Shuvo (Migration)

Shuvo (Migration) [2020] AATA 4178 (27 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr MD Omar Faruq Shuvo
CASE NUMBER:  2002771
HOME AFFAIRS REFERENCE(S):          BCC2019/5256037
MEMBER:Elizabeth Tueno
DATE:27 July 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 27 July 2020 at 12:25pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered Higher Education course ceased – applicant changed to Vocational course – family bereavement – applicant retained employment – decision under review affirmed
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8202
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 6 February 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had not complied with condition 8202(2)(a) in that he was not enrolled in a registered course. The delegate was not satisfied that the grounds for cancelling the visa were outweighed by the grounds for not cancelling it. 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 27 July 2020 by telephone due to the Covid-19 restrictions to give evidence and present arguments. The Tribunal also received oral evidence from a friend of the applicant, Mr Shahiduddin Tonmoy. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
The applicant was represented in relation to the review by his registered migration agent.
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 (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)
·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 accepted that he breached condition 8202(2)(a) as he is not currently enrolled in a course of study and has not been enrolled since 7 October 2018. On 14 August 2018, his enrolment in a Bachelor of Engineering was cancelled due to non-commencement of studies. Prior to this, the applicant had been studying a Diploma of Engineering but did not complete this course. He then went on to enrol and complete a General English course, which was completed on 6 October 2018.
On 22 January 2020, the applicant received an offer to study a Certificate III in Commercial Cookery and a Diploma and Advanced Diploma of Hospitality Management. However, he is currently on a Bridging visa E, which does not allow for the applicant to study.
On the evidence before the Tribunal, the applicant has not been enrolled in a registered course since 7 October 2018, after he completed the English course. Accordingly, the applicant has not complied with condition 8202(2)(a).
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 is a 21 year old man from Bangladesh. His evidence is that he came to Australia to study engineering, as it was his parent’s wish that he become an engineer. He said he wanted to study in Australia because of the high standards of education here.
He said he discovered how hard engineering was. Since his enrolment was cancelled in 2017, he has gone on to set new goals in commercial cookery as he now wants to operate his own restaurant in Bangladesh with his friend. This is why he sought enrolment in a commercial cooking and hospitality management courses.
When asked whether he had attempted to enrol in another bachelor course, the applicant stated shortly after his enrolment was cancelled, he sought enrolment in a Bachelor of IT. However he did not follow through with this due to feeling depressed. This is the only bachelor course the applicant attempted to enrol in since August 2018 when his enrolment in the Bachelor of Engineering was cancelled.
The applicant stated that in around July 2018, he started working at a Turkish kebab shop. He continued to work there until around April 2020 when the owner sold the shop. He did not work for a few months but has recently started working there again with the new owners.
It was submitted on behalf of the applicant that the applicant’s purpose of travel to Australia was, and continues to be, study. It was noted by the representative that on 17 August 2018, the applicant received an offer of enrolment at Duke College to study General English Start to Advanced course from 20 August 2018 to 28 October 2018. It was further submitted that this should weigh slightly in favour of the Tribunal exercising its discretion in favour of the application as this occurred after his enrolment in the Bachelor course was cancelled.
There was no evidence presented at the hearing, nor in the department’s file, that the applicant came to Australia for any purpose other than to study. However, the applicant has not studied since October 2018 and has remained in Australia working. Furthermore, he no longer wants to study the engineering, which is what he came to Australia to study. He now wants to study cooking and hospitality management, however none of these courses are at the bachelor level, which he came to Australia to study.
The Tribunal is not convinced that the applicant has a compelling need to remain in Australia. This is because he no longer wants to study the field which he came here to study, and he does not appear to want to study at a bachelor level. Furthermore, for the last 21 months he has remained in Australia working and not studying at all.
The Tribunal does not accept that having completed the English course, that this should be a factor taken in the applicant’s favour. It was after he completed this course that the time started running on his non-compliance with condition 8202. The applicant made no attempts to enrol in any other course until January 2020 when he received the letter of offer in relation to the Certificate III in Commercial Cookery and Diploma and Advanced Diploma of Hospitality Management. This indicates the applicant was remaining in Australia for a purpose other than to study.
For these reasons, the Tribunal gives this weight in favour of cancelling the visa.
The circumstances in which ground of cancellation arose
The applicant stated at the hearing that after arriving in Australia, he had difficulty adjusting to life here and he was getting poor results in his Diploma of Engineering course. After failing subjects, he became depressed. Then his Uncle passed away in mid-2018, which worsened his depression.
