Syed (Migration)

Syed (Migration) [2020] AATA 3453 (16 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Yakub Uddin Syed
CASE NUMBER:  2002066
HOME AFFAIRS REFERENCE(S):          BCC2019/3503034
MEMBER:Vanessa Plain
DATE:16 July 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 16 July 2020 at 12:59pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled at the required AQF level – consideration of discretion – reliance on education agent – responsibility of visa holder – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 3 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 failed to maintain enrolment in a registered course that once completed, would provide a qualification from the Australia 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. 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 16July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Imtiyaz Ali Mohamad.
The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu 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(2)(b) 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 provides as follows:
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
[...]
(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.
Paragraph (2)(b) states the visa holder must maintain enrolment in a registered course that, once completed, will 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.
The applicant’s visa was granted for the purpose of studying a Masters of Professional Accounting at the University of New South Wales which is an AQF level 9 course.
Information available to the Department in the Provider Registration and International Student Management System (PRISMS) indicated that on 23 August 2018 the applicant’s enrolment in the Masters course was cancelled by the education provider and he has not been enrolled in an AQF level 9 course since this date.
PRISMS indicated that the highest CoE the applicant held thereafter was for a Diploma of Leadership and Management which is at AQF Level 5. As the applicant was not enrolled in a course at the AQF Level 9 (Masters Degree) or Level 10 (Doctoral Degree), the circumstances of clause 8202(3) do not apply to him.
On 7 January 2020, a Notice of Intention to Consider Cancellation of Visa was sent to the applicant.
By written response dated 13 January 2020, the applicant responded to the NOICC. In his response the applicant provided the following reasons as summarized by the delegate (verbatim) as follows:
·‘The visa holder changed his study program from a Master's degree at AQF level 9 and enrolled in a Diploma, followed by a Certificate IV at AQF level 4 after receiving advice from an education agent. The agent did not explain the requirement of his visa condition. He trusted the education agent who enrolled him in a Diploma course without telling him that he is breaching condition 8202. He unintentionally breached the visa condition.’
·‘The visa holder was going through serious home sickness and was not able to study at the Master's level. He wanted to acquire a qualification from Australia before returning home. He was interested in Hospitality and Cookery and saw the high demand of hospitality roles in his city, Hyderabad, so he went to an education agent and explained his situation and expressed his interest to study Hospitality. The education agent did not tell him that he has to lodge a new visa to study at Certificate IV level. The visa holder thought someone in Australia in the Education Industry would know the laws and guide him accordingly. He spent his whole life in India and doesn't know much about immigration law, which is why he trusted the education agent. The breach happened due to not knowing the law. He committed this mistake unintentionally.’
·‘After receiving NOICC from the Department, the visa holder realised that he breached his visa condition 8202 and contacted a registered migration agent for guidance. The migration agent explained the different AQF levels and visa conditions attached to his visa. He advised him to lodge new visa to study at the Vocational Education level, which he did.’
At the hearing on 16 July 2020, the applicant admitted he breached his visa condition and acknowledged that he was enrolled in the Masters of Professional Accounting which once completed, would provide an AQF level 9 qualification.
Based on the above, the Tribunal finds that the applicant has not complied with subclause (2)(b) of condition 8202 as he has not maintained enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which his visa was granted.
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’.
In his response to the NOICC, the applicant provided various reasons why he believed his visa should not be cancelled, as summarised by the delegate (verbatim) as follows:
·‘The visa holder came to Australia on a Student visa to study and then return back to his home country. He has already completed a Diploma and taken admission into a Certificate IV in Commercial Cookery, having completed one term of this course. His sole purpose of travel to Australia is and always was to temporarily come here, study and return right after.’
·‘The visa holder did not intentionally breach the conditions of his visa. He has been and still is a genuine student and performed well academically while completing his Diploma. He has kept his Overseas Student Health Cover active. He also attends his classes regularly and intends to finish his study quickly and return home.’
·‘If his visa is cancelled, there will be hardship and serious implications and he will have to leave his studies and will return to India without having the profile that will ensure him a decent job. His parents have high hopes for him and have spent money thinking that he will get a good job after finishing his studies in Australia. He wants to make his parents proud.’
