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

1. 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).

2. 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.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal by MS Teams video on 4 October 2022 to give evidence and present arguments.

5. The applicant was represented in relation to the review.

6. 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

7. 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?

8. On 3 May 2019, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.

9. 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).

10. 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.

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

12. 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.

13. The information from the PRISMS shows that the applicant was not enrolled in a registered course between 30 August 2019 and 3 July 2020.

14. 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.

15. 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

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’, as set out below.

17. 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

18. 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 […

19. 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.

20. 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.

21. On 18 January 2022 the applicant again provided the CoEs created on 3 July 2020 and 7 October 2021.

    Evidence at hearing

22. The Tribunal adopted the procedure in s 359AA of the Act to put to the applicant information from a copy of his enrolment record from the PRISMS database, a copy of which is on the Tribunal file. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal put to the applicant that according to the information from his PRISMS enrolment record, he was enrolled in the following courses of study:

    a.During the period 2017 to 2019, he was enrolled in a Bachelor of Accounting eight times, but all of the enrolments were cancelled. The reasons indicated for cancellation were non-payment of fees, non-commencement of studies, Student Notifies Cessation of Studies, change to student enrolment, deferment/suspension: compassionate or compelling circumstances, change to a course in the same sector and unsatisfactory course progress.

    b.He was enrolled in a Bachelor of Business, but this enrolment was cancelled on 6 October 2017 for non-payment of fees.

    c.He was enrolled in Academic English and completed the course in 2015 and was enrolled in General English and completed the course in 2018.

    d.He was enrolled in a Certificate III in Light Vehicle Mechanical Technology and a Certificate IV  Automotive Mechanical Diagnosis, but these were cancelled on 11 January 2021 due to non-payment of fees and non-commencement of studies.

    e.He was enrolled in a Certificate III in Light Vehicle Mechanical Technology, but this was cancelled on 22 August 2022 due to non-commencement of studies.

    f.He is enrolled in a Certificate III in Light Vehicle Mechanical Technology course from  25 October 2021 and due to end on 23 October 2022.

    g.He is enrolled in a Certificate III in Light Vehicle Mechanical Technology course from 1 August 2022 and due to end on 28 January 2024.

    h.He is enrolled in a Certificate IV  Automotive Mechanical Diagnosis course from 28 November 2022 and due to end on 26 November 2023.

    i.He is enrolled in a Certificate IV  Automotive Mechanical Diagnosis course from 4 March 2024 and due to end on 1 September 2024.

23. The Tribunal explained to the applicant that this information was relevant because it indicates that between 30 August 2019 and 3 July 2020, he did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether the applicant breached the conditions of his student visa by not maintaining enrolment in a registered course of study. The Tribunal explained that the information may also be relevant in considering the discretion to cancel the student visa, including in considering his purpose for remaining in Australia.

24. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to his PRISMS enrolment records. The applicant told the Tribunal that he did not dispute the information in PRISMS.

25. Noting that the applicant’s responses to the NOICC indicated that he disputed the ground of cancellation, the Tribunal asked him whether there was a period during which he was not enrolled in a registered course. In response he said he was not enrolled for a period of 5 to 6 months. The Tribunal pointed out that the period from 30 August 2019 to 3 July 2020 is 10 months and he agreed that this was the period during which he was not enrolled.

26. When asked the reasons for not maintaining enrolment during the period from 30 August 2019 to 3 July 2020, the applicant told the Tribunal that it was because of financial hardship and a family crisis. He said he was lost and did not know what to do and he could not get back on track.

27. Regarding financial hardship, the applicant said his mother, who lives in Bangladesh, was having financial issues. He said he was experiencing financial hardship and could not support himself from the work he undertook in Australia and he could not obtain money from overseas. The Tribunal put to the applicant that it is a requirement for the grant of a Student visa that visa holders can financially support themselves for travel, living costs and tuition fees during the stay in Australia.  In response he said his mother was experiencing financial issues because his father passed away in 2013.

28. The applicant told the Tribunal that the financial hardship he experienced made it difficult for him to obtain a CoE during the period from 30 August 2019 to 3 July 2020.

29. Regarding family crisis, the applicant said his mother lives alone and is getting older. He said she is 55 years old and suffers from diabetes and high blood pressure. He said although he has a brother living in Bangladesh, there is nobody to look after his mother because his brother is married and living his own life. The applicant said his mother’s physical health issues caused him to worry about her.

30. Noting the applicant’s response to the NOICC referred to him experiencing a difficult stage in 2020 due to the COVID-19 pandemic, and his oral evidence in relation to his worry about his mother, the Tribunal asked the applicant whether he sought any professional help. He said in January/ February 2022 he attended counselling for depression. He said he did not seek counselling prior to earlier this year and was not prescribed medication for depression. The applicant told the Tribunal that he recently broke both his hands when he punched a wall.

31. The Tribunal put to the applicant that he would have known that between 30 August 2019 and 3 July 2020 he was no longer enrolled in a course and was not abiding by the conditions of his visa. He conceded that he was aware of this and referred to his financial hardship, the family crisis and his worry about his mother. The Tribunal asked the applicant whether he contacted the Department about his immigration status. he said he did not. Noting that PRISMS showed that in 2016 he obtained a deferment/suspension of studies due to compassionate or compelling circumstances, the Tribunal asked the applicant whether he contacted his education provider to seek a deferment. He said he did not.

