1711022 (Migration)

[2019] AATA 3764

1711022 (Migration) [2019] AATA 3764 (28 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711022

MEMBER:Sean Baker

DATE:28 February 2019

PLACE OF DECISION:  Melbourne

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

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

Statement made on 28 February 2019 at 8:40pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 572 Vocational Education and Training Sector visa – Federal Court remittal – genuine student – satisfactory course progress – enrolment in a registered course – alleged college threats to maintain enrolment – evidence of academic progress – no deferral of studies sought – family hardship – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 116, 119, 348
Migration Regulations 1994, Schedule 8 Condition 8202; 2.43

CASES

MIMA v Hou [2002] FCA 574
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

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 14 April 2014 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s (the applicant) Subclass 572 Vocational Education and Training Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(fa)(i) on the basis that the applicant is not 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 provided a copy of the delegate’s decision to the Tribunal.

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 applicants’ 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 which made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.

4. The Tribunal, differently constituted, affirmed the decision. That matter was remitted from the Federal Court on the basis that the previously constituted Tribunal misconstrued condition 8202(3)(a) of schedule 8 of the Migration Regulations 1994 (Cth) as the basis for the decision where there was no evidence before it that the applicant’s education provider had certified the applicant for not achieving satisfactory course progress for section 19 of the Education Service for Overseas Students Act 2000 and standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.

5. The applicants appeared before the Tribunal on 26 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicants were represented in relation to the review by their registered migration agent.

6. 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

7. 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). 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?

8. A visa may be cancelled under s.116(1)(fa)(i) if the Minister 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.

9. 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 at lecturers [sic], 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 decision-maker 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. None of these prescribed matters apply in this case.

11. The applicant was sent a Notice of Intention to Consider Cancellation on 27 March 2014 by registered post. She responded on 8 April 2014. In that response she did not agree that there was a ground for cancellation.

12. The delegate’s decision sets out that according to the Provider Registration and International Students Management Systems (PRISMS), the applicant was enrolled in an Advanced Diploma of Management at the [College 2] for the period 2 March 2013 to 28 February 2014. On 27 March 2014 the [College 2] advised that for this course the applicant had not submitted any assignments, nor had she passed or completed any subjects for the course. The decision record also notes that the applicant was not enrolled in a registered course of study when the NOICC was sent to the applicant.

13. The applicant responded to the NOICC. In her response she said that she had been enrolled in a Diploma of marketing beginning 28 March 2014 and then an advanced diploma of marketing beginning 20 October 2014 with [College 1] and was regularly attending her course. She said she had successfully completed her certificate IV in business and her Advanced diploma of management with [College 2], and had previously completed her diploma of management with [College 3] in July 2012. She said that she had worked hard and had not received any complaints from her college. She said that the complaints from the college were baseless and not up to the mark. she said that the college was employing shrewd tactics to reserve education dollars

14. The applicant also explained that whilst she was studying the Advanced Diploma of Management she had become pregnant with twins and she had experienced mood disorders and had sleep and appetite disruptions. She miscarried [in] August 2013. The applicant said that she told her college and they told her to cover up studies and submit assignments if any were due. She said she submitted all the assignments and she maintained attendance and progress except for a few days. She provided all her medical records to the college. She said that the college had not provided her with any warnings for unsatisfactory course progress, nor given her any strategy to improve if it was not. She claims that the trouble started when she expressed a desire to move to another education provider and asked for her certificates and was told that she must enrol in further studies with them. They threatened her. They refused to issue her certificates and transcripts. With no other alternative she then joined [College 1]. She says that the NOICC was issued on the basis of false information from the provider. She goes on to state that she does not agree there is a ground for cancellation but that if there is then it was for reasons beyond her control, being her poor health during pregnancy and miscarriage of her twins which forced her to slow down the course progress, the [College 2] has adopted shrewd tactics to reserve education dollars and made her a victim for their personal selfish interests, and her education provider did not follow policy and provisions of law accurately, no prior warning or notice was ever issued to her and her residential address by registered mail. She states that the college neither issued her any prior notice, warning letter or any formal opportunity to present her side. They did not take steps or adopt strategies to improve her course progress. She says that she never received any notice of intention to report from [College 2]. She notes that there is no dispute about her attendance and it is believed her attendance is up to the mark, the only concern is not achieving course progress. She is fully confident that she passed these subjects. She notes all the records are kept by the college. With her response she enclosed a COE for a diploma of marketing and advanced diploma of marketing with [College 1], created 28 march 2014, a letter from a hospital medical officer at [a health service] which sets out that the applicant was admitted to hospital and had a miscarriage [in] August 2013, along with other medical documents.

