1622144 (Migration)
[2018] AATA 496
•25 January 2018
1622144 (Migration) [2018] AATA 496 (25 January 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1622144
MEMBER:Brendan Darcy
DATE:25 January 2018
PLACE OF DECISION: Melbourne
.DECISION: The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Statement made on 25 January 2018 at 11:35am
CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Whether applicant is a genuine student – Extended period spent not studying – Limited academic progress – Purpose of study – Definition of ‘genuine student’ - Where applicant is studying primarily for prestige and remuneration – Consideration of discretion to cancel – Hardship caused does not outweigh grounds for cancellationLEGISLATION
Migration Act 1958, ss 48, 116(1)(fa), 116(1A), 119
Migration Regulations 1994, 2.43(1C)-(1D), Schedule 4, PIC 4013, Schedule 8, Conditions 8202, 8533CASES
Tian v MIMIA [2004] FCA 216
MIMIA v Hou [2002] FCA 574
Awan v MIMA [2001] FCA 1036
Ambakkat v MIAC [2011] (Riley FM, 30 November 2011)
Shrestha v MIMA [2001] FCA 359Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision dated [in] December 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(fa) on the basis that the student visa holder is, or is likely not to be , a genuine student. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 1 November 2017 to give evidence and present arguments. At the end of the hearing the applicant undertook to provide additional documents to support his review application by 10 November 2017.
The applicant was represented in relation to the review by his registered migration agent but the representative did not attend the hearing. On the same date of the hearing, the applicant provided a change of contact details form to the Tribunal to cancel his authorisation of the representative to act as his authorised recipient and representative.
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
Under s.116 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)(i). 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?
s.116(1)(fa) - not a genuine student
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, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.
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 set out in the attachment to this decision.
The applicant, a citizen of Pakistan, was granted a class TU subclass 573 student visa for the purposes of higher education [in] November 2015 and visa was set to expire [in] September 2017.
When the applicant applied for the visa, the applicant’s study plan was for a [bachelor degree] at [a particular university].
Information available to the Tribunal through the Provider Registration and International Student Management System (PRISMS) indicated that the applicant’s last day of study for this [Bachelor] was [in] December 2015 and the course was cancelled [in] February 2016 due to non-payment of fee.
The same PRISMS records indicate that the applicant enrolled to study a [bachelor degree] at [Educational Institute 1]. The enrolment was confirmed [in] October 2016.
Departmental records indicate that since the grant of the visa [in] November 2015, the applicant has remained in Australia all that time.
The Department issued at a Notice of Intention to Consider Cancellation (NOICC) to the applicant [in] December 2016. No response was received from the applicant in relation to the NOICC prior to the cancellation by the delegate.
The Department proceed to cancel the visa by issuing its cancellation notification [later in] December 2015.
The Department in its decision record stated that the applicant’s visa was cancelled as there was an extensive period of no study; that there was no Confirmation of Enrolment between [February] 2016 and [October] 2015; and that there was not study between [December] 2015 and [November] 2016. The Department states that the applicant’s lack of progress and study over a substantial period of time indicated to it that the applicant was not a genuine student. (These were specifically raised with the applicant during the scheduled hearing)
The applicant provided a copy of the delegate’s notification to the Tribunal when he applied for the cancellation to be reviewed.
