RIAZ (Migration)

[2019] AATA 6630

RIAZ (Migration) [2019] AATA 6630 (17 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Asim Riaz

CASE NUMBER:  1721769

HOME AFFAIRS REFERENCE(S):          BCC2017/2460242

MEMBER:Michael Biviano

DATE:17 December 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 17 December 2019 at 9:44am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of travel and stay – persisted with studying – short study gap – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 September 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).

2. The delegate cancelled the visa on the basis that the applicant had not been enrolled in a registered course of study from 23 November 2016 to 28 March 2017 and he was not compliant with condition 8202 of his visa.  The Delegate went on to consider whether the factors in favour of cancellation outweighed those against cancellation.  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. The applicant appeared before the Tribunal on 23 August 2019 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent.

5. 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

1. 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?

1. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

   ·must be enrolled in a full-time registered course: 8202(2)(a)

   ·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: 8202(2)(b)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c).

2. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course of study from 23 November 2016 to 28 March 2017.

3. The decision record of the delegate of the Department of Immigration and Border Protection  dated 12 September 2017, which was provided to the Tribunal by the applicant, confirms that the Department cancelled the Student (Temporary) (Class TU) (Subclass 500) visa which was granted on 3 November 2016 and the reasons for the cancellation of the visa (Decision Record).

4. The applicant arrived in Australia on 7 March 2013, from Pakistan pursuant to a Student Class TU (Subclass 573) visa to study a Bachelor of Accounting at Williams Business College at North Sydney.

5. The applicant initially completed the ELICOS course shortly after his arrival and in July 2013 he commenced the Bachelor of Accounting course. He studied for three semesters. In the first two semesters he passed three of seven subjects. In the third semester in July 2014, the college closed unexpectedly leaving the applicant without a college.

6. The applicant gave evidence that he changed education providers and enrolled at Federation University ATMC to undertake a Bachelor of Commerce (Accounting). The applicant gave evidence that the campus was newly opened and he was in the first batch. He received credits to study two subjects but he was not given exemptions and he was forced to study those subjects again.

7. The applicant commenced that course in late 2014, and he passed three of four subjects in the first semester that he undertook.  In 2015, in the first semester that he undertook, he passed one of four subjects that he studied. In semester two he passed all four subjects. As at the commencement of the first semester in 2016 he needed to complete 14 subjects to receive the degree.

8. The applicant gave evidence that his grandfather became ill with diabetes and heart issues and he was hospitalised for eight days. The applicant returned home to be with his grandfather and he returned back to Australia on 1 April 2016. The applicant had agreed to study three subjects in the first semester of 2016 and three subjects in the second semester of 2016. He again returned to Pakistan on 25 April 2016 and returned back on 5 May 2016, again to see his grandfather. The applicant claims that his grandfather’s condition and interruptions to his studies resulted in him only passing one of three subjects.

9. The applicant enrolled in four subjects in the second semester of 2016 with the approval of the course co-ordinator and the dean. However on 31 August 2016, the applicant received notification from the University that his enrolment had been cancelled by reason of the number of subjects that he had failed in studying the Bachelor’s degree. The applicant sought a review of the decision and sought that the University reconsider its decision and re-issue a CoE. The University refused.

10. The applicant again changed course and provider and enrolled at Holmes Institute to study a Bachelor of Professional Accounting. Importantly each of the courses studied were bachelor degrees in accounting based courses.

11. The applicant enrolled in the course and paid for four subjects for the Bachelor of Professional Accounting course. The applicant provided to the Tribunal a copy of the receipt confirming payment on 21 September 2016 of $7,200 with a course commencement date of 7 November 2016.

12. The applicant claims that he attended the orientation on 28 October 2016, at Holmes Institute and he observed that there were blackboards and no modern teaching aids. He was to commence studies at Holmes Institute on 7 November 2016.

13. However despite confirming his enrolment, the applicant did not commence studies because he was stressed out about his father’s medical condition and unsure if he should immediately return home. He was told by his family that his father’s medical condition was bad and his father was suffering from renal failure. The applicant sought to defer the semester and have time off to visit his father. That request was refused.

14. It appears that the applicant did not attend the first few weeks of the course and his enrolment was cancelled and he lost the tuition fees of $7,200.

15. The applicant tendered medical evidence from Hamdard University Hospital confirming that the applicant was in the intensive care unit in the hospital between 20 November 2016 and 7 December 2016 and that his father was on a ventilator with cardiopulmonary assistance and his chances of recovery were poor but they had improved as at 8 December 2016. He also tendered the patient notes of 20 November 2016.

16. The applicant confirmed that his enrolment with Holmes Institute was cancelled on 23 November 2019.

17. After his father’s condition had improved he sought to re-enrol in December 2016, but was refused re-enrolment and again attempted to re-enrol with Holmes Institute in March 2017 but that was refused because he had lost his confirmation of enrolment (CoE).

18. The applicant applied and was able to get enrolled in a Bachelor of Accounting at the Polytechnic Institute Australia and the commencement date of the course was 27 March 2017. The applicant gave evidence that he believed that he had enrolled on 22 March 2017. The applicant claims he received credits for six of the subjects that he had already completed.

19. The applicant completed the Bachelor of Accounting on 30 June 2019 and submitted a letter from Polytechnic Institute Australia confirming that the applicant completed the Bachelor of Business and graduation was set for 22 August 2019.

20. The Decision Record confirms that the applicant was not enrolled from 23 November 2016 to 28 March 2017, which represents a period of just over four months. The applicant’s evidence concedes that he was not enrolled from 23 November 2016 to 22 March 2017, which equates to a four month period.

