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Mohammadi (Migration) [2024] AATA 2961 (8 August 2024)

Last Updated: 22 August 2024

Mohammadi (Migration) [2024] AATA 2961 (8 August 2024)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANTS: Mrs Sahera Mohammadi
Mr Mohammed Muster Uddin
Miss Aizah Fatima
Master Mohammed Ismail Uddin

CASE NUMBER: 2213796

HOME AFFAIRS REFERENCE(S): BCC2022/1845802

MEMBER: Rachel Westaway

DATE: 8 August 2024

PLACE OF DECISION: Melbourne

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

The Tribunal has no jurisdiction with respect to the other applicants.


Statement made on 08 August 2024 at 10:41am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – course cancellations – English competency tests – accommodation issues – family health and mental health issues – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 189, 198, 348, 359
Migration Regulations 1994, Schedule 4 Public Interest Criterion 4013; Schedule 8; Condition 8202

CASES

Wan v MIMA [2001] FCA 568; (2001) 107 FCR 133

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

  1. This is an application for review of a decision dated 16 September 2022 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).
  2. The delegate cancelled the visa on the basis that that the applicant was not enrolled in a full-time registered course of study. 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. For the purposes of the Tribunal’s jurisdiction under s 348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicants.
  4. The applicants appeared before the Tribunal on 25 September 2023 at 10:30am to give evidence and present arguments. The Tribunal also received oral evidence from Mr Uddin , the applicant’s husband. The applicant’s children were in attendance and the applicant confirmed they would not provide oral evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
  5. 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

  1. 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 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.

Background

  1. The applicant is a 31-year-old female from India.
  2. The secondary applicants are Mohammed Muster Uddin who is 35-year-old male, Mohammed Ismail Uddin, a one-year-old male and Aizah Fatima, a seven-year-old female.
  3. The applicant was granted a TU-500 visa on 06 November 2020.

Tribunal Application

  1. The applicant lodged their application for review on 17 September 2022. They provided the Department of Home Affairs decision record and notification letter with their application for review.
  2. On 18 September the applicant submitted the following documents to the Tribunal:

Department of Home Affairs Application

  1. On 28 July 2022 the Department of Home Affairs sent a Notice of Intention to Consider Cancellation (NOICC) letter to the applicant.
  2. Between 04 August 2022 and 05 August 2022, the applicant provided a response to the NOICC, the applicant provided the following reasons:
  3. Attached to her response the applicant provided the following documents:
  4. On 16 September 2022 the Department of Home Affairs decided to cancel the applicant’s TU-500 visa.

Did the applicant comply with Condition 8202?

  1. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
  2. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full-time registered course.
  3. According to PRISMS the last time the applicant completed a course was a General English course from 10 August 2020– 16 October 2020 at Bayside College.
  4. The applicant was enrolled in a Diploma of Project Management between 23 November 2020 – 21 November 2021, this was cancelled due to non-Commencement of studies.
  5. The applicant was then enrolled in a Diploma of Leadership and Management 25 January 2021 – 23 January 2022, this was cancelled due to the student notifying of cessation of studies.
  6. The applicant then enrolled in an Advanced Diploma of Program Management 24 January 2022 – 22 January 2023, this was cancelled due to non-Commencement of Studies.
  7. The applicant was last enrolled in Advanced Diploma of Leadership and Management due to start on 14 August 2023 – 4 May 2025 but was cancelled due to non-Commencement of studies.
  8. On the 19 September 2023 the Tribunal emailed Danford College to ascertain why the applicant’s COE was cancelled when she provided evidence of payment instalments by the due date. The applicant provided the Tribunal with screenshots of various emails between herself and the college. In the first email it shows correspondence between Mrs MOHAMMADI and the college, the email states that she had to pay a partial first instalment of $800 by 10 December 2020 and second instalment of $900 due by 24 December 2020, otherwise her CoE would be cancelled. Mrs MOHAMMADI attached a screenshot of payment OF $800 dated 10 December 2020. The finance team at the college then sent her an invoice for payment, which she has taken a screenshot of. She then received an email from the college on 16 December 2020 stating that he CoE had been cancelled. A response was requested by close of business on 22 September 2023. An auto generated email confirming receipt of the email from the Tribunal was received. The Tribunal contacted the college on the morning of the hearing to follow up. A representative of the college stated that the applicant’s visa was not cancelled due to non-payment of fees but rather failure to provide English language results.
  9. At the commencement of the hearing the Tribunal asked the applicant if she understood why her COE was cancelled and she stated that she was not aware at the time but only became aware later. She believed it was because she was unable to make payments. She stated that Danford College never told her and she has no idea of any other reason. Asked if she was aware she need to provide English language requirements. She stated she was aware she needed to be able to demonstrate she understood English however she claims they did not ask her to provide English competency tests and she never provided them. She also stated that she had asked to defer however the course provider would not permit this. She stated this one done through telephone calls and she did not have any evidence to support this.

