1513255 (Migration)

[2016] AATA 4182

1513255 (Migration) [2016] AATA 4182 (28 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shaji Surteeb Rizvi

CASE NUMBER:  1513255

DIBP REFERENCE(S):  BCC2015/1854645

MEMBER:Stuart Webb

DATE:28 July 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 28 July 2016 at 2:22pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 September 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(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course in Australia since April 2014, which was only two months after he was granted his visa to 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. The applicant appeared before the Tribunal on 28 July 2016 to give evidence and present arguments. The applicant provided a copy of the delegate’s decision to the Tribunal.

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:

   ·be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

8. The applicant provided the following statement to the Department.

   Thanks for your email. I came to Australia with a singular purpose to benefit from excellent education environment of Australia and attain academic excellence. In pursuit of my goal, I have already completed my under-graduate study in audio production from School of audio engineering Melbourne. I obtained GPA of 3.4 which bears testimony to my seriousness and focus towards my studies. Having completed my under-graduation study, I took another course in business studies. During my studies, however, I found, to my utter dismay, that study environment in Australian technical institute was rather lacking. I have therefore decided to change my education provider and hopefully this process will complete soon. Accordingly, I would intimate details to you. Meanwhile, I would request you to help and support me in these circumstances and allow my  visa to  continue so that I am able to complete my studies.

   Your decision to cancel my visa would not only disrupt my studies, it would also, very seriously and adversely, affect my life, family and academic potential. Your judicious consideration are thus solicited.

9. The applicant provided CoEs in a Diploma and Advanced Diploma of Leadership and Management. Both enrolments took place on 23 June 2016, after the applicant had been invited to a hearing with the Tribunal.

10. The applicant attended the hearing with the Tribunal. The applicant confirmed he had completed a Diploma of Music Industry, a Bachelor of Audio (Studio Production) and Certificate IV in Business, in that order. The applicant stated he completed the Cert IV course towards the end of 2012. The applicant stated he commenced a Diploma of Business but stopped after a month. The applicant confirmed he returned to Pakistan in November 2012, returning to Australia in February 2013. He did not return to this Diploma course. The applicant stated that he had been satisfied with his college, but had organised a lot of studio producing and recording work, and prioritised work over study. The applicant acknowledged he had made a mistake, he should have gone back.

11. The applicant stated that he consulted an education agent who advised him to enrol in a business course at Australian Technical Institute. The applicant did this in November 2013. The Tribunal noted that there had been a significant break in his studies prior to this enrolment, having ceased studying in late 2012. The applicant acknowledged this gap.

12. The applicant stated that he attended the education provider, and was told to go to a different location to where he had paid his initial deposit. There were no classes, the applicant was given a few assignments to complete and was told by the administrative staff that he did not have to worry about attending. The applicant was very concerned by this approach, as he wanted to learn. The applicant did not commence this course, the only interaction he had was requests for payment of fees, which he refused to pay. The applicant’s enrolment in the course was cancelled on 29 April 2014. The applicant learnt about this while overseas attending his grandfather’s funeral. He acknowledged the cancellation was for non-payment of fees.

13. The applicant stated that he looked for further enrolments after this, though did not enrol. The Tribunal noted that the applicant had not been enrolled in a course from his return to Australia on 22 May 2014 to the cancellation of his visa in September 2015. The applicant stated that this was a mistake, he was looking for an institute, he was a very good student. The Tribunal noted that the applicant had failed to enrol in a course or study for an extended period.

14. The Tribunal questioned the enrolment documents he provided to the Tribunal, a Diploma and Advanced Diploma of Leadership and Management.[1]  The Tribunal noted that the applicant had enrolled in this course after he had been advised of the Tribunal hearing. The applicant agreed with this. The Tribunal noted that the course had commenced on 27 June 2016. The applicant stated he had been to orientation but had not been back. The Tribunal expressed its concern that the applicant had missed a month of study since the commencement of the course. The applicant stated it had not started. The Tribunal expressed its significant concern with the evidence of the applicant that the course had not commenced, given that it was a year-long course with a commencement date of June 2016. The Tribunal expressed its concern that the applicant had not studied in this new course.

    [1] AAT folios 18-19

15. The applicant has acknowledged that his enrolment in a course was cancelled in April 2014. He has not had a further enrolment until 23 June 2016, after his visa was cancelled in September 2015, and after the Tribunal sent him an invitation to a hearing.

16. On the evidence before the Tribunal, the applicant was not enrolled in a registered course from April 2014 until his visa was cancelled in September 2015, a period of 17 months . Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

17. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

18. 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).

19. The Tribunal discussed the applicant’s circumstances with him. He wishes to return to Pakistan with some business qualifications in addition to his technical skills. The applicant believes this will make him more employable and would give him skills in the future to open his own business. The applicant has no concern with returning to Pakistan, his parents remain supportive of him and he plans to return to Lahore, where he grew up and was successful at school when he completes his study. The Tribunal asked the applicant about recommencing study in Pakistan. The applicant stated that they do not offer diploma courses, he would have to do a full bachelor degree. He would also not get exemptions for past studies. The Tribunal noted that the previous qualifications completed in Australia would also be unlikely to give him exemptions in the future, given the time that has passed.

