Rezaei (Migration)

[2019] AATA 5012

Rezaei (Migration) [2019] AATA 5012 (12 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mehdi Rezaei

CASE NUMBER:  1810787

HOME AFFAIRS REFERENCE(S):           BCC2017/3936671

MEMBER:Joseph Lindsay

DATE:12 November 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 12 November 2019 at 3:23pm

CATCHWORDS
MIGRATION – cancellation – Higher Education Sector (Class TU) visa – Subclass 573 (Student) (Temporary) – non-enrolment in registered course – request for deferment of enrolment to attend court matter in Iran – eligibility for course – recognition of Iranian study and qualification – factors for and against cancellation – not genuine temporary entrant – decision under review affirmed

LEGISLATION

Migration Act 1959 (Cth), ss 48, 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 April 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant attended the hearing before the Tribunal via videoconference on 11 November 2019 at 11:00am. The applicant indicated that he still had a migration agent to assist him (that person being the applicant’s brother) but the migration agent did not attend the hearing because he was in Shiraz, Iran, conducting his business as a migration agent. The applicant indicated that his brother had a migration business in both Australia and Iran.

3. The applicant initially indicated he required an interpreter. However, after some discussion with the Tribunal, he indicated that he would speak to the Tribunal in English and when he needed to use the interpreter he would do so. An interpreter was present in the hearing and assisted the applicant as he required.

4. 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

5. 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.

6. At the commencement of the hearing, the Tribunal asked the applicant if he had read and understood the information in the delegate’s decision record dated 12 April 2018, and he indicated that he did read the decision and he understood it.

   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 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).

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

9. The Tribunal discussed the requirement of condition 8202 that the applicant remain enrolled in a registered course of study and put to him that he not been enrolled in a registered course of study since 2 May 2017 – to which the applicant agreed this information was correct.

10. On the evidence before the Tribunal, the Tribunal finds that the applicant has not been enrolled in a registered course of study since 2 May 2017. Accordingly, the applicant was not enrolled in a registered course and the applicant has not complied with condition 8202(2)(a). The Tribunal finds that the ground for cancellation of the applicant’s student visa is established in respect to s.116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

11. 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 circumstances in which the ground for cancellation arose

12. In the hearing, the Tribunal discussed the applicant’s circumstances.

13. The applicant indicated that after he was granted his Subclass 573 Higher Education Sector visa he arrived in Australia in August 2016. He indicated he had an enrolment at Western Sydney University‎ in the Master of Engineering course. He indicated he undertook and completed an English course but that he never actually commenced his studies in the Master of Engineering course that had been due to commence in early 2017.

14. The Tribunal discussed the emails that the applicant had provided to the Tribunal, showing that in early 2017 the applicant had requested a leave of absence because he wanted personal leave to deal with an issue relating to a previous tenant he had in Iran.

15. There is an email dated 9 March 2017 from Ms Laura Del Ben of Western Sydney University to the applicant advising him that:

    -because he had not yet commenced his Master of Engineering course he was required to apply for a deferment and not for a leave of absence.

    -Ms Del Ben had spoken to International Admissions and they confirmed that they had received his deferment request.

    -International Admissions had requested that the applicant provide supporting documents to confirm his circumstances.

    -once the required documents were provided, International Admissions would assess his request and respond to him with an outcome.

    -in case his deferment request was approved, he would receive a new offer from International Admissions.

    -in order to obtain a new Confirmation of Enrolment (COE) he would be required to accept the offer.  

    -in order to travel back to Australia he would need a valid visa and a COE.

    -his visa conditions required that he could not be in Australia for more than eight weeks without studying.

    -in order to get specific advice in regards to his student visa he was required to contact the Department of Immigration and Border Protection (DIBP) directly.

16. The applicant then left Australia in March 2017 and returned to Iran for a couple of weeks, before coming back to Australia in April 2017. The applicant provided a document (that had been translated) that indicated he was involved in a court matter in Arsanjan city court on 13 March 2017 at 10:00am “to discuss some issues.” 

17. It appears that the applicant’s request for deferment was declined because on 2 May 2017 Western Sydney University‎ cancelled his enrolment in the Master of Engineering course.