15. On the Department file are letters sent from [College 2] to the applicant, and an appeal form. Also on the Department file is an academic transcript for the applicant for the certificate IV in business administration from [College 2] showing she was competent in all subjects. The applicant’s application for a long stay temporary business visa is also included on the file,

16. The delegate noted that the applicant enrolled in the courses at [College 1] on 28 March 2014, after the NOICC was sent. The delegate noted that [College 2] had indicated the applicant did not submit assignments or pass or complete any courses. The delegate had regard to her pregnancy and miscarriage but gave it little weight because the applicant claimed to have attended regularly except for a couple of days and said she had caught up on her study and submitted all assignments, and there was no information that she was certified unfit for work or study for the period of the Advanced Diploma. The delegate noted that the applicant was not sent a NOICC in relation to condition 8202. The delegate noted that [College 2] had provided two warning letters to the applicant warning of unsatisfactory course progress and offering an intervention strategy sent to her home address and a notice of intention to report letter was also sent to her, and an appeal form was provided in which she said that she had been pregnant and miscarried and had not been well mentally and physically since then. The delegate found the breach was made out and went on to consider that factors in favour of cancellation outweighed those against.

17. To the previous Tribunal the applicant provided medical history of her miscarriage and the submission provided to the Department.

18. The Tribunal provided a submission prior to the hearing with a letter in which she said that the warning letters were never sent to her, and the appeal form is bogus as it is not her signature, that she was a regular student and the college is known for fraud. She asked that I contact the college and ask for emails they sent to her and they did not take attendance. She said that they did not pay heed to her situation after her miscarriage. She said when pregnant she attended college. She said there was inconsistency in the letter dates from [College 2] and they tried to hide their misconduct by making bogus documents. She provided a copy of the appeal form with a copy of her passport and licence which evidenced that the signatures were different, a letter of offer from [College 4], and a page of google reviews of [College 2].

19. At hearing I discussed these matters with the applicant. She said that she had done her certificate IV in Business and started the advanced diploma at [College 2]. She had tried to attend all her classes but she was pregnant and had a couple of months delay because of sickness. She tried her best to submit all assignments. She kept asking for her Certificate IV but they did not give her the certificate or a transcript and said they would give this to her when she finished both courses. But when she finished the Advanced Diploma they did not provide any transcript. After that she said to provide her with an offer letter for the next course but they did not provide that to her and that was why she did not get any offer letter from another college as well. She said when she was submitting assignments they were saying she could not do this or that but she tried her best to submit.

20. I asked if she had been regularly going to college. She said she thought in July she went to College but she was behind because of the pregnancy and it was really complicated to go to college and she kept calling them but they did not pay attention and then when she came back in September they did not pay attention to that and they kept harassing her. She said she had never received any letter from the College, even the appeal letter was not done by the applicant.

21. I referred to the letters sent by [College 2] to the applicant which are on the Department file. I noted that I may take the view that the warning letters and notice of intention to report were sent to her at her address. She said they were not. I asked if she had had any letter or email correspondence with [College 2] and she said she had sent them through a friend. She said the college did not send these letters to her. I asked why the college would say they had and not have done it and she said that they wanted her to engage with them all the time, that was why. She said she had finished her studies on 28 February and they had asked what her plan was for future studies and she had said she wanted to go to another college and they said if you do that we will do you for visa cancellation. She said they had done the same thing with a couple of her friends. I noted that these were serous claims and it did not appear that there was any information before me to support the claim that this was all fraudulent. The applicant said that the signature on the appeal form was not her signature. I noted that I was not sure that I could draw that conclusion from what she had provided to me. I noted that I was not sure why the College would have done this for one student, that the fraud that she was alleging did not seem to have a clear motivation. I asked if she had made a complaint about the fraud to the Ombudsman or the Department or anyone else. She said she had never thought about it that much as she just changed College and when she received the NOICC she had no idea what she had to do because before that she never thought it would go this far.

22. I noted that I did not understand why she had not been given, or tried to get, a transcript for her certificate IV, if she had indeed completed this. I noted the copy of the transcript of the certificate IV on the Department file. She said they had kept putting her off and she thought they would give them to her together once she finished the Advanced Diploma. I noted it had been over four years since then and asked if she had any evidence of having completed or part-completed the Advanced Diploma or Certificate IV. She said they did not give it to her.

