Shahid (Migration)

[2020] AATA 1362

Shahid (Migration) [2020] AATA 1362 (16 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ikrash Shahid

CASE NUMBER:  1933187

DIBP REFERENCE(S):  BCC2019/3284712

MEMBER:Vanessa Plain

DATE AND TIME OF

ORAL DECISION AND REASONS:         16 March 2020 at 2:46 pm (VIC time)

DATE OF WRITTEN RECORD:                17 April 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 17 April 2020 at 12:04pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – enrolment at lower level than visa requirement – original enrolment cancelled after study difficulties and mother’s illness – enrolment in lower-level courses in different subject area cancelled after study difficulties – intention to progress to original level and enrolment in courses in third subject area after receiving department’s notice – course at original level would start after expiry of original visa – decision under review affirmed

LEGISLATION

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

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 Home Affairs on 14 November 2019 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 March 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. 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 (AQF) that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted.

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

5. The applicant appeared before the tribunal on 16 March 2020 to give evidence and present arguments.  The tribunal’s hearing was conducted with the assistance of an interpreter in the English and Urdu languages.  The applicant was assisted in relation to the hearing by their registered migration agent.

6. For the following reasons the tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

7. 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 of the Migration Regulations 1994. If the applicant has breached that condition, under section 116(1) of the Act the visa may be cancelled.

8. Paragraph (2)(b) of the relevant condition of 8202 states that the 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.

9. The applicant’s visa was granted for the purpose of studying a Bachelor of Professional Accounting at the Holmes Institute, which is an Australian Qualification Framework Level 7 course.  The information available to the Department in the Provider Registration and International Student Management System (PRISMS) indicated that on 4 September 2018 the applicant’s enrolment in the Bachelor of Professional Accounting was cancelled by the education provider.  The applicant has not been enrolled in an AQF Level 7 course until sometime after 11 October 2019.

10. On 2 October 2018, an examination of PRISMS revealed that the applicant obtained enrolment in a Diploma of Automotive Management through the Australian Institute of Technical Training.  This enrolment is at an AQF Level 5 Diploma. 

11. As the applicant was not enrolled in a course at the AQF Level 9 Masters Degree or 10 Doctoral Degree, the circumstances of clause 8202(3) do not apply to him.

12. On 11 November 2019, a Notice of Intention to Consider Cancellation was sent to the applicant.  By written response dated 25 and 26 October 2019, the applicant responded to the Notice of Intention to Consider Cancellation.  In the written response the applicant provided reasons why, in his view, the visa ought not be cancelled.  The applicant stated that he is a genuine student and intends on completing a Certificate IV in Project Management Practice and a Bachelor of Business before returning home to Pakistan.  He contended he successfully completed his ELICOS studies in 2014 and then commenced a Bachelor of Information Technology and found the standard of education to be very high and he could not understand the concepts.  He realised at that point that he had chosen the wrong field of study.  And it was at that point that he changed and commenced a Bachelor of Accounting.  However, he failed this course in his first semester.

13. It was around this time his mother was diagnosed with cancer in 2018, and he was unable to focus on his studies.  His mother’s illness distracted him from his career path and he enrolled in a cookery course on the recommendation of a friend.  The applicant further stated that he believed a degree from an international institute would be a major advantage to his career and once he completes his course in Automotive Studies he will be able to secure a job in his home country in Pakistan, and that if his visa were to be cancelled, he will not be able to continue his studies, and that the cancellation will cause him financial hardship and cause stress to his family at home.  Further, he said that any unfinished study in Australia would not be credited towards study in Pakistan.

14. At the hearing on 16 March 2020, the applicant honestly and candidly acknowledged that he breached the relevant visa condition, and that he was not enrolled in an AQF Level 7 course, and that he understood that being enrolled in an AQF Level 5 course was a breach of his visa condition. 

15. Further, in advance of the hearing, the applicant submitted a signed written statement dated 10 March 2020 and addressed to the tribunal.  In that document, the applicant gave candid evidence, consistent with his oral evidence at hearing, that he accepted he has breached the visa condition.  However, he set out various reasons as to why he would request the tribunal to exercise its discretion not to cancel his visa.

16. In that document, at paragraph 18, the applicant asserts that the main reason for his choosing the Diploma level instead of the Bachelor level course was because of his experience and interest towards the automotive area.

17. Based upon the evidence set out above, the tribunal finds that the applicant has not complied with subclause (2)(b) of condition 8202, as the applicant has not maintained enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which the visa was granted.

18. Having found that the applicant has not complied with the condition of the visa, the tribunal must now 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 its discretion.

19. 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.