359AA

  1. The Tribunal put the information to the applicant under s 359AA of the Act regarding the applicant not providing her English language results and as a result her COE was cancelled. She confirmed her understanding and confirmed she understood the relevance to the review. The applicant was offered the opportunity to respond then, adjourn the hearing or provide the response after the hearing. The applicant requested a 15-minute adjournment to discuss this with her husband and the Tribunal adjourned at 11.15am and resumed at 11.30am.
  2. The applicant provided her response at hearing stating she was studying online and their communication was poor and she was having difficulties in understanding them and classes were conducted online and she could not communicate with them. She stated that they “had no preference towards her” and gave her no support and the classes would operate sometimes and then not others. She explained that this was around the beginning of COVID. She stated that she was never asked to provide any evidence of her English language ability and does not recall undertaking an IELTS test. She stated she had previously undertaken an English language course at Bayside Institute. She asked the Tribunal to ask the college for clarification of any request for English results as she believes she never received one and she asked repeatedly why her COE was cancelled and never received a response.
  3. The Tribunal asked the applicant about her English language ability and she stated that she wants to improve it and this is why she undertook further studies.
  4. The Tribunal requested the course provider provide details in writing of why the COE of enrolment was cancelled and any evidence of requests for English language proficiency.
  5. Not withstanding the response, the Tribunal noted that the applicant’s student visa was cancelled on 16 September 2022. The applicant’s COEs with Danford College were cancelled on 16 December 2020. The applicant had the opportunity to rectify her status and obtain another COE which she did not.
  6. On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).

Consideration of the discretion to cancel the visa

  1. 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’.
  2. At hearing the Tribunal too evidence from Mr Uddin the applicant’s husband and also a secondary holder of the visa under review. She stated that it all started during the COVID lock down and his wife was struggling online and it was hard and she would have given the certificate regarding her English proficiency however it was never requested. He explained that she was dealing with a difficult pregnancy and was at home.
  3. He stated that they had previously had other visa options and he originally came to Australia on a subclass 457 visa. He explained he was a chef however he was unable to find an employer that would hire him and sponsor him for a permanent visa. He explained that his wife had a good job was a Network Administrator and she was initially on his visa and then moved to a subclass 482 but was offered a management role and felt she needed more qualifications so applied to study management and then she moved to a student visa. He explained that he then moved to a student visa and now he and his children are also dependents of hers. When asked why she did not study and work he stated that they already had one child and she did not feel she was able to work and study so elected to study.
  4. He said they all had options for the future and now they are facing the prospect of returning to India without the experiences they planned.
  5. On 27 September 2023 Danford College wrote to the Tribunal and confirmed the applicant’s COE was not cancelled due to non-payment of fees as she had not fulfilled the English language requirements. It stated “At the time of admission, the student was offered a conditional CoE for a pathway with ELICOS and the student failed to provide us with the Upper Intermediate English Language Certificate. English Requirements: International students must provide evidence of English language proficiency to Danford College. Students must have a minimum score of an internationally recognised English test. In Mrs Sahera case, she required and overall score of 5.5 (Depending on the country Risk Level).
  6. For Vocational courses students are required to have a minimum IELTS (International English Language Testing Service) score of 5.5 overall with no band/sub score under 5.0 or equivalent English language tests as per accepted by the Department of Immigration. An IELTS score or equivalent no more than two years old or ELICOS with Upper Intermediate or Advanced which she failed to produce.
  7. Circumstances where the IELTS requirement may be waived: Senior Secondary Certificate of Education, completed in English in Australia in the last two years or Evidence of completion certificate for a Foundation Course in Australia in the last two years or Evidence that they have completed at least five (5) years of study in English undertaken in one or more of the following countries: Australia – Canada – New Zealand – South Africa – the Republic of Ireland – the United Kingdom and the United States of America or Provide evidence you have completed or have enrolled into an ELICOS or alternative English course as accepted by the Department of Home Affairs. Minimum requirement to enter into any of Danford College courses is “Upper Intermediate” or “Advanced” or they are a citizen and hold a passport from UK, USA, Canada, NZ or Republic of Ireland.
  8. The college had informed the student about the cancellation of enrolment while providing for a reason to do so on 11/12/2020 and 04/01/2021”. Screenshots of conversations with the student were also attached.

