Syed (Migration)

[2017] AATA 2499

Syed (Migration) [2017] AATA 2499 (20 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zabiullah Syed

CASE NUMBER:  1515461

DIBP REFERENCE(S):  BCC2015/2240574

MEMBER:Tigiilagi Eteuati

DATE:20 September 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 20 September 2017 at 2:21pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Enrolment in a registered course – Plan to change Higher Education courses – Limited academic progress

LEGISLATION

Migration Act 1958, s 116

Migration Regulations 1994, Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 November 2015 made by a delegate of the Minister for Immigration 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 the applicant had breached the condition of his visa that he be enrolled in a registered course. 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 applicant appeared before the Tribunal on 14 February 2017 to give evidence and present arguments.

4. 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

5. 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?

6. 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).

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

8. The Minister’s delegate found that the applicant had not been enrolled in a registered course since 16 October 2014. This accords with records held by the Department and is conceded by the applicant.

9. 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).

   Consideration of the discretion to cancel the visa

10. 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.

11. 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 matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

12. At the hearing before the Tribunal the applicant claimed that when he arrived in Australia in January 2014 he was enrolled on an ELICOS course in the first semester and then was to begin a Master of Professional Accountancy with Griffith University in the second semester 2014.

13. The applicant admitted that he stopped attending classes in May 2014 and that he had only attended 40% of the time when he was attending classes. The applicant said that he did not successfully complete the ELICOS course and did not attend any classes in the second semester.

14. He said that in July or August 2014 he decided he wanted to abandon his accountancy studies and start a Master of Information Technology (MIT) course. He said that he applied to Griffith University to change courses and they refused. He said that he also applied to Central Queensland University and University of Southern Queensland for admission in MIT courses. He said that both of these universities indicated that the applicant could be granted enrolment if he undertook a 6 month ELICOS course. The applicant said that he did not want to undertake an ELICOS course and was unwilling to undertake an ELICOS course. He said that if he was able to gain direct entry into a MIT course he would have enrolled. The applicant made no further attempts to enrol in any course.

15. The Tribunal notes that the applicant provided various excuses for not enrolling in his email to the Department of 6 November 2015 which were inconsistent with his evidence at the hearing. The Tribunal prefers the evidence of the applicant at the hearing.

16. The Tribunal raised with the applicant its concern that given that the applicant had not attended classes since May 2014, had not been enrolled in a course since October 2014 and had not even tried to enrol in any course since 2014 that the applicant may not have the desire to undertake a higher education course in Australia.

17. The applicant said that he wanted another chance and that if the cancellation of his visa was set aside that he would be enrolled in a course within a week. He said that he had been homesick during his time in Australia, suggesting that this may have contributed to his failure to enrol or study in Australia.

18. The Tribunal finds that the applicant does not have the desire to successfully undertake a higher education course in Australia. The applicant arrived in Australia in January 2014 and by May 2014 he had ceased attending classes. He only attended 40% of his classes while he was attending. The applicant has not been enrolled in any course in Australia since October 2014 and has not even attempted to enrol in a course since 2014. The applicant insists that he has not been working in Australia and has been provided for by his brother.

19. The Tribunal is willing to accept that the applicant and his family members may experience disappointment that the applicant’s visa was cancelled before he was able to complete a higher education course in Australia. The Tribunal has also considered that, as the applicant’s visa has been cancelled, he may have to wait for some time to be granted another visa in Australia. However, the applicant had every chance to study in Australia and decided to stop studying altogether in the year he arrived in Australia and has made no attempts to even enrol in a course since.

20. The Tribunal finds that the applicant’s lack of desire to successfully undertake higher education courses in Australia heavily outweighs any hardship that he or his family members may face because of the cancellation of the applicant’s visa.

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

    DECISION

22. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Tigiilagi Eteuati
    Member

    
    

    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.