1926087 (Migration)
[2020] AATA 4858
•24 July 2020
1926087 (Migration) [2020] AATA 4858 (24 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1926087
MEMBER:Wendy Banfield
DATE:24 July 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Statement made on 24 July 2020 at 12:49pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Federal Circuit Court remittal – enrolment in a registered course – gap in studies – applicant’s health issues – family bereavement – applicant disputed his enrolment being cancelled and its duration – employment in Australia – several changes to Vocational courses – lengthy stay in Australia – limited academic progress – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000, s 20
Migration Act 1958, ss 116, 359
Migration Regulations 1994, Schedule 8, Condition 8202CASES
Ganji v MIAC [2010] FMCA 711
Liu v MIMIA [2003] FCA 1170
Liew v MIBP [2016] FCA 172
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
This is an application for review of a decision dated 16 February 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had not complied with the conditions of his visa as he had not maintained enrolment in a registered course of study. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Background
The applicant is a citizen of Bangladesh and is currently [age] years old. He came to Australia [in] September 2011 as the holder of a Subclass 572 Student visa. Since then the applicant has been granted a further three student visas, the last of which was valid until 16 February 2017.
The matter is before the Tribunal because of a Federal Circuit Court order remitting the case to the Tribunal for rehearing.
The applicant submitted the following evidence in support of his application for review[1]:
[1] Multiple submissions were made of the same medical and educational documents.
Evidence to the Tribunal (differently constituted)
·Applicant’s medical imaging request forms dated 20 November and 15 December 2015;
·Medical certificates dated 20 November 2015 regarding the applicant’s knee pain and unfitness to study from 12 October to 20 November 2015;
·Medical certificate (undated) advising the applicant was unfit to study from 25 November to 8 December 2015;
·Medical imaging report dated 1 December 2015 regarding the applicant’s knee pain;
·Biomedical, pathological and haematological reports (Medical Centre [in Bangladesh]) for Mr [A], dated 29 August 2016;
·Hospital discharge certificate ([Bangladesh Hospital 1]) for [Mr A]: admitted on 16 November 2016, discharged on 22 November 2016 following food poisoning;
·Hospital discharge certificate ([Bangladesh Hospital 1]) for the applicant: admitted on 24 March 2016, discharged on 30 March 2016 due to tearing of knee ligament;
·Hospital discharge certificate ([Bangladesh Hospital 1]) for the applicant: admitted on 25 April 2016, discharged on 28 April 2016 due to a fall;
·Hospital discharge summary (0060 Dhaka) for [Mr A]: admitted on 24 December 2016, discharged on 24 January 2017;
·Multiple x-ray slides in relation to the applicant’s knee (date not discernible);
·Death certificate for the applicant’s mother dated [in] December 2014;
·Notification and decision record dated 16 February 2017;
·Progress report for a [Diploma 1] from [College 1] dated 4 April 2014;
·Confirmation of Enrolment certificate (COE) for a [Diploma 2]: 9 May 2016 to 9 April 2017 (issued 4 May 2016);
·COE for a [Diploma 3] from 13 August 2018 to 28 June 2019;
·COE for an [Advanced Diploma 1] from 15 July 2019 to 12 July 2020;
·Letter confirming enrolment and interim academic transcript from [College 2] dated 24 April 2019;
·Applicant’s statement dated 23 February 2017;
·Applicant’s written statement (undated);
·Contents of a medical file dated 2018 in relation to Mr [Mr A] (appears to be concerning a lung condition);
·Representative’s submission of 2 May 2019;
·Vocational education documents in relation to the applicant’s studies in Australia.
Evidence to the Tribunal (current)
· Representative’s letter dated 4 December 2019;
· COE for a [Diploma 2] (7F1E0C56)
· COE for an [Advanced Diploma 2] (A8B3A788)
· Course progress report for an [Advanced Diploma 2]
· [Diploma 4] certificate and transcript
· Offer letter for [Degree 1] from [College 3]
· Fees receipt from [College 3]
· Communications from [College 3] and other providers regarding enrolment in a degree course.
Applicant’s statement of 23 February 2017
The applicant’s claims in this statement are as follows: His family background includes parents and [siblings]. The purpose of travelling to Australia was to pursue a tertiary education. When his mother was sick the applicant wanted to travel to Bangladesh, but his college first refused, then approved leave. He has visited his home country a few times despite his commitment to his studies “which ultimately has influenced me in discontinuing my courses and readmitting into different subjects”. He may have developed anxiety due to his mother’s health. His mother died in 2014 and his father was also sick. He wanted to get a “foreign degree” but also support his parents. In November 2015 he fell downstairs injuring his knee then underwent treatment in February 2016 in Bangladesh. He fell again in April 2016 requiring further treatment and rest. He was enrolled from 20 April 2016 as per his COE. He tried to continue studying but his father had a stroke. The applicant was worried and anxious but did not access counselling. He harboured feelings of guilt about not being with his parents and these events have impacted his studies. His parents expect him to acquire an overseas degree, he is mentally prepared and motivated to complete a degree as a tribute to his mother.
