Habib (Migration)

Habib (Migration) [2020] AATA 3421 (30 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ahmed Habib
CASE NUMBER:  1826126
HOME AFFAIRS REFERENCE:               BCC2018/2306605
MEMBER:L. Symons
DATE30 June 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 30 June 2020 at 6:55pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course ceased – allegations of migration fraud – non-commencement of courses – plans for Vocational courses – no contact with university – decision under review affirmed
LEGISLATION
Migration Act 1958, s 116, 359
Migration Regulations 1994, Schedule 8, Conditions 8202, 8533
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 30 August 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).
The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study since 22 August 2017. He applied to the Tribunal for a review of that decision on 7 September 2018.
The applicant appeared before the Tribunal on 29 January 2020 to give evidence and present arguments. He was represented by his migration agent, Mr Rafi Muhamad, who attended the hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
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 breach Condition 8202?
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 registered course, or in limited cases, a full-time course of study or training: 8202(2)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).
In the present case, the applicant was granted a Student visa on 7 April 2017. This visa was subject to a number of conditions including condition 8202. On 31 July 2018, the delegate sent him a Notice of Intention to Consider Cancellation (NOITCC) of his Student visa on the basis that he had not been enrolled in a registered course of study since 22 August 2017. He was given an opportunity to comment on the ground for cancellation identified in the NOITCC and give reasons why his Student visa should not be cancelled. He did not respond to the NOITCC. The Department of Home Affairs (the Department) cancelled his Student visa on 30 August 2018.
The applicant has filed with the Tribunal copies of his Birth Certificate, the biodata page of his Pakistani passport issued on 13 March 2017, his Pakistani Driver’s Licence, a Confirmation of Enrolment (COE) for a Master of Information Technology, two receipts from the internet, two Certificates of Merit, a ‘Result Intimation Card’ from the Punjab Board of Technical Education, Lahore, WhatsApp text messages (written in Urdu with a few English words), an International English Language Testing System (IELTS) Test Report Form and the letter dated 30 August 2018 from the Department to him informing him of the cancellation of his Student visa. Following the hearing, the Tribunal received an English translation of the WhatsApp text messages.
The Tribunal received written submissions dated 29 January 2020 from the applicant’s migration agent. He submitted that the applicant was the victim of migration fraud emanating from Pakistan. He submitted that fraudsters obtain COEs from prestigious universities in Australia on the assurance that a visa would be granted (to the prospective student). He submitted that after the applicant arrived in Australia, he was informed by his education agent, Junaid, that his COE had been cancelled and advised him not to contact the University of NSW. He stated that he subsequently paid the education agent a further $1,200.00 on 26 March 2018 to obtain another COE. He submitted that he never received his NOITCC or notification of the cancellation of his Student visa. He submitted that his non-compliance with his Student visa were due to exceptional circumstances beyond his control and there were compelling circumstances in his case.
During the hearing, the applicant gave evidence that he agreed that he has not been enrolled in a registered course of study since 22 August 2017. He stated that he understood that by not being enrolled in a registered course of study he would breach condition 8202 of his Student visa. He conceded that he had breached condition 8202 of his Student visa.
The records of the Department of Education indicate that the applicant enrolled in a Master of Information Technology from 27 February 2017 to 31 December 2018. His enrolment in that course was cancelled on 9 March 2017 because he changed his study details. He then enrolled in another Master of Information Technology from 24 July 2017 to 31 July 2019. His enrolment in that course was cancelled on 22 August 2017 for non-commencement of studies. The Tribunal put this information to him, pursuant to s.359AA of the Act, and noted that it may find that he had not been enrolled in a registered course of study since 22 August 2017, had breached condition 8202(2) of his Student visa and that his Student visa should be cancelled. He responded that he did not know about the second COE and was not sure.
On the evidence before it, the Tribunal finds that the applicant has not been enrolled in a registered course of study since 22 August 2017 and accordingly has not complied with condition 8202(2)(a) of his Student visa.
Consideration of the discretion to cancel the visa
Having found that the applicant has not complied with a condition of his Student 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
Purpose of the applicant’s travel to and stay in Australia. Did the applicant have a compelling need to travel to or remain in Australia?
