Bangar (Migration)

[2018] AATA 1600

Bangar (Migration) [2018] AATA 1600 (16 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sarbjit Kumar Bangar

CASE NUMBER:  1724184

DIBP REFERENCE(S):  BCC2015/896478

MEMBER:David McCulloch

DATE:16 April 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 16 April 2018 at 9:14am

CATCHWORDS
Migration – Cancellation – Federal Circuit Court remit – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Genuine student – Non-enrolment in any course of study – Poor academic progress – Low attendance in course – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 107, 116, 119, 140, 359, 360, 363A
Migration Regulations 1994, r 2.43, Schedule 8 Condition 8202, Condition 8516

CASES
Hasran v MIAC [2010] FCAFC 40
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 7 July 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. This application has already been the subject of a decision of the Tribunal dated 28 June 2016. The applicant appealed that decision to the Federal Circuit Court. On 4 October 2017, by consent, the decision of the Tribunal was quashed and remitted to the Tribunal to re-determine according to law. This was on the basis that the Tribunal failed to undertake its own independent consideration of a claim referred to by the delegate that a significant proportion of the applicant’s written work was identical to that of a number of other students in his class and therefore appeared to be plagiarised. It was determined that there was no material evidence before the Tribunal to support the allegation of plagiarism apart from the reference in the decision of the delegate of the Minister.

3. The review has now been reconstituted to a different Tribunal member and will be re-determined according to law and as per the orders of the Federal Circuit Court.

4. The applicant is a national of India born on 26 October 1993. The visa that has been cancelled was granted on 4 July 2013. 

5. On 30 March 2015 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) under s.116 of the Act. The applicant did not respond to the NOICC as he was given the opportunity to do. On 7 July 2015 the delegate decided to cancel the student visa held by the applicant under s.116(1)(fa) of the Act because the delegate formed the view that the applicant was not a genuine student.

6. The issues that arise on review are:

   1. Does the ground for cancellation exist?
   2. If so, should the visa be cancelled?

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

   Relevant law

8. Under s.116(1) 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, this includes 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, as set out in the Department of Immigration Guidelines Procedures Advice Manual (PAM3).

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 section 116(1)(fa)(i) is

    directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour with lecturers, 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 when 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:

    …

    (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.

12. 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.

    FAILURE TO RESPOND TO INVITATIONS

    Invitation to provide information

13. On 18 December 2017, the Tribunal wrote to the applicant pursuant to s.359 of the Act, inviting him to provide, in writing, information about periods in which he had not been actively engaged in study, about courses of study he had successfully completed, and about periods in which he had no current enrolment in the Higher Education Sector.

14. The invitation was sent to the email address provided by the applicant for correspondence in connection with the review. The applicant is taken to have received it on 18 December 2017. The letter of invitation advised that, if the information was not provided in writing by 2 January 2018, the Tribunal may make a decision on the review without taking further steps to obtain the information and that the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

15. The applicant has not provided the information within the prescribed period and no extension of time has been granted. In these circumstances, s.359C(1) of the Act applies and, pursuant to s.360(3) of the Act, the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information from him.

    Invitation to respond to information                   

16. The Tribunal wrote to the applicant on 18 December 2017, pursuant to s.359A of the Act, inviting him to provide comments on information that it considered would be part of the reason for affirming the decision under review. The letter enclosed a copy of an academic transcript and copies of attendance records provided by the applicant's education provider covering the period 1 September 2014 to 6 March 2015, and referred to information in the delegate's decision record which mentioned that a significant proportion of the applicant's written work was identical to that of a number of other students in his class. The letter pointed out that this information was relevant because it suggested he had a poor attendance record and poor academic progress and that assignments he had submitted may have been copied from other people.

17. The letter also enclosed information about the applicant's enrolments in courses of study in Australia, and pointed out that it was relevant because it indicated that there was a five month period when he was not actively engaged in any study and lengthy periods when he was not enrolled in any course, or not enrolled in a course appropriate for his visa which could suggest that he was not a genuine student. The fact that there were periods when he was not enrolled in any course (Condition 8202 of his visa) and periods in which he was not enrolled in a Higher Sector Education course (Condition 8516 of his visa) which are negative factors in deciding whether or not the visa should be cancelled.

18. The invitation was sent to the email address provided by the applicant for correspondence in connection with the review. The applicant is taken to have received it on 18 December 2017. The letter of invitation advised that, if the information was not provided in writing by 2 January 2018, the Tribunal may make a decision on the review without taking further steps to obtain the comments.

19. As the applicant has not provided the comments within the prescribed period and no extension has been granted, s.359C of the Act applies. Again, pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal and, given the provisions of s.363A of the Act, the Tribunal has no power to permit him or her to appear.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the ground for cancellation exist – is the applicant a genuine student?

20. There is nothing before the Tribunal to indicate that the applicant’s participation in a course had been deferred or temporarily suspended by the provider of the course.

