Touseef (Migration)

[2020] AATA 1174

Touseef (Migration) [2020] AATA 1174 (23 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hamza Touseef

CASE NUMBER:  1933757

HOME AFFAIRS REFERENCE(S):          BCC2019/3284450

MEMBER:Peter Booth

DATE:23 January 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 23 January 2020 at 3:26pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered course ceased – applicant changed to diploma level course and English course – late arrival in Australia – delayed enrolments – 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

1. This is an application for review of a decision dated 19 November 2019 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).

2. The delegate cancelled the visa on the basis that the applicant did not comply with condition 8202(2)(b) of the Migration Regulations 1994 (the Regulations) in that he had not maintained enrolment in a registered course that, once completed, would provide a qualification that was the same level as, or a higher level than, the registered course in relation to which his 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.

3. The applicant appeared before the Tribunal on 13 January 2020 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 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 must maintain enrolment in a registered course that, once completed will provide a qualification that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted: 8202(2)(b). In the present case, the applicant’s visa was cancelled on the basis that he was not enrolled in a registered course at the same level or higher for which he was granted his student visa.

7. The delegate’s decision dated 19 November 2019 records the reasons for cancellation of the applicant’s student visa. The applicant’s visa was granted on 17 January 2017 in relation to a bachelor of Information Technology course, which would provide a level 7 AQF qualification. The Provider Registration and International Student Management System (PRISMS) indicated that the applicant’s enrolment in this course was cancelled on 6 July 2017. On 30 October 2019 the applicant enrolled in a bachelor of business course. The delegate also found that the applicant had not been enrolled in a bachelor level course of study between 6 July 2017 and 30 October 2019. At the hearing the applicant affirmed the correctness of this conclusion. On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course at the same level as or higher than the registered course in relation to which his visa was granted during the period 6 July 2017 to 30 October 2019. Accordingly, the applicant has not complied with condition 8202(2)(b).

   Consideration of the discretion to cancel the visa

8. 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’.

9. The Tribunal turns to consideration of any relevant factors, including matters raised by the applicant and the departmental guidelines which cover matters such as:

   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

10. The applicant gave evidence that he arrived in Australia on 5 February 17 as the holder of a student (subclass 500) visa. He said that his intended course of study was “a package, diploma of IT followed by a bachelor of IT”. The applicant did not give any evidence as to whether he had a compelling need to travel to or remain in Australia.

    The extent of compliance with visa conditions

11. The applicant confirmed that he had not been enrolled in a bachelor level course of study from 6 July 2017 until 30 October 2019, when he obtained a new enrolment in a bachelor of business course.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

12. The applicant gave no evidence regarding any degree of financial, psychological, emotional or any other hardship which may be caused by the cancellation of the visa. However, the Tribunal accepts that cancellation of the applicant’s visa will cause some degree of financial hardship in the form of lost tuition fees, or emotional hardship, in the form of disappointment or embarrassment in not completing the course. The Tribunal gives this factor little weight.

    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

13. The applicant said that he arrived after his course had already started and said “I was late, five weeks, I missed a few subjects, and the confirmation of enrolment (COE) was cancelled in about March or April 2017”. The Tribunal enquired why the COE had been cancelled to which he said “I was not given help with the Internet-based course, I asked for help, the visa was cancelled because I was doing an Excel sheet for an assignment, I asked a friend to help, this COE was cancelled, I was out of class for about one month, the COE was cancelled on 6 July 2017”. He said that he went to a “consultant” and gave “them all my documents, they said they would get me enrolled in the same course, diploma IT, I was enrolled in a diploma of IT, it was in a College in Sydney, I moved to Sydney, I started the diploma and completed it, I did not know that it was a breach of the visa”. The Tribunal enquired whether he had signed a letter of offer to which he said “yes”. He went on to say, in answer to a further question from the Tribunal, that he did not know that it was a diploma course only that it was an IT course “the same one as I had been cancelled in”. After some further questions he said he knew when he commenced the course in Sydney that it was a diploma course. He went on to say that shortly prior to completion of this course, when he had one subject remaining, he went to see “consultants” and enquired about a transfer to a bachelor level course. In answer to a question from the Tribunal he said that he knew prior to this time, and indeed when he started the course, that he was not enrolled in a bachelor level course. He went on to say that the consultant informed him that “it could be done” but that “I would not get a completion certificate for the diploma”. Apparently the “consultant” suggested that the applicant complete his last subject. This, apparently, was in January 2019. The applicant gave evidence that the “consultant” advised him to complete the course and obtain the certificate. He said that he obtained a certificate in “July 2019”. Apparently this time he returned to see the “consultant” who informed him there was “no room in the July session of bachelor of IT”. He said that “I have this thing that I needed to complete the course of the same institution, I applied for a bachelor of IT at the same institution in July 2019.” He went on to say that he received an “offer letter” on 23 October 2019 but he did not accept this offer because he had already made enquiries of other institutions and he received a letter of offer from “Victoria University” in September in respect of a “bachelor of networking”. However he said that he does not accept this letter of offer. He did not explain why. He then went on to say that “I got a COE in bachelor of business from UBBS in Sydney on 30 October 2019”. The Tribunal observed that he had provided a COE in respect of a bachelor of business course from UBBS which commenced on 20 January 2020 and was due to be completed by 2 January 2022. The Tribunal enquired whether this was the course to which he was making reference. The applicant said “yes”. It is to be noted that this is a bachelor of business course not a bachelor of networking which was the applicant’s evidence at that point. The applicant said that he is studying that course now or about to commence studying the course.

