Asghar (Migration)

[2019] AATA 5855

Asghar (Migration) [2019] AATA 5855 (23 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Irtaza Asghar

CASE NUMBER:  1915364

HOME AFFAIRS REFERENCE(S):          BCC2019/1081706

MEMBER:Christine Kannis

DATE:23 August 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 23 August 2019 at 7:12am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not genuine student – course enrolments cancelled – unsatisfactory course progress – gap in study of 14 months – illness in family – study difficulties – inconsistent evidence – lack of evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 359AA
Migration Regulations 1994 (Cth), r 2.43

CASES
MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 June 2019 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).

2. The delegate cancelled the visa on the basis that the applicant is not and is not likely to be a genuine student. The issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal on 12 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

6. The Tribunal advised the applicant that it had a copy of his Provider Registration and International Student Management System (PRISMS) records. The Tribunal advised the applicant, following the procedure of s.359AA of the Act, that subject to his comment or response, this information would be the reason or part of the reason for the decision under review being affirmed. The Tribunal advised that this information was relevant because it comprised or added to evidence that he was not a genuine student. The Tribunal advised the applicant that at any time during the hearing he could seek an adjournment and consult with his representative before responding to any of the information or questions based on the information. He did not seek an adjournment at any time.

7. 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

8. 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. Relevant 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?

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

10. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in s.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]).

11. 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 Minister or Tribunal 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. There is nothing before the Tribunal to indicate that r.2.43(1C) or (1D) apply in this case.

12. On 10 April 2017 the applicant was granted a Student Subclass 500 visa and he arrived in Australia on 9 June 2017.

13. PRISMS shows the applicant was originally enrolled in a Diploma of Science (Computing/IT) and a Bachelor of Computer Science as a packaged course. The course dates were 21 June 2017 to 1 June 2018 and 30 July 2018 to 10 July 2020 respectively. PRISMS indicates that on 6 November 2017 the applicant’s CoE in the Diploma of Science (Computing/IT) was cancelled and on 10 November 2017 his CoE in the Bachelor of Computer Science was cancelled.

14. On 13 December 2017 the applicant obtained CoEs for a packaged course at Australian Technical College Western Australia (ATCWA). The courses were Certificates III and IV in Commercial Cookery, a Diploma of Hospitality and an Advanced Diploma of Leadership and Management. The Certificate III course commenced on 15 January 2018. PRISMS shows the applicant’s enrolment in the packaged course was cancelled on 10 December 2018 and that his enrolment in the Certificate III was cancelled due to unsatisfactory course progress.

15. On 29 May 2018 the applicant obtained a CoE for a Bachelor of Business at Sheridan College. The applicant still holds this CoE however the delegate said Sheridan College advised that his eligibility for this course depends on his course progress at ATCWA.

16. On 7 May 2019 the Department of Immigration and Border Protection (the Department) issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) on the basis that he is not and is not likely to be a genuine student. The NOICC set out the PRISMS information and the following information:

    ·He had not completed any registered courses in which he had been enrolled since he arrived in Australia on a Student visa. His academic progress had been poor during the period of one year and eleven months.

    ·He changed his study plan less than six months after commencing study in Australia when he enrolled in a packaged course on 13 December 2017. His enrolment in the course was cancelled on 10 December 2018 due to unsatisfactory course progress. PRISMS indicates his last day of study was 8 March 2018 which means he studied for two months in the Certificate III course. ATCWA advised that he did not progress well in his studies despite being given many chances. ATCWA advised that he had been sent three warning letters but he did not show any interest in implementing an intervention plan to assist in his academic progress.

    ·Since 8 March 2018 he had not undertaken study in any registered course. The period of one year and two months was significant and was an indication that his primary intention was not likely to be to engage in and progress in his study.

    ·Student visas are granted for the purpose of studying towards and achieving an educational qualification in Australia. The principal basis for the grant of his visa and expectation of any genuine student is that they would give priority to ongoing enrolment and participation in a CRICOS registered course of study. His lack of academic progress whilst choosing to remain in Australia on a visa solely existing for engagement in study indicated he was not a genuine student.