21. On the evidence before the Tribunal, it finds the applicant was not enrolled in a registered course for the four month period between 23 November 2016 and 22 March 2017. Accordingly, the applicant has not complied with condition 8202(2). As this was a condition which was attached to his visa, the applicant has therefore breached a condition of his visa and the visa is liable to cancellation under s.116(1)(b).

    Consideration of the discretion to cancel the visa

22. 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

23. The applicant gave evidence that he came to Australia pursuant to a student visa and since his arrival in Australia he has been on student visas and as discussed above he has studied at numerous education providers and has been unfortunate in his dealings with one college closing and another retaining a semester of fees in the amount of $7200 in circumstances where he did not receive tuition.

24. Notwithstanding his adverse circumstances the applicant persisted and continued studying and notwithstanding the cancellation of the visa he completed the Bachelor of Business (Accounting). The applicant intends to remain in Australia and study a Masters of Business Administration and if possible coupled with a Masters of Professional Accounting at Group Colleges of Australia. He has sought to enrol in the Masters of Business Administration and paid some of the tuition fees.

25. On the evidence before the Tribunal, the applicant has been in Australia since March 2013 and completed a Bachelor of Business. The gap in study where he was not enrolled was a period of four months which included the Christmas vacation, which is a very short gap especially having regard to the issues he was having with his father and the difficulties with Holmes Institute.  The short gap of not being enrolled is not inconsistent with an intention to study.

26. Having regard to the applicant’s evidence, the Tribunal accepts that the applicant had travelled to Australia with an intention to study and studied for most of his duration in Australia save for a short gap of four months. Further he intends to remain in Australia to study and complete his Masters course. In light of his evidence and given his conduct in Australia as set out above, the Tribunal gives this factor substantial weight towards the visa not being cancelled.

    The extent of compliance with visa conditions

27. The applicant was not enrolled for a period of four months which is a short period of time. Therefore, the applicant has not complied with condition 8202(2) only for a short period of time. The non-compliance with condition 8202(2) for such a short duration of time, in light of his circumstances with his father, the problems with Holmes Institute and the Christmas break does not weigh towards cancelling the visa.

28. The applicant in evidence gave a number of reasons why he was not enrolled during that time and the Tribunal accepts those reasons.

29. The Decision Record confirmed there was no evidence before the delegate that the applicant had been non-compliant with other visa conditions.

30. The Tribunal finds that short period of non-enrolment and the circumstances of the non-enrolment were such that the Tribunal gives this substantial weight towards the visa not being cancelled.

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

31. The Tribunal asked the applicant if he or other members of his family would suffer hardship if the visa was cancelled.

32. The applicant gave evidence that the visa cancellation would cause him a substantial degree of hardship as he would struggle to get a good job back home.

33. Further he gave evidence that he has been stressed and mentally unwell by reason of the battle he has had with getting his visa and qualifications.

34. The applicant gave evidence that if the cancellation was set aside he would undertake a Masters course in Masters Business Administration and Masters of Professional Accounting which would set up his career back home in Pakistan.

35. The Tribunal finds that these matters may be the consequences of the visa cancellation, but they are not matters on their own which would constitute a degree of hardship sufficient to weigh against cancelling the visa.

36. The Tribunal considers that the above matters give some weight towards the visa not being cancelled.

    Circumstances in which ground of cancellation arose

37. 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.

38. The applicant gave evidence as to the circumstances that led to the cancellation of the visa as set out above.

39. Ultimately the responsibility regarding enrolment rests with the student but considering the short duration of the breach and the applicant’s explanation for not being enrolled, coupled with the applicant completing the Bachelor of Business (Accounting), the Tribunal is persuaded by his reasons for non-enrolment.

40. The Tribunal has considered the applicant’s explanations as discussed above for why he was not enrolled for this short period and therefore in breach of condition 8202(2) for a short period of time. The Tribunal gives this matter some weight towards the visa not being cancelled.

    Past and present behaviour of the visa holder towards the Department

41. According to the Decision Record, the applicant had responded to the NOICC (Notice of Intention to Consider Cancellation). Further there was no other evidence that the applicant had been uncooperative towards the Department. The Decision Record also confirmed that there is no evidence that he had been uncooperative with the Department or the Department’s staff. The Tribunal gives this factor little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

42. As the cancellation of the visa does not affect the visa of any other person, this matter is not relevant in this application and the Tribunal gives this no weight towards the visa not being cancelled.

    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

43. If the Tribunal decides to affirm the decision to cancel the visa under these grounds, then the applicant will become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further pursuant to s.48 of the Act the applicant will have limited options to apply for further visas in Australia, so he would need to depart Australia and apply from overseas for most types of further visa applications.

44. Further, if the Tribunal decides to affirm the decision to cancel the TU500 Student visa under these grounds this will come within the identified risk factors to make the applicant meet public interest criterion 4013, so if the applicant decides to apply for a new visa from overseas if he has to depart Australia, then that application may not be approved within the next three years.

45. However these consequences are the intended consequences of the legislation when a visa is cancelled under these grounds.

46. The applicant gave evidence that if the visa remained cancelled he would return to Pakistan and therefore there is no indication that he would become unlawful or be subject to detention.

47. Accordingly the Tribunal gives this factor marginal weight towards the visa not being cancelled.

    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

48. This matter does not appear relevant in this application as the applicant gave evidence that if the visa remained cancelled he would return to Pakistan and he did not give any reasons as to why he could not return to Pakistan and he has not made any claims that relate to this consideration. Accordingly the Tribunal gives this factor no weight towards the visa not being cancelled.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

49. This matter is not relevant in this application as the cancelled visa is a temporary visa and the Tribunal gives this factor no weight towards the visa not being cancelled.

    Any other relevant matters

50. The Tribunal is not aware of any other relevant matter in relation to the decision whether the visa ought to be cancelled.

    Conclusion

51. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

52. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Michael Biviano
    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.