On the day of the hearing, the applicant provided a number of documents to be considered by the Tribunal. These included:
· A number of documents regarding the applicant’s history of course work and enrolments;[1]
· A certified copy and an accompanying translation of a tenancy agreement regarding a property in Karachi;[2]
· A copy of residential certificate (with an accompanying translation) of the applicant’s siblings indicating that [details of siblings] and their residential address in Karachi East. The document is dated [in] July 2008; [3]
· A certified copy a sale agreement dated [in] September 2016 indicating that the applicant’s father sold [a property] in Karachi; [4]
· An affidavit in English signed the applicant’s father indicating that he was a [occupation] from Karachi and claiming the son was a fully dependent on his father for duration of his stay in Australia. It also mentioned that the applicant’s father had a [particular illness] since December 2015 and that he was incapable of meeting his son’s tuition fees between December 2015 and September 2016 as he was unable to earn his livelihood during this period;[5]
· Two emails between the applicant and [Educational Institution 1] about a prospective enrolment or admission dated [in] August 2017 and [September] 2014 respectively;
· A medical letter by a medical professional based in Karachi dated [in] October 2017 outlining that the applicant’s father was diagnosed with [a particular illness] since December 2015 and was treated between February and May 2016 and that he was unfit for work between December 2015 and August 2016;[6]
· A letter claiming to be from [a member] of [a government department] in Karachi indicating that the applicant’s father was [details removed]. The letter was dated [in] 2014 and was not on any official letterhead;[7]
[1] AAT Folio 28-39
[2] AAT Folio 40-43
[3] AAT Folio 44-45
[4] AAT Folio 46-48
[5] AAT Folio 49-50
[6] AAT Folio 54
[7] AAT Folio 53
On 1 November 2017, the applicant attended the hearing to elaborate on the reasons his visa should not remain cancelled.
After the scheduled hearing, the applicant provided a screenshot of an email (from a smart phone) indicating that the applicant had provided the relevant 956 forms to authorise a migration agent dated [in] December 2016.[8]
[8] AAT Folio 57-58
During the scheduled hearing, the applicant confirmed that he had only studied up to [December] 2015 as he failed to pass the class. He further claimed his father had legal and health problems and was not working which created financial problems which led to his enrolment being cancelled until he had re-enrolled again. As a result, the applicant claimed he was unable to pay fees. The applicant claimed that his father was required to sell [a property] in Karachi in September 2016 to address the applicant’s financial capacity to remain in Australia as a student. The applicant claimed he went to the education provider to discuss his difficulties with the accounts manager but it was too late as the enrolment had been cancelled.
With regards to his father’s financial difficulties, on balance, it is accepted that the applicant submitted genuine documents, including a medical certificate and an affidavit, to support these claims, including that his father was unfit to work for a claimed period. The Tribunal has considered whether the applicant’s father has forwarded a number of documents in which he has exaggerated the symptom arising from [his illness]. In this regard, it is noted that [his particular illness], even when it is chronic, does not require hospitalisation and symptoms do not necessarily present themselves. However, with no evidence to the contrary, the Tribunal accepts that there were some extenuating circumstances leading to the grounds of cancellation based on these claims.
The Tribunal also accepts that the applicant did try to engage a migration agent in December 2016 to assist him in addressing the issues raised in the NOICC, as claimed. The Tribunal notes that the applicant, however, did not request for an extension of time and that he had the financial capacity for migration advice and assistance since September 2016 but did not pay for the service.
However, the Tribunal has a number of other concerns that the applicant was not a genuine student or likely to be so, at the time of the visa’s cancellation.
Of particular concern to the Tribunal was the applicant’s earlier academic history. The applicant has held a two previous student visas. According to the applicant and the available evidence, the applicant completed a Certificate IV in May 2011, a [Diploma] in November 2013, the applicant did not complete an advanced diploma or did not commence bachelor degree in which he was enrolled when he was a holder of the second student visa. The fact that the applicant has only advanced to a diploma level while being in Australia while holding student visas between 2011 and 2017, indicates that the applicant does not have the capacity and aptitude to complete further studies, based on his own testimony. This is of serious concern to the Tribunal as it further indicates he is a ‘non-genuine student’. The applicant claimed his father was in trouble during this period as he had [details removed] and the family was required to relocate for a period of time within Pakistan. The applicant provided evidence of a letter from 2014 that this was the case. The applicant claimed his family wanted him to focus on his studies but worried about their welfare. On balance, the Tribunal accepts to be the case, however the applicant also admitted to struggling academically as earlier as December 2013, before the known threats to his family – as he had leaped straight into his bachelor coursework without completing an advance diploma. Moreover the applicant was living [in] Australia with the encouragement of his family to concentrate on his studies. It is the Tribunal’s assessment that he has significantly exaggerated the [concerns] on his studies. While the Tribunal accepts the applicant had been preoccupied about his family’s [welfare] for a period of time, the admission that he struggled academically earlier strongly indicated to the Tribunal that the applicant did not have the academic capacity to successfully undertake a degree in higher education and he and his parents had an unrealistic academic goal in his circumstances.
