Shasivari (Migration) - [2024] ARTA 839

SHASIVARI (MIGRATION) [2024] ARTA 839 (12 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Korab Shasivari
Respondent:  Minister for Home Affairs
Tribunal Number:  2306569
Tribunal:General Member W Banfield
Place:Canberra
Date:12 November 2024
Decision:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 12 November 2024 at 1:33pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased enrolment – applicant changed to vocational courses – employment offer – university transfer request rejected – compelling need – non-refoulment obligations – poor academic progress – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, Schedule 8, Condition 8202
STATEMENT OF REASONS
APPLICATION FOR REVIEW

On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis the visa holder had not been enrolled in a registered course for more than 12 months and therefore did not comply with the requirements of subclause (2)(a) of condition 8202. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 1 August 2024 to give evidence and present arguments.
The applicant submitted the following evidence in support of the application for review:
·     Department of Home Affairs (the Department) notification of decision dated 8 May 2023.
·     Copy message from the applicant to Lonsdale Institute.
·     Email message from the applicant to the Dean, Central Queensland University (CQU) dated 2 August 2022 requesting approval to change field of study.
·     Email Message and letter from CQU dated 3 August 2022 advising the request for release has been denied.
·     Image of a document entitled ‘August 2022 VET Promotion for Onshore’ from Lonsdale Institute.
·      Email submission from the applicant dated 15 August 2024.
·     Conditional letter of offer from CQU to the applicant for a Graduate Diploma of Human Resource Management dated 14 April 2021.
·     Copy tax invoice for payment to CQU dated 25 March 2023.
Evidence at the hearing
The applicant advised he researched living conditions in Australia prior to being offered a Diploma course at CQU. He said he embraced the Australian dream which was something his country could not provide at the time. The applicant advised he was aware of the consequences of what happened at CQU regarding his enrolment. He claimed he wanted to transfer from studying CQU to La Trobe University. He said despite his visa being cancelled; he has been seeking other universities. The Tribunal asked about his first enrolment in Australia, and he said he was planning to undertake a Master of Human Resources degree. The applicant said he had a degree in business and been working in human resources in his home country for five and a half years.
The applicant said he completed the first semester of study at CQU and was happy there. However, he said from his research, the cost of living and rent was not as much as it turned out to be which was unexpected. He said he was working for Q Events in Melbourne who told him he would receive a promotion if he obtained a degree in hospitality and tourism. The applicant said he was not planning to leave education, but he has now developed an acting career in Australia. The applicant said the price of his studies at CQU jumped from $12,000 to $16,000 and he was not told in advance. According to the applicant he could study three semesters at La Trobe University for less than one semester at CQU.
The applicant agreed he would be downgrading from a master’s degree to a diploma. He conceded he did not seek advice about enrolling in a lower course and said he was not aware of it, other than applying for a release from CQU. The applicant said he had found a possible sponsor and a new career in hospitality. He said he found negotiating with CQU difficult and he was just trying to deal with his financial situation. The applicant said he was aware he breached his visa conditions by not maintaining enrolment.
The applicant said he moved from Melbourne to Sydney and claimed he was trying to find a solution through an attorney and wanted to re-enrol. He was asked if he agreed there were grounds to cancel his visa. The applicant said he was not aware of the legal consequences, and he had no help in Australia, other than his education agent who just arranged his enrolment.
The applicant then explained developments in Australia that have led to him pursuing an acting career. He said he met people in the film industry who encouraged him into acting and he wants to study in that field. He said he is in contact with NIDA in Sydney and other education providers that can offer him admittance. The Tribunal asked if those providers could enrol international students and he said he was not aware. Regarding his original study plans, the applicant said he was working as a waiter and claimed he did not arrive to obtain permanent residency. He said he is currently working as a stone mason.
The Tribunal asked the applicant if he is planning to return to his home country. He said he wants to obtain an acting degree and if he can continue, he is keen to build a career in Australia. The applicant said he will try to find a course that can be offered to international students. He then referred to social work and helping people in need based on his personal experiences. The applicant said he was encouraged to move from Melbourne to Sydney to pursue and acting career.
The Tribunal discussed the waiver criteria with the applicant. Regarding his reasons for travelling to Australia, the applicant explained he had family in the United States and had originally chosen Canada but was asked to consider Australia by his agent. When asked about a compelling need to remain, the applicant said he has a lot to offer Australia and he would consider building a family here. It was put to him that a student visa is temporary, and visa holders are meant to study and return to their home country. The applicant agreed but said he feels safer and a better person in Australia. He said he will try to find a degree that is in demand.
The applicant advised he has complied with all other visa conditions such as work limitations. He was asked about his financial situation currently and he said if he continues studying, he will be able to access funds through a student scheme. He referred again to being encouraged in his acting career. The applicant said he had been planning to return to Kosovo but was asked by a film producer to wait for the decision regarding his visa. The applicant said he is looking for certainty based on the Tribunal’s decision.