The applicant gave evidence to the Tribunal that the purpose for which he travelled to Australia was to do a Bachelor degree. He stated that he paid 50,000 rupees to an education agent in Pakistan named Junaid to obtain a COE and was told that when he obtained a visa, he would have to pay a further $18,000.00. He stated that he obtained a COE for a Master’s degree. He stated that after he arrived in Australia, Junaid told him not to go to university as this would create a big problem for him. He stated that he has never studied in Australia.
The Tribunal asked the applicant why he did not return to Pakistan if he came here to study and was not studying. He responded that he gave Junaid money again to obtain another COE. He has provided the Tribunal with a copy of a receipt in relation to an internet bank transfer. It is dated 26 March 2018, is for the sum of $1,200.00 and is described as “to consultant coe”.
The Tribunal asked the applicant whether there was any reason why he needed to remain in Australia. He responded that he wanted to continue his studies. When the Tribunal pointed out that he never commenced any studies in Australia, he responded that he lost his money and he can get money from his brother in the United Kingdom.
The Tribunal asked the applicant what he had been doing during the time between lodging his application for review and the Tribunal hearing. He responded “nothing”. He stated that he did not know how long it would take. He stated that “they” said it would take one or two months to obtain a hearing. He stated that his consultant in Parramatta took $2,000.00 to lodge an application for review with the Tribunal. (There is no indication on his application for review that he was represented by a migration agent). He stated that a friend referred him to this “consultant” who asked him for $2,000.00. He stated that he was in trouble, so he paid him $2,000.00 (without checking his qualifications).
The applicant has filed with the Tribunal a copy of his IELTS Test Report Form dated 7 November 2013. It indicates that he obtained scores of 4.5 for listening, 5.0 for reading, 4.5 for writing, 4.0 for speaking with an overall band score of 4.5 out of a possible 9. The Tribunal raised as an issue with him its concerns that his IELTS results were poor and his English language skills were inadequate for him to study in Australia. He responded that those results were from 2013. He stated that he can do the PTE (Pearson English Language Test) and study a Diploma.
The Tribunal pointed out to the applicant that he had had plenty of time of do a PTE. He responded that he could not afford to pay for it on his salary. He stated that he asked his brother for money for the hearing. He stated that he needs one more chance. He stated that if his Student visa is not cancelled, he can continue his studies.
In his written submissions, the applicant’s migration agent submitted that the applicant plans to undertake a PTE examination followed by a Diploma of Leadership and Management and then a Graduate Diploma of Strategic Leadership if his Student visa is reinstated.
The Tribunal is not persuaded by these submissions. The applicant has been in Australia since 28 April 2017. He has had plenty of time to undertake an IELTS test or a PTE examination but has not done so. If he was unable to afford the cost of doing an English language test between 28 April 2017 and January 2020, it is doubtful that he will be able to afford to pay for it now. Even if he is able to obtain the funds to undertake one of these English language tests, there is no guarantee that he will be able to obtain the necessary test results to be able to undertake tertiary studies in Australia.
Further, the applicant’s subclass 500 Student visa was granted for the purpose of undertaking a higher education course being a Master of Information Technology degree. It was not granted for the purpose of undertaking a Diploma of Leadership and Management and a Graduate Diploma of Strategic Leadership. Therefore, if his Student visa is “reinstated” it would not assist him to undertake these courses. Further, if he is unable to pay for an English language test, then it is highly unlikely that he would be able to pay the tuition fees, as an international student, for a Diploma and a Graduate Diploma.
The evidence before the Tribunal indicates that the applicant has not fulfilled the purpose for which his Student visa was granted to him. The Tribunal is not satisfied that he has demonstrated a compelling need to remain in Australia. The Tribunal gives this consideration no weight in his favour.
The extent of compliance with visa conditions
The applicant has not been enrolled in a registered course since 22 August 2017. This is a substantial period of time during which he was in breach of condition 8202(2)(a) of his Student visa. His evidence is that he was aware that he would breach condition 8202(2)(a) of his Student visa if he was not enrolled in a registered course of study. He has not accepted any responsibility for his failure to do so.
The applicant gave evidence to the Tribunal that he did not inform the University of NSW of his residential address after he came to Australia. He stated that Junaid did not let him do that.
