1703485 (Migration)

[2017] AATA 2886

1703485 (Migration) [2017] AATA 2886 (8 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1703485

MEMBER:Tigiilagi Eteuati

DATE:8 December 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 08 December 2017 at 6:14pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Requirement to be enrolled in a registered course – Whether applicant has been a genuine student – Applicant working full time – Pending criminal charges

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Visa condition 8202

Any 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

1. This is an application for review of a decision dated [in] February 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education 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 had not complied with the condition of his visa to remain enrolled in a registered course. 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 8 December 2017 to give evidence and present arguments.

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 Minister’s delegate found that the applicant had not been enrolled in a registered course between [September] 2016 when his enrolment in his [Advanced Diploma] ended, and [February] 2017 when he enrolled in a [certificate IV] and a [diploma] after he had received the Notice of Intention to Consider Cancellation (NOICC) from the Department. This was conceded by the applicant and accords with records held by the Department. The applicant also conceded that he was not enrolled in a registered course from August to December 2014 and from February to June 2015.

9. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

   Consideration of the discretion to cancel the visa

10. 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.

11. 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).

12. The applicant claimed that when he first arrived in Australia on a subclass 573 visa in June 2011, he was enrolled in a [Certificate IV] to be followed by a [Diploma] and then a [bachelor] degree. He claimed that he did not complete the Certificate IV course and eventually gave up trying to complete the course in 2013. He said that he continued his enrolment in the Diploma course but gave this course up in 2015. He said that he enrolled in a [different Diploma] and an [Advanced Diploma] in 2015. He began the Diploma course in August 2015 and completed the Advanced Diploma course [in] September 2016. He was not enrolled in any course from this date until he enrolled in [various courses in] February 2017 after he had received the NOICC from the Department.

13. The applicant admitted that he had not applied himself to his studies and was working full time in various jobs from the time that he arrived in Australia until the time his visa was cancelled. Indeed, he admitted to working as the manager of a [business] he owned until it [ceased operating] in September 2017 after his visa was cancelled.

14. The applicant explained that he had been working full time in various jobs since his arrival in 2011 to save money to start a business in Australia. He said that he started a [business] in July 2017 and worked full time at the business. The applicant explained that he was arrested in November 2017 and charged with [various offences], the allegation against him being that he had [acted criminally in relation to the running of his business]. The charges against the applicant have yet to be resolved and he has been released from prison on bail.

15. The applicant admitted that he had maintained enrolment in various courses in Australia to meet the requirement that he remained enrolled in courses and to give the appearance that he was a genuine student. He said that he understood that this was the wrong thing to do but that he had received advice from a number of dishonest people including migration agents to act in this way to remain working full time in Australia. He said that he had paid these people a great deal of money for their advice and to keep him enrolled in courses. In relation to the two [courses] he had completed he said that he was only required to attend class three times a week and that he was able to only spend 6 to 8 hours a week while working full time.

16. The applicant indicated that he had no intention of studying in Australia and that he wanted the cancellation decision set aside so that he could try to find a sponsor so that he could apply for a business visa to remain in Australia and run a business.

17. The Tribunal raised with the applicant its concern that the applicant had not been a genuine student and had spent his time in Australia working and running a [business] instead of studying. The applicant admitted that this was the case.

18. The Tribunal raised with the applicant its concern that even if he was granted another visa to remain in Australia there was a possibility that he would spend time in gaol for the matters for which he was charged. The applicant said that he understood that this was a possibility.

19. In relation to hardship to the applicant if his visa was cancelled, the applicant indicated that he understood that if his visa remained cancelled he would be prevented from applying for another visa for a period of three years. He said that this would interfere with his plans to remain in Australia on a business visa and run a business.

20. The Tribunal has decided to affirm the Minister’s delegate’s decision to cancel the applicant’s visa. The applicant has not been a genuine student and has not applied himself to his studies. Instead the applicant has paid people he described as dishonest to apply for enrolment in courses to give the impression that he was a genuine student. He has worked full time in Australia since first arriving here in 2011 in order to save money to start his own business. He was also working full time as the manager of his business even after his visa was cancelled in February 2017.

21. Tribunal is willing to accept that the applicant and his family members may experience disappointment that the applicant’s visa was cancelled before he was able to complete a higher education course in Australia. The Tribunal has also considered that, as the applicant’s visa has been cancelled, he may have to wait for some time to be granted another visa in Australia.

22. However, the Tribunal considers that any hardship to the applicant is greatly outweighed by his failure to maintain enrolment, his failure to apply himself to his studies as a genuine student and his actions to work full time in Australia since 2011 while holding a student visa.

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

    DECISION

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

    Tigiilagi Eteuati
    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.