Applicant’s statement (undated)
This statement contains much of the same information as the applicant’s statement of 23 February 2017 but with updated details about his and his father’s health and his circumstances after receiving the Department’s NOICC letter. The applicant claims he attended college until August 2016 but was never told by his education provider that his enrolment had been cancelled. The applicant claims he was unable to concentrate on his studies due to his father’s illness. After his visa was cancelled, the applicant states he was not aware he could continue studying until 2018 when he consulted an agent. He enrolled in a [Diploma 4] but was refused enrolment in a bachelor’s degree as he did not have a student visa. The applicant was at the time of the statement, studying a [Diploma 4] and was planning to progress to an Advanced Diploma. The applicant refers to his father falling ill in 2018 but being unable to travel due to holding a Bridging visa E. The applicant requests “all these psycho-social factors” be considered.
Representative’s submission of 2 May 2019
The representative’s submission includes a chronology of events since the applicant arrived in Australia. The applicant disagrees with the Department’s finding that he did not dispute there were grounds to cancel his visa. The submission states the applicant disputed there were grounds to cancel the visa because he held a COE for a [Diploma 2] at the relevant time and the PRISMS record was incorrect. The applicant claims he was unaware of his enrolment being cancelled and that he was actively enrolled at the time of cancellation. The submission includes some reasons why the visa should not be cancelled in the applicant’s case.
Representative’s submission of 4 December 2019
The submission sets out the facts of the case, the facts in issue and specifically, whether the Department and the Tribunal applied the law correctly. It is submitted the applicant held a COE for a registered course that ran from 20 April 2016 to 6 February 2017. The applicant was attending until August 2016 when he heard about his father’s ill health. It is claimed the Tribunal had previously accepted this but notes the Tribunal had found the applicant was not enrolled for more than two months. The representative claims the applicant’s case was not considered ‘holistically”, the applicant was never informed his enrolment was cancelled in breach of the Education Services for Overseas Students Act 2000 (ESOS Act) and only became aware when he received the Department’s Notice of Intention to Consider Cancellation (NOICC). It was also claimed the decision makers did not abide by their duties in deciding the applicant’s case which led to an unjust outcome. The submission states the applicant’s attendance and performance has not been certified as unsatisfactory and he enrolled to study again. The submission also addresses the reasons why the applicant’s visa should not be cancelled.
The applicant appeared before the Tribunal on 11 December 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr B], who is a family friend of the applicant.
The applicant was represented in relation to the review by his registered migration agent.
First hearing – 11 December 2019
The applicant gave the Tribunal his understanding of the issue in his case which is the Department’s claim he had not been enrolled in a course of study from 20 April 2016 to 6 February 2017. He said he submitted before the Tribunal previously that this was not correct because he had a valid COE and was studying; he also claimed to have taken some of his exams while studying the [Diploma 2].
The applicant gave evidence his father had a stroke and was very sick. He said he was depressed and mentally unwell and ceased going to college. He submitted he still did some assignments and his attendance was good and everything was fine beforehand. The Tribunal asked the applicant if he sought a deferment, but he said he did not because he thought he “would be ok”. He said he had called and emailed the college and advised he could not attend but they did not respond and did not give him a warning letter about not coming. He repeated that he always submitted assignments. By November 2016 the applicant said he attended again for a few days but then the college closed over December and January (2016/2017). He said he paid the tuition fees and attended the last two weeks in November 2016. The applicant repeated the college was then closed over December and January for the holidays.
The applicant said on 1 February 2017 the Department issued a Notice of Intention to Consider Cancellation (NOICC) stating he was not enrolled from April 2016 to February 2017, but he claims he was in fact enrolled then. The applicant said he went to the college and asked why they had said he was not enrolled but he was not given any answers. According to the applicant he then enrolled and obtained a new COE from another college. The Tribunal put to the applicant that he had not given this information to the Department in response to the NOICC but he stated that he did.
The applicant confirmed that in February 2017 he had enrolled in a [Diploma 5]. The applicant said that previously the Tribunal (differently constituted) had acknowledged that the delegate had made a mistake in stating he had not been enrolled for several months because he had a COE and in fact, he had not been enrolled for only two months.
In accordance with section 359AA of the Migration Act, the Tribunal put to the applicant, particulars of information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review. The applicant was advised the information is relevant to the review because, subject to his comment or response, the Tribunal had different information to that provided by him. The information put to him was that according to the Provider Registration and International Student Management System (PRISMS), the [Diploma 2] does not appear on the record. The applicant was told that if the Tribunal relies on the information it may lead to the decision under review being affirmed. He was invited to comment on or respond to the information and advised that he may seek additional time in which case his request would be considered, and hearing may be adjourned.
The applicant submitted he did hold a COE for the [Diploma 2] course at the relevant time. The applicant said he was offshore in February 2016 and returned in May 2016. The Tribunal advised it would consider the issue of the applicant having a COE and the apparent discrepancy in the record on PRISMS.
The Tribunal advised it would be necessary to determine whether there were grounds to cancel his visa or not and if there were, whether his visa should be cancelled. The applicant advised he first came to Australia in 2011 and the Tribunal accepted his original purpose in travelling to Australia was to study. When asked whether there was any compelling reason why he needed to remain in Australia the applicant said “no”. However, he submitted his priority is to finish his studies in [subject 1]. He said he was enrolled in an Advanced Diploma and wants to also undertake a bachelor’s degree. The Tribunal explained to the applicant that the question was regarding whether he had a particularly strong reason why he needs to stay in Australia as a student. The applicant again responded “no”. He went on to say his mother has passed away, his father is [age] and he had only been sent to Australia to study. According to the applicant it had been hard to study because of his parents’ ill health but his father wants him to graduate with a bachelor’s degree and has paid for his studies.
