Ahmed (Migration) - [2019] AATA 1333

Ahmed (Migration) [2019] AATA 1333 (23 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Qasim Ahmed
CASE NUMBER:  1834379
HOME AFFAIRS REFERENCE(S):           BCC2018/4112448
MEMBER:Adrienne Millbank
DATE:23 April 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Statement made on 23 April 2019 at 5:16pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – applicant had not commenced any course of study – immigration history – did not returned to Pakistan since arriving – not a genuine student – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 1 November 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).
The applicant is a 28 year old citizen of Pakistan who first arrived in Australia on 31 March 2018 on a Student (Subclass 500) visa. He was enrolled to study a Master of Engineering Degree course at the University of Queensland, with a course start date of 23 July 2018 and end date of 27 June 2020.
The applicant’s enrolment was cancelled on 21 May 2018. The reason stated in the applicant’s Provider Registration and International Student Management System (PRISMS) records is ‘non-commencement of studies’. The applicant’s enrolment was in fact cancelled before his course commenced. Information on the Departmental file indicates that the University contacted the Department on 31 July 2018 advising that it had discovered in March 2018 that fraudulent academic transcripts had been submitted by the applicant. The University advised that the applicant’s Confirmation of Enrolment (COE) was cancelled; that the applicant was advised of this; and that he was advised to contact the Department ‘as a matter of urgency’ as the cancellation of his enrolment would impact on his visa.
The Delegate cancelled the visa under s.116(1)(b). The Delegate found, based on his PRISMS records, that the applicant had not been enrolled in a registered course of study since 21 May 2018, and therefore had not complied with condition 8202 attached to his visa. Specifically, the applicant had not complied with s.8202(2)(a), which states that the visa holder must be enrolled in a full-time course of study or training.
Attempts by the Department to contact the applicant on his email address failed, with the message that the email account did not exist. No response was provided in response to the Notice of Intention to Consider Cancellation (NOICC) sent by the Department to the applicant at the residential address he provided at the time of application and entry, by registered post on 15 October 2018. The NOICC invited the applicant to respond to the fact that there appeared to be grounds for cancelling his visa, and explained these grounds.
As set out in the decision record, the Delegate found the extent of the applicant’s non-compliance to be significant. The Delegate found the applicant had not undertaken any study in Australia ‘as per the purpose of the visa’, and that the applicant had remained in Australia for over five months for purposes other than to undertake study.
The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.
On 19 March 2019 the applicant was invited by the Tribunal to attend a hearing scheduled for 10:30 am on 9 April 2019, in Brisbane. On 2 April 2019 the Tribunal received a request to postpone the hearing and transfer the matter to the Sydney AAT office, for the reason that the applicant’s agent was in Sydney and the applicant was willing to attend a hearing in Sydney.
The request to postpone the hearing was not granted. The applicant appeared before the Tribunal on 9 April 2019 to give evidence and present arguments by video from Sydney. The hearing was conducted with an interpreter in the Urdu language.
The applicant was represented in relation to the review by his registered migration agent, who attended the hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). 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?
A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 attached to the applicant’s visa. This condition, at s.8202(2)(a), requires the visa holder to be enrolled in a full-time registered course.
The applicant’s enrolment in a full-time registered course was cancelled before the date of commencement of the course. The applicant’s PRISMS records show that his enrolment in a Master of Engineering Degree course at the University of Queensland, with a course start date of 23 July 2018, was cancelled on 21 May 2018. They show that he has not enrolled in any subsequent course.
At hearing the applicant confirmed that his enrolment in a Master of Engineering Degree course at the University of Queensland was cancelled on 21 May 2018, and that he has not enrolled any other full-time registered course in Australia.
The Tribunal is satisfied that the ground for cancellation in s.116(1)(b) 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
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’.
Adopting the procedures of s.359AA of the Act, the Tribunal advised the applicant that it had information that would lead or could contribute to the decision under review being affirmed. The Tribunal advised the applicant that this information was in his PRISMS records and his international movement records. The Tribunal advised the applicant that the information was relevant because it showed that he had not undertaken any study in Australia and had not returned to Pakistan since arriving, and that this suggested that he was not a genuine student. The Tribunal advised the applicant that the information was also in correspondence from the University of Queensland to the Department on 31 July 2018.
The Tribunal advised the applicant that this correspondence informed the Department that the University had discovered in March 2018 that fraudulent academic transcripts had been submitted by the applicant. The Tribunal advised the applicant that the University advised the Department his COE was cancelled; that he was advised of this; and that he was advised to contact the Department ‘as a matter of urgency’ as the cancellation of his enrolment would impact on his visa.
The applicant was advised that he could seek an adjournment and consult with his representative before commenting on the information, or responding to questions based on the information. The applicant sought and was granted one brief adjournment during the hearing.