18. There is a document dated 13 April 2017 in which the applicant appears to have been offered a new enrolment in the Master of Engineering course at Western Sydney University.

19. There are emails between the applicant and Ms Doris Fong from the International Admissions Team at Western Sydney University. There is one such email dated 13 June 2017 in which Ms Fong requested that the applicant sign the new acceptance form and return it to the office at Western Sydney University. Ms Fong indicated that a new COE would be issued once she received the required documentation from the applicant.

20. There is another such email dated 1 September 2017 from Ms Fong to the applicant in which Ms Fong indicated to the applicant that his previous study in Iran was not equivalent to a Bachelor degree – and for that reason he was not eligible for entry into the Master program.

21. The applicant sent an email to Ms Fong dated 18 September 2017 in which he sought her advice – and the applicant specifically asked whether he needed to apply for the Bachelor course. Ms Fong appears to have responded to the applicant in an email dated 20 September 2017 in which she clearly said to the applicant that his last qualification is not recognised as being equivalent to an Australian Bachelor degree. Ms Fong recommended to the applicant that he study for the Bachelor degree (undergraduate study).

22. There is no further documentation from the applicant to indicate what he decided to do. Rather, as the applicant indicated in the hearing, he did not enrol in the Bachelor course or any other course.

23. Indeed, time appears to have passed until the applicant was provided a Notice of Intent to Consider Cancellation (NOICC) on 31 January 2018.

24. The response to the Department dated 13 February 2018, as prepared by the applicant’s brother who is also the applicant’s migration agent, is essentially consistent with and re-affirms the above information.

25. The response suggests that the applicant’s circumstances are “exceptional circumstances” that were beyond the applicant’s control where “the education provider failed to accurately monitor the student’s course progress or attendance.” The Tribunal asked the applicant to provide an explanation about what was meant by this sentence. In response, the applicant appeared to attribute responsibility for his circumstances to the actions of Western Sydney University. He indicated that Western Sydney University initially offered him a COE, and if there was any mistake it was the responsibility of Western Sydney University and not himself. He indicated that other universities had offered him a COE, but he could not recall exactly which universities had offered him a COE. The applicant has since provided to the Tribunal documents showing that on 11 February 2016 he was offered admission to the Master of Engineering course at the University of South Australia and on 15 January 2016 he was offered admission to the Master of Engineering course at the University of Wollongong.

26. The Tribunal put to the applicant that he could have made other applications for a COE, but he indicated that because he was Iranian he was not allowed to enrol in any other courses at any other universities. 

27. The Tribunal asked why he did not enrol in the Bachelor’s course if he did not have the requisite education to enrol in the Master degree. In response the applicant indicated he did not wish to enrol in the Bachelor’s course. The applicant maintained that he could have enrolled in a Master course at other universities.

28. The Tribunal asked the applicant if he approached the Department with his issues, as he was advised to do in the email dated 9 March 2017. However, the applicant indicated that neither he nor his brother (on the applicant’s behalf) approached the Department at all, let alone with any concerns about his enrolment or any need for compliance with his visa conditions.

29. The Tribunal discussed with the applicant the issue that the student visa is a temporary visa that requires the applicant to be a genuine temporary entrant, but that he had indicated he was not a temporary entrant because he indicated that he did not want to return to Iran and he wanted to stay in Australia permanently. The applicant indicated that after the Department cancelled his student visa, he made an application for a protection visa so he could stay in Australia. The applicant indicated that he wants to study and, as well, he wants to stay in Australia permanently.

30. In respect of the above, the Tribunal makes the following findings. The Tribunal accepts:

    -the applicant was granted his Subclass 573 Higher Education Sector visa on 24 July 2016 and he arrived in Australia in August 2016.

    -he had an enrolment at Western Sydney University‎ in the Master of Engineering course.

    -he undertook and completed an English course but he never actually commenced his studies in the Master of Engineering course that had been due to commence in early 2017.

    -in early 2017 the applicant requested a leave of absence because he wanted personal leave to deal with an issue relating to a previous tenant he had in Iran.

