Sajid (Migration)

[2020] AATA 1943

Sajid (Migration) [2020] AATA 1943 (21 May 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Muhammad Umair Sajid

CASE NUMBER:  1820608

HOME AFFAIRS REFERENCE(S):          BCC2018/229066

MEMBER:  Stephen Conwell

DATE:  21 May 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 21 May 2020 at 2:48pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – not informed by education provider of cancellation of enrolment – administrative error or oversight – continued studying and completed course – enrolled in and almost completed another course with another provider – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

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 July 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 delegate cancelled the visa on the basis that that the applicant was not enrolled in a registered course and therefore had breached condition 8202 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. The Tribunal exercised its discretion to hold the hearing by telephone.

4. The hearing was held during the coronavirus (COVID-19) pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick. It also considered the consequences of further delay if the hearing was not to be conducted by telephone. The applicant did not raise any concerns as to conducting the review hearing by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The applicant provided a copy of the decision record to the Tribunal.

6. The applicant participated in the telephone hearing on 21 May 2020 to give evidence and present arguments.

7. 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

8. 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?

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 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).

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

11. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 4 April 2014. By Notice of Intention to Consider Cancellation (NOICC) dated 6 April 2018, the applicant was advised by the Department of Home Affairs (Department) that information on the Provider Registration and International Student Management System (PRISMS) indicated that he had not been enrolled in a registered

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course of study between 30 June 2017 and 17 April 2018 and as a consequence it appeared he was in breach of condition 8202(2)(a) and that his visa may be cancelled under s.116(1)(b) of the Act.

1. The applicant provided a written response to the NOICC, dated 10 April 2018, but which appears to have been sent via email of 17 April 2018. The response is summarised below:

   ·       the applicant does not state whether he accepts or disputes that there are grounds for cancellation;

   ·       the applicant was studying towards a Diploma of Civil Construction Design at TAFE NSW, which is a challenging course of study;

   ·       when he unexpectedly received the NOICC, he began to question the worth of the effort and hard work that he was committing to his studies

   ·       he was a good student attending classes regularly completing his assignments and attaining good grades and occasionally being awarded distinction grades;

   ·       however he performed poorly in three study units and was advised by his head teacher that he may re-sit examinations in these subjects;

   ·       Upon completing his Diploma, TAFE NSW refused to issue him with his Diploma as his enrolment had been cancelled since June 2017;

   ·       TAFE NSW did not communicate with him regarding cancellation of his enrolment nor raise any issues concerning his enrolment or payment of fees;

   ·       he claims to have had no knowledge of his visa cancellation since he was continuing his studies and even submitting assignments after the cancellation date of his enrolment;

   ·       he concedes the possibility that he may somehow be partly to blame for the circumstances leading to his visa cancellation, perhaps through his immersion in his studies, however any fault on his part would be through ignorance of the situation, not through deliberate action;

   ·       he states he is a law-abiding resident and genuine student. He claims he has completed his diploma and is entitled to be awarded the diploma certificate.

2. The following supporting evidence accompanied the applicant’s response to the NOICC:

   ·       transcript of academic record from TAFE NSW;

   ·       his Project Quality assignment dated 28 November 2017;

   ·       Group Colleges Australia - Bachelor of Business Confirmation of Enrolment (COE) for period 7 May 2018 – 23 April 2021;

   ·       TAFE COE dated 11 May 2017 – Diploma of Civil Construction Design;

   ·       copies of his details from the TAFE NSW Portal.

3. The applicant emailed his submission to the Tribunal on 18 March 2020, which included:

   ·       copy of his email correspondence with TAFE NSW in July and November 2019, querying the cancellation of his COE without explanation or notice;

   ·       Interim Academic Transcript for Bachelor of Business Information Systems (issued 18 March 2020 for period Semester 2, 2018 to Semester 1, 2020) – Aust. Institute of Higher Education;

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     COE Bachelor of Business Information Systems for period 9 July 2018 – 1 November 2020 (created 20 July 2018) – Aust. Institute of Higher Education.

1. On the morning of the scheduled hearing the applicant submitted to the Tribunal a further copy of the transcript of his academic record from TAFE NSW, along with a copy of the Diploma of Civil Construction Design awarded to him on 10 February 2018.

2. Having regard to the information in the PRISMS as outlined in the decision record and the other evidence before it, the Tribunal finds that the applicant was not enrolled in a CRICOS registered course between 30 June 2017 and 17 April 2018. The Tribunal finds that he breached condition 8202(2)(a) of his visa.

3. 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). 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.

4. 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

5. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

6. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to the material evidence available to it, as to why the visa should not be cancelled, and government policy guidelines contained 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

7. The Tribunal notes the purpose of a Student visa is to allow for travel to and stay in Australia, in order to study. According to his PRISMS record the applicant has not been enrolled in a registered course of study for the period between 30 June 2017 and 17 April 2018. This is an indication the applicant was not pursuing the purpose for his travel to Australia as he was not actively engaged in studies for a lengthy period exceeding nine months. At hearing the applicant confirmed that he remained onshore during the entire period of his non-enrolment. The Tribunal give this considerable weight towards the visa being cancelled.

   The extent of compliance with visa conditions

8. The applicant has not complied with condition 8202(2) for a considerable period of time, exceeding nine months. The Tribunal considers the applicant’s period of non-enrolment to be a serious breach of a visa condition. However the Tribunal has regard to evidence submitted by the applicant, including the Diploma Certificate issued to him on 10 February 2018 and the email correspondence between the applicant and TAFE NSW Complaints Management. The Tribunal is persuaded by the applicant’s explanation that despite his PRISMS record showing his COE to have been cancelled on 30 June 2017, he was in fact permitted by TAFE NSW to attend classes and submit work between June – December 2017 for the subjects that he had previously failed. The Tribunal is prepared to accept that for this six month period the applicant was meeting his obligations as an overseas student by attending to his studies.