The applicant advised he is not working in Australia and had not done so since November 2015 because his father gives him money. The applicant said he believed he had complied with all other visa conditions. He added that he had asked for study rights while holding a Bridging Visa E which was granted. He confirmed he did not have work rights while holding a BVE. Regarding any hardship that would be caused by the visa being cancelled the applicant said he is only worried about his father. The applicant repeated his claims that he had not breached the conditions of his visa and therefore did not make submissions about the circumstances. The Tribunal asked the applicant about his earlier evidence that he had stopped studying in 2016 and he restated his earlier claim that he had emailed the college about it but had not received a reply and he did not receive a warning letter about attendance. He said again that he submitted assignments in the course. The applicant said at the previous Tribunal hearing (differently constituted) he had submitted some evidence about attending exams and it had been accepted by the Member. The Tribunal explained to the applicant that the current hearing was a rehearing and the previous Tribunal decision was not being reviewed. He repeated that he had only not been enrolled for two months.
The applicant advised there were no consequential cancellations as a result of his visa being cancelled. The Tribunal explained the legal consequences to him and invited submissions. He said he understood and did not wish to provide comment. The Tribunal then explained the requirement to consider whether there are any international obligations in his case, the applicant confirmed he does not have children and he was not aware of any international obligations in his case. The Tribunal concluded by explaining that it would assess the evidence in his case and decide whether there were grounds to cancel his visa and if there were, whether the visa should be cancelled in his case.
The applicant asked about the Tribunal’s role after the case was remitted from the Federal Circuit Court and explained the previous Member had accepted, he was not enrolled for a two month period. The Tribunal then explained to the applicant the procedure when a case is remitted from the court and that the Tribunal is hearing the matter again in full.
Evidence of the witness –[Mr B]
The Tribunal explained to the witness why the matter was before the Tribunal. The witness was then invited to make a submission. He explained he went to Bangladesh in 2015 and met the applicant’s father who was a friend. Before that he said he was speaking at a Bangladeshi community event and the person driving him was the applicant, which is when they met for the first time. He said he noticed the applicant was depressed and always alone doing nothing. The witness said he thought it was sad for a young person to be sitting alone doing nothing. He learnt from the applicant’s father the applicant was a student and his mother had passed away at an early age.
The witness advised he had noticed at different places in Australia that the applicant was a young person who was just sitting around doing nothing, like an old person. The witness invited the applicant to his house and found he had a few issues. Firstly, when the applicant was in Bangladesh, no one had explained to him about the Australian education system, particularly about private and public institutions. It was claimed the applicant went regularly to college but told the witness he “was not doing much”, in 2016. It was submitted that the college was “mostly closed” and the applicant did not know what to do. He said the applicant’s father was asking the witness to give the applicant some money. The witness said [that he knew] a GP and he told her about the applicant who advised the applicant has some sort of depression, but according to the witness, people often do not realise and do not seek help as they are in denial.
The witness said he advised the applicant to seek help. Then his college closed, and the applicant tried to get enrolment somewhere else. He said the applicant came to his house regularly in 2017 and they became close. Since the applicant’s visa was cancelled, he has been unable to leave Australia. It was claimed that from talking to the applicant’s father, they want him to finish his education. After arriving the applicant found the private and public education institutions were different. Then he wanted to get enrolled but because he did not have a visa and the matter was before the Federal Court, [a named] University would not enrol him. It was submitted that if the applicant does not “finish his graduation” his father will be disappointed. The witness said that in Bangladesh, if a person is not enrolled anywhere within two years of finishing high school then they cannot do so. He went on to explain what had happened in that regard with his own relatives. The witness said if the applicant goes back to Bangladesh, there is no way he can finish it (his education).
The witness said the applicant is a “young boy” who does not use alcohol. It was requested the applicant be allowed to complete his studies so he can go back to Bangladesh “at least with a degree” because otherwise he will have no options.
Section 375 non-disclosure certificate and s.359A letter
On 28 May 2020 the Tribunal wrote to the applicant in accordance with s.359A of the Act. He was advised as follows:
The Tribunal had intended holding a further hearing in order to put the particulars of certain information to you for comment, however, due to current COVID-19 restrictions you are invited to comment or respond in writing.
The particulars of the information are:
· The Department issued a non-disclosure certificate and notification under s.375A of the Migration Act. You are invited to make submissions on the validity of the certificate;
· The nature of the information covered by the s.375A certificate relates to your employment activities in Australia. You are invited to comment on the nature of the information the s.375A certificate refers to;
· You claimed at the Tribunal hearing on 11 December 2019 that you had not worked in Australia since 2015 because your father provides you with financial support and that you believed you had complied with all other visa conditions. Contrary to your claims, your [social media] pages indicate that since 2015 you have worked for [Employer 1], [Employer 2] and [Employer 3] and that you are the ‘owner/director at [Business 1]’.
· On 17 March 2020 the Tribunal contacted [Employer 3] who confirmed you carry out work for them as a [Occupation 1] and have done for some time;
· Your extensive social media pages contradict the evidence of you and your witness ([Mr B]) that characterise you as being socially withdrawn in Australia and having difficulty studying due to personal issues.