According to the applicant, no one else holds a visa that would be cancelled if his visa is cancelled. He said he understands the legal consequences of cancellation and understood to comply with the Tribunal’s decision. He explained again that he changed courses of study because he has a job offer at the relevant time. The Tribunal explained it needed to consider whether Australia would be in breach of any international obligations if his visa is cancelled. He said he had previously served in a UN customs mission in Kosovo as an intelligence officer and was involved with notorious drug lords. He said although he loves Australia, he would be prepared to return to Kosovo. He said his security is not an issue for the Australian government.
The applicant was asked if he had any further submissions to make. He made a comment about “secret documents” that he translated during service in his country and indicated his return “could be “jeopardised”. When asked what he was referring to, the applicant said it was in relation to a drug lord that was recently arrested. He said he was serving in customs, and was after the individual, but his colleagues released him after smuggling diamonds and he, the applicant, was kicked out because he had background information. The applicant was asked about relevance to his student visa cancellation, and he said it was to do with his safety, but he was not sure if it was relevant.
In conclusion, the applicant said he hoped to be given a second chance in Australia and said he would not be a burden because he can make it on his own.
Section 375A non-disclosure certificate
On 1 August 2024 the Tribunal wrote to the applicant inviting him to comment on the Department’s reasons for decision, and the validity of a s.375A non-disclosure certificate attached to the Department’s file. The applicant was informed that the non-disclosure certificate related to his enrolment history in Australia. The Tribunal’s correspondence included a copy of the Department’s decision record dated 8 May 2023 and a copy of the s.375A certificate. The applicant did not provide a response to the invitation.
Although the applicant did not respond to the invitation to comment on the Department’s s.375A certificate, the Tribunal did not rely on the information it relates to because it aligns with the applicant’s own evidence about his enrolment history in Australia.
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
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 (Cth) (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?
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 full-time registered course: 8202(2)(a)
·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the 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)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full-time registered course.
The applicant’s visa was granted subject to condition 8202, which requires the visa holder to be enrolled in a registered course. According to the Department, the applicant had not been enrolled in a registered course of study from 13 September 2022 to 17 April 2023. The Department wrote to the applicant on 17 April 2023 inviting him to comment on his failure to maintain enrolment. On 19 April 2023 the applicant replied to the invitation and provided reasons. The applicant stated he tried to transfer from CQU to a more affordable education provider and became depressed when the university rejected his request for a release letter.
In his evidence to the Department and the Tribunal the applicant did not deny he had not been enrolled during the period identified. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course for approximately 7 months. Accordingly, the applicant has not complied with condition 8202(2)(a).
After assessing the evidence, the Tribunal is satisfied the ground for cancellation is made out. Therefore, the Tribunal finds that the applicant has not complied with condition 8202 of the visa.
Consideration of the discretion to cancel the visa
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 Procedural Instruction ‘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
The applicant arrived in Australia as a student and was enrolled in a Graduate Diploma of Human Resource Management and a Master of Business Management. On the evidence before it, the Tribunal is satisfied that the applicant’s original travel to and stay in Australia was to study. In his evidence at the Tribunal hearing, the applicant discussed several options for resuming his studies as well as his past and current employment in Australia and his desire to pursue an acting career. Although the applicant originally travelled to Australia to study, his interests have broadened, and the primary purpose of his stay is no longer education.
At the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant submitted he has a lot to offer Australia and would like to study in an area that is in demand. The applicant agreed a student visa is temporary, and visa holders are meant to study and return to their home country but claimed he feels safer in Australia. The Tribunal understands the applicant may wish to achieve qualifications in Australia and pursue a career but is not satisfied his claims amount to a compelling need to remain.
· the extent of compliance with visa conditions
The applicant was not enrolled as a student for seven months which was a breach of condition 8202 attached to his visa. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions.
· degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant’s reasons for wanting to remain in Australia are that he would like to continue his education, he wants to pursue an acting career and enrol in a relevant course of study, he believes he can contribute to Australia, and he would like to make a life here.
The Tribunal accepts the applicant will have to return to his home country if his visa is cancelled, and this will affect his study, work, and personal life. The Tribunal is satisfied the applicant will suffer a degree of hardship if his visa is cancelled.