14. He went on to say that “in the meantime, on 13 July, I apply to many courses, to cover the gap, to stay enrolled, I studied seven weeks in a general English course”. He did not elaborate. At all events the applicant confirmed that there was a period of 27 months during which he had not been enrolled in a bachelor level course of study. The Tribunal invited him to explain this to which he said “I did not know I was in breach of the condition”.

15. The applicant also provided a statement in support of his application for review. It is undated but in the following terms:

    “ I arrived in an ongoing session as a late enrolment I had my both coe’s cancelled in the first five weeks after arrival in Australia because I took help in completion of an excel table  in a classroom work due to my lack of understanding on moodle, student portal and any know how of how to find assignment and how to find datesheets, timetables because I wasn’t given any special consideration to catch up with rest of the class which already was about to complete the subject, I had paid one year whole fee and wasn’t prepared for any problem with college and admission, due to lack of know how about Australian educational system and university /college admission procedure I visited FC CONSULTANTS in Melbourne , they got me enrolled in diploma program I showed them all my documents and told them about my current package program ,instead of applying for two coe’s , the educational consultant sir SARIM HUSSAIN only got me one coe which was just for diploma course as it was the same course I wasn’t sure I am breaching any of my visa condition by the time I was going to complete my diploma I got in contact with student counseller and enrolment officer to get exemption of subjects in bachelors course and get credits for the studies I done so far , I was guided to complete the course in order to get completion certificate and transcript , my diploma course completed on 30 th July 2019, I applied for admission in bachelors at MIT college the same institution I completed my diploma at but July intake was full so I was told apply now and u will be offered placement in November session ,also I applied for bachelors of networking at VICTORIA university Sydney campus ,there  I got  my conditional offer letter from Victoria university on 27^th September 2019 ,(20) days prior to NOICC that I received on 17 october 2019 ,offer letter from MIT in bachelors of networking was given to me on 23 october 2019 , I wasn’t able to get enrolled in July session so in both offer letters I was offered placement in November session, I was concerned about the gap between august and October so I met enrolment officer from MIT and she guided me to take admission in a GE course for 5-7 weeks to cover my 2 month gap ,on 14^th October my GE coe expired and on 17^TH OCTOBER I received notification of consideration of cancellation, so on 30^th October I got confirmation of enrolment in Bachelors of business  universal Business school Sydney .

    Personal Circumstances after arrival          

    When I arrived I actually was late  enrolled in an ongoing session and I didn’t had anyone whom I knew so I started college the same day I arrived I got enrolled at the college for diploma of IT and I found my first job at a kebab shop(kebabs r yummy) in south bank Melbourne the owner name was I remember filiz  ,I worked there for three weeks she didn’t paid me took 3 weeks pay in mean time I bought a bike(merelli 250r) I came to know I can’t ride it because on my licence i can ride upto 150cc bike  I put it on gumtree one guy named leon nguyen from keysborough contacted to buy he came to my home gave me an ANZ bank cheque and took the bike when I deposited the cheque in my commbank account it bounced back due to insufficient funds.

    I was assaulted just a week before my coe got cancelled by the lease owner where I was renting.i reported to police and all that trauma of job, accommodation bike college just turned me into a very vulnerable depressed lonely person. It was the worst time of my life and the decision which educational consultant made on my behalf without guiding me what to do it has now turned into the biggest issue I have been into yet

    How I got my diploma Coe

    When I was told that my coe’s are getting cancelled from the head of iT ,I was just broken I shattered into tears and googled nearby educational consultant found FC consultant bourke street I went in told them about what has happened to me they said don’t worry give us your documents we will get you enrolled they filled the offer letter form and calmed me down because I wasn’t sure what is going to happen to me as already I have been bashed and there is no one whom I can turn to for support they asked me to submit fee and to move to Sydney because I got enrolled at Melbourne institute Sydney campus instead of diploma leading to degree program they got me enrolled into diploma of information technology program ,it was august 2017 I got higher distinction in one subject ,distinction in one subject and pass in another subject etc by the end of the trimester 2 I had completed all subjects and only one subject was left  ,by first trimester of this year i booked appointment with counseller and asked if I can do the subject with my bachelors course and get credit for the subjects I completed they guided me in that case I will not get completion certificate and I should complete my diploma that will be better ,I completed diploma in July and went in person to meet our enrolment officer to get enrolled in bachelors and extend my coe ,she said unfortunately we cant enrol you in July sessions its already full and your coe cant be extended as the program you had coe for you have completed successfully so you should get enrolled in English course for 5-7 weeks to cover the gap and we will offer you enrolment in November session with 8 subject exemption  , they gave me offer letter to fill and submit I did that and sent them my English course coe for 2 month gap ,my English course coe expired on 14 October, 2019 but I didn’t received my offer letter from Melbourne institute of technology till 23^rd October 2019 but when I got the offer letter it was too late already