20. As to the applicant’s purpose for staying in Australia, it is clear that based upon the applicant’s statement dated 10 March 2020, that the applicant has demonstrated he is otherwise a reasonably diligent student.  That document sets out the suite of courses in which the applicant has been enrolled at various times since being onshore.  The first course in which the applicant was enrolled, and completed, was an ELICOS course in 2014.  Between July 2015 and March 2016, the applicant was enrolled in a Bachelor of Information Technology.  Between July 2016 and June 2018, the applicant was enrolled in a Bachelor of Professional Accounting.  He passed some of those subjects and failed some others.

21. After ceasing to be enrolled in that course, the applicant voluntarily obtained enrolment in a Certificate III and IV in Commercial Cookery and Diploma of Hospitality Management.  However, he did not start those courses and, at that time, enrolled in a Certificate III in Light Vehicle Mechanical Diagnosis, Certificate IV in Automotive Diagnosis and a Diploma of Automotive Management.

22. The enrolment in the suite of automotive courses occurred at a time when the applicant’s mother was, by all accounts, very ill in the applicant’s home country of Pakistan.  And that is part of the reason, the applicant contends, for his inability to concentrate on his studies at the time.

23. The applicant completed some units in his Certificate III in Light Vehicle Mechanical Diagnosis.  However, some assignments were handed in late and he had difficulty with his education provider, who refused to accept the assignments and credit that work towards the studies he had already undertaken.

24. The confirmations of enrolment in the automotive courses were subsequently cancelled and, after the applicant received the Notice of Intention to Consider Cancellation of his visa, he enrolled in a Certificate IV in Project Management Practice and a Bachelor of Business.  However, due to his visa being cancelled, he lost his study rights and was unable to commence those courses, starting on 15 November 2019.

25. Taking into account all those matters, the tribunal is satisfied that the applicant has demonstrated that he is a reasonably genuine student, whose primary purpose for being in Australia is for the purpose of study.  However, it is clear that the purpose of the grant of a student visa for study in a professional accounting course, ceased when that enrolment was cancelled.

26. Moreover, the Bachelor of Business degree that the applicant sought to commence after receiving the Notice of Intention to Consider Cancellation, would start approximately six months after the applicant’s visa is due to naturally expire. 

27. On account of the above matters, I consider the amount of time the applicant has not maintained enrolment in a course of study at the AQF Level consistent with the purpose for which the visa was granted, to be reasonably substantial.  And I give this matter some weight in favour of the visa being cancelled.

28. The tribunal turns now to the circumstances in which the ground for cancellation arose. 

29. The tribunal has had regard to the applicant’s reasons in response to the Notice of Intention to Consider Cancellation.  The tribunal has also had extensive regard to all the matters set out in the applicant’s statement of 10 March 2020, as to the reasons for which he did not maintain enrolment in an AQF Level 7 course.  The tribunal notes paragraph 18, where the applicant contends that the main reason he chose the course of Diploma level, instead of Bachelor level, is because of his experience and interest towards the automotive fields.

30. The tribunal has had regard to the fact that the applicant gave honest and candid evidence about the fact that he struggled being in Australia at the time when his mother was very unwell.  And the tribunal notes that the applicant has submitted medical documents evidencing his mother’s ill-health, and it has had regard to those documents. 

31. The tribunal accepts that the applicant had difficulty being in Australia by himself away from home at a time when his mother was gravely ill.  However, the applicant candidly and honestly informed the tribunal that he did not contact the Department of Home Affairs when he changed his level of course study.  That he did not consult with a migration agent prior to receiving the Notice of Intention to Consider Cancellation.  And that he did not consult with his relevant education provider in respect of his Bachelor of Accounting degree at the relevant time.

32. The tribunal considers that it is the responsibility of a student visa holder to be familiar with the conditions that are attached to the issuance of that visa.  And to the credit of the applicant, he honestly and candidly acknowledged that he accepts that it is the visa holder’s responsibility to be aware of the visa conditions imposed on a student visa.

33. Based upon the matters that I have set out, the tribunal is not satisfied that the breach of the visa was occasioned by matters not reasonably within the control of the applicant.  Notwithstanding that the tribunal accepts the applicant has certainly suffered some hardship and difficulty as a result of the ill-health of his mother, it is not satisfied that this is a reason or part of the reason for the breach of the visa condition. 

34. On account of the Tribunal’s view that the reason for the breach of the visa condition was not due to a matter outside of the control of the applicant, the tribunal places weight on this consideration as a reason for cancelling the applicant’s student visa.

35. As to the extent of compliance and other visa conditions, it is clear that the applicant has not maintained enrolment at the required AQF Level for more than a year.  The tribunal considers the extent of this non-compliance with condition 8202 to be reasonably significant.  And whilst I acknowledge that the applicant has demonstrated that he is a reasonably diligent student, and I acknowledge that he took steps to enrol in a Bachelor course after receipt of the Notice of Intention to Consider Cancellation, I do not consider that, all things being considered, that this new enrolment significantly mitigates against the level of non-compliance with condition 8202.