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1. Having regard to this email correspondence and the applicant’s oral evidence, the Tribunal is prepared to accept that the applicant’s failure to comply with visa condition 8202 through non-enrolment in a registered course of study for over nine months to be probably the unfortunate result of administrative error or oversight by the applicant’s education provider, which was possibly compounded by confusion on the part of the applicant. Whilst the Tribunal find that the applicant did breach the condition, given the circumstances of the breach, the Tribunal gives this factor considerable weight towards exercising its discretion to set aside cancellation of the visa.

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

2. The Tribunal considers the main hardship that would be caused to the applicant through the cancellation of his Student visa pertains to his higher education studies. At the time of the delegate’s decision the applicant had successfully completed a Diploma of Civil Construction Design. Whilst his PRISMS record shows that the diploma was completed on 30 June 2017, the applicant however claims that he continued to study, attend classes and submit work in this course beyond that date. He tendered a copy of his academic transcript and a copy of his completed diploma (issued only on 10 February 2018) as evidence of his claims.

3. The Tribunal considers the hardship that would be caused to the applicant and his family by the cancellation of his visa would be significant. In July 2018 he enrolled in a Bachelor of Business Information Systems at Aust. Institute of Higher Education. It is to his credit that he has sought to remain enrolled in a CRICOS registered course at the higher education level and has continued full-time studies whilst on a Bridging visa. Should he be permitted to continue his studies he would complete this degree in a few months’ time. Should his visa cancellation remain in place he would not graduate with the Australian qualification he has almost completed. Given the Tribunal considers the applicant’s predicament is a result of what it considers were probably administrative errors on the part of his education provider, the Tribunal considers the hardship to be unduly onerous and unjustified.

4. Whilst the applicant may potentially be able to gain credit for his diploma studies to date if he returned to Pakistan prior to its completion, the Tribunal considers the circumstances in this particular case would be unreasonable, particularly as he is only a few months away from completing his bachelor degree, with only seven subject units to complete. The Tribunal considers a significant degree of unreasonable hardship would be imposed on the applicant if his visa remained cancelled.

5. On the evidence before it the Tribunal find that the continuation of the cancellation would cause the applicant undue hardship; the Tribunal gives this factor significant weight towards exercising its discretion to set aside cancellation of the visa.

   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

6. The Tribunal has considered the circumstances in which the ground for cancellation arose. It notes that the applicant did not re-enrol in study until after he had been served with the NOICC on 6 April 2018. He then enrolled with Group Colleges Australia (GCA) on 17 April 2018 and shortly after changed his enrolment on 20 July 2018 to his current studies at Australian Institute of Higher Education. At hearing the applicant explained that due to TAFE NSW not promptly issuing him with evidence of his completed diploma he had difficulty in early 2018 enrolling in another educational institute as none would grant him e Recognition of Prior Learning (RPL) credits for his studies at TAFE, with sufficient evidence of his TAFE studies. It was only GCA which was willing to grant him the RPL credits on the basis of his limited evidence at the time of his enrolment in April 2018.

Case Number 1820608  Page 5 of 8

1. Having considered the written submission and having the benefit of the applicant’s oral evidence the Tribunal can discern no attempt by the applicant to avoid study, mislead his educational provider or the Department. The Tribunal is satisfied that the applicant is a genuine student whose academic progress has been derailed by an administrative error. The Tribunal finds that the circumstances in which the ground for cancellation arose were not beyond the applicant’s control, however it appears that he made genuine and prompt efforts to communicate with TAFE NSW in seeking to remedy the situation. The Tribunal accepts that he did not intentionally commit an error or breach of his visa conditions and that he was not aware the breach until he was served with the NOICC. The Tribunal give this factor significant weight towards exercising its discretion to set aside cancellation of the visa.

   past and present behaviour of the visa holder towards the Department

2. The applicant appears to have communicated promptly and truthfully with both the Department and TAFE NSW, with whom he had lodged a formal complaint querying the issue of his enrolment. The Tribunal give this factor some weight towards exercising its discretion to set aside cancellation of the visa.

   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 Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained. The applicant may also be barred from returning to Australia for up to three years. He has presented no specific evidence in relation to this factor. However given the circumstances as set out above this would be unfair given that the applicant is so close to completing his bachelor degree. The Tribunal give this some weight in favour of exercising its discretion to set aside cancellation of the visa.

   whether there would be consequential cancellations under s.140

4. The Tribunal is satisfied there are no persons in Australia whose visas would, or may, be cancelled under s.140 as a consequence of the applicant’s visa being cancelled.

   Whether any international obligations would be breached as a result of the cancellation

5. This consideration does not appear to be relevant and the applicant has not made any claims in relation to it.

   Any other relevant matters

6. The Tribunal notes that the applicant’s visa would otherwise have expired on 31 March 2019. He will have to apply for a new visa within a short period if he wishes to study in Australia. This will give the Department an opportunity to reassess the merits of his visa application. Due to changes in the Migration Regulations, Class TU visas Subclasses 570 to 576 have been replaced by Class TU Subclass 500 Student visas as from 1 July 2016.

7. The Tribunal finds that there are no other relevant matters.
   Summary

8. The Tribunal is mindful of the lengthy period of non-compliance and the seriousness of the breach, however having considered the evidence individually and cumulatively, the Tribunal finds on balance there are persuasive reasons why it should exercise its discretion to set aside cancellation of the visa.

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

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DECISION

38. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Stephen Conwell
Member

Case Number 1820608  Page 7 of 8

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.

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