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

  1. The applicant stated she first came to Australia 14 June 2017 alone. She came for a good future. She came on her husband’s visa which was a subclass 452 and he was already in Australia.
  2. She decided to apply for a student visa as she felt she needed a good education from Australia and she would be better placed if she returned to India. She said she would like to study and then gain formal employment. She was enrolled to study a leadership/management course and stated she completed the English language course. She confirmed she completed her Bachelor of Accounting in India but has never worked.
  3. The Tribunal notes that the applicant in enrolling in her course did complete the English language component IELTS which is part of her studies leading towards her Management and Leadership Diploma but did not hold a COE and was not enrolled in a registered course from 27 September 2021.
  4. The sole purpose of a student visa is to study and the applicant has not been enrolled in a registered course for a significant period of time. As such the Tribunal gives this consideration significant weight in favour of cancelling the visa.

the extent of compliance with visa conditions

  1. There is no information to suggest that the applicant has not complied with other conditions on her visa however condition 8202 goes to the key issue of why the applicant is in Australia and that is that she must be enrolled in a registered course which she was not and as such was in breach of this condition.
  2. The Tribunal gives this consideration significant weight in favour of cancelling the visa.

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

  1. The applicant claims she will suffer significant financial loss given she has already paid for the course and has incurred disappointment and stress. She wants to continue and pursue studies. She said that it has affected the whole family causing stress and pressure. It has exacerbated her depression and anxiety.
  2. The Tribunal has considered the applicants situation and acknowledges that a visa cancellation is disappointing and limits opportunities for the applicant and her family in Australia. It also understands that the financial commitment is significant and is lost should the applicant’s visa be cancelled.
  3. The Tribunal also understands that the family both in Australia and overseas would suffer disappointment.
  4. The Tribunal notes the applicant’s claims that this has exacerbated her levels of anxiety and a depression.
  5. The Tribunal has considered the hardship faced by the applicant and her broader family and gives these considerations a little weight in favour of not cancelling the visa.
  6. 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
  7. The applicant’s visa was cancelled on 16 September 2022. The applicant’s COEs with Danford College were cancelled on 16 December 2020. The applicant had the opportunity to rectify her status and obtain another COE which she did not during this 21-month period. She stated that she was initially pregnant and provided evidence of her pregnancy and gestational diabetes and caesarean. She also provided evidence of her VCAT hearing.
  8. She provided a significant amount of evidence supporting her medical issues which she claims led to her inability to think clearly and study.
  9. The applicant provided details about her accommodation issues and application to VCAT and her deteriorating mental health and stated she was very stressed and depressed, and she experienced pregnancy related issues and her mental health was worsen by news regarding deaths and she was terrified. She stated that her sugar levels fluctuated, and it was serious. She attended medical appointments each week and 27 October was her due date however on 8 November she had an emergency C Section.
  10. The evidence before the Tribunal was that the applicant’s COE was cancelled due to her not providing evidence of her required English language test.
  11. The applicant claims she was suffering from post-natal depression, abdominal surgery and other medical complications during this period but also acknowledged that her English was not strong and she was not aware that she needed to provide this information. However, College emails were provided to demonstrate that she was told that this was a requirement.
  12. At the time her COE was cancelled she claims that the College did not help her. She stated that she applied for deferment before and never received a response however was unable to provide any documentary evidence to support this. She stated she called them and they would not respond to her. However, evidence on file indicates that the applicant was emailed by the course provider.
  13. The Tribunal has considered the information before it and appreciates that the applicant had a range of issues in her life that were stressful. However, in themselves they did not prevent her from providing the mandatory evidence to demonstrate her English language ability. Whilst the Tribunal acknowledges that the applicant stated she tried to defer her course, there is no evidence of this and she could have contacted the Department and returned to India after her child was born.
  14. The sole purpose of the student visa is for the applicant to study. There is no evidence before the Tribunal to indicate that she was unable to provide evidence of her language test which would have enabled her to remain enrolled. Not withstanding this, her pregnancy complications and VCAT issues were clearly issues which added additional complications to her situation and impacted her ability to think clearly and respond.
  15. The applicant supplied a Pearson’s PTE Academic Score Report dated 9 October 2023 to the Tribunal with an overall score of 47. PTE Academic tests the integrated skills of speaking and writing, whereas with IELTS Academic these skills are tested separately and as such this is not sufficient for the course provider.
  16. The Tribunal acknowledges that the applicant had a range of issues in her life when she came to Australia. However, a key requirement of enrolment in her course was provision of her English language ability. This should have been provided on enrolment and was not. It appears to the Tribunal that the applicant could not meet this requirement and has used the issues going on in her life as a reason why. Even post hearing the applicant provided an English assessment that was not sufficient.
  17. Whilst the Tribunal empathises with the issues faced by the applicant and the stress these would have caused her, the Tribunal does not accept that the applicant could not defer her course or that the course provider did not communicate with her and assist. Further the Tribunal notes the applicant did not communicate with the Department about her issues which she could have done and sought assistance.
  18. The Tribunal in considering the circumstances in which the ground for cancellation arose gives some weight in favour of cancelling the visa.

