Wahab (Migration)

[2020] AATA 150

Wahab (Migration) [2020] AATA 150 (23 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdul Wahab

CASE NUMBER:  1933818

HOME AFFAIRS REFERENCE(S):          BCC2019/3240334

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 12:38pm

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 – life stressors – mother’s ill health – responsibility to comply with visa conditions – 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

1. This is an application for review of a decision dated 29 October 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) 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 22 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 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 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 29 October 2019 records the reasons for cancellation of the applicant’s student visa. The applicant’s visa was granted on 21 February 2018 in relation to a Diploma of Science (engineering studies) and a Bachelor of Engineering (civil) honours course, which would provide a level 7 qualification. The Provider Registration and International Student Management System (“PRISM”) indicated that the applicant’s enrolment in the bachelor course was cancelled on 20 November 2018 and the applicant’s enrolment in the diploma course was cancelled on 12 November 2018. On 10 September 2018 the applicant enrolled in a Certificate II course in security operations which was completed on 14 September 2018; he further enrolled in a Diploma of Business commencing on 17 December 2018, and this enrolment was cancelled for non-payment of fees on 10 April 2019. Prior to the Diploma of Business enrolment being cancelled, the applicant enrolled in a series of vocational courses in mechanical and automotive technology. The highest AQF level of this course package was AQF level 5 (diploma), which would provide a level 5 qualification. At the hearing, the applicant affirmed that the Bachelor of Engineering enrolment was cancelled on 20 November 2018 and the Diploma of Science enrolment was cancelled on 12 November 2018. 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. 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, and whether the visa holder has a compelling need to travel to or remain in Australia

10. The applicant arrived in Australia in “February 2018”; he was unable to be more precise. He intended to study a Diploma of Science commencing on 21 February 2018 and to be completed on 1 February 2019, to be followed by a Bachelor of Engineering commencing on 25 February 2019 with an expected completion date of 11 December 2021. 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 an AQF level 7 because of study since 20 November 2018.

    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 commenced the diploma course but did not complete it. After 15 days, he returned to Pakistan because his mother was ill. He said that he obtained a deferral of the course at that time. He returned from Pakistan after approximately three months. He said that he re-enrolled in the Bachelor of Engineering course when he returned. The Tribunal drew the applicant’s attention to page 5 of the delegate’s decision dated 29 October 2019 as follows: “upon his return to Australia three months later, the visa holder chose not to re-enrol in his engineering studies but completed a four day certificate II level course in security operations”. The applicant asserted that this statement was incorrect. The applicant said that he had no proof of re-enrolment. The applicant’s migration agent was invited to clarify this point. The migration agent in response, although it was not clear, appeared to assert that the applicant had re-enrolled in the diploma course but not the bachelor level course. At all events there is no documentary corroboration of the assertion by the applicant that he re-enrolled in the bachelor level course. The Tribunal prefers the account of the facts by the delegate in the decision dated 29 October 2019 on this point. The Tribunal asked the applicant why the COE was cancelled on 20 November 2019, to which he said “because I did not study, I have some personal problems, I had no friends, I was confused, I did not know what to do, I did not pay the fees”. He did not elaborate. The Tribunal enquired as to why the COE in the diploma course was cancelled on 12 November 2018, to which he said “the same reason”. The applicant then added “I did not pay the fees, because I was not feeling comfortable at the time, I did not like Perth, I had no friends”. The Tribunal asked what happened then, to which he said “I saw a doctor, I explain things to him, I went to Sydney, that is why did not pay the fees in Perth”.

14. The Tribunal enquired as to whether the applicant had thereafter enrolled in other courses, to which he said he enrolled in a Diploma of Business in January 2018 but did not complete it, a Certificate II and a Certificate IV course “automotive” which he did not complete, and a Diploma of Community Services which is due to commence on 30 November 2020. In further questions from the Tribunal, he conceded that he had also enrolled in and completed a Certificate II course in security operations on 14 September 2018. The Tribunal asked whether the applicant had enrolled in any bachelor level course at the cancellation of the Bachelor of Engineering course on 20 November 2018. In response he said that he had enrolled in a Bachelor of Community Services on “October 2019” which will start on 7 February 2022 and will be completed on 31 December 2023.

15. The Tribunal enquired as to when the applicant had received notice of intention to consider cancellation of his visas, to which he said “on 25 September 2019”. The Tribunal observed that a few days after receiving the notice, he enrolled in the Bachelor of Community Services course, to which he said “when I receive the notice it came to my knowledge that I was breaching a condition”. The Tribunal asked why the applicant had not maintained enrolment in a bachelor level course, to which he said “I recently turned 18, I was not aware of that thing, I was not aware of breaching the condition”.

16. The applicant’s migration agent was invited to make any submissions. The migration agent said that when his client entered Australia in February 2018, he was not aware of any conditions and that the breach of the visa condition was because of a lack of knowledge. The applicant’s migration agent had also filed, on the morning of the hearing, a short submission dated 22 January 2020. The migration agent did not draw the Tribunal’s attention to any particular part of the submissions during the hearing. The written submissions of the migration agent have been taken into account. The Tribunal notes that paragraph 5 contains the only reference to the reasons for the cancellation of the applicant’s enrolment in the bachelor level course as follows: “after returning from Pakistan, he was depressed, finding it difficult to concentrate and maintain his focus on studies. He did not have any friends or acquaintances in Perth. His parents helped him to find some friends from his home town in Sydney and he decided to move there from Perth”. This is broadly consistent with the applicant’s evidence although, as with the applicant’s evidence, is vague and lacking in detail. The Tribunal notes that neither the migration agent nor the applicant refer to or rely upon any medical opinion or evidence in relation to depression.

17. To the extent that the applicant has given any evidence about the reasons for the cancellation of his bachelor’s course enrolment, it appears that it related to lack of friends, or other similar matters, and perhaps as a consequence that he did not pay the tuition. This is not a convincing reason for not persisting with studies in the Tribunal’s view. In the Tribunal’s view, it is incumbent on a student to diligently apply themselves to the completion of their particular studies. As to why the applicant did not maintain a bachelor level enrolment thereafter, he said that he was not aware of the condition. In the Tribunal’s view, it is incumbent on a foreign student holding a student visa to be familiar with and comply with the terms and conditions of the student visa. It is not a convincing reason to say that the student was unaware of important conditions of the study visa. In all the circumstances, the Tribunal is not convinced that the reason for not maintaining the requisite level of study enrolment was beyond the control of the applicant.

    Past and present behaviour of the visa holder towards the Department

18. 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

19. 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

20. 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

21. 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

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

    Any other relevant matters

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

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

    DECISION

24. 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.