20. The Tribunal is extremely concerned about the applicant’s study in Australia. The applicant arrived in 2008 and completed 3 courses, including a Bachelor degree. However since the end of 2012 the applicant has not studied. The applicant returned to Pakistan on 23 November 2012 after completing one month of his Diploma of Business course, returned to Australia on 5 February 2013, and did not recommence his studies. In the evidence of the applicant he stated that he prioritised his work over his studies. The applicant’s enrolment in this Diploma course was not cancelled, however it was able to lapse at the end of the prescribed course.

21. Late in 2013 the applicant chose not to enrol at the course provider he had previously attended, but on the advice of an agent enrolled at a different course provider. The applicant did not consider the new course or the provider to be appropriate so did not commence the course. His only interaction with the course from that time was with the course provider requesting payment. His enrolment was cancelled on 29 April 2014 for non-payment of fees. The applicant was advised of the cancelled enrolment while he was offshore, having left on 1 May 2014 to attend the funeral of his grandfather. The applicant returned to Australia on 22 May 2014. He did not enrol in any other course up until his visa was cancelled on 23 September 2015.

22. The Tribunal notes that from November 2012 to 23 September 2015 the applicant did not study in Australia. The applicant stated that he prioritised his work in a music studio over his studies. The applicant had a visa in Australia to study, yet did not do so for this extended period of time. His enrolment at his first Diploma course should have been cancelled, given his evidence that he had left this course because of these competing interests. It was not, yet his next enrolment was cancelled after he failed to attend or pay the fees. Given the applicant was supposed to be studying in Australia, his extended failure to do so during this period leads the Tribunal to conclude that the applicant was not a genuine student during this time. This is a significant factor given he was in Australia to study.

23. The applicant’s visa was cancelled in September 2015. The applicant gave evidence that he applied for a review of the decision at the AAT. The applicant confirmed he had not applied for a Bridging visa with the Department, though he had been in contact with them. The applicant stated that he believed that the application for review at the AAT provided him with a visa, though he stated he had looked and did not see a Bridging visa applicable to being granted when reviewing a decision to the Tribunal.

24. The Tribunal noted that from the evidence of the applicant it appeared he was unlawful. The Tribunal explained that the effect of the cancellation of his visa meant that he was not holding a visa, and the lodging of a review of a decision to cancel his visa did not automatically cause a Bridging visa to be granted. The Tribunal stated that the letter from the Department could be clearer on this aspect of the applicant’s circumstances, and it was a common misunderstanding for applicants before the Tribunal after a cancellation of a visa. The Tribunal indicated that it would not consider this issue adversely. The Tribunal advised the applicant to apply for a Bridging visa as soon as possible.

25. That the applicant was unlawful and not holding a visa meant that the enrolment in a course in June 2016 was not a breach of a visa, as he did not hold one. However the Tribunal has significant concerns with the applicant’s enrolment. The Tribunal noted that the applicant had not enrolled until June 2016, after he had been informed of his hearing with the Tribunal. He had not enrolled prior to that date. The Tribunal further noted that the course had commenced, though the applicant had only attended on orientation day. The Tribunal does not accept that a year-long course commencing in June 2016 would not start classes immediately. That the applicant did not attend any classes leads the Tribunal to conclude that the applicant enrolled in this course solely to provide evidence of enrolment, and does not intend to study this course. The Tribunal considers that the applicant’s recent education inactivity confirms that he is not a genuine student in Australia. The Tribunal places significant weight on this issue.

26. The applicant stated that he would have to do further Bachelor studies in Pakistan if he was to gain business qualifications, which the applicant stated were valued in Pakistan. They do not offer Diploma courses, which the applicant stated disadvantaged him, he wanted to do a Diploma course in Australia. The Tribunal places no weight on this issue, as the applicant has clearly demonstrated that he had no interest in studying in Australia for the past 4 years, including in Diploma courses he had enrolled in.

27. The applicant has completed qualifications in Australia and appears to have put them to use in a recording studio. The Tribunal considers that these technical skills, which the applicant originally enrolled in from Pakistan provide him with the capacity to find employment in Pakistan. The applicant came to Australia to gain qualifications that would be respected in Pakistan. The Tribunal considers the qualifications of the applicant obtained in Australia, including a Bachelor degree, will give him the opportunity to find employment. The Tribunal considers that the applicant will be able to find work on return to Pakistan.

28. The applicant has not raised any concern about returning to Pakistan, which he stated he intended to establish himself. His family know of his situation and remain supportive, including financially. The applicant has not claimed that the cancellation will cause him or his family any hardship. On the evidence of the applicant, the Tribunal does not consider that there are any reasons why the applicant cannot return to Pakistan.

29. No international obligations were raised by the applicant or identified by the Tribunal. There are no people affected by consequential cancellations of the visa. The applicant is not a minor. The Tribunal has also taken into account that the applicant will face a period of exclusion due to the cancellation of his visa, meaning he will not be able to return to Australia for 3 years.

30. The Tribunal notes that the applicant has been unlawful for a period, but accepts that the applicant was honestly mistaken about his status in Australia. The Tribunal notes the notification letter is not clear on the applicant’s status post cancelation, relevantly after lodging his review. The Tribunal places no weight on this interaction with the Department. No other issues regarding the applicant’s interaction with the Department have been raised.

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

    DECISION

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

    Stuart Webb
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.