    The applicant's migration history

21. According to the Department's movement records, the applicant first arrived in Australia on 7 July 2013 as the holder of a Subclass 573 Student visa which had been granted on 4 July 2013. When granted, that visa was valid until 15 September 2016 but, as noted above, it was cancelled on 7 July 2015. Since then, the applicant has held a series of bridging visas, each of which has been subject to a number of conditions, including Condition 8207 which requires that the holder ‘must not engage in any studies or training in Australia’.

    The applicant's academic history

22. PRISMS records seen by the Tribunal indicate that the applicant has had 13 enrolments in registered courses in Australia, as set out below.

    ·A Certificate IV in Business course scheduled to run at TAFE Queensland Brisbane (Brisbane TAFE) between 2 April and 9 August 2013. The applicant had enrolled in this course on 6 March 2013. The enrolment was cancelled on 2 May 2013 because of a change in enrolment to the course mentioned immediately below. This change of enrolment was necessitated by the fact that he had not yet been granted his visa and had not arrived in Australia.

    ·A second Certificate IV in Business course scheduled to run at Brisbane TAFE between 8 July and 15 November 2013. The applicant had enrolled in this course on 2 May 2013 and finished the course.

    ·A Diploma of Business course scheduled to run at Brisbane TAFE between 12 August and 20 December 2013. The applicant had enrolled in this course on 6 March 2013. The enrolment was cancelled on 2 May 2013 (for reasons mentioned above) because of a change in enrolment to the course mentioned immediately below.

    ·A second Diploma of Business course scheduled to run at Brisbane TAFE between 28 January and 6 June 2014. The applicant had enrolled in this course on 2 May 2013 but the enrolment was cancelled on 8 February 2014 because the applicant did not commence studies.

    ·A Bachelor of Business (Tourism, Leisure and Event Management) course scheduled to run at the University of the Sunshine Coast between 17 February 2014 and 15 December 2015. The applicant had enrolled in this course on 11 March 2013, as part of a package with a Diploma of Business course at ‘SBIT’ (though the Tribunal believes this may be a misprint with the correct preference being to the first Diploma course at Brisbane TAFE), but the enrolment was cancelled on 10 May 2013 because of non-commencement of studies presumably because of the cancellation of the first diploma course enrolment.

    ·Three ‘inactive’ enrolments in Diploma of Management courses at the Australian Vocational Learning Centre [AVLC], two of which were to have run between February and August 2014 and one of which was to have run between March and September 2014. The applicant enrolled in these courses in February 2014.

    ·A Diploma of Business Administration course which ran at the Australian College of Vocational Studies (ACVS) between 14 April and 12 September 2014. The applicant had enrolled in this course on 5 March 2013 and he finished the course.

    ·A second Bachelor of Business (Tourism, Leisure and Event Management) course scheduled to run at the University of the Sunshine Coast between 21 July 2014 and 15 July 2016. The applicant had enrolled in this course on 1 July 2013, as part of a package with a Diploma of Business course at ‘SBIT’ (though the Tribunal believes this may be a misprint with the correct preference being to the second diploma course at Brisbane TAFE), but the enrolment was cancelled on 11 August 2014 because the applicant did not commence studies.

    ·An Advanced Diploma of Business course scheduled to run at ACVS between 29 September 2014 and 27 March 2015. The applicant had enrolled in this course on 25 March 2014. The records show that the enrolment was cancelled, for reasons of non-commencement of studies on 16 July 2014, though there was also a record which indicates there was a change to enrolment on 23 October 2014.

    ·A second Advanced Diploma of Business course scheduled to run at ACVS between 29 September 2014 and 27 March 2015. The applicant had enrolled in this course on 23 October 2014. The records show that the enrolment was cancelled, for non-payment of fees on 4 February 2015, but the enrolment was apparently reinstated and then cancelled again on 24 February 2015 because of a change in enrolment.

    ·A third Advanced Diploma of Business course scheduled to run at ACVS between 29 September 2014 and 27 March 2015. The applicant had enrolled in this course on 24 February 2015 and he finished the course.

    This information, together with information regarding relevant dates, was provided to the applicant as attachments to the Tribunal's letter sent to him pursuant to s.359A of the Act on 18 December 2017 (see above).

23. The Tribunal is aware that the fact that a course is shown in PRISMS as having been ‘finished’ does not necessarily mean that the student concerned successfully passed the course. It merely means that the student was still enrolled in the course as at the date the course ended. The Tribunal is aware, however, that the applicant successfully completed the Diploma of Business Administration course at ACVS (see the seventh dot point in the previous paragraph).

    Is the applicant a genuine student?

24. As pointed out to the applicant in the Tribunal's letter of 18 December 2018, the Department obtained information from ACVS relating to the applicant's attendance and academic performance in his Advanced Diploma of Business course. That information indicates that, taking into account three orientation days attended by the applicant, he attended only 28 days out of 81, an attendance rate of 34.6%. In that time, he only successfully completed two units out of eight units attempted, and there has been a claim that a significant proportion of his written work was identical to that of a number of other students in his class.

25. On 30 March 2015, the Department sent the NOICC - the s.107 notice). A copy of that notice is at folios 25 to 26 of the Department's file. The notice referred to the information mentioned in the previous paragraph and advised the applicant of his right to comment on the grounds for cancellation and give reasons why his visa should not be cancelled. The applicant provided no comment. The Tribunal is satisfied that the notice complied with the relevant requirements of s.107 of the Act.

26. The Tribunal's letter of 18 December 2017 also drew the applicant's attention to information from PRISMS regarding his enrolments and relevant dates. This information indicates that there was a five month period between 15 November 2013 and 14 April 2014 when, although the applicant was enrolled in one or more courses of study, he was not actually studying. This was the period between the conclusion of his Certificate IV in Business course, and the commencement date of his Diploma of Business Administration course. The information also indicates that he was not enrolled in any course of study in the Higher Education Sector between from 11 August 2014 unti 7 July 2015 (when the visa was cancelled) and he was not enrolled in any course of study from 27 March 2015 until the date when his visa was cancelled.  As indicated, the applicant did not respond to this letter.

27. The applicant had successfully completed a Diploma of Business Administration course at ACVS in September 2014. However, there is no evidence before the Tribunal to suggest that he has successfully completed any other course in Australia. Whatever his situation may have been up to September 2014, and in the absence of the applicant providing comment, the Tribunal accepts the information regarding the applicant's poor attendance and poor academic progress in his Advanced Diploma of Business course between September 2014 and March 2015.

28. Given these facts, and that the applicant was not enrolled in any course of study from 27 March 2015 until the date of cancellation of his visa, the Tribunal is satisfied that the applicant is not now, and is not likely to be, a genuine student.

29. Given that the only evidence that a significant proportion of the applicant’s written work was identical to that of a number of other students in his class is the assertion of that claim made elsewhere by the delegate, the Tribunal does not take that allegation into account in determining whether the applicant is not, or is not likely to be, a genuine student. However, the Tribunal is satisfied that the applicant is not, or is not likely to be, a genuine student irrespective of whether the applicant’s work was identical to other students, as a result of the other factors identified.

30. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

31. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations, provisions in the Act which prevent the person making a valid application without the intervention of the Minister, whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non-refoulement obligations; and any other relevant matters.

1. Given that the Tribunal has concluded that the applicant is not, and is not likely to be a genuine student, the Tribunal does not consider that the applicant has a compelling need to remain in Australia to undertake studies. There is no evidence of any other compelling needs for the applicant to remain in Australia.

2. The delegate's decision record does not mention any breach of a visa conditions. However, as mentioned in the letter of 18 December 2017 sent pursuant to s.359A of the Act, there is evidence that the applicant has breached Conditions 8202 and 8516 of his visa. Specifically, the PRISMS records show that he was not enrolled in any course of study in the Higher Education Sector from 11 August 2014 to 7 July 2015 as required by Condition 8516 of his Subclass 573 visa, and he was not enrolled in any course of study whatsoever from 27 March 2015 until the visa was cancelled, which again was required by Condition 8202 of his visa.

3. There were, therefore, periods totaling almost a year when the applicant was not complying with Condition 8516 of his visa and more than three months in which he has been in breach of Condition 8202(2)(a).

4. These are matters which weigh in favour of the Tribunal exercising its discretion to cancel the visa.

5. The Tribunal acknowledges a degree of hardship to the applicant if the visa is cancelled, in having to return to his home country if he would prefer to remain in Australia. This is not a significant discretionary factor given that the applicant needs a legitimate legal immigration basis to remain in Australia.

6. The Tribunal accepts that the cancellation of the visa will result in limitations on the applicant’s eligibility for other visas which may be a hardship to the applicant.

7. The ground for cancellation arose because the applicant’s attendance in his Advanced Diploma of Business Administration was low, his academic progress was poor and he breached his visa conditions. The applicant has not provided evidence of any reasons to explain why these circumstances arose.

8. The Tribunal has no evidence that the applicant has engaged in adverse conduct towards the Department which would be an adverse factor to the applicant in the exercise of the Tribunal’s discretion.

9. Although the applicant may become an unlawful non-citizen and subject to potential immigration detention as a result, the Tribunal considers that the applicant will be in a position to apply for a bridging visa to legitimise his status while he makes arrangements to depart Australia. The Tribunal does not consider that any temporary immigration detention suffered by the applicant would be a factor which would cause the Tribunal to exercise its discretion in the applicant’s favour.

10. There is no evidence that the cancellation of the applicant’s visa would result in the cancellation of the visa of any other person under s.140 of the Act.

11. There is no evidence that the applicant fears or faces serious or significant harm on return to his home country that would enliven Australia’s non-refoulement obligations.

12. The Tribunal has no evidence that would make relevant any other discretionary factors.

13. Considering the circumstances as a whole, the Tribunal is of the view that it should exercise its discretion to cancel the visa. The Tribunal concludes that the visa should be cancelled.

    DECISION

14. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    David McCulloch
    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.