At the hearing, the applicant gave the following oral evidence:
·When he arrived in Australia he went to enrol at the university and he was racially taunted by some students, who verbally abused him due to his dark skin colour. This upset the applicant greatly, he became depressed and upset.
·He did not go and see a doctor and was not diagnosed with depression, but he believe he had depression.
·There is no one in Australia dependant upon his student visa and he is alone in this country.
·He has been working for 16 hours a week approximately, at a Seven Eleven store since August 2018.
·He has been offered some jobs back home if he completes his current Certificate IV in Commercial Cookery and wishes to complete his education so he may return home with honour.
The witness, Mr Mohamad, gave evidence that he saw the effect of the racial discrimination the applicant endured at the university and that it has a terrible effect on him. He recommended that he speak with an agent to assist him.
The applicant’s migration agent Mr Chaudhry, filed written submissions and made further oral submissions at hearing, substantially summarising the evidence of the applicant both orally and in response to the NOICC. The Tribunal has taken these submissions into account.
Purpose of applicant’s travel to and stay in Australia
The applicant initially arrived in Australia on 24 June 2018 as the holder of a Student (Subclass 500) visa which was granted for the purpose of undertaking a Masters in Professional Accounting at the University of New South Wales, which is an AQF level 9 course. The CoE was cancelled on 23 August 2018 for non commencement of studies.
The Tribunal acknowledges that there is no evidence before it to suggest that the applicant’s original intention for his travel to and stay in Australia was for a purpose other than to study as the Masters level, however, the Tribunal is troubled by the fact that the CoE was cancelled on 23 August 2018 (shortly after the applicant’s arrival onshore) and he has not taken steps to enroll in Masters degree since that time.
In response to the NOICC, the applicant stated that he wishes to pursue cookery studies in Australia to ‘learn skills that will ensure him a decent job in the hospitality industry when he returns home.’
At the hearing, the applicant stated that he completed a Certificate III in Security Operations in which he started in October 2018; a Diploma of Leadership and Management which he commenced in August 2018 and which concluded in August 2019 and that he commenced studying a Certificate IV in Commercial Cookery.
The purpose of the grant of the student visa was for the applicant to obtain a Masters level qualification, however this has not eventuated. The applicant has not maintained enrolment at the Masters level for approximately 2 years, by enrolling in the Certificate IV in Commercial Cookery, he has reduced his study level by 5 AQF levels.
The Tribunal acknowledges the applicant’s claims that he has attempted to rectify his visa status by lodging new Student visa applications for the purposes of studying Vocational Education in Australia. He has lodged three separate applications, the second last application was refused on 15 January 2020 due to failing to meet Genuine Temporary Entrant criteria and the third application, which was lodged in January 2020, is still pending assessment.
Based on the above, the Tribunal finds that the applicant’s purpose for being in Australia is not for the purpose of study at AQF Level 9 and has not been in line with that purpose for a significant period of time.
The Tribunal affords this some weight in favour of cancelling the visa.
The circumstances in which the ground for cancellation arose
The ground for cancellation arose because the applicant did not maintained enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which his visa was granted, resulting in non-compliance with subclause (2)(b) of condition 8202 attached to his visa.
The Tribunal acknowledges all the matters set out in the NOICC response and the applicant’s oral evidence as set out above, as to the reasons for non compliance with the visa condition.
The Tribunal notes that the applicant acknowledged he did not see a doctor for his alleged depression and on that basis it follows that there is no written medical evidence before the Tribunal to substantiate the applicant’s claims of depression due to alleged racial vilification. The Tribunal places a little weight on the evidence of the witness as to the difficulty the applicant faced as a result of the alleged racial vilification, however, the Tribunal is not satisfied that the applicant’s emotional or mental health at the time caused him to breach his visa condition, based upon the fact that by his own admission as set out above, he has maintained employment at Seven Eleven since his August 2018 and has undertaken a suite of other courses of study at the vocational level. If the applicant’s health was not so precarious as to prevent him from being gainfully employed and studying at a vocational level, it is reasonable to conclude that his health did not prevent him from complying with visa conditions.