36. The tribunal accepts that there is no information before it to suggest that the applicant has otherwise not been compliant with other visa conditions.  However, the tribunal considers that the requirement to maintain enrolment at the required AQF Level is a fundamental condition for the grant of the student visa in question, and I therefore give this some weight in favour of the visa being cancelled.

37. As to a degree of hardship that may be caused to the applicant and his family members, the tribunal acknowledges that the applicant has given credible oral evidence at hearing, he has given extensive written evidence in his statement to the tribunal, and in his response to the Notice of Intention to Consider Cancellation, as to the hardship that he will endure if he is unable to complete his studies in Australia.  The applicant has expressed the view that if he is not able to complete his studies in Australia, an education provider in Pakistan would not recognise partially completed qualifications for the purposes of obtaining credit for prior learning.

38. The applicant has stated that he would face stress with his family and financial hardship in relation to the subjects that he has completed to date.  The applicant has stated that he believes he will not be able to obtain secure employment, or start a business, that he might possibly have been able to do so if he had the relevant qualifications.

39. He has spoken of difficulty that he will endure with his family in Pakistan if he returns home in circumstances where he has not completed studies.  The tribunal has considered all those claims and taken them into account and acknowledges that the applicant would certainly face some stress and hardship as a result of the matters I have described.  And the tribunal affords these matters some minor weight in favour of the visa not being cancelled.

40. As to the applicant’s past and present behaviour towards the Department, the tribunal notes that the applicant has responded promptly to the Notice of Intention to Consider Cancellation, and I give this good behaviour a little weight against cancelling the visa.

41. The circumstances of this case are not such that any person’s visa will be consequently cancelled under section 140 of the Act, and I am unable to give this factor any weight for or against a decision to cancel, or set aside the cancellation of the visa.

42. If the applicant’s visa is cancelled and he does not resolve he is fit to stand to voluntarily depart Australia, he will become an unlawful citizen and may be liable for detention under section 189 and removal under section 198 of the Act.  The applicant would also be affected by section 48 of the Act which would cause him to have limited options complying with those visas while in Australia.

43. However, the tribunal notes that these consequences are intended consequences of the legislation, and circumstances where I have found that there is no reason for the breaches of visa that are beyond the control of the applicant, I do not give this factor any weight against cancelling the visa.

44. There is no information before me to indicate the circumstances of this case were such that would engage Australia’s international obligations including non-refoulement, in best interests of the child obligations, and as such I do not give this factor any weight for or against the decision to cancel or not cancel the visa.

45. As to any other relevant matters, the tribunal notes that the applicant in his evidence submitted to the tribunal in advance of the hearing, dated 10 March 2020, has set out at length various factors which speak to his being a genuine student, his future plans, his financial, family and social ties to his home country, and the circumstances that have applied to him after the cancellation of his visa.

46. The tribunal takes all those matters into account.  However, in the circumstances which I have just described that pertain to the reason for the visa breach, the tribunal only affords these matters some very minor weight against cancelling the visa.

47. The tribunal has also had regard to the submissions of the applicant’s agent at this hearing.  The applicant’s migration agent made submissions that the breach of the relevant visa condition was not a matter reasonably within the control of the applicant, because the applicant’s mother’s ill-health was a matter beyond his control, and this made him fall into error by not maintaining his relevant enrolment.

48. The migration agent further submitted that nobody informed the applicant that he was in breach of his relevant visa condition when he re-enrolled in a course lower than the AQF Level 7 course.

49. The tribunal takes those submissions into account.  However, as I have already found, I am not persuaded that the applicant’s mother’s ill-health is the reason for the breach of his visa condition ‑ demonstrated by the fact that he was able to enrol in a different course and continue his study, subsequently to his mother falling ill.

50. The tribunal is also not persuaded by the submission that the reason for the breach of a visa condition beyond the control of the applicant was that no one informed the applicant that he was in breach of his visa condition.  The applicant candidly acknowledged and accepted that it is the responsibility of a student visa holder to be responsible and aware of the conditions that attach to one’s student visa.

51. It is clear that after considering all the information I have set out above, that no bad faith is attributable to the applicant as a result of the matters I have just set out.  But it is clear ‑ based on all the evidence before me ‑ that the reasons for the breach of the visa condition were matters that were not reasonably outside of the control of the applicant.  And it is also clear that the considerations I have arrived at, when examining and weighing all the evidence before me, lean towards the visa being cancelled, and I so find. 

52. In viewing the circumstances as a whole, the tribunal concludes that the visa should be cancelled.

53. The tribunal affirms the decision to cancel the applicant’s class TU visa.  This decision is made at 2.46 pm on 16 March 2020.

    DECISION

54. The Tribunal affirms the decision under review.

    Vanessa Plain
    Member