) as evidence from the Provider Registration and International Students Management System (PRISMS) indicated he was not enrolled in a registered course between 30 August 2019 and 3 July 2020. While the applicant provided new confirmations of enrolment and explanations for his previous non-compliance, the Tribunal noted these were created after the period of non-compliance and did not negate the initial breach. In exercising its discretion, the Tribunal acknowledged the applicant's stated difficulties but found that his history of multiple previous enrolment cancellations for various reasons, coupled with a lack of proactive engagement with the education provider or the Department, weighed against him.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa. It concluded that, on balance and considering all the circumstances, the cancellation was the appropriate course of action.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 (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? On 3 May 2019, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached. 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). 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. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full-time registered course. 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. The information from the PRISMS shows that the applicant was not enrolled in a registered course between 30 August 2019 and 3 July 2020. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course between 30 August 2019 and 3 July 2020 and the Tribunal finds that he breached condition8202(2)(a) of his visa.

Decision

Reasons for decision

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 The Tribunal affirms the decision to cancel the applicant’s Class TU visa.Christine KannisMemberATTACHMENTMigration Regulations 1994…Schedule 88202(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.

Ratio Decidendi

Legal Principle Established

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 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. On 1 December 2021 and 10 January 2022, 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 On 8 December 2021 the applicant responded to the NOICC and advised:As you have indicated, according to subclause (2)(a) of condition 8202 attached my visa, I may not have complied. However, I can confirm that, I have been enrolled and currently enrolled in ‘Certificate III in Light Vehicle Mechanical Technology’ at Aspen College (COE attached).Upon completion of my current course, I will continue to study further in the similar field to reach my goal. I have plan to complete ‘Certificate iv in the light Vehicle Technology’ (COE attached). Therefore, I believe, the grounds for cancellation does not exist. Since I have been complying with the conditions according to to subclause (2)(a) of condition 8202: (2) A holder not covered by subclause (1): (a) must be enrolled in a full-time registered course; and [… On 8 December 2021, the applicant provided CoEs for a Certificate III in Light Vehicle Mechanical Technology created on 3 July 2020 and 7 October 2021 and CoEs for Certificate IV in Automotive Mechanical Diagnosis created on 3 July 2020 and 7 October 2021. These CoEs were created after the period of non-compliance by the applicant. A letter dated 7 December 2021 from Aspen College advising that the applicant was a current student was also provided. A CoE for a Bachelor of Accounting created on 20 November 2017. This CoE was cancelled on 4 June 2018. On 18 January 2022, the applicant responded to the NOICC and said:I have gone through a difficult stage of my life which got more deeper during the Covid outbreaks that started in 2020. I have tried to rebuild my educational career but the situation went so far and is not helping me at all which I have no clue yet. I have enrolled in another course in which I am trying to set up a career for the long run. I admit that there were some wrong steps for which I am still struggling but this time I am giving it a last try. This world is not the same anymore since the covid striked. I am mentally not strong enough now anymore to face any harder situation.I have attached all the coe for the period you mentioned on the notice and I am still not sure what is the reason behind this for me for the cancellation. I did not get any chances or warning regarding this before which could make me aware of it and let me take necessary steps to avoid any further trouble.