17. On 14 May 2019 the applicant responded to the NOICC and provided the following information:

    ·He came to Australia when he was 17 with the clear intention of obtaining an internationally recognised qualification.

    ·From the start of 2018 he enrolled at ATCWA and was a regular student passing assignments until March 2018.

    ·In the second week of March 2018 he received news that his father in Pakistan was admitted to hospital with pneumonia. He is close to his father and the news distressed him. His father recovered in late April 2018 and was discharged in the second week of May 2018. A hand-written medical certificate dated 13 May 2019 by Dr Sikandar Hya Warraich certified that Muhammad Asghar (aged 58) was admitted to hospital on 13 March 2018 and was discharged on “10^th 2018”.

    ·At that time he was not able to study. He wanted to visit his father in Pakistan but he did not have money for airfares.

    ·He stayed home and “worked very less” between March 2018 and November 2018. He asked friends to notify his college about his condition including his mental state. He never failed to pay his tuition fees. Due to the above there was a huge gap in his studies.

    ·He visited his college in January 2019 and was assured he would be able to re-enrol  however his education provider did not inform him about the new session. He was not informed that his CoE had been cancelled when he visited or by email. He paid his college fees until March 2018. If he had been notified of the cancellation of his CoE he would have made sure the college was aware of his situation at that time.

    ·He came to know about the cancellation of his CoE by ATCWA in the last week in April 2019.

    ·It was his dream to be a successful chef but due to his unavoidable family situation there was a halt in his studies. He has applied to some other colleges to re-enrol and is hoping to enrol soon to follow his passion for cooking.

    ·His mental health will be affected if he is required to depart Australia as he is genuinely here to study and obtain an international qualification.

    ·Due to his young age when he arrived in Australia, he does not know what he will do if he goes back to Pakistan and fears he might go off the rails. He won’t know his way around, won’t know about the security situation or the education or work system.

18. According to the delegate, based on the applicant’s study record he is not a genuine student. The delegate noted his lack of study and academic progression over a substantial period of time whilst remaining in Australia on a visa granted for the primary intention to study.

19. The applicant told the Tribunal that he came to Australia to study Information Technology however he found the course too difficult and decided to change his field of study to Cookery. He commenced a Certificate III in Commercial Cookery course in January 2018 and continued to study until early March 2018. At that time his father became unwell and this caused him stress and he was unable to study. He said after his father became unwell he went to the college in March 2018 and explained his family circumstances. He provided a doctor’s certificate and the college allowed him to be absent for four months, from April 2018 to July 2018. During the hearing there was some initial confusion as to whether this certificate related to the applicant or his father however at the end of the hearing the applicant said he did not have a certificate for himself. He said he returned to the college in August 2018 and continued to attend in September 2018 and October 2018 and said he regularly submitted assignments. He said he had photos of the kitchen at the college which proved his attendance. This evidence was not offered however the Tribunal noted that photos alone are unlikely to prove regular attendance.

20. The Tribunal noted in his NOICC response the applicant said he had stayed home from March 2018 to November 2018, had asked his friends to inform the college about his condition and said there had been a huge gap in his studies. Utilising the s.359AA procedure the Tribunal asked him the reason he had not referred to attending the college in March 2018, obtaining approval to not attend for four months and his return and submission of assignments from August 2018 in his NOICC response.  In response to the Tribunal the applicant repeated that he had attended the college in March 2018 and from August 2018 to October 2018.

21. Utilising the s.359AA procedure the Tribunal put to him that he said in his NOICC response that he had asked his friends to inform the college about his condition which was in contrast to his evidence at hearing that he had explained his circumstances to the college when he attended in March 2018. In response he said he had asked his mates to also inform the college for him because he was unable to leave the house after March 2018. The Tribunal noted that if the applicant had been granted a four month absence there would be no reason to ask his mates to inform the college of anything.