· You claim on your [social media] page that you have a ‘[Degree 2]’ from the [Australian University 1] but this is not recorded on the Provider Registration and International Student Management System (PRISMS) and it appears you have not declared this information or provided any evidence of such a qualification.
This information is relevant to the review because the Tribunal considers a public interest reason is clearly specified on the face of the s.375A non-disclosure certificate and the certificate is valid. The Tribunal also considers your social media activity, in particular, those posts that highlight the nature and extent of your employment in Australia indicate you have not been truthful in giving evidence that you have not worked since 2015.
Depending on your comment or response, the Tribunal intends to take the material covered by the s.375A certificate and your social media content into account in its decision. This is because it is relevant to the circumstances in which the ground of cancellation arose, the extent of your compliance with visa conditions and your study history. These are some of the factors the Tribunal will have regard to in considering whether to exercise its discretion to cancel your visa.
If the Tribunal relies on the information outlined in making a decision, it may lead to the decision under review being affirmed.
The s.359A letter included a copy of the Department’s non-disclosure certificate and the applicant’s [social media] pages as referred to in the letter. The applicant replied to the invitation on 15 June 2020. In his response the applicant submitted a bank statement, a statutory declaration, notice of intended marriage; wedding planning documents and correspondence; correspondence from the applicant’s college, [social media] posts and photos. In his statutory declaration dated 12 June 2020, in relation to the Tribunal’s questions, the applicant advised as follows:
You claimed at the Tribunal hearing on 11 December 2019 that you had not worked in Australia since 2015 because your father provides you with financial support and that you believed you had complied with all other visa conditions. Contrary to your claims, your [social media] pages indicate that since 2015 you have worked for [Employer 1], [Employer 2] and [Employer 3] and that you are the `owner/director at [Business 1]'.
Engagement with [Employer 1]
I say that [Occupation 2] is my hobby since my childhood.
I assisted [Employer 1] on voluntary basis for 3 months in 2016. [Employer 1] was my [agent] through which I was enrolled to my education provider.
[Occupation 2] is my hobby and I did practice it before. Somehow, they knew about it that I love [Occupation 2] and do [Occupation 1] beyond average. [Employer 1] staff told me to [do some Occupation 1 work] for them. Upon their request, I [did an Occupation 1 job] for them for free of cost.
That was all about my alleged work.
Engagement with [Employer 2]
I say that I love to be in [this industry].
In relation to my work with [Employer 2], this is a Bangladeshi [business]. I also worked for them as a volunteer [role] as and when necessary. I have a plan to join them upon my return to Bangladesh.
Engagement with [Employer 3]
I say that the owner of [Employer 3], Mr [C] is my father's best friend. I helped him sometimes as a volunteer [Occupation 1]. I again reiterate that I love [Occupation 2] and [Occupation 1].
When he required my assistance, he took me with him. I would assist him [with Occupation 2 and Occupation 1 jobs] for [events] of his clients to fulfil my hobbies and gain more knowledge.
I [love this work]. Due to this nature, I was always excited to go with him.
Later, when I got my work permit from the Department from January this year, then I requested him to work as a contractor. Then I started [doing jobs] for him for payment.
I have only involved on a few occasions for [Occupation 1] on a payment basis so far.
Please refer to the bank statement attached.
Engagement with [Business 1]
In relation to the [Business 1] — I have created [social media] page with intention of doing business in the future. However, this has never been realised so far.
Your extensive social media pages contradict the evidence of you and your witness ([Mr B]) that characterise you as being socially withdrawn in Australia and having difficulty studying due to personal issues.
In relation to above, I, again say that I love to mix with people of different cultures. Whenever I worked for [Employer 2] voluntarily, I had chance to meet various people. As I stated earlier, my another hobby is [Occupation 2] as well. I feel a kind of satisfaction and happy when I do that. That is why I go out and mix with the people. For these reasons, I have [done work for specified clients]. For example, I do have [done jobs for named people] as well. This does not mean I worked for them.
I had another very bad experience in the past. I did not mention this before the Tribunal and any of my submissions because I thought this was not important.
I had a relationship with one Bangladeshi girl named [name] and we were supposed to get married [in] October 2016. We booked our wedding date and hired the venue as well. Please refer to the attached copy of intention to marriage and venue booking.
Even though we booked for the marriage, somehow it did not work out. She betrayed with me at the last moment and left me alone. Please refer to the attached copy of notice of intention of marriage.
After one month of all these, I heard that she got married to some other guy. After this event, I was depressed.
This happened between September to December 2016. So, I was told by my family and friends not to be upset. They consoled me and advised me not to stay home all the time. That is why I was trying to make myself happy to go out and mix with the people.
You claim on your [social media] page that you have a `[Degree 2]' from [University 1] but this is not recorded on the Provider Registration and International Student Management System (PRISMS) and it appears you have not declared this information or provided any evidence of such a qualification.
In relation to above, I say that I do not know about it and do not have an answer how it came to my [social media]. I never checked my [social media] job and education description. I want to clarify that my father, my brother and my ex-girlfriend they all had access to my [social media] login details. They may have inserted the information to seek attention of prospective employers in Bangladesh.
I say that [social media] is usually created to socialize and not all the information provided can be correct. Based on my knowledge, many people use wrong date of birth to avoid being scammed.