The Tribunal acknowledges the applicant’s claims of being unaware of the migration laws and being reliant upon the advice of a migration agent.
However, it is the responsibility of a student visa holder to be aware of the conditions that attach to the grant of a student visa and the conduct required to maintain compliance with the conditions attached to a student visa. It is the responsibility of a visa holder to contact the Department before they take any action to significantly change their circumstances (such as ceasing studies without obtaining alternate enrolment at the appropriate AQF level or not commencing further studies) and to clarify any consequences that may result from such a change. According to departmental records, at no time did the applicant contact the Department for this purpose.
Given the applicant’s claims of homesickness and depression, the Tribunal considers that it was reasonable to have expected that if the applicant felt that they were unable to obtain enrolment at the appropriate AQF level due to their personal circumstances, that they could have deferred any further studies on compelling and compassionate grounds and returned to their home country rather than remain in Australia in continued non-compliance with a condition of their visa.
Based upon the above, the Tribunal does not accept that the circumstances that led to the breach of the visa condition were due to circumstances that were entirely beyond the control of the applicant.
The Tribunal gives this consideration significant weight in favour of cancelling the visa.
The extent of compliance with visa conditions
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 his visa was granted since 23 August 2018, resulting in non-compliance with subclause (2)(b) of condition 8202.
Given the length of time that has passed since non compliance, the Tribunal considers his non-compliance with 8202(2)(b) to be significant.
There is no further evidence to indicate that he has not complied further conditions attached to the visa.
However, the Tribunal considers the requirement to maintain enrolment at the correct AQF level an important condition for the grant of the Student visa and the Tribunal therefore gives this consideration some weight in favour of cancelling the visa.
The degree of hardship that may be caused to the visa holder and any family members
The applicant states that he wishes to complete his cookery course and purse job opportunities available to him in India subject to the completion of his course. The applicant’s agent has submitted that cancellation of the applicant’s visa will cause irreparable damage, financially, emotionally and socially.
The Tribunal notes that there are no family members in Australia with the applicant who would be adversely affected by the cancellation of the visa.
The Tribunal acknowledges the applicant’s claim that qualifications in India ‘do not match the same level of acceptance as Australian qualifications’ however, the Tribunal considers that the applicant could study at an institute outside of Australia, if he genuinely wishes to engage in further studies. The Tribunal acknowledges that the applicant’s hopes of achieving his career goals through studying and obtaining a qualification in Australia may suffer some prejudice, however, the Tribunal notes that the applicant has completed a Certificate III in Security Operations and a Diploma of Leadership and Management in Australia already.
The Tribunal accepts that the visa cancellation may result in some emotional, financial, social and psychological hardship being caused to the applicant. However, it is a visa holder’s obligation to be familiar with the conditions that attach to their visa.
The Tribunal gives these considerations some weight against cancelling the visa.
The visa holder’s past and present behaviour towards the Department
The applicant responded promptly to the NOICC and there is no evidence before the Tribunal to suggest that the applicant has been uncooperative with the Department or departmental staff.
The Tribunal gives this consideration a little weight against cancelling the visa.
Whether there are any persons in Australia whose visas would, or may, be cancelled under s140
The circumstances of this case are not such that any person’s visa would be consequentially cancelled under s140 of the Act. The Tribunal therefore does not give any weight for or against a decision to cancel the visa for this consideration.
Legal consequences of a decision to cancel the visa
If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and 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. A visa cancellation may also adversely impact upon his pending student visa application.
However, these are mandatory and intended consequences of the legislation and given that the circumstances giving rise to the breach were reasonably within the control of the applicant, the Tribunal does not consider this to be manifestly unfair and the Tribunal therefore gives this consideration little weight against cancelling the visa.
Australia’s international obligations
There is no evidence before the Tribunal to indicate the applicant has children in Australia, nor whether cancelling the visa would lead to a breach of Australia’s non-refoulement obligations. As there is no information before me, I am unable to give any weight for or against cancelling the visa for this consideration.
Any other relevant matters

The Tribunal has no further evidence before it of any other relevant matters.
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 reasons for the breach of the visa condition were not matters that were outside the control of the applicant.
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.
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.
Vanessa Plain
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 3453

16 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

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