ZEESHAN (Migration)

[2019] AATA 6881

ZEESHAN (Migration) [2019] AATA 6881 (11 October 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr MUHAMMAD ZEESHAN

CASE NUMBER:  1823147

DIBP REFERENCE(S):  BCC2018/1036488

MEMBER:  Vanessa Plain

DATE AND TIME OF

ORAL DECISION AND REASONS:         11 October 2019 at 2:29 pm (VIC time)

DATE OF WRITTEN RECORD:                28 February 2020

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decision under review.

Statement made on 28 February 2020 at 3:55pm

CATCHWORDS
MIGRATION – cancellation -  Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – late enrolment – relied on erroneous advice from a friend – English language proficiency – re-enrolment at lower AQF level – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a), (b)

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 August 2018 to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 11 October 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral decision in case number 1823147. The applicant’s name is Muhammad Zeeshan. This is an application for review of a decision dated 7 August 2018, made by a delegate of the Minister for Home Affairs to cancel the applicant’s sub-class 573 higher education sector visa, under section 116(1)(b) of the Migration Act.

4. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study. The issue in the present case is whether that ground for cancelation is made out, and if so, whether the visa should be cancelled. The applicant appeared before the tribunal on 11 October 2019 by telephone to give evidence and present arguments. For the following reasons the tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

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 of the Migration Regulations 1994. If the applicant has breached that condition, under section 116(1) of the Act the visa may be cancelled. The first question for determination by the tribunal is whether or not the applicant complied with condition 8202. Condition 8202, as it applies in this case, requires that the applicant be enrolled in a registered course, or in limited case a full-time course of study or training.

6. In the present case the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a registered course of study. An examination of the delegate’s decision record notes the information before the Department indicated the applicant did not maintain enrolment in a registered course of study from 22 August 2017 onwards.

7. An examination of the information provided in the PRISMS record indicates that the applicant re-enrolled in a diploma-level course of study on 6 November 2017. Therefore, the evidence before the tribunal indicates that the applicant did not maintain enrolment at the Australian Qualifications Framework level 9, master’s degree or above, level of study, from 22 August 2017 onwards.

8. A notice of intention to consider cancellation was issued to the applicant on 30 June 2018.

9. At the hearing the applicant acknowledged he received that letter. By letter dated 2 August 2018 the applicant responded to the notice of intention to consider cancellation. In that document the applicant admitted the grounds for cancellation, and sought to explain the circumstances that led to the cancellation of his enrolment at the University of New South Wales.

10. In the applicant’s oral evidence at hearing the applicant admitted that he was not enrolled in a registered course, and sought to explain those circumstances. The applicant gave evidence that he arrived in Australia on 6 June 2017. The applicant further gave evidence that he had some difficulty adjusting to life in Australia upon entry to the country. He stated that he did not know anyone upon his arrival, and found it quite difficult in the circumstances.

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The applicant also gave evidence that he knew that his course was supposed to commence on 24 July 2017.

1. A review of the PRISMS record confirms that the course was scheduled to start, being a Master of International Business at the University of New South Wales, on 24 July 2017. The applicant gave further evidence that he went to the university to enrol on 28 July 2017, but was told by an individual who he spoke with at the university, that he was too late to enrol, and that they would cancel his enrolment.

2. The applicant acknowledged in his evidence that he did not go to the university before 24 July 2017, and knew that his class was scheduled to commence at that time. The applicant gave reasons for his non-attendance at the university between the time he arrived in Australia on 6 June 2017, and 28 July 2017. The applicant stated that he took advice from a friend of his, also from Pakistan, who was a student studying in Australia, who said to him that he did not have to turn up to the university at the time, and that if he turned up late it is of no consequence because the applicant was already enrolled and he already had his student visa.

3. Unfortunately for the applicant, that advice was incorrect. The applicant then gave evidence that he turned up to the university on 28 July 2017, and at that time was informed that he was too late to enrol and that his enrolment would be cancelled. Indeed it is the case, and the decision record reveals, that the University of New South Wales cancelled the applicant’s enrolment in a Master of International Business due to non-commencement of studies.

4. The applicant gave further evidence that he re-enrolled in a Diploma of Business, which is a vocational level course, on 6 November 2017. The tribunal put to the applicant that this was in non-compliance with his visa conditions, visa condition 8202(2)(b), because the applicant failed to maintain enrolment in a course at AQF level 9, master’s degree or above.

5. The applicant gave credible evidence for the change in level of course studies. The applicant said that he did not know he had to maintain enrolment in a master’s level degree or above, and the applicant said he had tremendous difficulty enrolling in a course of similar level due to issues he had with not having the requisite levels of English qualifications to enrol in other master’s level courses.

6. The applicant gave evidence that rather than study further in an IELTF or a PT preparation course in English so as to gain entry into another master’s level course, he enrolled in a Diploma of Business so as to best utilise his time. That course did not require the same studies or competency in English as the master’s level course. The tribunal accepts that is an entirely reasonable response for why he did not maintain enrolment in the same level of course.

7. On the evidence before the tribunal, the tribunal is satisfied that the applicant was not enrolled in a registered course between 22 August 2017 and 6 November 2017.