32. The applicant told the Tribunal that he came to Australia to study Accounting however he decided the course did not suit him and decided to study Information Technology. He said that course did not suit him either and he decided to study in the Automotive field. The applicant said he hopes to complete a Certificate III in Light Vehicle Mechanical Technology and a Certificate IV  Automotive Mechanical Diagnosis. He said he is currently studying the Certificate III course. The applicant said after completion of the Certificate III and IV courses, he wants to undertake a Bachelor course in Automotive with a view to opening his own business when he returns to Bangladesh.  The Tribunal asked the applicant whether there was a compelling need to him to remain in Australia. In response he said he needs to remain here so he can eventually undertake study in a Bachelor course. He said without a degree qualification, his career will be destroyed.

33. When asked about any hardship that might be caused by cancellation of his visa, the applicant told the Tribunal that if he does not obtain a degree qualification in Australia, it will badly impact on his career.

34. At the conclusion of the hearing, the representative made the following oral submissions:

    ·The applicant was nervous and that may have caused him to not provide complete and correct information during the hearing.

    ·The applicant plans to study Certificate III and IV courses leading to study at the Bachelor level.

    ·The applicant did not have a CoE for a period because his father passed away in 2013 and he was worried about his mother being alone because his brother did not help look after her.

    ·His mother suffers from diabetes, high blood pressure, anxiety and depression.

    ·The applicant has spent a lot of time and money on his study since arriving in Australia in 2015.

35. The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.

    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

36. The purpose of his visa was to enable the applicant to study. The applicant was not enrolled in a registered course of study between 30 August 2019 and 3 July 2020.

37. The Tribunal accepts that the applicant is currently enrolled in Certificate III and IV courses however these enrolments were obtained after cancellation of his visa. Earlier enrolments in these courses were also obtained after the NOICC was issued however those enrolments were subsequently cancelled.

38. The Tribunal finds the applicant’s breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted for a period of 10 months and was not fulfilling the purpose of his travel to and stay in Australia.

39. The Tribunal questioned the applicant as to whether there was a compelling need for him to remain in Australia. In response he said he needs to remain here in order to obtain a degree qualification. The Tribunal does not consider this constitutes a compelling need.

40. The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

    The extent of compliance with visa conditions

41. The applicant has not complied with condition 8202 of his student visa because he has failed to maintain enrolment in a full-time registered course of study between 30 August 2019 and 3 July 2020. There is no evidence before the Tribunal that he has not complied with the other conditions attached to his visa.

42. The applicant’s non-compliance for an extended period of 10 months weighs in favour of visa cancellation.

    The degree of hardship that may be caused (financial, psychological, emotional or other hardship)

43. The Tribunal accepts that the cancellation of the applicant’s visa will be disappointing to him and may adversely impact on his career. The Tribunal gives this some weight against cancellation.

    Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control

44. The applicant’s visa was cancelled as a result of his failure to maintain enrolment for a period of 10 months. The applicant said this failure was due to financial hardship and family crisis.

45. No evidence to substantiate the claimed financial hardship was provided. However, as noted it is a requirement for the grant of a Student visa that visa holders can financially support themselves for travel, living costs and tuition fees during the stay in Australia. If a visa holder is experiencing financial difficulties it is reasonable to expect the visa holder to temporarily depart Australia until their financial situation improves rather than remain in Australia and continue to not comply with their visa conditions.  

46. No evidence was provided to substantiate the claimed family crisis. The crisis was described as the applicant’s mother living alone, having financial and physical health issues and her other son not looking after her. No evidence was provided to substantiate the applicant’s claims about his mother’s circumstances or that her circumstances caused him to worry. In fact he told the Tribunal that he first sought counselling in January/ February 2022, although again no evidence was provided to substantiate that contention.

1. Given the absence of evidence to substantiate the applicant’s claimed reasons for the breach of condition 8202, the Tribunal does not accept that the claimed circumstances were beyond the applicant’s control.

2. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The Tribunal finds there are no extenuating or compassionate circumstances in this case and this weighs in favour of visa cancellation.

   Past and present behaviour of the visa holder towards the Department

3. There is no evidence before the Department that the applicant has behaved inappropriately with the Department and the Tribunal gives this factor no weight in its considerations.

   Whether there would be consequential cancellations under s 140

4. There is no one attached to the applicant’s visa and as such the Tribunal gives this factor no weight in its considerations.

   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

5. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s 189 and removed from Australia pursuant to s 198. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant and gives this some weight against cancellation.

   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

6. There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation and the Tribunal gives this factor no weight in its considerations.

   Any other relevant matters

7. The Tribunal is not aware of any other considerations in relation to the cancellation.

   Conclusion

8. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of his visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant was not fulfilling the purpose of his travel to and stay in Australia as he was not undertaking the study for which his visa was granted during a 10-month period. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa. It will not be in breach of Australia’s international obligations. The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

9. 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

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

    Christine Kannis
    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.