I hereby state that I know my immigration situation and I also know the conditions of my bridging Visa. So why would I post my job and study descriptions publicly on the [social media]?
If I wanted to, I could have easily customised the [social media] settings, and could have shared all of my [social media] posts only with friends.
I confirm that I have no idea what was written there and when I wrote it.
Second hearing – 16 July 2020
Following the applicant’s written response to the invitation to comment or respond to information, the Tribunal considered it appropriate to invite him to a further hearing. The second hearing was conducted by telephone.
The Tribunal explained to the applicant he was invited to a second hearing to ensure he had a proper opportunity to respond to the information put to him in writing about his education and work history in Australia. The Tribunal explained the relevance of the information put to him which was that he did not maintain enrolment for a period of time, as required by the conditions of his student visa and his social media activity indicates he has been involved in a range of other activities, which the Tribunal considers may have been the reason for his failure to maintain enrolment or make progress academically.
The Tribunal asked the applicant whether he had intended not to comment on the Department’s non-disclosure certificate that related to allegations he had engaged in work in Australia unlawfully. The applicant did not directly answer the question but referred to the information put to him about his work with [Employer 1], [Employer 3] and [Business 1]. He said [Employer 1] was his education agent who was from his home country. The applicant said he loved [Occupation 2] and [occupation 1] and was asked by [Employer 1] to do some [of this] work and he agreed. The applicant claimed there was no commitment or payment involved. The Tribunal asked the applicant if he knew why anyone would claim he was working for that organisation. The applicant replied that he knew about work in Australia and that it involves a contract. He then referred to having worked for [another employer] before 2015 and said he “had a contract for work for 20 hours” and was paid through his bank account. The applicant said in regard to [Employer 1], [Employer 2] and [Employer 3], he loves [Occupation 2] and they wanted him to do that, although they never pushed him to. The applicant then claimed that when he was at home between 2016 and 2017 and was depressed, he loved to mix with people as he thought it would make him feel better. He said, “these people liked me a lot” and in helping them he thought he could at least get some knowledge and experience that he can use in future.
The Tribunal asked the applicant what he had to say about his engagement in different pursuits, even if voluntary or a hobby, appearing to be activities that have distracted him from his studies and that this may account for his lack of progress. The applicant denied this and said he had been engaged in these interests since the beginning of 2016, when he had enrolment. He said the point was he did not enrol for two months before his COE was cancelled because he had a relationship with a girl who he intended to marry but it broke up. The applicant claimed he was depressed but he always had an active enrolment. In the two months before February 2017 he said he did not engage in any activities. However, after his visa was cancelled, he was depressed again. The applicant said around June or July 2017 his father’s friend [Mr C] invited him to come to [an event] in order to see what [these events in Australia] looks like and gain some experience, including how to [use the equipment]. According to the applicant, his [social media] posts are to indicate to his countrymen, and his family that he is ok and happy and is living a good life in Australia.
The Tribunal put to the applicant that he claims on his [social media] page to have attended [University 1] and obtained a [Degree 2]. The applicant expressed some amusement and said he did not know “how that came to my [social media] page” but claimed his father, brother, ex-girlfriend and even some of his friends had access and he never checked what was written. He said he could have made his settings private but had not known the information was there. He said he posted everything publicly because he did not have “any bad intention”. The Tribunal asked why, as at the date of the hearing, he has not removed the false information. He repeated that he never checked and said he only knew about it when advised by the Tribunal. The applicant was asked again why he has not removed it when it is not true. The applicant claimed he had not done so as he thought the Tribunal would think he was “up to mischief”, but he undertook to remove it straight away. The applicant denied he wanted the information about [University 1] on his [social media] page, and said he was waiting for the Tribunal hearing. He claimed he was concerned he would be asked why he had deleted the information. The Tribunal put to the applicant that he should have removed it immediately and then his answer could have been that he had deleted it because it was false, and because he had been informed the information was on his [social media] page. The applicant repeated that he would delete it “today”.
The applicant confirmed he has completed an [Advanced Diploma 2]. He said he has applied for a bachelor’s degree and is waiting for a reply. According to the applicant it will take 18 months to complete and he plans to return to Bangladesh afterwards. Regarding his career plans, the applicant said his father has a [business] and he plans to restructure it, which is why he is studying [subject 1]. The applicant was asked why he needed a degree in that case, and he referred to social status in his home country, in particular, it was claimed Bangladeshi people would ask why he did not have a degree when he had been in Australia for a long time. He said at least he would be able to tell people he had a degree, and it was his late mother’s wish for him to do so. He said if he can implement his [subject 1] knowledge in Bangladesh it will be good for the business.
In conclusion, the applicant asked that he be given a chance to finish a bachelor’s degree from Australia and reiterated he would remove the information about attending [University 1] from his [social media] page.
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
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?
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
In its decision record of 16 February 2017, the Department found the applicant had not been enrolled in a course of study from 20 April 2016 to 6 February 2017 which was disputed by the applicant and appears to be incorrect. The applicant provided evidence of enrolment in a [Diploma 2] course starting on 9 May 2016 and ending 9 April 2017. On examining the PRISMS record it appears this enrolment was entered under the applicant’s name in a different format, that is, ‘[variant of applicant’s name]’ rather than ‘[applicant’s name]’ as all his other enrolments were recorded. This appears to be why there was no record of the applicant being enrolled in a [Diploma 2]. When the PRISMS record was searched using the applicant’s name in a different order, the enrolment did appear.
The applicant’s [Diploma 2] was cancelled on 21 November 2016. On 6 February 2017 he re-enrolled in a different course, a [Diploma 5]. This means the applicant was not enrolled for a total of 2 months 16 days. The enrolment requirement in condition 8202 is a continuing requirement and does not allow the visa holder to cease to be enrolled in a course, even to the extent of a temporary gap in enrolment.[2] 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).
[2] Liu v MIMIA [2003] FCA 1170 (Cooper J, 24 October 2003), at [19]-[20]. Liu was followed by Rangiah J in Liew v MIBP [2016] FCA 172 (Rangiah J, 2 March 2016) at [40].
Consideration of the discretion to cancel the visa
Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. 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 Procedural Instruction ‘General visa cancellation powers’.
· 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
The applicant arrived in Australia [in] September 2011 as the holder of a Student visa and was enrolled to study. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to Australia was to study.
During the Tribunal hearing the applicant was asked whether he had a compelling need to remain in Australia. The applicant answered “no” but went on to say his aim is to finish studying [subject 1], including a bachelor’s degree. He said his parents’ ill health had affected his studies, but his father wants him to graduate with a bachelor’s degree. In his written statements and at the hearings, the applicant indicated he wants to obtain a degree to honour his late mother. The witness at the first hearing, [Mr B] advised that if the applicant does not graduate with a degree, his father will be disappointed. [Mr B] also claimed that in Bangladesh, if a person is not enrolled anywhere within two years of finishing high school then they cannot enrol. The Tribunal considered the submissions of the applicant and his witness regarding parental expectations but finds the applicant’s failure to make academic progress or commence higher education is not commensurate with his claims. The applicant has not behaved in a manner that would be expected of a person who places great stead in their parent’s wishes or whose primary aim is to achieve a degree qualification in order to honour them. No evidence was provided to support the claim that the applicant would not be able to enrol as a student in Bangladesh because he did not do so within two years of completing high school. The Tribunal considers that if this is the case, it should have provided an additional incentive for the applicant to prioritise his studies and complete a degree in Australia during his temporary residency. Despite being a temporary visa holder in Australia for more than eight years as of the date of the hearing, he has not done this. While the applicant has stated he still wants to complete a bachelor’s degree, the Tribunal is not satisfied the applicant has demonstrated a powerful or convincing reason for needing to stay in Australia. Therefore, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia which weighs against him in the Tribunal’s assessment.
· the extent of compliance with visa conditions
The Department received an allegation that the applicant had engaged in work in Australia unlawfully. This information was put to the applicant in a letter after the first Tribunal hearing, but he did not respond specifically to it. He also chose not to comment when asked about the matter at the second hearing. Having assessed the nature of the information received, the Tribunal finds that it was an allegation only without any verifiable evidence, no weight was placed on it in making this decision. However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a student visa and this weighs against the applicant in this case.
· degree of hardship that may be caused (financial, psychological, emotional or other hardship)
During the first hearing the Tribunal had discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. In his written and in-person evidence the applicant stressed his father’s expectation that he obtain a degree from Australia, his wish to honour his mother and societal expectations in his home country. The applicant’s witness [Mr B] requested the applicant be allowed to complete his studies so he can go back to Bangladesh with a degree. It was claimed that otherwise, the applicant will have no options. At the second hearing the applicant said he is studying [subject 1] in order to help his father restructure their [business]. When asked why he needed a bachelor’s degree for that purpose, he indicated Bangladeshi people would ask why he did not have a degree when he had been in Australia for a long time. The Tribunal is not satisfied the applicant will have “no options” unless he obtains a bachelor’s degree from Australia. He has managed to complete an [Advanced Diploma 2] and is planning to work for an existing family business. In his evidence to the Tribunal the applicant seemed more concerned that he completes a degree for reasons of social status, rather than the value of the course to his future. Nevertheless, having considered the applicant’s submissions, the Tribunal finds the applicant will be unable to continue living, working or studying in Australia if his visa is cancelled and there will be a degree of hardship caused. The Tribunal places some weight in the applicant’s favour in this regard.
The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. The Tribunal has assessed the claims and evidence in the applicant’s case and has accepted there will be a degree of hardship to the applicant if his visa is cancelled, however, he has had ample opportunity to achieve his academic goals in Australia, despite having faced some personal difficulties. The Tribunal is satisfied the applicant could use the qualifications he had achieved to date to pursue his aim of working in his family in his home country. For these reasons, the intended consequences of the legislation do not outweigh the other considerations in this case.
· 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
The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but did not maintain enrolment in a course of study. The Department had found the applicant was not enrolled for approximately ten months; however, he did have a COE and was enrolled in a [Diploma 2] starting on 9 May 2016 and finishing 9 April 2017. That COE was cancelled on 21 November 2016 and the applicant did not re-enrol in another course until 6 February 2017, after receiving the Department’s NOICC letter dated 1 February 2017. Condition 8202 does not allow a visa holder to cease to be enrolled in a course, even for a temporary period. Therefore, while the Department was incorrect regarding the time period when the applicant did not hold a COE, he nevertheless failed to comply with the conditions of his visa.
