Sajjad (Migration)

[2020] AATA 2356

Sajjad (Migration) [2020] AATA 2356 (16 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Waseem Sajjad

CASE NUMBER:  2001391

DIBP REFERENCE(S):  BCC2019/3502122

MEMBER:Vanessa Plain

DATE AND TIME OF

ORAL DECISION AND REASONS:         16 April 2020 at 4:23 pm (VIC time)

DATE OF WRITTEN RECORD:                10 June 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 10 June 2020 at 1:05pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment at lower AQF level than visa condition – enrolment in original course cancelled – physical and mental health – attempts to enrol in other courses at same level – enrolment at lower level in another subject area – tentative job offer in home country – no application for visa for lower-level study – original visa expired in any case – enrolment in future course, still not at original level – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 January 2020 to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 16 April 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral decision in case 2001391.  The applicant’s name is Mr Sajjad. 

4. This is an application for review of a decision dated 14 January 2020 made by a Delegate of the Minister for Home Affairs to cancel the applicant’s subclass 500 student visa under section 116(1)(b) of the Migration Act 1958. The delegate cancelled the visa on the basis that the applicant failed to maintain enrolment in a registered course that once completed would 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.

5. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. 

6. The applicant appeared before the Tribunal on 16 April 2020 to give evidence. 

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. 

8. The applicant was represented in the review by their migration agent. 

9. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

10. The issue in the present case is whether the applicant as the holder of a student visa has breached condition 8202(2)(b) of Schedule 8 to the Migration Regulations 1994. If the applicant has breached that condition, under section 116(1) of the Act, the visa may be cancelled. Condition 8202(2)(b) requires that a visa-holder 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.

11. The applicant’s visa was granted on 20 December 2017 for the purpose of studying a Masters of Commerce at the University of Adelaide, which is an AQF level 9 course.  Information available to the Department in the Provider Registration International Student Management System (PRISMS) indicated that on 15 March 2018 the applicant’s enrolment in the Masters of Commerce was cancelled by the education provider, and they have not been enrolled in an AQF level 9 course since that date.  PRISMS indicated that the highest COE the applicant held thereafter was for a Diploma of Automotive Technology.  This enrolment is at an AQF level 5. 

12. The Tribunal acknowledges that at the time of this hearing the applicant produced a confirmation of enrolment for a Graduate Diploma of Management.  That course is AQF level 8.  However, it is scheduled to commence on 1 February 2021, a date almost one year after the natural expiry of the applicant’s visa.  The applicant’s visa naturally expired on 15 March 2020. 

13. As the applicant was not enrolled in a course at the AQF level 9 or AQF level 10, the circumstances of clause 8202(3) do not apply to him.

14. On 27 November 2019, a notice of intention to consider cancellation of visa was sent to the applicant. 

15. By written response dated 11 December 2019, the applicant responded to the notice.  In his response, the applicant stated that he had no intention of breaching his visa condition, that he held a COE for a graduate diploma at AQF level 8, and the Diploma of Automotive Technology, at AQF level 5.  He did not believe that pursuing vocational education in addition to a graduate diploma would impact his visa conditions.  The applicant stated that he encountered various health issues on his arrival to Australia, which impacted upon his ability to meet course requirements at the Masters level.

16. However, the applicant switched to studying the suite of automotive courses due to receiving a tentative job offer in Pakistan on the completion of his course.  The applicant also stated that he believed that this study path would provide him with more career prospects.  The applicant stated that he was unaware of his visa conditions when he switched from his Masters course to a Certificate III in Light Vehicle Mechanical Technology, which is an AQF level 3 course, and a Certificate IV in Automotive Mechanical Diagnosis at AQF level 4, and a Diploma of Automotive Technology at AQF level 5.

17. The applicant stated that he attempted to enrol in other Masters courses and contacted education providers in Sydney and Melbourne.  However, he was refused enrolment at the Masters level. 

18. At the hearing on 16 April 2020, the applicant acknowledged that he breached his visa condition.  He stated that he was unaware of the visa condition at the time and that he was suffering from various health issues, including depression and homesickness, on or around the time of the cancellation of his Masters degree. 

19. Based on the matters I have set out above, the Tribunal finds that the applicant has not complied with subclass (2)(b) of condition 8202 as he has not maintained enrolment in a registered course at the same level as or a higher level than the registered course in relation to which his visa was granted.

20. 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 Procedure Advice Manual (PAM 3). 

21. As to the applicant’s purpose for travel and stay in Australia, the applicant arrived in Australia on 17 January 2018 for the purpose of undertaking a Masters of Commerce in Australia.

22. PRISMS indicated that the applicant’s enrolment in his Masters of Commerce at the University of Adelaide was cancelled on 15 March 2018.  The applicant then changed his study trajectory by enrolling in a suite of automotive technology courses at the vocational and training level on 19 July 2018.  The applicant does not currently hold an active enrolment for a Masters-level course of study and has not commenced a course at this level.  The Tribunal acknowledges that the applicant has obtained an enrolment in an AQF level 8 course.  However, that course, being a Graduate Diploma of Management Studies, does not commence until February 2021, well after the expiry of the applicant’s current visa.

23. Since 15 March 2018, the applicant has not maintained enrolment at the required AQF level, nor has the applicant applied for a further student visa to reflect the reduction in study level from the higher education sector to the vocational education sector during this period.  The Tribunal acknowledges that the applicant has produced evidence of satisfactory completion of a Certificate III and IV in various automotive studies.  The Tribunal acknowledges the applicant’s evidence that he wishes to complete his diploma studies.

24. The Tribunal accepts the applicant’s evidence that he made an honest mistake and was simply unaware of his visa conditions until he was notified of them in the notice of intention to consider cancellation. 

25. The Tribunal asked the applicant why he did not approach the Department of Immigration to change his visa status to reflect the diploma-level course of study when he became aware of his mistake.  The applicant informed the Tribunal that he was suffering from some depression and difficulties at the time.  The Tribunal acknowledges that evidence, however, notes that there is no medical evidence before it to substantiate those claims.  Due to the fact that there is no medical evidence before the Tribunal to inform the Tribunal that the applicant was suffering from a mental health difficulty at the relevant time, late 2019, the Tribunal is unable to place significant weight on the applicant’s claims.  The Tribunal is not satisfied that any mental health concern prevented the applicant from contacting the Department of Immigration to seek a change in his visa status to reflect his vocational educational course. 

26. Therefore, on the basis of those matters, since 15 March 2018 the applicant’s purpose and stay in Australia has not been in line with the purpose for which the visa was granted, and I give this consideration significant weight in favour of cancelling the visa.

27. As to the circumstances in which the grounds for cancellation arose, the grounds for cancellation arose because the applicant did not maintain enrolment in a registered course in accordance with subclause (2)(b) of condition 8202.  I have set out the reasons for the applicant’s non-compliance iabove.  The applicant in his response to the notice of intention to consider cancellation gave further reasons for his non-compliance with the visa condition.  He said that he dropped out of his Masters course due to numerous health problems, with sinus, respiratory infections and stress after coming to Australia.

28. He said that he did not know anything about visa conditions at the time he came to Australia because he was new to the country.  The applicant gave evidence at hearing that he was suffering from some homesickness and depression at the time he came to Australia in early 2018.  The applicant produced at hearing a medical certificate from the Barry Road Medical Clinic dated 14 February 2018.  That document has been produced by Dr M.M. Habib.  It provides that the applicant is currently enrolled in a Masters of Commerce and living with his friends in Melbourne.  The doctor further states that the applicant attended upon his rooms with a history of depression, homesickness and a feeling of loneliness.

29. The doctor states further that he has not given the applicant any medication, but advised the applicant to remain with his friends for a period of four to six weeks for the purpose of settling himself mentally before joining the course to do his Masters of Commerce.  On the basis of that evidence, whilst the Tribunal acknowledges the applicant was clearly suffering from some medical difficulties at that time, in early 2018, however, the Tribunal cannot be satisfied that the medical difficulties described in that doctor’s certificate was the reason the applicant failed to comply with the visa condition, because the applicant has candidly admitted he was simply unaware of the visa condition at the time.  That is, the applicant’s lack of awareness of the visa condition is the reason for the breach, not any subsisting medical condition.

30. Therefore, the Tribunal finds that the reason for the applicant’s failure to maintain enrolment in the registered course at the required level was due to his failure to be aware of the relevant visa condition that attached to the grant of his visa, and not due to any medical conditions he was afflicted with at the relevant time.  Whilst the Tribunal finds the applicant has made an honest mistake, the Tribunal considers it reasonable for visa-holders to be aware of the conditions that attach to their visas and to ensure they maintain compliance with visa conditions, and if an applicant is not able to comply with visa conditions, an appropriate course of conduct would be to contact the Department of Immigration to clarify their status.