    -on 9 March 2017, Laura Del Ben of Western Sydney University advised him: a) because he had not yet commenced his Master of Engineering course he was required to apply for a deferment and not for a leave of absence; b) Ms Del Ben had spoken to International Admissions and they confirmed that they had received his deferment request; c) International Admissions had requested that the applicant provide supporting documents to confirm his circumstances; d) once the required documents were provided, International Admissions would assess his request and respond to him with an outcome; e) in case his deferment request got approved, he would receive a new offer from International Admissions; f) in order to obtain a new Confirmation of Enrolment (COE) he would be required to accept the offer; g) in order to travel back to Australia he would need a valid visa and a COE; h) his visa conditions required that he could not be in Australia for more than eight weeks without studying; and i) in order to get specific advice in regards to his student visa he was required to contact the Department of Immigration and Border Protection (DIBP) directly.

    -the applicant left Australia in March 2017 and returned to Iran for a couple of weeks before coming back to Australia in April 2017.

    -the applicant was involved in a court matter in Arsanjan city court on 13 March 2017 at 10:00am “to discuss some issues.” 

    -the applicant’s request for deferment was declined because on 2 May 2017 Western Sydney University‎ cancelled his enrolment in the Master of Engineering course.

    -on 13 April 2017 the applicant was offered a new enrolment in the Master of Engineering course at Western Sydney University.

    -the applicant corresponded with Ms Doris Fong from the International Admissions Team at Western Sydney University, including in one such email dated 13 June 2017, in which Ms Fong requested that the applicant sign the new acceptance form and return it to the office at Western Sydney University and indicated that a new COE would be issued once she received the required documentation from the applicant.

    -the applicant corresponded with Ms Doris Fong from the International Admissions Team at Western Sydney University, including in one such email dated 1 September 2017, in which Ms Fong indicated to the applicant that his previous study in Iran was not equivalent to a Bachelor degree – and for that reason he was not eligible for entry into the Master program.

    -the applicant sent an email to Ms Fong dated 18 September 2017 in which he sought her advice – and the applicant specifically asked whether he needed to apply for the Bachelor course.

    -Ms Fong responded to the applicant in an email dated 20 September 2017 in which she clearly said to the applicant that his last qualification is not recognised as being equivalent to an Australian Bachelor degree and Ms Fong recommended to the applicant that he study for the Bachelor degree (undergraduate study).

31. However, the Tribunal does not accept that the applicant took reasonable steps to maintain his enrolment where he did not contact the Department to notify them of his circumstances or to request assistance in an endeavour to maintain his course enrolment. Accordingly, the Tribunal places high weight on this information against the applicant.

32. In addition, the Tribunal does not accept that Western Sydney University failed to “accurately monitor the student’s course progress or attendance.” There is no indication that Western Sydney University did not “accurately monitor the student’s course progress or attendance.” The applicant never started the course and he never attended the course. This is plainly not the issue. However, the Tribunal does accept that there was an error made by Western Sydney University, in that they initially offered the Master of Engineering course (post graduate study) to the applicant when he was never actually eligible to undertake such study. The Tribunal accepts that Western Sydney University made clear to the applicant that they were prepared to offer him enrolment in the Bachelor course (the undergraduate course) but the applicant was not willing to undertake enrolment in the Bachelor course. The Tribunal finds that it was open to the applicant to undertake the enrolment in the Bachelor course at Western Sydney University. Indeed, the Tribunal finds that it was the applicant’s own choices that led to him ceasing his enrolment and remaining in Australia without an enrolment. The Tribunal does not accept that the applicant could reasonably have enrolled in a Master of Engineering course at any other Australian university given he had not satisfied the requirements of a Bachelor course as indicated by Western Sydney University. In addition, the Tribunal finds that had those universities (University of South Australia and the University of Wollongong) done their due diligence and had properly checked whether the applicant was eligible for admission to those Masters courses they would reasonably not have offered such course admissions to the applicant. The Tribunal does not accept that because he was Iranian he was not allowed to enrol in any other courses at any other universities because he provided no evidence at all to support his assertion.