The applicant’s father provided a letter, which confirmed that his son’s academic performance was affected by two factors – his inability to adapt quickly to the new environment as well as the sudden passing of his Uncle and Aunt in a car accident.
In an email to the Department dated 21 January 2020, the applicant confirmed that he found it difficult to adapt to “the high education standards in Australia” as he had not experienced anything like it before. He tried hard but only managed to pass one subject during his Diploma of Engineering. He said this this caused him to become depressed as he was not able to pass his subjects and focus on his education. Then his Uncle and Aunt passed away which caused his mental condition to worsen.
He said in this email that he consulted education consultants and he attempted to enrol in a Bachelor course, but he was denied admission as he was not provided with a release letter from his previous university. He then said that “till date” he has been trying to get admission in a bachelor course but he has not been able to.
He said that he did not see a psychologist because of financial reasons. He confirmed he did not attend a general practitioner either. He said he tried to see a psychiatrist but did not because of the long sessions and expense involved. However, he said he did see a counsellor through the university after he started failing subjects and following the death of his uncle. No reports or letter from this counsellor was provided to the Tribunal.
When asked whether he attempted to enrol in another bachelor course upon the cancellation of his enrolment, he said that he had tried to enrol in a Bachelor of IT just after his enrolment was cancelled. However, he said he couldn’t go through with this because of his depression. This was the only time he attempted to enrol in a bachelor course. This contradicts what the applicant told the Department in his email detailed above.
The applicant apologised for what he did that lead to his visa being cancelled.
The applicant’s friend, Mr Tonmoy stated in his evidence that he has known the applicant for 7 or 8 eight years, since year 9 at high school. He said the applicant was a good student at school. They both decided to come to Australia for higher studies and they arrived here within one week of each other. He said he witnessed the applicant go into depression. He observed the applicant being upsets about his Uncle and wife’s accident. He said the applicant was not eating properly. He would provide the applicant with financial help when he needed it. They are now living together, and he has seen a positive change in the applicant. He is trying to make progress here. Both of them are planning on starting a business together in Bangladesh, which is why the applicant wants to study commercial cooking. He believes the applicant should be given a chance.
It was submitted by the applicant’s representative that the circumstances that led to the applicant’s visa being cancelled are extenuating and beyond the applicant’s control. It was also submitted that the applicant was a genuine student.
The Tribunal was advised that the applicant had intended on seeing a psychologist for an assessment of his mental health however due to his financial instability caused by the ongoing Covid-19 pandemic he has been unable to do so.
At the hearing, the representative submitted that the applicant had found it difficult studying in Australia, had difficulty concentrating and this was compounded by the passing of his Uncle and Aunt. He submitted that there were compelling circumstances beyond the applicant’s control. When asked about this, it was submitted that the applicant was a genuine student and that if he had of foreseen these things happening in the future, he might have taken a break from his studies to return home for a period of time. It was submitted that it would have been hard to keep focus on studying knowing that his Uncle had passed away and having suffered loss. These submissions appear focused on the death of the applicant’s family members.
When asked how it was beyond the applicant’s control that he was failing subjects before his Uncle’s passing, it was submitted that the applicant was living away from home, found it difficult to integrate here which made study hard for him. He only managed to pass one subject of his Diploma course. It was submitted that satisfactory completion of his first course (being the English course in October 2018) should be given some weight as it demonstrated that the applicant came to Australia for studies.
After the applicant was notified that his education provider was considering cancelling his enrolment, the Tribunal notes that the applicant wrote to the Associate Director on 2 May 2018. In this letter, he set out the difficulties he was having with his studies and detailed the car accident his Uncle and Aunt were involved in that led to their passing. He said he was trying to get help from the numeracy centre with his studies, was trying to improve his communication skills and intended on improving his conditions including applying for student accommodation, joining club, attending all “advantage modules” and sharing any problems he might face in the future beforehand.
Despite this University considered that the applicant had not met the progression requirements and also had not participated in the intervention strategies made available to the applicant. Nor had he exhausted the support offered by the university. It is clear from this that the applicant had not satisfactorily demonstrated to his education provider that he had done enough to rectify the situation with his progress in his studies.
The Tribunal does not accept the submission that the circumstances in which the ground for cancellation arose were matters beyond the applicant’s control. The applicant’s difficulties with his studies arose prior to the passing of his relatives. Struggling with studying and failing to pass subjects were matters entirely within the applicant’s control. While the Tribunal accepts that his situation would have worsened after receiving news of his Uncle and Aunt’s accident, there will things that the applicant could have done to take control of the situation. There is no evidence that the applicant sought a leave of absence or deferral from his studies so that he could return home and recover from his grief. For these reasons, the Tribunal gives significant weight in favour of cancelling the visa.