The applicant gave reasons for failing to maintain enrolment in 2016/2017. In his written evidence the applicant advised that in November 2015 he suffered a knee injury and had treatment in February 2016 in Bangladesh. He claims he fell again in April 2016 and had to have further treatment and rest. The applicant’s father’s ill health led to hospital admission and the applicant stated that as well as being worried and anxious, he harboured feelings of guilt. However, he said he did not access counselling even though these events were claimed to have impacted his studies in Australia. To support his claims the applicant provided his mother’s death certificate as well as medical documents in relation to his parents’ ill health and his own injuries and treatment. In his later evidence, and during the second Tribunal hearing the applicant said that his college attendance was affected by the breakdown of his relationship with a girl he intended to marry. As a result of these challenges, the applicant became depressed and stopped attending college. Although he did not seek leave or a deferment of his course, the applicant claimed he called and emailed the college about not attending but they did not respond. He alleged he had not received any warning about possible cancellation of his enrolment. The applicant said the college was then closed over December 2016 and January 2017 for the holiday period.
The Tribunal understands and accepts the applicant may have faced some challenges in his personal life and as a student in Australia; including his knee injury as evidenced by medical documents in his name, his mother’s death; medical conditions affecting his father and a relationship breakdown. The Tribunal also acknowledges the applicant may have suffered from a degree of depression as he has claimed in his evidence. However, it is the responsibility of the visa holder to ensure compliance with the conditions of their visa. The applicant claimed he contacted his college when he stopped attending but received no response. The applicant did not provide independent evidence of contacting his college about his failure to attend or of having applied for leave or a deferment of his course. Education providers have procedures in place for compassionate leave if required which the applicant could have accessed. In addition, the applicant has a history of enrolling in courses but not completing them and his having ceased attending the [Diploma 2] continues that pattern. The applicant further alleged he was not advised his enrolment was cancelled for failing to attend his course which was a breach of the ESOS Act. He claimed he had emailed and called the education provider and in his evidence at the first hearing, he claimed to have attended in person to ask why his enrolment had been cancelled. The applicant has not provided satisfactory evidence of communications with his education provider at the relevant time, and the Tribunal does not accept his assertions that he was not informed his enrolment was cancelled. In addition, the cancellation procedure under s.116 of the Act is separate and independent from the procedure under s.20 of the ESOS Act and does not affect the Tribunal’s power to cancel a visa.[3]
[3] Ganji v MIAC [2010] FMCA 711
Although the Tribunal has assessed the applicant’ evidence and accepts some of his claims about the circumstances in which the grounds for cancellation arose, nevertheless, the applicant’s response to these matters was within his control. It was open to the applicant to seek medical help or access counselling for his mental health and to place his studies on hold and return to his home country to assist his parents as required. Although the applicant faced some stressful events, they are not adequate reasons for him to stay in Australia while failing to progress satisfactorily in his studies or comply with the conditions of his student visa. Therefore, the Tribunal places limited weight on the circumstances in which the ground for cancellation occurred.
· past and present behaviour of the visa holder towards the department
There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given some weight in the applicant’s favour in this regard.
· whether there would be consequential cancellations under s.140
There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.
· 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
The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. There is no evidence to indicate the applicant may be subject to indefinite detention as a consequence of cancellation. As stated in this decision, the Tribunal has assessed the applicant’s claims and evidence and considers he has had ample opportunity to achieve his academic goals in Australia, despite having faced some personal difficulties. The Tribunal is satisfied the applicant could use the qualifications he had achieved to date to pursue his aim of working in his family in his home country. For these reasons, the mandatory legal consequences of cancellation do not outweigh the other considerations in this case.
· 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
There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. The applicant is single and does not have any children.
· if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The Subclass 572 Student Visa is not a permanent visa.
· any other relevant matters
After the hearing the Tribunal wrote to the applicant in accordance with s.359A of the Migration Act inviting him to comment or respond to information. The applicant did not comment on the validity of the Department’s non-disclosure certificate or the nature of the information in related to. Regarding information put to the applicant that his social media posts contradicted his claim of not having worked since 2015, the applicant responded that [Occupation 2] is his hobby and he had “assisted [Employer 1] on a voluntary basis for 3 months in 2016”, he worked for [Employer 2] “as a volunteer [role] as and when necessary”, and he helped [Mr C], a friend of his father’s “as a volunteer [Occupation 1]”. The applicant stressed his love of [Occupation 2] and [Occupation 1]. He claimed he assisted [Mr C] [with work] for [events] and when he was permitted to work in January 2020 he did so as a contractor for payment The applicant claimed he only created a [social media] page for a business, [Business 1], in order to do business in the future but has not done so. The applicant submitted a bank statement for the period 8/01/2019 to 8/07/2019 that shows activity of only $2,755.07 in withdrawals and $2,759.00 in credits leaving a balance of $3.93.
The Tribunal does not find it credible and does not accept that the applicant engaged in work for several organisations that was only voluntary as he claims, until he was given work rights and was paid by [Mr C]. The bank statement submitted that covers a six-month period in 2019 shows minimal activity over the period and is unlikely to be the applicant’s only account as it would not be possible for him to live on those funds alone. The applicant told the Tribunal at the first hearing that his father has supported him throughout his time as a student in Australia. Even if this is the case, and the applicant’s [Occupation 2] and [Occupation 1] work was unpaid, it indicates he has been involved in extensive activities outside of his studies while failing to complete courses and progress academically in a reasonable time. While the applicant claimed at the second hearing that he assisted [Employer 3] with [events] because he could gain some experience, [Occupation 2] is not related to his studies in [subject 1] and it appears the applicant’s focus and attention has been towards pursuits other than study.
The Tribunal had put to the applicant that his extensive social media pages contradict his evidence that he has been socially withdrawn in Australia which led to difficulty studying. The witness [Mr B] had given a detailed account in his oral evidence at the hearing of the applicant being depressed, always alone and doing nothing. In his response to the 359A letter, the applicant claimed he enjoys mixing with, and taking pictures with famous people such as the [people named]. The applicant submitted many photos of himself in the company of Bangladeshi officials and [other named persons] which appear to have been taken at various functions. He claimed: “this does not mean I worked for them”. The applicant also referred to a planned marriage that did not proceed leaving him depressed. He advised he did not refer to the matter previously, but he has now submitted evidence of wedding arrangements and advised “this happened between September to December 2016”. The applicant said he was subsequently encouraged to go out and mix with people. As stated in this decision, the Tribunal has accepted the applicant faced personal problems, including medical issues suffered by himself and his father, his mother’s death and the breakdown of a relationship, but does not accept these factors account for the applicant’s unsatisfactory academic history in Australia and having assessed adverse evidence put to the applicant as well as his responses, considers the applicant has involved himself in too many pursuits outside of his studies.
The Tribunal considered the applicant’s public social media postings that are extensive; they are also detailed and regular and include his activities over many years. The applicant appears at numerous social events from at least 2016 to the present, many of which appear to be functions for [Employer 2], [Employer 1] and involving [Employer 3]. The applicant announces on one of his [social media] pages the year he “started new job at [Employer 1] - May 17 2016” and refers in one post to [Mr C] as his “boss”. The applicant explains that he undertook work for these organisations unpaid, that [Occupation 2] and [Occupation 1] are his hobbies, and that [Mr C] is a family friend. Even accounting for the applicant’s personal problems submitted previously and the breakdown of a relationship in 2016, the Tribunal is not satisfied he has been truthful about his activities in Australia and does not find it credible that he would engage in so much work on a voluntary basis. The applicant’s extensive activities away from his studies would account for his failure to make any significant progress academically and his failure to commence or complete a degree, despite this being his stated aim in travelling to Australia as a student. The applicant claimed he could have customised his [social media] settings to only share posts with friends, and that the posts are an indication to his family, friends and countrymen that he is doing well in Australia. While this may indeed be the case, the applicant includes numerous posts and photos that appear to promote [Employer 2], [Employer 1] and [Employer 3] and the applicant’s role with them. While the applicant may have wanted to appear successful and happy to fellow Bangladeshis, it appears to the Tribunal that the applicant has been promoting himself in Australia as well, and the organisations he has worked for.
This finding is supported by the fact that the applicant claims on his [social media] page that he has a `[Degree 2]' from [University 1] which is untrue. The applicant said he did not have an answer as to how this came to be posted on his page but suggests either his father, brother or ex-girlfriend may have posted it as they, and even his friends, have had his [social media] login details. In his written submission he speculated this may have been done to attract potential employers in Bangladesh. At the second Tribunal hearing the applicant made light of the matter, denied knowing how it came to be posted on his page and claimed he rarely checked such content. The applicant did not remove the false post about his qualifications until after the second hearing, despite it being put to him for comment. The Tribunal does not accept his explanation that he was concerned the Tribunal would think he was “up to mischief” if he did so and is of the view this false claim is in line with the applicant’s self-promotion through social media. The Tribunal finds these issues affect the applicant’s credibility overall and weigh against him in considering whether to exercise the discretion to cancel the applicant’s student visa.
In his evidence the applicant had submitted a letter of offer dated 12 July 2018 for a [Degree 1] from [College 3] that was due to commence on 8 July 2019 and finish on 29 October 2021. At the time the applicant was studying a [Diploma 4]. He has now completed an [Advanced Diploma 2] that began on 15 July 2019 and ended on 12 July 2020. The applicant advised during the second hearing that he has again applied for enrolment in a bachelor’s degree. The Tribunal notes that if the applicant begins a bachelor’s degree in the near future, and assuming he maintained enrolment and successfully completed the course, based on his own evidence he would still need to remain in Australia for 18 months. This would extend his temporary residency to approximately 10 years. The Tribunal is mindful that from the date of his visa cancellation on 16 February 2017 the applicant’s case has been before the Tribunal and was remitted from the Federal Circuit Court for reconsideration. Nevertheless, the Tribunal considers 10 years as a temporary visa holder to be excessive, particularly noting the applicant’s progress has been unsatisfactory when compared to the amount of time he has spent as a student visa holder in Australia.
Conclusion
The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that have been assessed in his favour, on balance, the Tribunal is satisfied that most considerations weigh heavily against the applicant. The Tribunal considers the length of time the applicant has spent in Australia without making satisfactory academic progress as well as having breached visa conditions to be significant. The Tribunal is satisfied that most of the criteria considered weigh in favour the cancellation of the visa.
Considering the totality of the applicant’s circumstances, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Wendy Banfield
MemberATTACHMENT
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.
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