22. The Tribunal put Course Variation information from PRISMS to the applicant utilising the s.359AA procedure. The information was also referred to in the NOICC and in the delegate’s decision. The information was that the applicant had not progressed in the Certificate III course and had been given many chances including being issued with three warning letters but he had not shown any interest in any intervention plan. The applicant said he received one warning letter only and this was in March 2018 after which he went to the college and obtained approval to not attend for four months. The Tribunal considers it unlikely that the first of three warning letters was issued in March 2018 which was effectively as soon as he stopped attending. In addition the applicant initially said he went to the college in March 2018 after his father became unwell and did not say it was in response to a warning letter until the information was put to him by the Tribunal. The Tribunal accepts that the applicant could have attended the college in March 2018 for both reasons however notes that he only provided his father’s heath as the reason initially. The Tribunal noted that despite the warning letters being referred to in the NOICC the applicant did not address them in his response.

23. The Tribunal asked the applicant the reason he requested a four months absence from college. He said he was stressed and could not study because his father was sick. In his NOICC response he referred to his mental state and his inability to leave the house. The Tribunal asked the applicant whether he had sought a deferral of his studies because of his stress. He responded that he was not aware of the possibility of deferral. The Tribunal challenged this as overseas students are regularly informed about the rights and obligations about deferment, class attendance and other significant aspects of academic life. Further if the applicant had attended the college in March 2018 to discuss his father’s health and its impact on his ability to study, the Tribunal considers it likely that the education provider would have discussed deferment.  

24. The applicant told the Tribunal that he continued to submit assignments from August 2018 and said he paid his course fees until March 2019. The continued payment of fees does not necessarily indicate that a person is studying and is a genuine student and sometimes occurs for migration purposes. Regarding the assignments the Tribunal asked the applicant whether he received grades or results. He said he had not received any results and that was the reason he attended the college in January 2019. In his NOICC response he said that there had been a huge gap in his studies and he was hoping that the college had considered the situation he was going through and he went there in January 2019 to meet the college representative. He did not say he attended in January 2019 to discuss assignment results.

25. The Tribunal put to the applicant that he had not successfully completed any course since he had been in Australia. He agreed but said the Certificate III was a 12 month course.

26. The applicant told the Tribunal he commenced classes in January 2019 and continued studying until he received the NOICC. The Tribunal does not accept that the applicant continued study at any time after March 2018 and there was no independent evidence to support his contention. PRISMS indicates that his last day of study was 8 March 2018 and that his academic progress was poor. In his NOICC response he said there had been a huge gap in his study. His evidence at hearing was that the gap had been for four months.

27. The Tribunal considers the fact that the applicant did not study for a period of 14 months prior to the issuing of the NOICC and that he has not successfully completed any course in Australia is strong evidence that he is not a genuine student. 

28. The applicant’s evidence at hearing was inconsistent in many respects to the information he provided in his NOICC response. The Tribunal did not find the applicant to be a credible witness not only because of these inconsistencies but also because of the vague and at times evasive responses he provided during the hearing.

29. The applicant contended that he was unaware that his CoEs had been cancelled until April 2019. He said he paid his course fees up until March 2019 and questioned why his college would have accepted the fees. The Tribunal is not aware of any payment details and as noted, payment of fees does not necessarily prove continued attendance and study.  The Tribunal considers it unlikely that as the holder of a Student visa he would be unaware that a period of more than 12 months without study would not affect his CoE.

30. The purpose of the applicant’s visa was to allow him to study. For a significant period of time the applicant did not study and in his NOICC response conceded there was a huge gap in his study. He claims he was unable to study because of stress about his father’s health. The Tribunal finds the evidence about his mental condition unpersuasive. The Tribunal finds the information in PRISMS with respect to the applicant’s poor progress and the lack of any persuasive evidence that he re-engaged in any study from 8 March 2018 until after the issuing of the NOICC is strong evidence that he is not a genuine student.

31. Having regard to the applicant’s study history, his poor academic progress and lack of attendance over a substantial period, the Tribunal finds that the applicant is not a genuine student. The Tribunal finds 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

32. 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’.

    The purpose of the visa holder’s travel to and stay in Australia

33. The applicant told the Tribunal his purpose in coming to Australia was to study. He commenced study in a Diploma of Science (Computing/IT) course and after four months changed to a Cookery course. Two months after commencing this course he ceased study. Whilst the Tribunal accepts that the applicant may have been concerned about his father’s health in March 2018, his father was discharged from hospital in May 2018.  