31. It is clear based on the evidence set out above that the reasons for the visa condition breach was due to a matter that reasonably within the control of the applicant, and on account of those matters, I give this consideration significant weight in favour of cancelling the visa. 

32. As to the applicant’s compliance with other visa conditions, it is clear that the applicant has not maintained enrolment in a registered course at the required level in breach of condition 8202(2)(b).  Given the length of time that has elapsed since the non-compliance, the Tribunal considers the non-compliance with condition 8202(2)(b) to be significant.

33. The Tribunal acknowledges that the applicant enrolled in a suite of automotive courses in or around July 2018, and it may be the case that there is a brief period of non-enrolment between 15 March 2018 and the period when the applicant commenced his automotive studies in July 2018.  However, given the clear medical difficulties the applicant was suffering from in February 2018, the Tribunal places no weight on any breach of condition 8202(2)(a). 

34. There is no further evidence before the Tribunal to indicate that there has been non-compliance with any other visa conditions that are attached to the visa.

35. However, the Tribunal considers the requirement to maintain enrolment at the correct AQF level to be an important condition for the grant of a student visa, and the Tribunal therefore gives this consideration some weight in favour of cancelling the visa. 

36. As to the degree of hardship that may be caused to the applicant, the Tribunal accepts that the visa cancellation may result in some emotional and psychological hardship being caused to the applicant.  The Tribunal accepts the applicant’s candid and honest evidence that he wishes to finish his diploma studies and it will cause him some hardship and depression if he has to return home without having completed his studies.

37. Whilst the Tribunal comments that there is no medical evidence before it as to a clinical diagnosis of depression, the Tribunal acknowledges that some hardship will befall the applicant in these circumstances.  However, it is an applicant’s responsibility to be familiar with the conditions that attach to their visa, and the applicant has confirmed in his evidence that there are no immediate family members or dependant visa-holders in Australia whose visas are dependent upon his visa.  The Tribunal therefore gives any hardship suffered by the applicant minor weight against cancelling the visa.

38. As to the applicant’s past and present behaviour towards the Department, the applicant responded promptly to the notice of intention to consider cancellation, and there is no evidence before me to suggest that the applicant has been uncooperative with the Department.  The Tribunal gives this consideration a little weight against cancelling the visa. 

39. The circumstances of this case are not such that any person’s visa would be consequently cancelled under section 140 of the Act.  The Tribunal therefore does not give this factor any weight for or against the decision to cancel or not cancel the visa.

40. If the visa is cancelled, the applicant may become an unlawful non-citizen and may be liable to detention under section 189 of the Act or removal under section 198 of the Act if he does not voluntarily depart Australia.  The applicant would also be affected by section 48 of the Act, which may prevent him from applying for certain visas while in Australia, and public interest criterion 4013, which may exclude him from being granted a visa for a specific period of time in the future.  However, these are mandatory, intended consequences of legislation, and given that the circumstances giving rise to the breach were reasonably within the control of the applicant, I do not consider this to be manifestly unfair, and the Tribunal gives this very little weight against cancelling the visa.

41. The applicant candidly informed the Tribunal that there are no dependants in Australia on his student visa.  As such, I am satisfied that this case is not one that would lead to breach of Australia’s non-refoulement obligations, and I therefore give this factor no weight against cancelling the visa. 

42. Although the matters set out above do not reveal any bad faith on the part of the applicant, it is clear based on all the evidence set out above that the reason for the breach of the visa condition was not due to a matter that was outside of the control of the applicant, because the applicant candidly acknowledged that he was simply unaware of the visa condition.

43. The Tribunal considers it reasonable and important for visa-holders to be aware of the conditions that attach to their visa. 

44. It is also clear that the considerations I have arrived at on examining and weighing all the evidence before me lean towards the visa being cancelled, and I so find. 

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

46. The Tribunal affirms the decision to cancel the applicant’s class TU visa.  This is an oral decision made at 4.23 pm on 16 April 2020.

    DECISION

47. The Tribunal affirms the decision under review.

    Vanessa Plain
    Member