1509950 (Migration)

[2016] AATA 3555

1509950 (Migration) [2016] AATA 3555 (21 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kamil Janusz Kaletka

CASE NUMBER:  1509950

DIBP REFERENCE(S):  BCC2015/952877

MEMBER:David McCulloch

DATE:21 March 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 21 March 2016 at 9:03am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 July 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of Poland born on 3 July 1985. The applicant was granted the Subclass 572 Vocational Education and Training Sector visa on 5 January 2015.

3. On 7 April 2015, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) under s. 116 of the Act. The applicant provided his response to the NOICC on 12 April 2015. On 15 July 2015 the delegate decided to cancel the student visa held by the applicant under s. 116(1)(fa) of the Act because the delegate formed the view that the applicant was not a genuine student.

4. The applicant sought review of that decision. The issues that arise on review are:

   1. Does the ground for cancellation exist?
   2. If so, should the visa be cancelled?

5. The applicant appeared before the Tribunal on 4 March 2016 to give evidence and present arguments.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed .

   Relevant law

7. Under s.116(1) of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(fa). If satisfied that the ground for cancellation is made it out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy, as set out in the departmental guidelines, Procedures Advice Manual (PAM3).

8. A visa may be cancelled under s.116(1)(fa)(i) if the Minister or the Tribunal is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

9. The proper construction of s.116(1)(fa)(i) was discussed in Shrestha v MIMA (2001) ALD 669, in which the Court held that in introducing s.116(1)(fa)(i), it was not Parliament’s intention that a genuine student who had failed in attendance and/or academic performance due to ‘innocent temporary mishap’ or ‘transient misadventure’ should face cancellation (per Madgwick J at [19]). In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour with lecturers, and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

10. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the Minister or Tribunal may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are:

    …

    (1C)    For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)    For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    a.     because of the conduct of the holder; or

    b.     because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    c.     because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    d.     on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.

11. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist

12. There is nothing before the Tribunal to indicate that the applicant’s participation the course had been deferred or temporarily suspended by the provider of the course.

13. In the hearing, the Tribunal put to the applicant, pursuant to the procedural requirements of s.359AA of the Act, information contained in the decision of the delegate to cancel the visa. That information was the indication that on 17 November 2014 the applicant commenced  study at Vocational Study Australia (ACVS), [a Certificate III in Tourism]. On 9 March 2015, the Department requested the applicant’s study records from this education provider who submitted attendance records, written assessment and academic transcript. Those documents indicated that the current average attendance of the applicant for the course was around 11 percent and, since the course commenced, 0/5 units had been completed.

14. The Tribunal indicated to the applicant that this information was relevant because it went to the issue of whether the applicant was not or was likely not to be a genuine student, and the consequence of relying on this information could be one factor in determining that the applicant was not or was likely not to be a genuine student.

15. The Tribunal notes that the applicant provided a written response to the NOICC addressing these issues. The applicant indicated that he never had any issues completing his assessments on time and that he was a serious and good student. The applicant indicated that the assessments were laying on the desk at the supervising teacher’s office unmarked. The applicant has never been informed by ACVS that there was an issue with his assessments.

16. The applicant indicated that when receiving the NOICC he learned that his assessments were being processed and that they were good and successful. The applicant indicated that he was never informed about the problems.

17. The applicant indicated that in February 2015 he lodged a withdrawal form at the college but was told that he needed to complete six months before he could withdraw. He indicated that there were no assessments or classes during the summer period. The applicant indicated that the situation was beyond his control.

18. In the hearing, the applicant indicated that he had decided during this course that it was not suitable for him, and that he wanted to leave. The Tribunal asked the applicant if this meant that he did not put effort into the course. The applicant indicated that he completed assignments and attended much more than the 11 percent indicated. He said that he spoke to an employee of ACVS about the issues following the receipt of the NOICC.  That person provided assurances about assignments being provided and graded.

19. The applicant indicated that there were many other students who received NOICCs from the Department at around the same time and that they, too, were based on information provided by ACVS which was wrong in terms of attendance and course progress.

20. The applicant also indicated he was never given any warnings about attendance or lack of satisfactory course progress.

21. The Tribunal explored with the applicant why he did not request an updated transcript from ACVS which would have reflected assignments that had been ungraded. The applicant indicated that he had only a few days to respond to the NOICC.  The Tribunal indicated to the applicant that it might have expected that he would have obtained an updated transcript for the purpose of providing to the Tribunal to demonstrate that he was a genuine student during this course. The applicant said that the employee of ACVS basically said the issues raised in the NOICC were his responsibility.