23. I noted that she had not provided much information to support her study for the period of the Advanced Diploma, and whilst I accepted and had sympathy for her pregnancy and miscarriage, this only covered part of the time. She asked how she could provide proof of submitting assignments and that she had attended to mid-July but then she was so sick. The applicant became distressed and was granted a short break.

24. I asked if she had sought leave of absence from [College 2]. She said that day, she thought in the middle of July, then after that she was sick and went to the hospital the next day and they found that her pregnancy was very complicated and said she needed complete bed rest. I asked her again if she had applied for leave of absence, or special consideration from [College 2]. She said that at that time she was too sick and did not do any contact and after some time she contacted through one friend. I asked if she had any evidence of what they did or her contact with them, or evidence she had provided her medical certificate to [College 2]. She said she thought she had telephoned them and sent them the medical certificate. I asked how she had sent the medical certificate and she said by hand through her friend.

25. I asked when she had returned to study. She said in September 2013, the end of September. I asked if the college had given her a letter saying she had had leave of absence from July to September and she said they had not. I asked if she had any evidence of having taken leave and what they did in that period. She said no, she just got a call from them why she was not coming and she informed them that she was sick and that is why she was not coming to the college. She said when she was feeling fine she went to the college and she met the CEO face to face. When she explained she was sick they were very rude and said she was just creating drama and after that they gave her a warning. I asked if she had a copy of that warning letter and she said verbally they were saying that.

26. I asked her if she undertook the Advanced Diploma full time and she said she had. I asked how often she was required to attend classes and she said 2 ½ days a week – Monday, Tuesday and Thursday. I then referred to the information in the Department file from the applicant’s application for a temporary business visa. I asked if she had been living in [Town 1] at this time and she said she had. I asked how she had attended her courses and she said by train, that she came in every day by train. I asked how long that took and she said 2 ½ hours each way. I asked if she had been working in [Town 1] at that time and she said she had, a little bit, not much. I asked if she had been employed as a sales and marketing manager and she said the employer gave her that much time, 20 hours a week. I noted that I may have concerns that she was not travelling to study but were working as a sales and marketing manager in [Town 1]. She said that even when she was pregnant she came every day from [Town 1] to Melbourne. I noted that the fact she was living and working in [Town 1] not Melbourne may tend to suggest she was not studying at that time but living and working in [Town 1]. She said that they were struggling to find accommodation and you could find cheaper accommodation there. She said she did all her study when she was living in [Town 1], since 2008.

27. I noted she had provided a current letter of offer from [College 4] dated 24 October 2018 for an advanced diploma of leadership and management. I noted that I would consider this but I continued to have concerns about whether, in the relevant period, she had been a genuine student. She asked how she could prove the fraud. I noted that she could provide any material that supported this claim, and she could have gone to the Education Ombudsman. She said in her country they could not do anything against the school so she had no idea what to do at the time. I noted she had provided a page of google reviews of [College 2] but I was not sure I could place much weight on this.

28. The applicant’s husband, [named], also gave evidence. He said that his wife finished 4 ½ years of study and he wanted me to give her an opportunity to study. He said they had waited for 4 ½ years here. He said they had given fees to the College and they did not provide any certificate and the whole trouble was created because of these things. He said that his wife was pregnant at the time and she went to College and people did not talk to her properly and she was in stress and went to the hospital and they said why are you traveling to Melbourne and the process kept going after that time.

1. The applicant’s representative made a submission saying that the applicant was not offered counselling by the College and she was sure that she did not sign the appeal form. The representative said the letters from [College 2] did not say they were sent by registered post, and they were just created to cover up. She said that she came from the same country as the applicant and they are not used to making complaints about Colleges, so the applicant was just waiting. She said she could understand why a College would do everything to retain a student. She asked that the signature be tested. I explained that I did not think this was practicable or necessary, and that there were other concerns I had expressed which meant I may not consider it appropriate to have the signature tested, even if such a thing could be done. I noted that there was other information that I had pointed to which could be provided, and that I would give further time, as well as providing adverse information which we had discussed to them in a s.359A letter for comment or response. The applicant said that she could provide the offer letter from [College 1] showing she applied before the NOICC and might be able to find evidence of submitting assessments.

2. After the hearing I sent the applicant, by way of her representative, a letter pursuant to s.359A, which is reproduced below.

   As discussed at the hearing I am writing to you to put some information to you for comment. As also discussed, you can also provide any information you wish, and as discussed, the letter or letters of offer from [College 1] showing a date prior to the NOICC.

   Letters from [College 2] and appeal form

   On 3 April 2013 [College 2] wrote to you at your home address noting their intention to report you for unsatisfactory course progress for your Advanced Diploma of Management and asking you to show cause why you should not be reported. The letter scheduled a meeting on [a date in] April 2013 to discuss the intervention strategy. It was noted that at the meeting you could address issues relating to compassionate or compelling reasons or discuss problems.

   On 6 September 2013 [College 2] wrote a further letter to you at your home address noting their intention to report you for unsatisfactory course progress for your Advanced Diploma of Management and asking you to show cause why you should not be reported. The letter scheduled a meeting on [a date in] September 2013 to discuss the intervention strategy. It was noted that at the meeting you could address issues relating to compassionate or compelling reasons or discuss problems.

   On 15 January 2014 [College 2] wrote a letter noting their intention to report you for unsatisfactory course progress, noting you were first identified as at risk of unsatisfactory course progress on 3 April 2013 and that the college had implemented an intervention strategy [later in] April 2014 but that you had now been assessed as making unsatisfactory progress in a second consecutive study period and had 20 days plus postage times to access the complaints and appeals mechanism. The letter explained the internal appeals process. It also noted that if you were unhappy with this process you could appeal with the overseas student ombudsman.

   There is then a copy of the appeal form which you provided to the Tribunal, said to be lodged by you on 17 February 2014.

   Copies of these documents are attached.

   In a follow-up  email to the Department decision maker dated 27 March 2014 in relation to your study of the Advanced Diploma, an administration manager from [College 2] answered ‘yes’ to the statements ‘the student did not submit any assignments for course Advanced Diploma of Management’ and ‘the student did not pass any subjects for course Advanced Diploma of Management.’

   The relevance of this information is that it may lead the Tribunal to find that for the whole or a part of the period of your enrolment in the Advanced Diploma of Management at [College 2] for the period 2 March 2013 to 28 February 2014 you were not, or were likely not to be, a genuine student. This is because the information appears to indicate that you did not submit any assignments for this course and did not pass or complete any subjects for this course, despite being provided with warnings and provided an intervention strategy, indicating you were not studying for some or all of this period. It may indicate that the college took steps to attempt to address your unsatisfactory course progress. It may also cast doubt on your claims that you were studying, submitted all assignments and that the college has manufactured the letters and appeal.

   The consequence of this being relied on is that, subject to any comment or response you make, this information would be the reason, or a part of the reason for affirming the review and lead to the Tribunal affirming the review.

   Information from Long-stay temporary business visa and nomination for the position

   The Tribunal has before it your application for the business visa. In this application it is stated that you worked as an assistant sales and marketing from 2 March 2010 until 24 October 2013, and a manager from 25 October 2013 until 3 March 2014 for [Employer 1]

   The Tribunal has before it the appeal of the nomination for your position. There is information that you were employed as an employee of [Employer 1] since 2011. In submissions made on 4 May 2015, in relation to the appeal of their nomination of you to the tribunal, it is stated that the business requires a full time sales and marketing manager, and later states that ‘the nominee (you) has been working in the above position since 2011.’ Your PAYG forms are also provided showing you were paid $30, 365 in FY 2011-2012, $25,399 in financial year 2012-2013, 13,970 in FY 2013 – 2014.

   As you stated at the hearing, you lived in [Town 1] from 2008 until the visa cancellation in 2014. You claimed that you travelled to study on the train from [Town 1].

   The relevance of this information is that it may indicate to the Tribunal that for the period 2 March 2013 to 28 February 2014 when you were enrolled in the Advanced Diploma of Management at [College 2], you were not travelling by train to Melbourne and studying but were in fact working full-time in [Town 1] where you lived. This may indicate that for this period and up to the visa cancellation, you were not, or were likely not to be, a genuine student.  It may also cast doubt on your claims that you were studying, submitted all assignments and that the college has manufactured the letters and appeal.

