Ali (Migration)

[2020] AATA 2560

Ali (Migration) [2020] AATA 2560 (26 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Ali

CASE NUMBER:  1834970

HOME AFFAIRS REFERENCE(S):          BCC2018/2412574

MEMBER:Donna Petrovich

DATE:26 May 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 26 May 2020 at 11:30am

CATCHWORDS
MIGRATION – cancellation – Subclass 500 (Student) visa – not enrolled in registered course – non-payment of fees – failure of consultant to pay college – no evidence – father’s ill health – circumstances within applicant’s control – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 116, 140
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 November 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not maintained enrolment and remained un-enroled for a period of 11 months. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 4 May 2020 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116 (1) of the Act, the visa may be cancelled.

   Did the applicant comply with Condition 8202?

6. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

   ·be enrolled in a full time registered course: 8202(2)(a)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course, and remained unenrolled for a period of 11 months.

   Background

8. The applicant is a 28 year old British National of Pakistani origin who told the Tribunal that he was born in Hong Kong and lived with his Mother and Father in the United Kingdom. He is close with his family in particular his father, and is the first born son and his father hoped that he would complete a Bachelor of Business.  He told the Tribunal that his brother lives in Hong Kong and takes care of the families Business interest there. The family owns Hotels, food import export and a food chain in Hong Kong.

9. He first arrived in Australia on a Visitor visa in 2013 and stayed for 1 -2 months, he then went to visit his Uncle in New Zealand for one month. He came to Australia on the 8 August 2017 on a Student (Temporary) (573) visa.  He initially studied Cookery and 2014-15, his visa expired and he applied and was granted an extension, the applicant completed this course.  He then commenced a Diploma of Business on the 8 August 2018, and completed two weeks of the course before his COE was cancelled.

10. The applicant told the Tribunal that he had paid his consultant for his studies and that the consultant failed to pay the College for his enrolment.  The applicant became un-enrolled as a result of his non-payment of fees and was sent a Notice of Intention to Consider Cancellation (NOICC) on 26 July2018 stating that he had remained un-enrolled from 13 September 2017 to 26 July 2018 The applicant’s visa was cancelled on 20 November 2018.

11. Relevantly, the Provider Registration and International Student Management System (PRISMS) records that initially the applicant enrolled in a Diploma of Business. The applicant was enrolled in a Diploma of Business, which he told the Tribunal that he had started and had done two weeks of study.  He commenced, but did not attend and did not pay his course fees, and became unenrolled because of non payment of fees.  The applicant remained unenrolled for a period of 11 months. On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

12. 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

13. The applicant told the Tribunal that he had initially come to Australia on a visitor visa and he stayed in Australia for 1-2 months, he then visited his Uncle in New Zealand.  He liked Australia and chose to study here. The applicant told the Tribunal that he came to Australia to study.  He told the Tribunal that as a British citizen he could study in Britain for free, which his father wanted him to do: but that he and three of his friends chose to study in Australia.  When asked why he did that, he said “because he liked it”. The Tribunal in considering the applicants submission in relation to his option of free study in Britain and his academic achievement to date, has formed the view that the applicant does not have a compelling need to travel or remain in Australia, in addition based on the applicant’s lack of academic achievement or attendance may not be a genuine student, therefore the Tribunal places no weight in favour exercising discretion not to cancel.

    The extent of Compliance with visa conditions

14. The applicant remained unenrolled from 13 September 2017 until 26 July 2018 because of non-payment of fees. The applicant told the Tribunal that he responded to the NOICC and explained that he had paid his consultant who was to pay his fees for him. The applicant the applicant claimed that this was not his fault.  The Tribunal asked the applicant had he made any attempt to seek compensation or his money back from the Consultant. The applicant told the Tribunal that he had received an apology from the consultant and that he had helped him respond to the Immigration Department by sending his response to the NOICC. The applicant told the Tribunal that he did not receive any money back from the consultant nor did he report this as a theft.  The Tribunal in considering this has not sighted any proof including receipts or bank statements as proof of payment to the consultant of the applicant’s course fees.