22. The applicant indicated that after receiving the NOICC he disengaged from the course. He enrolled in another course, a Certificate II in Information, Digital Media and Technology which commenced on 22 July 2015. The Tribunal noted to the applicant that there was a significant time period between disengaging from the ACVS course in early April and starting this course three months later. The applicant indicated that he was very disillusioned following the experience at ACVS.  He also indicated that he needed to find a suitable course.

23. The applicant indicated that he studied this course until he dropped out on 3 November 2015. The Tribunal explored with the applicant why he dropped out. The applicant said that, in a discussion with a Department of Immigration officer earlier on, when he was obtaining his Bridging visa, he was told that he could cease study and explore his options once the review process was finalised. The Tribunal noted that nevertheless the applicant had continued his studies in spite of this advice and wanted it to understand further why he dropped out after several months of undertaking this course. The applicant said that he felt his situation was uncertain. The Tribunal asked the applicant whether there was an issue of further payment of fees. The applicant said that the fees have been paid.

24. The Tribunal asked the applicant about his attendance and progress in this course. The applicant indicated that he had passed units and attended regularly.

25. The applicant indicated that if the Student visa is reinstated he would wish to continue the Certificate II in Information, Digital Media and Technology.

26. The Tribunal put to the applicant pursuant to the procedural requirements of s.359AA of the Act the fact that information on the Tribunal file from Departmental systems indicates that there is no restriction on the applicant’s ability to study on his Bridging visa. This is relevant to the Tribunal because the fact that the applicant has the ability to study following the cancellation of his Student visa, and whether the applicant has indeed studied, is relevant to whether the applicant is not or is likely not to be a genuine student.

27. The Tribunal finds it surprising that if the applicant was a genuine student and had a intention to be a genuine student, and had a future intention to re-enrol in the Certificate II course, why it is that he would have dropped out of this course particularly noting that the fees were paid. The Tribunal could understand why the applicant may not wish to enrolled if there were fees to be paid if there was uncertainty as to his visa status.

28. The applicant referred to the general uncertainty of his situation.

29. The Tribunal explored with the applicant’s studies prior to the ACVS course. The applicant undertook a Certificate IV in Web – based Technologies that commenced in October 2013 and schedule to run until September 2014. The applicant indicated that he did not complete this course, although he did undertake a significant proportion of the course, and passed units.

30. The Tribunal assesses this evidence in determining whether the applicant is not or is likely not to be a genuine student.

31. In considering the overall study history of the applicant, he has been in Australia since October 2013, commenced three courses and has not completed any course of study.

32. The Tribunal is of the view that the applicant formed the view relatively soon after starting the Certificate III in Tourism that this was not a course that he wanted to continue with. The Tribunal has doubts as to the applicant’s claim that his attendance was satisfactory, particularly in light of the attendance record before the Department showing his attendance at only 11 percent. 

33. The Tribunal takes an adverse inference from the failure of the applicant to be able to provide the Tribunal with a transcript from ACVS indicating that he passed units in this course. The applicant has claimed that he completed all assessments for relevant units and was told by ASVS that his assignments would be marked and his assessment updated.  Given that the issue of the applicant passing units was core to the adverse decision of the delegate, the Tribunal finds it difficult to accept that the applicant would not have requested an updated transcript from ACVS if indeed he had passed units.  While the Tribunal accepts that the timeframe to provide this information to the delegate may have been too short, it would be very important information to provide to the Tribunal. The Tribunal is not satisfied that ACVS would have declined to provide the applicant with a correct transcript. The Tribunal is not satisfied that the applicant passed units in this course on the evidence before it.

34. The Tribunal is prepared accept that the applicant received no warning in relation to course progress or attendance from ACVS.  It is prepared to accept that other students also had NOICCs issue at around the same time as the applicant and that they have claimed that information provided by ACVS was incorrect.

35. The applicant did not the start a new course until three months after disengaging from the Certificate III in Tourism. This is a significant period in which the applicant was not studying, which is relevant as to whether the applicant was a genuine student during this period of time. While the applicant may have taken some time to find a course that was suitable, he had an obligation under his student visa to be enrolled and studying.  Whilst not determinative in itself, this gap in study is adverse to the applicant’s claim to have been a genuine student.

36. The Tribunal accepts that the applicant was enrolled and studied for the Certificate II from 27 July 2015 until he withdrew on 3 November 2015.  The fact of the applicant withdrawing from this course is adverse to his claim to be a genuine student or have intention to be a genuine student. The Tribunal sees no good reason why the applicant would have withdrawn from this course if he had an intention to be a genuine student. The applicant indicates that this is the course he would re-enrol in if the Student visa is reinstated. He indicated that fees have been paid. He indicated that a Department of Immigration officer told him several months previously that he could stop studying and explore his options once the review process was finalised. The Tribunal does not see that this explains why the applicant would have withdrawn several months later. The applicant has referred generally to his uncertain situation. The Tribunal considers that the applicant, if he were a genuine student that he would have continued to maintain enrolment and study in the course that he now claims he wishes to re-enrol in.