3. Copies of the letters from [College 2] and the Appeal Form were included.

4. The applicant responded to the s.359A letter. She said that she had located some emails in which she had requested her certificate from the college, that she had an email from her college stating her fees were overdue on 1 May 2014 after the cancellation of her visa, and that their threat to report her for visa cancellation shows they were poor record keepers and their greed for money, she notes this was sent by email and the others were sent by post which she never got. She notes she sent assessments to a friend on 11 May 2013 which shows she was regularly attending classes and in touch with college giving assessment. In relation to her employment she notes she was unwell and rarely worked and according to my claims she was working full time and not studying but this is not true as she was on bed rest and her PAYG summary shows she only earned AUD 13,970, which at minimum wage is only 14 hours a week, and if she had worked full time her salary would be AUD 54,000 plus super. She has provided the letter of offer from [College 1] which shows generation prior to the cancellation. She notes she has submitted all the supporting documents to the Commonwealth Ombudsman and ASQA. She says she went again to [College 2] to request evidence of completion but they told her to pay AUD 2000 as an upfront fee and said they had never sent any complaint to the immigration department, she thinks there was miscommunication between the provider and the Department. She says the signature on the appeal form is not hers and she never got the warnings. She says she and her family, particularly her children, will have trouble returning to India.

5. Attached were copies of an email to [College 2] requesting transcripts and certificate for completed Certificate IV in Business Administration and Advanced Diploma of Management, dated December 2015, an email from [College 2] seeking payment of fees and reply of the applicant to them, dated 1 May 2014, an email dated 11 May 2013 which is said to confirm submission of assessments by the applicant to [College 2], a PAYG Payment Summary confirming the applicant did not work full time, a Medical certificate from a doctor confirming the pregnancy and health issues of the applicant, Offer Letters from [College 1] dated 27 March 2014, proof of complaint lodgement to the Commonwealth Ombudsman, proof of complaint lodgement with ASQA, the appeal form with the applicant’s passport and licence said to have differing signatures, [College 2’s] complaints and appeals policy for international students, screenshots of correspondence between the applicant and [College 2] from May 2014, 2015 and 2018, a copy of the applicant’s diploma of management that, it is said, she completed while living in [Town 1], Medical Certificate of the applicant dated [in] August 2013, and a PAYG summary 2009 showing she lived in [Town 1] at this time also.

6. I have carefully considered the additional documents provided but I continue to have concerns with the claims of the applicant for the following reasons.

7. The fundamental concern is that the applicant did not submit assignments and did not complete any subjects for her course Advanced Diploma of Management for the period 2 March 2013 to 28 February 2014, which may tend to indicate that the applicant is not a genuine student. The further documents submitted do not, after consideration, rebut this concern.

8. The only document which directly touches on this concern is the email which the applicant claims shows she submitted assessments to [College 2]. Having carefully viewed the email I do not accept that it shows this at all. What it does show is that a [Person 1], on 28 November 2012, sent four files to a [Person 2] with the subject line ‘assgnments’, that [Person 2], on 11 May 2013 forwarded this to the applicant’s email address, and that the applicant forwarded this on to a [service provider] email address on the same day. I have concerns with the unexplained difference in time periods between the original email in November 2012 and May 2013, and with the lack of explanation with whether these were assignments for a subject in the Advanced Diploma, and whether they were group work. What this document does not establish at all is that the applicant, in the period of her claimed study of the Advanced Diploma, submitted assignments to [College 2]. I therefore place no weight on this document as establishing that the applicant is a genuine student

9. I will address the other documents below but it strikes me that the applicant has been unable to provide me, the previous Tribunal or the Department with any convincing evidence that she in fact undertook assignments and passed subjects for the Advanced Diploma in the relevant period. She was given further time after the hearing to provide any evidence of this and the document she has provided, as above, I have concerns with and it does not establish that she submitted any assignments. On stepping back from all of the other information and claims she has made, this appears to me to be the most relevant concern which she has not, I consider, adequately addressed.

10. The applicant also submitted a number of emails she sent to [College 2] seeking her transcripts and certificates. But these do not establish her study during the period and indeed they themselves raise concerns in my mind about whether she studied during the advanced diploma. In the email responding to the colleges demand for payment of fees, on 1 May 2014, the applicant states that she has completed all assignments and paid all fees but then only mentions the certificate IV in business management when requesting a transcript and certificate, not the advanced diploma. In the 28 December 2015 email she does request the transcripts for both courses. But then in the message dated 9 November 2018 she again requests her completion certificate for the certificate IV only, and not the advanced diploma. I note in the record of her complaint to ASQA she only mentioned the certificate IV and not the advanced diploma. I find these omissions curious – her evidence at hearing was that she had submitted all assignments for the advanced diploma, yet in two of her email correspondence with [College 2] and with ASQA she mentions only the certificate IV. I therefore place no weight on the emails to [College 2] as establishing the applicant is a genuine student.

11. I have carefully considered the offer letters from [College 1]. I note that they were obtained on the same day as the NOICC is dated. But I also note that the NOICC was sent by registered post, and so would have been received by the applicant some time after this date. Whilst I have some doubts given the date of the offer letters, I am willing to accept that the applicant gained these offer letters prior to receiving the NOICC, and I am willing to accept therefore that the applicant spent only a short period without enrolment after the date of completion of the advanced diploma at [College 2] and her enrolment for study at [College 1] and course start there on 27 March 2014 in the Diploma of Marketing.

12. I have carefully considered the medical evidence the applicant has provided. I accept that she was found to be pregnant [in] May 2013 (not 2014 as the medical certificate states, I accept that this was an error on the part of the doctor who was preparing the certificate in 2014), and she miscarried [in] August 2013. I accept that in August and for some time after that the applicant would have been physically and emotionally unable to study and would have been very likely to have been granted deferral of studies or special consideration if she had sought it.  But I find on the evidence before me that the applicant did not do this – her responses at the hearing to my questions about whether she had approached [College 2] at this time or after this to seek deferral or special consideration I found to be evasive – she said she had communicated with the college through a friend and given them a medical certificate through a friend but did not specify which friend, when this had occurred or whether she had followed up. The only evidence of her having engaged at all with the college during this period is the disputed appeal form from February 2014. I have real sympathy for the applicant having suffered a miscarriage of twins, and I accept that this would have been a heavy emotional burden, but I have concern with what I find was a lack of engagement by the applicant with the college where she could have sought deferral or special consideration. I note also her evidence at the hearing that she had returned to study at the end of September 2013. I therefore give the applicant’s pregnancy and miscarriage some weight towards explaining her lack of study during August and September 2013, and perhaps for June and July 2013 when she was pregnant, but I find that it does not explain or excuse the apparent lack of study before and after this period, which at the most generous includes two months prior to this time and five months after this time where the applicant has not established that she was studying.

13. I have carefully considered the evidence that she was working during this period. the information before me is somewhat contradictory – her temporary business application may tend to indicate she was working full time in this period, but her evidence at hearing was that she worked only 20 hours a week. She has provided her PAYG statement for the financial year 2013 – 2014, showing she earned only AUD 13,970 and she claims this establishes that she was not working full time. I am not convinced because during this financial year she had her pregnancy and miscarriage, and she has not explained whether this was time she took off work and if it was paid time off work, and I note also that her student visa was cancelled in April after which she may not have had an entitlement to work on any subsequent visa she was granted, meaning that the PAYG total amount may represent a much smaller period of the year than it appears. I note also the other and diploma which it is argued shows that she was able to live in [Town 1] and study in Melbourne and complete a certificate. I have considered all of the information but ultimately I do not consider it necessary to reach a concluded position on this – I am willing to accept that the applicant was employed on a part time basis during the period of her Advanced Diploma but, as above, I have real doubts that she submitted assignments and passed subjects for that course, and ultimately the information about her working during this period does not assist one way or the other.

14. I have considered the complaints to the Ombudsman and ASQA, but I also have concerns with these – from the information provided the applicant does not appear to have provided all of the information she has provided to me to these organisations – in particular she has not provided to the Ombudsman or, it appears, ASQA, the [College 2] Appeal form which she claims is fraudulent – this is surely a very relevant piece of information for the regulating bodies to be aware of in investigating her complaint. As above, she informed ASQA only of a request to have her certificate IV transcript provided, not the advanced diploma she claims to have completed, and she appears, from the response from the Ombudsman, to have only provided them with some, and not all, of the correspondence between her and [College 2] which she has provided to me. I have concerns that the applicant has been less than frank with these bodies and has applied simply to demonstrate to me that she has done so, without providing them with all of the information on which to make an informed determination of her complaints. I note that the Ombudsman requested further information from the applicant (some of which she had provided to me but not it appears to the Ombudsman, and noted that if this was not provided the complaint would be closed – I have no indication from the applicant about whether these complaints are ongoing. I have not delayed making this decision any further because of this and because of my concerns that the applicant appears not to have provided either body with the information she gave to me, and it does not appear from what I have before me that these represent genuine attempts by the applicant to have her complaints with the provider settled. Ultimately, I find that her complaints to these bodies were done very late in the process, and without providing all of the information, and I give them no weight in establishing the applicant was at the relevant time a genuine student.

15. I come to the claims of fraud on the [College 2] Appeal Form. I am not an expert in signature recognition, but I can see that the applicant’s signature on her passport and her driver’s licence is different to the signature on the form. But I find that this is all that can be said – I do not accept that this means the form was not done by, or at the behest of, the applicant, nor is there enough information to find that this means [College 2] fraudulently manufactured the form. I also do not accept that the concerns with the form lead to a conclusion that the warning letters sent to the applicant are fraudulent – the applicant claims they were sent by mail to not allow any tracing but I find this theory far-fetched  - there is no evidence that the applicant had specified that the college should communicate with her by email nor is there, as above, any evidence of the applicant herself corresponding in this period with the college by email. Nor do the concerns with the appeal form lead to a conclusion that the information provided by the college to the Department which was supplied to the applicant and as set out in the decision record, that the college indicated the applicant had not submitted any assignment and had not passed any subjects for the course. Nor am I convinced by the applicant’s claims that [College 2] were motivated by malevolence towards her because she wished to change courses, I found her evidence on this utterly unconvincing. Whilst it appears from the materials she has provided that there is some dispute relating to payment of fees I do not believe the applicant has been entirely truthful about the fees situation and I do not accept from what is before me that [College 2] had attempted to keep her at the college against her will, nor threatened her, and I do not accept on what is before me that they made her a victim for their own selfish reasons, that it can be supported that they did not follow policies and, even if this is true, nor does it explain or excuse the applicant not submitting assignments or passing courses, nor do I accept that they did not provide feedback to her about her progress or procedural fairness, given my findings on the warning letters they sent, below.

1. I have carefully considered the information quoted in the decision record from [College 2] which indicated the applicant had not submitted any assignment and had not passed any subjects for the course, along with the warning letters sent by [College 2] to the applicant at her postal address. Even leaving to one side the appeal form (and as above I do not accept there is enough to establish this document is fraudulent), this information leads me to have very real concerns that the applicant was a genuine student during the period in which she was enrolled in the Advanced Diploma of Management at the [College 2] for the period 2 March 2013 to 28 February 2014. The period of her pregnancy and miscarriage and recovery afterwards do not ameliorate the rest of this period. I place considerable weight on the information from [College 2] quoted in the decision record that the applicant had not submitted any assignment and had not passed any subjects for the course, and their letters to her warning her of concerns and a possible intention to report.

2. The applicant, I find, has not established her case that she was in fact submitting assignments, had completed subjects and indeed, she claimed, had completed the Advanced Diploma. The information she has provided has been problematic as discussed above and I have given little weight to that information. I have considered the applicant’s evidence and that of her husband. But ultimately I can give their evidence little weight when the claims that the applicant was studying her advanced diploma, submitted assignments and completed all of the subjects and completed that course are not supported by the evidence before me. I have carefully considered all of the information before me, and when taken together I find that the applicant did not submit any assignments, and did not pass any courses for the Advanced Diploma of Management at the [College 2] for the period 2 March 2013 to 28 February 2014.  I find that, for at least a significant part of this period, the applicant was not, therefore, studying and was not a genuine student, in the sense that she was not submitting assignments and did not pass any subjects, and for the significant period before and after her pregnancy and miscarriage where she claimed to have been studying, has no reasonable explanation for this. I am therefore satisfied that the applicant was not, or is likely not to have been, a genuine student for a significant part of this period.

3. 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 visa should be cancelled.

   Consideration of discretion

4. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

5. I have had regard to the applicant’s response to the NOICC, her submissions and evidence to the previous Tribunal and to me.

   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

6. The applicant stated at the hearing that her purpose in coming to Australia was to study. I note that the applicant has completed a number of courses, and I accept that this was at least part of her purpose in coming to Australia. I asked her if she had a compelling need to remain in Australia and she said not really but her son had grown up in Australia and he did not know anything about Indian culture. I have considered this further below but do not consider this a compelling need to remain in Australia. On weighing all of the information before me I give this some weight towards the visa not being cancelled.

   the extent of compliance with visa conditions

7. The applicant said that she had complied with all visa conditions whilst holding the student visa. I am willing to accept this but I note that visa holders are expected and can be presumed to comply with visa conditions and give this only little weight towards the visa not being cancelled.