The applicant advised the Tribunal that his enrolment was managed by his agent in Pakistan; that wasn’t in fact interested in studying for a Masters in Engineering, but his agent advised him that this would get him into a prestigious Australian university, and that he could switch courses later. The applicant claimed that his purpose in coming to Australia was to study, but that he wanted to study automotive engineering, not a Master of Engineering Degree. He explained that he held a Bachelor Degree in Information Technology from Pakistan, and for this reason was interested in the software aspects of automotive engineering. He advised that he wanted, and still wants, to enrol in Australia in a Diploma of Automotive Engineering, and then to enrol in a Masters in Automotive Engineering.
The applicant subsequently stated at hearing, however, that he worked in Pakistan in a bank, in IT support, for two and a half years, and that it is his intention to return to work in the bank and hopefully rise to a management level position.
The Tribunal did not find the applicant’s testimony regarding the purpose of his travel and stay in Australia convincing. From his immigration history, the Tribunal is not satisfied that he is a genuine student, and does not find that he has a compelling need to remain in Australia.
The Tribunal asked the applicant several times why he enrolled in a Masters in Engineering when he wanted to study Automotive Engineering, beginning at the Diploma level. The applicant stated that everything was arranged by his agent in Pakistan, who told him to come to Australia six months before his course started to acclimatise himself. He stated that the agent told him to use an email address that only the agent could access, and that he changed his residential address after arriving in Australia. He confirmed that he did not provide the Department or the University with his contact details. He stated that for these reasons he did not receive the letter from the University advising him that his enrolment was cancelled, and he did not receive the NOICC sent by the Department. He stated that he only learned his visa was cancelled when he tried to obtain a job in security, by which time it was ‘too late’. He further confirmed that he did not, at any stage, contact the Department to discuss his circumstances.
The applicant argued at hearing that he had been cheated by his agent in Pakistan, who charged him $14,000 for his visa and enrolment but only paid $8,000 in tuition fees to the University. The applicant presented however as intelligent, aware and articulate, and the Tribunal does not accept his claim that he obeyed his agent’s instructions to enrol in a course he was not qualified for or interested in, and to provide incorrect email and residential addresses to the Department, because he was naïve and ignorant of Australia’s migration system and requirements. The Tribunal considers the applicant was fully aware that he was paying the agent in Pakistan to acquire the visa on a fraudulent basis. The Tribunal considers the applicant was fully aware that he was not complying with his entry and stay conditions. The Tribunal does not find that the circumstances in which the applicant’s visa was cancelled were beyond his control.
The applicant on his own admission obtained his enrolment and visa on a fraudulent basis, provided unreachable email and residential addresses, and has remained and lived in Australia for over a year, since 31 March 2018, without commencing any course of study. The Tribunal finds the extent of the applicant’s non-compliance significant, and his behaviour towards the Department to indicate that he is not a genuine student.
The applicant claimed that he cannot reapply for his position in the bank, which he resigned from in March 2018, before a two year period has elapsed, that is, until March 2020. He advised that reasonably paid employment is hard to get in Pakistan, even for qualified and experienced IT workers, and that if he has to return before March 2020 he will face financial hardship. The Tribunal notes that the applicant has had limited work rights in Australia and described to the Tribunal that he has lived in a state of depression and poverty, sometimes supported by a friend and doing only occasional cleaning work.
The applicant also advised that his father wants him to obtain a degree from Australia before returning to Pakistan. He advised that he considered going to Canada, or possibly Poland, but that his father had set his heart on Australia. He did not claim that a Diploma in Automotive Engineering and a Masters in Auto Engineering would assist him in his employment in the bank. The Tribunal accepts that the applicant might consider a change in career direction should he undertake some years of further study. The applicant’s immigration history, however, does not support his claim to be a genuine student.
For the reasons discussed above, the Tribunal does not find that the applicant will suffer significant financial, psychological or emotional hardship if the visa remains cancelled and he returns home.
There would be no consequential cancellations. While cancellation would result in the applicant becoming unlawful and subject to detention, there is no information before the Tribunal to indicate that he would not be able to apply for and be granted another Bridging E visa while organising his departure. The applicant would be subject to s.48 of the Act preventing him from applying for further visas while in Australia, and he may also be affected by Public Interest Criterion 4013 limiting the granting of a further temporary visa for a specified period. The Tribunal considers that these are the intended consequences in such a case.
There is no information before the Tribunal and the applicant did not claim that any international obligations would be breached as a result of the cancellation. No other relevant matters were raised by the applicant or otherwise before the Tribunal.
The applicant’s circumstances and the matters in the Department’s PAMS do not weigh in favour of the applicant. The Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Adrienne Millbank
Member