Of further concern to the Tribunal are the applicant’s responses during the scheduled hearing to the purpose of completing his studies. The applicant claimed variously that he wanted to complete his bachelor’s and then undertake a master’s degree because his peers had already began working in [firms] or multinational; that he and his family had spent so much money; that the applicant wanted to gain a good job and to live a good life for himself and his family; that he wanted to be a professional and that he was competing with so many other graduates with bachelor’s and master’s degree. He also mentioned that he wanted a degree in higher education from [City 1] as it was considered more worthy or prestigious in Pakistan than Pakistani degrees. Although the applicant was provided many opportunities to elaborate on the specific kind of profession he sought to pursue, the applicant was unable to explain specifically the kind of career he wished to develop. Instead, the applicant’s responses were generalised with particular emphasis on kudos, prestige and remuneration that he would gain from being a professional from his family or expressed his anxiety about the competitiveness of the labour market. In the context that the applicant admitted to struggling academically in the past, the Tribunal finds that the applicant is not genuinely motivated to pursue studies to develop career that in which he is personally interested or that would contribute to society. These further raises concerns that the applicant does not have the capacity to successfully undertake a degree in higher education and that the applicant has set unrealistic goals for himself.
In this assessing whether the grounds for cancellation were made out due the applicant not being a genuine student or likely to be so, the Tribunal has considered whether the sincere intent to graduate from a higher education course merely kudos from third parties or putative remuneration indicates that the applicant is a ‘non-genuine student’. The term 'non-genuine student' in is not defined in the Act or the Regulations, but should be given its ordinary meaning. In Tian v MIMIA, Mansfield J expressed the view that s.116(1)(fa) appears to be directed to circumstances different from those to which s.116(1)(b) refers, and does not fall within the reach of the circumstances prescribed under s.116(3) – as conditions 8104, 8105 and 8202 then were.[9] His Honour referred with apparent approval to the decision in MIMIA v Hou, where Conti J expressed the view in obiter dicta that the ’genuine student concept’ of s.116(1)(fa)(i) ‘is directed to circumstances where a student visa holder has been in literal compliance with visa conditions, for instance as to course attendances, yet has not conducted himself or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’.[10]
[9] [2004] FCA 216 (Mansfield J, 12 March 2004) at [32].
[10] [2002] FCA 574 (per Conti J, 8 May 2002) at [32]. Other cases in which s.116(1)(fa) was applied include Awan v MIMA [2001] FCA 1036 (Weinberg J, 3 August 2001) and Ambakkat v MIAC [2011] (Riley FM, 30 November 2011). Section 116(1)(fa) was also discussed briefly in obiter dicta by Madgwick J in Shrestha v MIMA [2001] FCA 359 (Madgwick J, 3 April 2001); however, for reasons explained by Conti J in Hou at [23], [25]-[26], that decision should not be regarded as authoritative. It should be noted that on the Minister’s appeal, the decision in Shrestha was set aside by the consent of both parties: N455/2001, 7 August 2001.
Based on these considerations and even accounting for extenuating circumstances, the Tribunal is not satisfied that the applicant has conducted himself as a genuine student over a period of the last two student visa that he has held. Not only is the Tribunal concerned that the applicant does not have the capacity to complete a bachelor’s or master’s degree and that he has set unrealistic academic goals, there is an little evidence of any meaningful or sincere aptitude to complete any coursework outside the narrow and hollow concerns of remuneration or prestige or even fear of shaming the applicant’s parents. Noting that the applicant has not meaningfully advanced his studies since 2013, the evidence strongly indicates to the Tribunal that faced with academic challenges in his studies the applicant has not demonstrated a determination and capacity to reach those unrealistic academic goals as he has previously disengaged with the educational provider, leading to incomplete studies or non-enrolment. Moreover the Tribunal can find no evidence that the applicant has any sincere or genuine impetus arising from personal career fulfilment which further indicates the applicant was ’a non-genuine student’ in the ordinary meaning of the phrase.