The extent of compliance with visa conditions
It was submitted that since the applicant arrived in Australia, he has maintained lawful residence here and has never disengaged with the Department. It was also submitted that the applicant has demonstrated substantial compliance with immigration laws. The Tribunal accepts that aside from not complying with condition 8202, there is no evidence to suggest that the applicant has not complied with any other condition of his visa.
However, the applicant has been non-complaint with condition 8202(2)(a) for a significant period of time has he has not been enrolled in a course for over 21 months. Accordingly some weight is given in favour of cancelling the visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
When asked what hardship might be caused if his visa were to be cancelled, the applicant said that his life would be ruined and that he made a mistake letting all of this get to him. His goals for the future would be gone and his financial situation would be impacted. He said he would be left behind by his friends and that his parents would be devastated, as would he be. He said that he had lied to his parents about his situation for a long time.
The applicant said he had always been a good student in his home country, always achieved the best results. He never expected to be in a situation like this. He wants to be able to complete his studies without any distractions or problems, prove to his parents that he has done well and give them good news. He has now told his parents that he wants to study cooking and hospitality and then go into business with a high school friends.
It was submitted by the applicant’s representative that the applicant would suffer severe personal hardship and that he should be given an opportunity to move past the mistakes he made. He left his home country in order to complete tertiary studies in Australia. It was submitted that the applicant was remorseful for his conduct, but it was not foreseeable that he would experience such difficulties in Australia, that due to the mitigating circumstances the applicant should be given the opportunity to complete his education here.
It was also submitted that if he returned to his home country without completing his qualifications, it would have severe consequences on him, that he would find it difficult to start over. He would face shame and humiliation from his family, friends and the community at large.
Lastly, it was submitted that the applicant would face psychological hardship, as his (undiagnosed) depressed and anxiety would deteriorate.
The Tribunal accepts that the applicant would suffer financial, emotional and psychological hardship if he has to return to Bangladesh without completing any significant course of study. Accordingly, the Tribunal gives this some weight against cancelling the visa.
Past and present behaviour of the visa holder towards the department
As noted above, aside from not complying with condition 8202 there is no evidence to suggest that the applicant has not complied with any other condition of his visa. Nor is there any evidence to suggest that the applicant has not engaged appropriately with the department. Accordingly the Tribunal gives this some weight against cancelling the visa.
Whether there would be consequential cancellations under s.140
This is not applicable.
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 applicant did not give evidence about this, but there were submitted made on his behalf. As a result of the cancellation of his student visa, the applicant was required to obtain a Bridging visa E with no study rights.
There are a number of mandatory consequences as a result of the cancellation of the applicant’s visa. While the applicant could make another student visa applicant offshore, she would not be permitted (with exceptions) to make an onshore visa application as a result of the cancellation.
It was submitted that it is appropriate for the Tribunal to set aside the cancellation decision as doing so would allow the applicant to lodge a further student visa application, which would allow him to study cooking and hospitality. It was submitted that a favourable decision by the Tribunal would render section 48 of the Act inoperative (which would prevent the applicant from lodging further visa applications in Australia). It was also submitted that item 1222(4) of Schedule 1 to the Migration Regulations would allow the applicant to lodge a further student visa application. His visa application could then be assessed against the student visa requirements.
If the visa is cancelled, a legal consequence would be that the applicant would not be able to apply for another student visa. Subject to any appeal rights he may exercise, if the applicant chooses to remain in Australia unlawfully, he could be liable for removal and detention. The applicant could also be precluded from being granted a further visa for a period of three years as a result of Public Interest Criterion 4013. The Tribunal is satisfied that those consequences are intended lawful consequences of the legislation and, in the applicant’s case, do not mean that the visa should not be cancelled. Accordingly, the Tribunal gives no weight against cancelling the visa under this consideration.
Australia’s international obligations

There is nothing before the Tribunal to suggest that the cancellation of the applicant’s visa would breach any international obligations. Accordingly, the Tribunal finds this consideration neutral and does not weigh in support or against cancelling the visa.
Any other relevant matters
The applicant did not give evidence about any other matter that would be relevant to the review of the cancelation of his student visa.
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.
Elizabeth Tueno
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

[2020] AATA 4178

27 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies