GHANVI (Migration)

[2020] AATA 4770

GHANVI (Migration) [2020] AATA 4770 (6 August 2020)

DECISION RECORD

DIVISION:		Migration & Refugee Division
APPLICANT:		Mr Marsad Ghanvi
CASE NUMBER:		1907563
HOME AFFAIRS REFERENCE:		BCC2018/4057016
MEMBER:		Dr Jason Harkess
DATE:		6 August 2020
PLACE OF DECISION:		Melbourne
DECISION:		The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa

Statement made on 6 August 2020 at 9:22pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa –applicant has not been enrolled in a registered course of study – breached condition 8202 – false documents provided to education provider – no legitimate purpose to remain in Australia –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116 ,359
Migration Regulations 1994 (Cth), Schedule 8

Education Services for Overseas Students Act 2000 (Cth)

STATEMENT OF DECISION AND REASONS

INTRODUCTION AND OVERVIEW

Student Visa Cancellation – Application for Review

1. The Applicant is a citizen of Pakistan and is 25 years old. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 22 March 2019 cancelling his Student (Temporary) (Class TU) Subclass 500 visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’). The Applicant lodged his review application with the Tribunal on 29 March 2019.

Original Visa Grant

1. The Applicant’s visa was granted on 25 June 2018. It was granted because a delegate of the Minister had determined that he met the primary criteria for the grant of a student visa.[1]

   [1] The primary criteria for the grant of a student visa are set out in the Migration Regulations 1994 (Cth), Sch 2, cls 500.211 to 500.218.

2. The visa had an original expiry date of 30 August 2020 before it was cancelled. It provided for more than two years and two months during which the Applicant would be permitted to reside in Australia for the purpose of full-time study. Specifically, the visa had been granted so that the Applicant could complete a Master of Computing at Australian National University (‘ANU’).

Reasons for Cancellation

1. The Applicant’s visa was cancelled because the delegate determined that a legal basis for cancellation had been established under s 116(1)(b) of the Act. The delegate found that the Applicant had not complied with a condition of his visa. Specifically, it was found that the Applicant had failed to comply with that condition which required him to maintain enrolment in a registered course of study for the duration of the visa grant period. Upon making that finding, the delegate proceeded to consider all other relevant circumstances before concluding that the Applicant’s visa ought to be cancelled.

2. The delegate’s reasons are set out in a decision record. That decision record was provided to the Applicant when he was notified that his visa had been cancelled on 22 March 2019.[2] The Applicant also provided a copy of the delegate’s decision record to the Tribunal on 18 November 2019. By lodging his review application, the Applicant contends that the delegate’s decision to cancel his visa is neither the correct nor preferable outcome in this case.

   [2] Notification was given in accordance with s 127 of the Migration Act 1958 (Cth) and reg 2.55(3)(d)ii) of the Migration Regulations 1994 (Cth) by emailing the notification and decision record to the Applicant’s last email address known to the Minister on the date of the decision. By the operation of reg 2.55(8) of the Migration Regulations 1994 (Cth), the Applicant is taken to have received the notification and decision record on that date.

Issues for Determination by Tribunal

1. The first issue requiring consideration by the Tribunal is whether the grounds for cancellation under s 116(1)(b) of the Act is made out, namely whether the Applicant did not comply with a condition of his visa. If the Tribunal determines those grounds are made out, the second issue requiring consideration is whether the Applicant’s visa ought to be cancelled.

Hearing of Application

1. The Tribunal convened a hearing to consider the merits of the application on 18 November 2019. The Applicant appeared before the Tribunal by video link to give evidence and present arguments.

2. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

Tribunal’s Determination

1. The Tribunal has concluded that the decision to cancel the Applicant’s visa ought to be affirmed. In reaching its decision, the Tribunal has had regard to:

   (a)the delegate’s decision record;

   (b)the oral evidence of the Applicant given at the hearing;

   (c)all written material filed by or on behalf of the Applicant before, during and after the hearing; and

   (d)other relevant documents on the Tribunal and Department files.

2. The Tribunal notes that not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference to that information that the Tribunal has been found to be fundamental or materially significant to the determination of the issues in the case.[3]

GROUNDS FOR CANCELLATION

[3] The Tribunal notes that it is not required to make explicit reference to every piece of relevant information before it because not all relevant considerations will be material or fundamental in any given case. See Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123, [30]-[31] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421, [49] (Bell, Gageler and Keane JJ); Shoukat v Minister for Home Affairs [2020] FCA 194, [25] (O’Callaghan J); Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.

Applicable Law

1. Section 116(1)(b) of the Act provides that the Minister may cancel a visa if satisfied that its holder has not complied with a condition of the visa. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’), when the visa was granted.

2. Condition 8202(2)(a) attaches to all student visas and creates a continuing obligation for the duration of the visa.[4] It requires the visa holder to maintain enrolment in a full-time registered course of study.

   [4] Migration Regulations 1994 (Cth), Sch 2, cl 500.611(1)(a). All standard conditions of visas issued to non-citizens, including Condition 8202, are set out in full in the Migration Regulations 1994 (Cth), Sch 8.

3. The imposition of Condition 8202(2)(a) draws attention to the fact that all student visas are issued for the specific purpose of studying on a full-time basis. The visa holder is legally obliged to adhere to that study purpose for the duration of their stay in Australia. While the condition contemplates that, at some point after the visa has been issued, the visa holder may have good reason for changing their course of study, they are specifically prohibited from ceasing to be enrolled altogether. In that regard, Condition 8202(2)(a) is one of many student visa conditions designed to ensure that Australia’s student visa program is not abused.

Has the Applicant Failed to Comply with Condition 8202(2)(a)?

Delegate’s Allegations

1. In the delegate’s decision record, the delegate identified the period from 12 July 2018 to 14 March 2019 as the relevant period during which the Applicant was said not to be enrolled in a full-time registered course of study. This amounted to more than eight months during which the Applicant was alleged to be in continuous breach of his visa.

2. The delegate’s findings were based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[5] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. It is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued.

   [5] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

3. The Applicant became enrolled in the Master of Computing course on 12 June 2018 following approval of his enrolment application by ANU. A Confirmation of Enrolment document (‘CoE’) was issued to the Applicant by ANU utilising the PRISMS database on the same date. That CoE formed the basis of the Applicant being granted his visa on 26 June 2018. At the time the delegate cancelled the Applicant’s visa, the PRISMS database indicated that the Applicant’s enrolment in the Master of Computing course had been cancelled on 12 July 2018 by ANU, less than two weeks before the course was due to start. PRISMS also indicated that the Applicant had not enrolled in any other registered course of study until 14 March 2019.

4. On 7 March 2019 the Department of Home Affairs (‘the Department’) notified the Applicant of its intention to consider cancelling his visa (‘the NOICC’). In accordance with s 119 of the Act, the NOICC:

   (a)gave particulars of the allegation that the Applicant had not complied with Condition 8202(2)(a) of his visa;

   (b)gave particulars of the information obtained from the PRISMS database that founded the allegation;

   (c)informed the Applicant that not complying with Condition 8202(2)(a) constituted grounds for cancelling his visa; and

   (d)invited the Applicant to show the Department that those grounds did not exist or that there was a reason why his visa should not be cancelled.

Applicant’s Initial Response

1. Following receipt of the NOICC, the Applicant enrolled in a Graduate Diploma of Management (Learning) course on 14 March 2019. The Applicant then responded to the NOICC on 19 March 2019 (‘the Applicant’s NOICC response’). In that response, the Applicant did not dispute that he was in breach of Condition 8202(2)(a) of his visa as alleged, although he sought to argue that his visa should nevertheless not be cancelled.

Evidence Given by Applicant at Hearing

1. At the hearing before the Tribunal on 18 November 2019, the Applicant admitted that he was not enrolled in a registered course of study for the period 12 July 2018 to 14 March 2019 and, therefore, in breach of Condition 8202(2)(a) of his visa for that period.

Conclusion

1. Based on the material before the Tribunal, it is reasonably clear that the Applicant did not comply with a condition of his visa. The Tribunal finds that the Applicant did not comply with Condition 8202(2)(a) of his visa for the period 12 July 2018 to 14 March 2019. Accordingly, there are grounds for cancelling his visa under s 116(1)(b) of the Act.

CONSIDERATION OF DISCRETION TO CANCEL VISA

1. Having found that the Applicant failed to comply with a condition of his visa, the Tribunal must proceed to consider whether his visa should be cancelled.

Relevant Factors

1. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

2. The matters that ought to be considered are specifically listed in PAM3 as follows:

   (a)the purpose of the Applicant’s travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;

   (b)the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant’s control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);

   (c)the extent of the Applicant’s compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;

   (d)the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;

   (e)the Applicant’s past and present behaviour towards the Department (eg, whether they have been truthful and co-operative in their dealings with the Department);

   (f)whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;

   (g)whether there are mandatory legal consequences arising from a decision to cancel the visa;

   (h)whether Australia has obligations under any relevant international agreements that would be breached as a result; and

   (i)any other relevant matter.

Circumstances

1. The Applicant first sought to explain the circumstances giving rise to his non-compliance with the Condition 8202(2)(a) in the NOICC response. In summary, he attempted to explain the circumstances of the breach as follows:

   (a)When he obtained his visa, his father had been suffering from diabetes and a heart condition. He did not want to travel to Australia too early. However, he came to Australia on 17 July 2018 and two days later, on 19 July 2018, his father suffered a heart attack and had to undergo surgery.

   (b)He is close to his father and, upon his arrival in Australia, he was traumatised as a result of the downward turn in his father’s health.

   (c)He was not able to inform ANU about anything.

2. The Applicant attached to his NOICC response a letter dated 25 September 2018 from Rawalpindi Institute of Cardiology. That letter indicated that Ghulam Rasool (who the Applicant claims is his father) underwent open heart surgery on 20 July 2018.

3. At the hearing before the Tribunal, the Applicant stated that arrived in Canberra on 17 July 2018. He said that he did not know anybody in Canberra except for one friend, who tried to help him adjust to the new environment. However, he said he became home sick and did not start the Master of Computing course as a consequence.

4. The Applicant stated that he became aware of his father having a heart attack at the end of August 2018 by being informed about by his sister. He further stated that his father subsequently had open-heart surgery in September.

5. The Applicant further stated that his uncle died. In support of that claim, he produced to the Tribunal a death certificate that appears to have been issued by the government of Pakistan. It is not translated, but it disclosed enough information in English that would appear to corroborate his claim that his uncle died in November 2018.

6. The Applicant stated that he was unable to study as a result of these difficult personal events in his life. He said one semester had passed and he had not studied anything at all by November 2018. He said that he did not want to disturb his family during this time about his problems. He said that he had paid $20,000 to ANU for the initial tuition fees but that he did not know whether he was entitled to or had received a refund of that amount given his failure to commence his studies. The Applicant stated that he was unaware that ceasing his studies or his enrolment would amount to a breach of his student visa.

7. The Tribunal inquired of the Applicant as to whether he was aware there might have been any other reason as to why ANU had cancelled his enrolment. He stated that he was not. However, for reasons that will become clear in the paragraphs below, the Tribunal does not accept the Applicant’s evidence in this respect.

8. Pursuant to s 359AA of the Act, the Tribunal communicated to the Applicant information that it had found on the Department file which may be a reason or part of the reason for affirming the decision under review. That information pertains to the circumstances in which ANU cancelled his enrolment. It may be summarised as follows:

   (a)The ANU appear to have cancelled the Applicant’s enrolment in the Master of Computing course because it had discovered that false documents had been provided in support of his enrolment application.

   (b)Specifically, an investigation into the authenticity of the Applicant’s Bachelor of Computer Science and associated academic transcript, purportedly obtained from the University of Lahore, revealed that they were false documents and had been forged.

9. The Tribunal drew the Applicant’s attention to the fact that he had not drawn this information to the attention of the Tribunal. Furthermore, the Tribunal advised the Applicant that if the Tribunal were to accept the information it would lead the Tribunal to conclude that he had obtained entry into the ANU Master’s program by dishonest means and that this would be a reason or part of the reasons for affirming the decision under review.

10. The Tribunal then invited the Applicant to comment on or respond to the information and also advised him that he was entitled to seek additional time before he did so. The Applicant indicated that he would like some additional time and so the Tribunal temporarily adjourned the hearing for ten minutes.

11. When the hearing resumed, the Tribunal invited the Applicant to comment on or respond to the information. The Applicant initially denied any knowledge about the allegations concerning false documents that founded his application for entry into the Master of Computing program. He suggested to the Tribunal that this was the first time he had ever heard of the allegations. He further denied that his academic records produced to ANU in support of his enrolment application were falsified. He denied that ANU had ever contacted him about the allegation.

12. After further questioning from the Tribunal, the Applicant eventually admitted the following:

    (a)that he did not successfully complete a Bachelor of Science degree at the University of Lahore;

    (b)that the Bachelor of Science and associated academic transcript produced to ANU in support of his Master of Computing enrolment application had been falsified by his agent in Pakistan;

    (c)that he was aware that the agent had falsified the documents.

13. In these circumstances, having regard to the Applicant’s own admissions, the Tribunal makes the following findings:

    (a)The Applicant’s enrolment in the Master of Computing course was founded on a fraud.

    (b)The grant of the Applicant’s student visa was, consequently, also founded on a fraud.

    (c)The Applicant was a party to the fraud.

    (d)The Applicant’s original visa would never have been granted had the ANU and the Department of Home Affairs been aware of the fraud.

    (e)ANU became aware of the fraud and took steps to cancel his enrolment accordingly. In accordance with its standard policies and procedures, it is likely that the Applicant was notified of ANU’s discovery of the fraud and invited to comment before they moved to cancel his enrolment. The Applicant chose not to respond.

    (f)The breach of Condition 8202 of the Applicant’s visa is ultimately traceable to the fraud.

    (g)To the extent that the Applicant’s evidence is inconsistent with the above findings, the Tribunal rejects that evidence. The Applicant is not a witness of truth.

1. The circumstances giving rise to the breach weigh significantly in favour of cancelling his visa.

Purpose of Applicant’s Stay in Australia

1. The purpose of the Applicant’s stay in Australia was founded on a fraud. There is no legitimate purpose for the Applicant to remain in Australia. Accordingly, his visa should be cancelled.

Extent of Applicant’s Compliance with Visa Conditions

1. The Tribunal finds that the Applicant’s visa should never have been granted. The Applicant’s dishonesty in securing a student visa strikes at the very heart of Australia’s student visa program. The extent to which he may otherwise have complied with other visa Conditions is of minimal relevance in this case.

Hardship

1. The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia, and the inconvenience and psychological difficulties he will have in being forced to return to Pakistan. It will be hard for him to make arrangements to return to Pakistan given travel restrictions in place because of COVID-19. The Tribunal gives minimal weight to this consideration due to the severity of the circumstances of his visa breach.

Applicant’s Behaviour towards Department

1. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department. The deliberate deception on the part of the Applicant in obtain the visa weighs in favour of cancellation.

Other Visa Holders

1. There do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

Legal Consequences

1. The Tribunal notes that if his visa is cancelled, the Applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. They reflect the seriousness of the breach of a visa condition.

2. The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements to depart Australia. He is a citizen of Pakistan and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia.

International Obligations

1. The Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

Other Relevant Matters

1. There do not appear to be any other relevant matters material to the outcome of the present review application.

Conclusion

1. In all the circumstances, the Tribunal is satisfied that the Applicant’s visa ought to be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa.

Dr Jason Harkess
Member