For these reasons, the Tribunal has no confidence that the study now proposed by the applicant will be completed and therefore is occupying a place in Australia’s educational system that would well be taken by a genuine student who has the capacity to complete his or her studies.
Based on the Tribunal’s cumulative consideration of concerns and findings, the Tribunal accordingly does not accept, at the time of this visa’s cancellation, the applicant was not, or is likely not to be, a genuine student is not, or is likely not to be, a genuine student.
Considering all of the evidence, 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
The applicant was notified by the Department of its decision to cancel the applicant’s visa on [in] December 2016.
Consideration of discretion
There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.
Having found that the applicant has not complied with section 116(1)(fa)(i) of the Act, the Tribunal must consider whether to exercise its discretion to cancel the visa.
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).
On the day of the scheduling hearing and up to the time of writing this decision, the Tribunal has not received any further evidence of any kind. The Tribunal is satisfied the applicant was provided with a meaningful opportunity to give evidence and present arguments.
The purpose of the visa holder’s travel to and stay in Australia
Based on the findings above outlining the reasons the Tribunal does not find the applicant is or is likely to be a genuine student for the grounds of cancellation, it follows that the Tribunal finds that this is not the applicant’s purpose in travelling to and staying in Australia is not study. Accordingly, the Tribunal gives this considerable weight towards the visa being cancelled.
The extent of compliance with visa conditions
There is compelling evidence before the Tribunal, including PRISMS and the applicant’s own admission, to indicate the applicant did not comply with condition 8202 imposed on his visa. The Tribunal places some weight on this towards the visa being cancelled.
During the scheduled hearing, the applicant also claimed that he had moved address three times (as well as being forced to sleep in a car for [a time]). The applicant claimed that he did not update the Department until one of its officials contacted the applicant. This indicated to the Tribunal that the applicant did not comply with condition 8533. The Tribunal places some weight on this towards the visa being cancelled.
The applicant claimed that he did not work during this period he held the student visa under review. With no evidence to the contrary, the Tribunal accepts this to be the case and places some weight in favour of the visa not being cancelled.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant claimed that will be in depression if he is not permitted to study. The applicant claimed that he visited a psychologist only once and gave the applicant some strategies to deal with his mental health concerns, such as going to the gym. The applicant claimed he was not taking any medication. Information indicates that the mental health concerns experienced by the applicant are treatable and manageable and not significant or severe. The Tribunal accepts the applicant genuinely will feel some depressive feelings if he cannot remain in Australia. Therefore it places some weight in favour of not cancelling the visa.
During the scheduled hearing the applicant claimed his life will be ruined if he is unable to return to Pakistan to finish his studies as he will too old to begin a career and because he will not attend a first rate university. The Tribunal pointed out that [the applicant’s age] was not old and that [Educational Institute 1] where he had been last enrolled was not a first rate university. The applicant elaborated that completing a degree in [City 1] is prestigious and equated with completing a degree in [a prestigious university in City 1]. The Tribunal does not accept that in Pakistan who has a well-educated middle class with many who are educated outside of Pakistan would consider any degree from Australia as emanating from a top tier university. Neither does it accept the applicant is too old have completed his studies at the age of [the applicant] in Pakistan would be placed at any significant disadvantage. The applicant relatedly claimed that he will be a disappointment to his parents if he had to return to Pakistan as they have spent considerable money on his education. He added that he will be able to face them but they will not loving him. This response indicates that the applicant will return to his family back in Pakistan and they will continue to materially, financially and emotionally support him. Nevertheless, the Tribunal accepts there is some emotional or financial hardship arising from the visa remaining cancelled but the hardship will not be considerable. The Tribunal accordingly places some weight on these factors, cumulatively considered, in having the visa not cancelled.
The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.
During the scheduled hearing, the applicant provided a number of reasons for his lack of compliance and the long period of non-study. These are discussed above in the Tribunal findings that there were grounds for the cancellation of this visa under review as the departmental records and the applicant’s oral evidence indicated that he was not and is unlikely to be a genuine student in accordance with s.116(1)(fa)(i). The Tribunal has accordingly considered if there were any extenuating circumstances beyond the applicant’s control that led to the grounds for the cancellation.