33. In consideration of the above circumstances, the Tribunal finds that these circumstances are not exceptional circumstances and they are not at all beyond the applicant’s control. Accordingly, the Tribunal places high weight on this information against the applicant.

34. The Tribunal finds that the applicant’s admitted desire to stay in Australia permanently is at odds with the requirement of the student visa that he is a genuine temporary entrant. The Tribunal finds that the applicant is not a genuine temporary entrant. Accordingly, the Tribunal places high weight on this information against the applicant.

    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

35. The applicant indicated to the Tribunal that his initial purpose in coming to Australia was to study, but that when his student visa was cancelled he applied for a protection visa so he did not have to return to Iran. The applicant claimed that he had a need to remain in Australia and that he can’t go back to Iran.

36. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

37. The Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

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

38. The Tribunal spoke to the applicant about the hardship that may be caused to him if his student visa was cancelled.

39. The applicant indicated in response that the decision would impact on him psychologically, and there would be stress on him.

40. The Tribunal accepts that the applicant would face stress and emotional hardship if his visa was cancelled and gives this some weight.

    Past and present behaviour of the applicant towards the Department

41. There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

1. The applicant does not have any dependents on his student visa who would be affected if his student visa was cancelled.

2. Accordingly, the Tribunal places no weight on this information in the applicant’s favour.

   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

3. The applicant indicated he is aware of the legal consequences of the cancellation of his student visa and he is aware of the three-year exclusion period as a consequence of his student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

4. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chooses not to return to Iran. The Tribunal notes that the applicant indicated that if his student visa was cancelled he would not be willing to return to Iran – and the Tribunal finds that there is a risk that the applicant may stay in Australia unlawfully.

5. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

6. The Tribunal places low weight on this information in the applicant’s favour.

   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

7. The Tribunal asked the applicant if he feared anything in returning to Iran.

8. In response the applicant indicated that he feared returning to Iran due to the “Basij.” He indicated that the Basij is a religious army and they are everywhere. He indicated that the Basij are separate to the “normal army and police” and they create problems for people of different religions and other ideologies. The applicant indicated that his problems arose in respect to a woman who leased his father’s shop. The applicant indicated that it was the woman who had the problem with the Basij. The applicant indicated that the Basij are not happy with him because he had been involved in leasing the shop to the woman. The applicant indicated that the Basij had threatened him and for this reason he could not return to Iran.

9. However, the applicant indicated that his brother, the migration agent, has a business in Iran and that his brother travelled back and forth between Australia and Iran – and that the Basij have never caused any issue with his brother. Further, the applicant indicated that the Basij have never caused any issue with his father, the owner of the shop premises.

10. The Tribunal put to the applicant that the Tribunal may have concerns with the applicant’s credibility where the applicant had indicated in the hearing that he had merely applied for a protection visa after his student visa was cancelled, and the reason he applied for a protection visa was so he could stay in Australia.

11. The Tribunal also put to the applicant that if the applicant had any difficulty with the Basij, the Basij would have hassled his brother. In response, the applicant indicated that he was the one who had the “contract for that shop” and the Basij told him “why did you support that lady.” The Tribunal put to the applicant that what the Basij told him was hardly a threat.

12. The applicant responded that the Tribunal could not understand because the Tribunal member lived in Australia and not in Iran.

13. In consideration of the above, the Tribunal makes no findings in respect to the applicant’s protection claims. However, the Tribunal found the applicant’s responses lacked credibility and did not appear to give foundation to any claim or genuine fear of real chance of serious harm or real risk of significant harm. Accordingly, the Tribunal does not accept that the there is any indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places low weight on this information in the applicant’s favour.

    Any other relevant matters

14. No other relevant matters were put to the Tribunal.

    Conclusion

15. The Tribunal finds that the applicant received his Student (Temporary) (Class TU) Subclass 573 Higher Education Sector visa on 24 July 2016.

16. The Tribunal finds that the applicant has not been enrolled in a registered course of study since 02 May 2017. Accordingly, the applicant has not complied with condition 8202(2)(a).

17. The Tribunal finds that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are not exceptional circumstances.

18. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

19. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Joseph Lindsay

    
    

    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.