past and present behaviour of the visa holder towards the department

  1. There is no evidence that the applicant has not been co operative with the Department and as such gives this consideration a little weight in favour of not cancelling the visa.

whether there would be consequential cancellations under s 140

  1. The applicant’s husband and two children are attached to the visa. Her children are at school and she wants to stay and study and she wants to further her career, obtain a job and apply for PR. The Tribunal explained that this is not the purpose of the visa.
  2. The Tribunal appreciates the impact of a cancellation on the secondary visa holders however this is a consequence of a visa cancellation, namely that the secondary visa holders’ visas are also cancelled.
  3. The Tribunal appreciates that the applicant’s children were born in Australia and have known no other country. The applicant’s husband has also been employed in Australia and again a cancellation of his visa would be distressing.
  4. The Tribunal accepts that there are other people whose visas would also be cancelled if the applicant’s visa is cancelled and gives this consideration a little weight in favour of not cancelling the visa.

whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

  1. If the visa is cancelled, the applicant and her family attached to the visa will become unlawful non-citizens and may be liable for detention under section 189 and removal under section 198 of the Act if they do not voluntarily depart Australia. They would also be affected by section 48 of the Act, which would cause them to have limited options when applying for further visas while in Australia, and Public Interest Criterion 4013, which may prevent them from being granted particular temporary visas for a specific period.
  2. The Tribunal gives this consideration some weight against cancelling the visa.

whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA [2001] FCA 568; (2001) 107 FCR 133, at [27]-[28].)

  1. The applicants are citizens of India. They have not raised any concerns pertaining to their safety should they return to their home country. As such there is nothing before the Tribunal that would engage Australia’s international obligations and therefore, the Tribunal affords no weight either for or against a decision to cancel the visa.

any other relevant matters.

  1. There are no other issues that have been raised for the Tribunal to consider.

Summary

  1. The applicant applied for her student visa and the requirements for acceptance into the course were her ability to meet the English language requirements with specific results on an IELTS. She did not provide these on enrolment and the evidence before the Tribunal indicates that the course provider had explained this to her. The applicant whilst initially stating she had no idea why her enrolment was cancelled and thought it had to do with payment of fees accepted that her English was not strong. She explained that over the time she was not enrolled she faced many challenges including two pregnancies and complications including depression and anxiety as well as being evicted from her rental property and facing a VCAT hearing.
  2. Whilst the Tribunal is empathetic to these issues, the applicant has not been able to demonstrate her English language ability with the required test and has no evidence to support her claim that she tried to defer or sought assistances from the Department.
  3. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

  1. The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa. The Tribunal has no jurisdiction with respect to the other applicants.



Rachel Westaway
Senior Member

ATTACHMENT
Migration Regulations 1994

...

Schedule 8

  1. (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.

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