37. The applicant’s disengagement with the Certificate II repeats a pattern that has occurred with the applicant since his arrival in Australia in late 2013. The applicant has failed to complete any of the three course he has started.

38. Issues concerning the applicant’s course progress and attendance in the Certificate III in Tourism are not determinative in the Tribunal finding that the applicant is not or is likely not to be a genuine student, although they are relevant, in particular the fact that the Tribunal is not satisfied that the applicant passed the units in this course. Progress in this course is considered in the context of the applicant’s study history of the whole - that he has completed no course whilst in Australia, and that he has been actively studying for only four of the last 11 months, and undertaken no study for the last four months. The Tribunal is not satisfied that there is any good reason put forward by the applicant as to why he ceased his Certificate II studies in November 2015.

39. Considering the applicant study history in Australia as a whole, the Tribunal considers that the applicant is not a genuine student and that he is likely not to be a genuine student.

40. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

41. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose - whether there are extenuating circumstances beyond the visa holder’s control; the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (ie. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulment obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non refoulement obligations; and any other relevant matters.

42. The applicant indicated in the hearing that his purpose in coming to Australia was to study. The applicant has undertaken a number of courses in Australia, but has completed none. The Tribunal is not satisfied that the applicant completed any unit in the Certificate III in Tourism. The applicant studied for only four of the last 11 months and not at all in the last four months. Whilst the applicant has studied for a proportion of his time in Australia , he has not made progress in actually passing courses and there are significant periods where he has not studied.

43. Compelling need for the applicant to remain in Australia are dealt with under the consideration of hardship.

44. The Tribunal has no evidence that the applicant has failed to abide by the visa conditions.

45. In terms of the hardship to the applicant if the visa is cancelled, the applicant indicated that he is settled in Australia. His language has improved. He has a girlfriend here. The Tribunal accepts that these circumstances create hardship to the applicant if he were to leave. The Tribunal also accepts that if the applicant were a genuine student that there would be hardship in that he would be unable to study. However, given the Tribunal’s findings with regard to the applicant being a genuine student it considers that the degree of hardship in this respect is limited.

46. Circumstances in which the ground of cancellation arose and whether there are extenuating circumstances outside of the applicant’s control have been canvassed in the discussion as to whether the ground of cancellation exists. The applicant indicates that his current lack of study is due to the uncertainty surrounding his Student visa. The Tribunal has not accepted this as a persuasive reasons as to why the applicant, in November 2015, dropped out of the  course that he claims he wishes to continue, in particular noting that the fees had been paid. The Tribunal is not satisfied that the applicant has put forward extenuating circumstances as to his failure to pass any units in the Certificate III in Tourism.  The Tribunal is not satisfied that there are extenuating circumstances that explain the significant gap in study from March to July 2015, or from November 2015 onwards. The Tribunal is not satisfied that the applicant has indicated extenuating circumstances that explain why he did not complete the Certificate IV in Web-based Technologies.

1. In total, the Tribunal is not satisfied that there are extenuating circumstances or issues outside of the applicant’s control that justify his failure to act as a genuine student when considering the whole of his time in Australia.

2. The Tribunal has no evidence that the applicant has acted in an adverse way towards the Department. There are no persons whose visas would be cancelled consequential to the cancellation of the applicant’s visa. Whilst, if the visa remains cancelled, the applicant could be an unlawful citizen and subject to detention, the Tribunal is satisfied that the applicant would be in a position to apply for, and most likely be granted, a Bridging visa. The Tribunal is not satisfied that Australia’s international obligations will be engaged if the visa remains cancelled. The applicant indicated that he has no fear of persecution or significant harm if he returns to Poland, and therefore Australia’s non-refoulment obligations are not engaged. The applicant indicates that there are no children whose interests would be affected by the cancellation.

3. The Tribunal is not satisfied that there are any other relevant factors either in PAMS3 guidelines, or otherwise.

4. Considering the circumstances of the whole, the Tribunal is not satisfied that there is any hardship or compelling reasons for the applicant to remain in Australia, or that there are extenuating circumstances or issues beyond the applicant’s control, or other factors, such as to overcome the basis on which the Tribunal has found that the ground for cancellation exists. The Tribunal considers that the preferable view is that the visa remain cancelled.

   DECISION

5. The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

   David McCulloch
   Member