   Accordingly, the tribunal finds that the applicant has not complied with condition 8202(2). Having found that the applicant has not complied with the condition of the visa, the tribunal must now consider whether the visa should be cancelled. There are matters specified in the Act or Regulations that must be considered in the exercise of this discretion.

8. The tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual, PAM3, General Visa Cancellation Powers. As to the visa holder’s travel and stay in Australia, the applicant was granted a student temporary class TU higher education sector sub-class 573 visa on 26 May 2017 for the purpose of undertaking an approved higher education level course of study at the University of New South Wales in a Master of International Business.

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1. The applicant gave evidence that he arrived in Australia on 6 June 2017 and that he had paid the fees for the first semester of that course of study. The applicant gave further evidence that prior to arriving in Australia he finished high school in Pakistan, and a bachelor’s degree in a Bachelor of Business Administration in Pakistan. On the basis of that evidence I find that the applicant has no compelling need to remain in Australia permanently, and that he has demonstrated that his original intention in coming to Australia was for the purpose of study, and I think gives some weight towards the visa not being cancelled.

2. As to the extent of compliance of visa conditions, the applicant has not complied with condition 8202. Based on the matters I have already set out, that is to say the matters that speak to the reasons for the cancellation of the enrolment, I find that there is no particularly compelling reason for the breach. There is no evidence before the tribunal of breaches of other visa conditions, and I give this some minor weight towards the visa not being cancelled. As to the degree of hardship that may be caused if the visa remains cancelled, the applicant gave evidence that he would suffer financial hardship if the visa were to be cancelled.

3. The tribunal accepts that some hardship will result or would be visited upon the applicant if the visa remains cancelled, however the applicant gave evidence that there are no other family members in Australia with him that are dependent upon his visa, and therefore the tribunal gives this minimal weight towards the visa not being cancelled.

4. The tribunal turns now to the circumstances in which the cancellation arose. As set out above, the applicant arrived in Australia on 6 June 2017 for the purposes of undertaking a master’s degree at the University of New South Wales which was scheduled to commence on 24 July 2017. The degree was a Master of International Business. The applicant gave evidence that he knew that the course was scheduled to commence on 24 July 2017, and that he turned up or arrived at the university for the first time on or about 28 July 2017, that is after the commencement of the course commencement date.

5. The applicant gave evidence that the university would not enrol him in the course or would not allow him to commence the course because he was too late to enrol. The applicant’s evidence is the reason why he did not attend the university before the commencement of the course date, which he was aware of, was due to taking advice of a fellow friend and student, international student from Pakistan, who was studying in Australia and with whom he was sharing a house with at the time who said to him that he did not have to turn up before 24 July, who said to him that it did not matter if he turned up late because given that he was already enrolled and has a student visa, it just does not matter.

6. The tribunal has some sympathy for the fact the applicant relied on the erroneous

   information of a friend, however in the circumstances the tribunal finds that the reasons that led to the cancellation of the visa are reasons entirely within the reasonable control of the applicant. The tribunal therefore gives this significant weight towards the visa being cancelled.

7. As to past and present behaviour of the visa holders towards the Department, there is no evidence before the tribunal that the applicant has acted in anything other than good faith in his dealings with the Department, and the tribunal notes that the applicant took prompt steps to respond to the notice of intention to consider cancellation. The tribunal therefore gives this good conduct some weight in favour of the visa not being cancelled.

8. There is no evidence before the tribunal of persons in Australia whose visas would be cancelled under section 140 of the Act as a result of the applicant’s visa cancellation, and indeed the applicant confirmed in his evidence that he is in Australia by himself and there

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are no other dependents associated with his visa application. On the basis of that evidence the tribunal gives this factor no weight in favour of the visa not being cancelled.

1. As to whether there are mandatory consequences that arise as a result of the visa being cancelled, if the visa were to be cancelled, the tribunal’s knowledge is that the applicant would be excluded from making certain types of visa applications, and may potentially be unlawfully residing in the country or liable to detention if he does not depart in due course. However, these are mandatory consequences of the legislation, and given the circumstances surrounding the reasons for the cancellation of the enrolment, the tribunal does not give these factors any weight in favour of the visa not being cancelled.

2. Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration would be breached as a result of a cancellation the tribunal notes that this factor is not applicable in this particular case, and therefore gives it no weight in favour of the visa not being cancelled.

3. As to whether there are any other relevant matters, the applicant was invited to inform the tribunal as to whether there was anything else that he wished to say at the conclusion of his evidence, and he said that there was not.

4. It is clear that the breach does not reveal any bad faith on the part of the applicant, however, based on the matters that I have set out above, it is clear that the reason for the breach of the visa, that is to say the cancellation of the enrolment in the course at the University of New South Wales, was a matter entirely within the control of the applicant. It is also clear that based on the considerations I have arrived at, on examining all the evidence before me, lean towards the visa being cancelled, and I so find.

5. Considering the circumstances as a whole, the tribunal concludes that the visa should be cancelled. The tribunal affirms the decision of the delegate to cancel the visa.

   DECISION

6. The Tribunal affirms the decision under review.

   Vanessa Plain
   Member

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