    Screenshot from decision letter

    The visa officer has stated that I wasn’t enrolled in a full time course from 14^th October to 30^th October (period of 15 days) ,I had already applied for admission in bachelors course right after my diploma completion and had been granted Victoria university offer letter in September but I was waiting for my current coe to finish on 14^th October and also the November intake to open so I can pay fee for bachelors and obtain coe, just after 2 days of coe expiry I was sent NOICC .Also as advised by my educational consultant I had 28 calender days after current coe expiry to obtain another coe. i have maintained my fulltime registered course coe throughout my visa.
      Visa officer stated that I seeked admission in bachelors at UBSS and MIT college after receiving NOICC to change my situation and I have no real  intent to complete my bachelors but I believe my admission application right after completion of diploma in august and getting offer letters from two intitutes with VICTORIA UNIVERSITY granting offer letter in September before any immigration notice or involvement speaks for itself, I had  admission in GE course but I visited educational consultants every week and applied into KOI,VICTORIA UNIVERISTY,MIT all for bachelors course.so that as soon as the intake opens I get coe first.

    The second reason the visa officer stated about the level of my AQF registered course wasn’t same because I didn’t had a Conditional Coe for bachelors while I completed my diploma of information technology,I have stated above about the dodgy consultancy which Sir Sarim Hussain at FC Consultants provided when I was here for just over a month, I visited consultants while completing diploma of Information technology to get enrolled in BACHELORS at MIT but I was told you are continuing  student at MiT INSTITUTE so they cant apply for a continuing student in same institution and my student counseller advised me to complete my diploma course first in order to receive completion certificate.

    I am invited on my graduation ceremony in Melbourne on 5^th December 2019, it is a ceremonial moment but for me it has brought an unexpected future and uncertainty.”

16. It can be seen that the applicant’s statement is broadly consistent with his oral evidence at the hearing. It has been taken into account.

17. The applicant went on to state that “there was always my intention to complete my diploma and do the rest of the degree in the bachelor course, the consultant said I had to complete this course”. He added that he was cheated by a former employer and not paid for three weeks’ work, and that he was assaulted by the landlord. These matters are also mentioned in the written submission, in somewhat more detail. It does not appear that they were causative of the cancellation of his enrolment in the bachelor’s level course and the applicant did not assert that they were in the hearing. These matters are given little weight.

18. The applicant advanced several reasons for the failure to maintain enrolment at the requisite level. The first arises by reason of late arrival in the course, experiencing difficulties and requesting assistance from a fellow student. No substantive reason was advanced as to why the applicant attended late for the course. Attendance and enrolment as required by the course provider is a matter for the student and well within the reasonable control of the student. The course provider treated the assistance provided by a fellow student in a most serious way and cancelled the applicant’s enrolment. No details were given of the reason or reasons why the course provider acted in that fashion. Nonetheless it is incumbent on every student to complete their studies to the best of their ability without assistance in assessment tasks by fellow students. The Tribunal gives weight to the decision by the course provider to cancel the enrolment and notes that there was an absence of any meaningful explanation by the applicant on this point. The second reason goes to why the applicant did not enrol in a bachelor’s level course immediately upon being excluded from the first bachelor’s level course. Ignorance of the requirements was said to be a factor. The Tribunal does not accept that it is reasonable for a student holding a student visa to be ignorant of the visa conditions. The student can reasonably be expected to make inquiries of the visa condition and to ensure that the visa conditions are met at all times. Accordingly the Tribunal does not accept that the failure of the applicant to maintain the requisite level of enrolment was beyond his control. This is given significant weight.

    Past and present behaviour of the visa holder towards the department

1. There was no evidence in relation to this factor and the Tribunal gives it no weight.

   Whether there would be consequential cancellations under s.140

2. The Tribunal was provided with no evidence on this point and gives it little weight.

   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

3. The Tribunal accepts that there may be legal consequences as a result of the cancellation. However, these consequences were intended by the Parliament when enacting the relevant legislation. The Tribunal gives them little weight.

   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

4. There was no evidence in relation to this factor and the Tribunal gives it no weight.

   If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

5. There was no evidence in relation to this factor and the Tribunal gives it no weight.

   Any other relevant matters

6. There was no evidence of any other matters and the Tribunal gives this factor no weight.

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

   DECISION

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

   Peter Booth
   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.