· 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
The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but did not continue his studies from 13 September 2022 to 17 April 2023. The applicant gave the following reasons for why he says this occurred. In his written statement to the Department and in evidence to the Tribunal the applicant claimed:
oHe completed the first semester of study at CQU, but the costs in Australia were greater than unexpected.
oHe accepted an offer to study a Graduate Diploma of Human Resource Management, but the offer was changed to a master’s degree which he also accepted.
oHis fees for enrolment at CQU changed from $12,000 to $16,000 without warning.
oAfter finding employment as a food and drink attendant, he wanted to transfer his studies to a more affordable education provider and study hospitality and tourism.
oHe found he could study at La Trobe University for considerably less than at CQU.
oHe became depressed after CQU rejected his request for a release letter.
oHe was encouraged to move from Melbourne to Sydney to pursue an acting a career.
The Tribunal considered the applicant’s circumstances in which the ground of cancellation arose. The applicant submitted a copy of the conditional letter of offer that he received from CQU for a Graduate Diploma of Human Resource Management that was dated 14 April 2021. The Tribunal notes that the letter of offer contains the following condition that students must agree to:
“Maintain a full-time enrolment load at all times to ensure that I am able to complete my studies within the specified duration of my Confirmation of Enrolment (COE) and remain enrolled with CQUniversity for at least the first 6 months in my principal/formal degree course (in accordance with the restriction on transfer between registered providers)”.
In addition, the letter of offer states that the tuition fees are estimates and are subject to change. The applicant claimed in his response to the Department that his “essential human rights” were breached by CQU. The Tribunal does not accept this is the case since his enrolment required him to complete at least six months of his principal course, and he agreed to the condition when he accepted the letter of offer. In the CQU response to a request for transfer dated 3 August 2022, the applicant was given a thorough explanation for the denial of his request for release. The applicant was advised that students are not permitted to transfer their studies to a lower level than that which their student visa was granted for. The letter also included references to section 4.23 of the Overseas Student Transfer Policy which states a request for release will be denied if the student has not completed the first six months of their principal course for reasons other than documented academic ability or compassionate or compelling circumstances. CQU notes the applicant had not accessed any support services that were available to him.
While the Tribunal understands the applicant may have had difficulties with his chosen course of study, including financial constraints, it is nevertheless his responsibility as a student visa holder to ensure he complies with the conditions of the visa. It was not permissible for him to transfer to a lower-level course because of employment in a particular field, or to prioritise other activities such as acting over study. It was open to the applicant to seek advice or support from CQU or contact the Department before discontinuing his studies and remaining without enrolment for seven months. Based on the evidence, the Tribunal is not satisfied the circumstances in which the ground for cancellation arose was beyond the applicant’s control.
· past and present behaviour of the visa holder towards the department
There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department.
· whether there would be consequential cancellations under s.140
There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.
· 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

The cancellation of the visa means the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. There is no evidence to indicate the applicant may be subject to indefinite detention as a consequence of cancellation. The Tribunal has assessed the applicant’s claims and evidence and considers the mandatory legal consequences of cancellation do not outweigh the other considerations in this case.
· 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
The Tribunal considered whether the visa cancellation would lead to the applicant’s removal in breach of Australia’s non-refoulement obligations, that is, removing a person to a country where the person faces, persecution, death, torture, cruel, inhuman, or degrading treatment or punishment.
During the Tribunal hearing the applicant claimed he had served with a UN customs mission in Kosovo as an intelligence officer and was involved with notorious drug lords. However, he said he would be prepared to return to Kosovo and his security is not an issue for the Australian government. When asked if he had any further submissions to make, the applicant continued to discuss his activities in his home country. He referred to “secret documents” that he claims to have translated and suggested his return “could be jeopardised” because of a drug lord who was recently arrested. The applicant did not elaborate on his claims and was not sure whether the information is relevant to his student visa cancellation.
The Tribunal notes the applicant stated in his evidence that he was prepared to return to Kosovo if necessary but also made indistinct reference to personal security concerns. The Tribunal is not satisfied Australia’s non-refoulment obligations would be breached based on the applicant’s unsupported assertions about his past activities in Kosovo.
The applicant did not claim that there are children in Australia whose interests could be affected by the cancellation.
· if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The Subclass 500 Student Visa is not a permanent visa.
· any other relevant matters
The applicant gave conflicting evidence about returning to Kosovo. He stated he will accept the decision in his case and return to his home country, if necessary. However, other evidence, and his behaviour is indicative of an intention to stay in Australia. The applicant tried to change his field of study based on the offer of a promotion from an employer. He also postulated various careers that he could pursue in Australia such as hospitality, social work and acting. The applicant provided little information about plans for returning to his home country and referred to some concerns about his security if he did. The Tribunal is not satisfied the applicant will complete a course of study in Australia that is relevant to a career in his home country, or that he plans to return in future.
Conclusion
The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour such as there being a degree of hardship to him if his visa is cancelled, on balance, the Tribunal finds that most considerations do not weigh in his favour. The Tribunal is not satisfied the issues encountered by the applicant when enrolled as a student outweigh the grounds for the visa to be cancelled.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Date(s) of hearing : 1 August 2024
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.