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

8. I accept that if the visa remains cancelled the applicant and her family will have to depart Australia and return to India. She said there was no reason they could not return except that they were still under debt, and I assess that the applicant and her family can return to India. I note that they will have limited options to apply for other visas but that this is the intention of the migration regime.

9. At hearing the applicant said that she would suffer financial, psychological and emotional hardship if the visa remained cancelled but did not elaborate. She did not provide any further claims at the Department stage. In her most recent submission the applicant said that her family, and in particular her children will have difficulty adjusting to life in India and in particular that her eldest child will have some disruption to school and that the children have little familiarity with Indian culture.. I accept that the applicant, and her family, will face hardship as described if the visa remains cancelled, but I am not persuaded by the information presented that such hardship will be significant for the applicant, her husband or her children.

10. Having weighed the information before me I give this factor some weight towards the visa not being cancelled.

    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

11. Above I have accepted the applicant became pregnant and had a miscarriage, and I have sympathy for the applicant having to go through that. but by her own testimony she claimed to be studying the advanced diploma both before and after that, but I have found above that she did not submit any assignments or pass any subjects and was not a genuine student. I have dismissed her claims that [College 2] acted fraudulently or in bad faith towards her, threatened her, or did not comply with policies to such an extent that it disabled her from studying, and I find therefore that the applicant’s circumstances – her pregnancy and miscarriage, do not explain the whole of the period under consideration. I find that, as above, at least for a significant part of the period she was enrolled in the Advanced Diploma of Management at the [College 2] for the period 2 March 2013 to 28 February 2014, the applicant was not studying and was not a genuine student. The purpose of the student visa is, primarily, for the holder to enter and remain in Australia for the purposes of study. to have a holder not studying for a significant period is therefore a significant concern in terms of the purpose of the visa scheme. I therefore give this factor significant weight towards the visa being cancelled.

    past and present behaviour of the visa holder towards the department

12. The applicant has engaged with the Department and the Tribunal, I give this some little weight towards the visa not being cancelled.

    whether there would be consequential cancellations under s.140

13. The applicant’s husband and son were consequentially cancelled after the applicant’s visa was cancelled. As above, I accept that the cancellations of their visas may lead to them returning to India, and that the applicant’s son has little familiarity with Indian culture. I accept as above that they, and the applicant, may sufer some hardship if returned, but as above I do not accept on the information before me that they have established significant hardship, nor that there are further reasons why the consequential cancellations are particularly damaging and I give this factor only little weight towards the visa not being cancelled.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

14. The applicant said she and her family were on bringing visas and she did not know what she would do if the substantive visa remained cancelled. She said that there were not so much reasons they could not return to India but that they are still under debt. She said that they were under debt to family and friends and were just surviving in Australia. I consider that if the visa remains cancelled the applicant and her family will have a period of time on their bridging visas to wind up their affairs and return to India and I assess it as unlikely that they will become unlawful and enter detention. They have access to a limited range of visa application options. I give this consideration only little weight towards the visa not being cancelled.

    whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

15. As above the applicant said that there were not so much reasons they could not return to India and were in debt to family and friends. Whilst the applicant has claimed returning to India will be hard on her and her husband and in particular their children, who know little of Indian culture and her eldest child will have his schooling disrupted, no claim has been advanced that any of these concerns lead to a potential issue or breach of Australia’s international obligations and I give this factor no weight.

    any other relevant matters

16. The applicant, when asked, asked the visa not be cancelled as it was her and her children’s future and it was not her fault, it was her fault that she was pregnant, that was all. I understand the applicant wishes to remain in Australia, but as above I have found that the ground for cancellation is made out, and on the information before me I give this consideration no weight.

17. I have carefully weighed all of the information before me. Whilst there are some considerations as above that go towards the visa not being cancelled, the ground for cancellation here, my finding that the applicant was not studying for a significant period, in that I found she had not submitted assignments or passed any subjects for the course, and therefore my finding that she was not, or was likely not to be, a genuine student during the relevant period whilst holding the student visa, and my findings about the circumstances, leads me to find that this concern outweighs those other factors. As discussed above, the applicant was the holder of a student visa at that time, the explicit purpose of which is to allow someone to temporarily enter and remain in Australia for the purpose of study, and for a significant period I have found she was not studying. In the end I find that this outweighs the other factors.

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

    DECISION

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

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

    Sean Baker
    Member

    
    

    ATTACHMENT – 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.