Having considered each of the extenuating circumstances, namely the applicant’s health problems led to the applicant’s tuition fees not being paid, the Tribunal does not accept these extenuating circumstances did not inhibit the applicant from suspending his coursework or engaging with the education provider. There is also the delay in being re-enrolled when his family’s financial capacity is re-established which indicates the applicant did not have extenuating circumstances for a period of time. That is, the Tribunal has accepted the applicant did have extenuating financial circumstances beyond his control but there were there were aspects of disengagement with his education provider and non-compliance that were under this control. Therefore the Tribunal places some but not a considerable weight in favour of the visa not remaining cancelled.
With regards to the claimed mental health symptoms the applicant claimed he had experienced – which are accepted to be the case, the conditions are found not to be severe or significant and were treatable, so any claimed mental health conditions as claimed by the applicant were not beyond the applicant’s control. The Tribunal therefore places only some weight in favour of the applicant’s visa not being cancelled.
Overall, having considered each of these claims to have an extenuating circumstance beyond the applicant’s control as grounds for the cancellation that is under review in this decision, the Tribunal finds the combination of these reasons would amount to either being extenuating or beyond his control and the Tribunal places some but not a considerable weight on these reasons in favour of not cancelling the visa.
Past and present conduct of the visa holder towards the Department
According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department. The Tribunal finds that there is no earlier evidence on file to indicate the applicant was non-compliant with the Department. The Tribunal gives this some weight in favour of the visa remaining cancelled.
However the Tribunal is concerned that the applicant did not respond to the NOICC, including seeking an extension of time or engaging a representative in a more timely manner, given he claimed to have the financial capacity for his studies. The Tribunal gives this some weight in favour of the visa remaining cancelled.
If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors
Not relevant.
whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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
As outlined in the applicant’s decision record, the Tribunal accepts that if the visa remains cancelled that the applicant, who is a Pakistani national, would have limited opportunities to remain in Australia and may have to depart or be detained. The Tribunal accepts the applicant may be subject to a Section 48 bar which will limit his options to apply for further visas in Australia and that he may be subject to Public Interest Criterion 4013 whereby the applicant will not be granted a temporary visa for three years from the date of cancellation. The applicant said that being barred from returning to Australia would amount to him wasting of time and his parents will not want him to live with his family. The applicant also indicated he could appeal unfavourable decision. The review applicant has presented no specific evidence in relation to these factors and accordingly the Tribunal gives these mandatory legal consequences only little weight towards the visa not being cancelled.
Whether there would be consequential cancellations under s.140
There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.
Whether any international obligations would be breached as a result of the cancellation
During the scheduled hearing, the applicant claimed his father back in Pakistan had [details removed]. He also stated that if wanted a [different kind of] visa he would have applied for it earlier and he wanted to remain in Australia to complete his studies. As the applicant did not indicate any urgent matters leading to [breach of international obligations] if the applicant had to depart Australia and remains eligible for [the other kind of] visa, the Tribunal finds there are no international obligations would be breached if the Tribunal were to affirm this review application to cancel the applicant’s student visa. Therefore it gives this factor very little weight in his favour.
Any other relevant material
There is no other relevant material to consider.
Conclusion
In summary, the Tribunal accepts that there will be some degree of emotional, financial and other hardship to the applicant if the visa remains cancelled in him having to leave the country and an inability to study in Australia in the future. It has accepted that the applicant had extenuating circumstances that lead to his non-compliance in remaining enrolled and a long period in not being a full-time study.
However, the overall study history of the applicant, his limited capacity for higher education, his responses to the purpose of his study has led the Tribunal to make emphatic findings that the applicant is a non-genuine student. Furthermore the Tribunal is not satisfied the degree of hardship to be faced by the applicant will be considerable or significant. It is also not satisfied that the extenuating circumstances which led to his non-compliance were always beyond his control or so severe as to provide the foundations for the grounds of cancellation.
Based on the findings above, those factors in favour of the visa not remaining cancelled are outweigh by those other facts in favour of the visa remaining cancelled, with particular emphasis on the Tribunal’s findings that the applicant is likely not to be a genuine student in the future.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Brendan Darcy
MemberATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994
…
(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.
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