34. The Tribunal noted that the applicant has been in Australia for more than two years and in that time he has not successfully completed any course. The Tribunal has found that the applicant’s last day of study was 8 March 2018 and that 14 months elapsed from that date until the issuing of the NOICC. There is no evidence before the Tribunal to indicate that the applicant was at any time committed to studying.

35. The applicant’s non-engagement in study for an extended period weighs in favour of visa cancellation.

    Whether the visa holder has a compelling need to travel to or remain in Australia

1. The applicant said he is compelled to stay in Australia because he wants to continue to study his Cookery course.

2. The Tribunal is not satisfied that the applicant has a compelling need to travel to or remain in Australia which would mean his visa should not be cancelled.

   The extent of compliance with the visa conditions

3. The applicant was granted a student visa in order to study in Australia. As such his intention must be to study, maintain enrolment, attendance and course progress, in a registered course. PRISMS indicates the applicant’s progress in the Certificate III course was poor and that his last day of study was 8 March 2018 which suggests he did not attend the college after that date.

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

4. Regarding the potential hardship which may result from cancellation of the visa, the applicant said his dreams would be damaged. He also said his country is in a bad way.

5. The Tribunal acknowledges that the cancellation of the applicant’s visa will be disappointing to the applicant. However, the Tribunal is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

   Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control

6. Whilst the Tribunal accepts the applicant’s father’s ill health from March 2018 to May 2018 were no fault of his, he did not re-engage with his studies until after the NOICC was issued. PRISMS indicates his academic progress in the Certificate III course was poor and that he did not show any interest in any intervention plan despite being issued with three warning letters.

7. The applicant did not undertake study for 14 months from 8 March 2018 until after the issuing of the NOICC.

8. The Tribunal noted that in his NOICC response the applicant said he was unable to study because of his mental condition. He told the Tribunal he was unable to study because he was stressed about his father’s health. The Tribunal is mindful that such claims are common in situations such as the present one and is not prepared to accept these claims without probative and convincing evidence. There was no evidence that the applicant suffered from any mental condition from March 2018 and no evidence that he suffered any mental condition that affected his ability to study or attend classes.  

9. The Tribunal did not accept the applicant’s contentions that he obtained a four month absence and that from August 2018 until the NOICC was issued he attended college and submitted assignments.

10. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The Tribunal finds this weighs in favour of visa cancellation.

    Past and present behaviour of the visa holder towards the department

11. Nothing adverse is known about the applicant’s past and present conduct towards the Department.  The Tribunal gives this some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

12. The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled.

13. There is no evidence that there would be consequential cancellations in this case.

    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 Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice pertaining to his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion.

15. However, the applicant’s approach to his studies has demonstrated a disregard for the visa and its requirements over the most part of his time in Australia and not just for an isolated period. Accordingly, the Tribunal is not satisfied that there are consequences of the cancellation which mean that the visa should not be 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

16. There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation.

    Any other relevant matters

17. At hearing the applicant provided CoEs for a packaged course of Certificates III and IV in Commercial  Cookery and a Diploma of Hospitality commencing on  23 September 2019. The CoEs were created on 8 August 2019, four days prior to the hearing. This suggests to the Tribunal that the applicant had only enrolled in the course in an attempt to obtain a favourable outcome in relation to the cancellation, rather than, out of genuine interest, intention or desire to undertake the course. If he did have such a desire, he would have enrolled in a course prior to now.

18. The applicant also provided a letter from Global College Australia dated 8 August 2019 which confirmed his enrolment in a Non AQF Award course (General English). The course commenced on 18 July 2019.

19. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

    Conclusion

20. The Tribunal has considered the applicant’s circumstances. The Tribunal has found that the applicant is not a genuine student. The Tribunal has formed the view that the applicant has not been fulfilling the purpose of his travel to and stay in Australia because he has not successfully completed any study in Australia and because for the study that he did undertake before his visa was cancelled, the applicant had poor academic performance. The Tribunal has formed the view that the grounds for cancellation did not arise in circumstances beyond the applicant’s control. The Tribunal is prepared to accept that cancellation would cause some hardship to the applicant. The cancellation would not result in breach of Australia’s international obligations and would not affect any other person’s visa.

21. The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

22. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Christine Kannis
    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.