15. In addition his continued stay on a Visa for which purpose is solely for study; and the applicant’s lack of academic progress and a substantial period of non-enrolment demonstrates that the applicant is not a genuine student. On this basis the Tribunal is unable to accept this explanation of events and takes the view that the payment of enrolment fees is fundamental to a continued enrolment which ensures the applicant complies with visa conditions. Therefore, the Tribunal places no weight in favour of the applicant in exercising discretion not to cancel.    

    Degree of Hardship that may be caused

16. The applicant told the Tribunal that his father wanted him to obtain a Business degree: but had wanted him to study in the United Kingdom, where he could do so for free.  The applicant chose to come to Australia because he liked it here and travelled here with friends.  The applicant is supported by his family and has not worked, in Australia or prior to arriving in Australia.  He intends to return to the United Kingdom once he has obtained his Diploma in Business and assist his brother in running the family business interests in Hong Kong and spend time with his family.  The Tribunal in considering this evidence has formed the view that the applicant will not be caused significant hardship on the basis that he is able to return to the United Kingdom to his family, study in that system fee free, and work in his family business as he planned to do.  He told the hearing that “he was happy to go home to be with his family, it is just because his other brother is not interested in study”. The Tribunal has heard nothing to suggest that the applicant or his family will suffer any hardship in this case and therefore places little weight in favour of exercising discretion not to cancel.

    Past and present behaviour of the visa holder towards the department

17. The applicant was courteous and polite during the hearing, and the Tribunal has found nothing to suggest that the applicant has not behaved in this manner toward the department in his dealings with them. The Tribunal places no weight against the applicant in this regard.

    Circumstances in which ground of cancellation arose

18. The applicant told the Tribunal that his father had been ill, suffering from a heart attack, which left him in a coma for one month, and the applicant returned to The United Kingdom to see his father during this time.  The applicant told the Tribunal that when he returned to Australia to commence his study, he found that his consultant had not paid his fees and his enrolment had been cancelled because of non- payment of fees.

19. The applicant told the Tribunal that he suffered from deep stress because of his father’s illness and fell into depression, and did not pursue his consultant and remained unenrolled for 11 months. When asked by the Tribunal if he sought help or treatment for this depression.  The applicant explained that he is Moslem and that seeking treatment “is not done”.  He spoke to friend of the family who is a General Practitioner, visiting him in his home, he did not pursue treatment but followed the advice of the GP and sought the company of his friends and prayed.  The applicant did not provide the Tribunal with any evidence of a Medical diagnosis, or documents to support his claim that his consultant did not pay for his enrolment on his behalf.

20. The Tribunal in consideration of lack of material evidence is unable to place any weight in favour of the applicant in relation to the applicant’s mental health at the time, or his explanation of non-payment of his course fees.  The Tribunal finds it implausible that the applicant did not pursue the consultant for this error or apply for repayment of money owed to him.  The Tribunal does not accept that these circumstances were beyond the visa holder’s control and finds that it was the applicant’s responsibility to ensure that he or his agent had paid his enrolment fee; and that he maintain his enrolment; and attend a registered course of study, which in this case the applicant has not done. The Tribunal does not give any weight in favour of the applicant in this regard.

    Whether there would be a consequential cancelation under s.140

21. The applicant told the Tribunal that he has no relationships in Australia that would cause a consequential cancellation under s.140.  He is engaged to a woman who is a citizen of the United Kingdom and is awaiting his return so that they can be married. The Tribunal places neutral weight in this regard.

    Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled

22. The circumstances of this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision.

    Whether there are any international obligations

23. The applicant told the Tribunal that he had no issues in this regard and would be happy to return to the United Kingdom to his family, and his fiancé, where he would be able to assist his brother in running the families business interests. Accordingly the Tribunal places no weight on this consideration in the applicant’s favour.

    Any other matter

24. The applicant told the Tribunal that there were no other matters.

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

    DECISION

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

    Donna Petrovich
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.