The records of the Department indicate that the applicant was granted a subclass 500 Student visa on 7 April 2017. That visa was subject to seven conditions including condition 8533. Condition 8533 provides that, in the case of a visa holder who was outside Australia when the visa was granted, the visa holder must notify his or her education provider of his or her residential address in Australia within 7 days of his or her arrival in Australia.
The letter from the Department to the applicant, informing him of the grant of the Student visa, would have set out the conditions attached to the Student visa. His evidence is that Junaid gave him this letter when he was in Pakistan. He should therefore have been aware of the conditions attached to his Student visa.
The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that it may find that he had also breached condition 8533 of his Student visa and that his Student visa should be cancelled.
The applicant responded that the “guy” stopped him from doing so and he followed his advice. He stated that he told him not to go to the university or say anything to the university. The Tribunal asked him whether he considered telling Junaid that he would be in breach of conditions of his Student visa. He responded that he did. He stated that he did not tell anyone.
Based on the applicant’s evidence, the Tribunal finds that he breached condition 8533 of his Student visa. The Tribunal gives this consideration no weight in his favour.
Degree of hardship that may be caused
The Tribunal asked the applicant what hardship it would cause him if his Student visa is cancelled. He responded that it would be a big problem for him as he has spent a lot of money in Australia. He stated that he has not obtained an education here or obtained a job. He stated that he will not be able to face his family.
The Tribunal accepts that the cancellation of his Student visa would cause the applicant and his family some hardship. The Tribunal gives this consideration some weight in his favour.
Circumstances in which the ground for cancellation arose
The applicant gave evidence that he employed an education agent, Junaid, in Pakistan to obtain a Student visa for Australia. He stated that Junaid initially gave him the letter (from the Department) in relation to the grant of his Student visa. He stated that when he was at the airport in Pakistan, prior to departing for Australia, Junaid gave him a COE for a Master of Information Technology at the University of NSW. He stated that he asked Junaid how he did this and Junaid told him that he could get a COE for a College within one week.
The applicant gave evidence that 2 days after his arrival in Australia, Junaid contacted him and told him that his COE had been cancelled and told him not to go to the University of NSW. When asked what he did after he read the COE, he stated that he never attended an Australia university because he was not eligible to study a Master’s degree. He stated that he was only eligible to study a Bachelor’s degree. When asked what he did, he stated that he telephoned Junaid every second week and asked him what he could do here. He stated that Junaid told him not to think about it, to relax and he would send him a COE. He stated that he waited, and Junaid delayed.
The Tribunal asked the applicant whether he thought Junaid had obtained the COE for a Master of Information Technology at the University of NSW fraudulently and he answered yes. The Tribunal noted that he had plenty of time to obtain another COE as he arrived in Australia in April 2017 and was not issued with the NOITCC until July 2018 which was some 15 months later. He responded that during that time he sent Junaid money for another COE. When asked why he did not find another education agent (in Australia) to help him, he responded that he did not know it was fraud at that time.
The Tribunal asked the applicant whether he had a plan. He responded that he did not have a Letter of Release (from the University of NSW) and no college would enrol him. When asked whether he approached the University of NSW and asked for a Letter of Release, he responded that Junaid advised him not to go to the University of NSW. When asked whether he suspected that there was some fraud, he responded “yes, definitely”. When asked what he did about it, he stated that he did nothing about it and asked what he could have done.
The Tribunal asked the applicant why he trusted Junaid. He responded that he sent him $1,200.00 and he did not give him a COE. He stated that he subsequently told him that he did not have a Letter of Release. He stated that Junaid told him that he could have a chance to do a Bachelor degree in Australia and that is why he did not go to the University of NSW. When the Tribunal pointed out to him that he had responsibilities to the University of NSW and to the Australian government, he responded that Junaid told him not worry about that. He stated that Junaid told him that if he changed the course, he would have no option and advised him not to go to the University of NSW as that would be a big problem.
The Tribunal asked the applicant why he had not responded to the NOITCC. He stated that he did not have an account with the Department and Junaid did not get an account for him. He stated that he did not know when the notification of the cancellation of his visa was sent to him. (He has provided the Tribunal with a copy of the letter dated 30 August 2018 from the Department to him informing him of the cancellation of his Student visa). When asked what residential address he provided the Department, he responded that he provided his address in Bankstown.
The Tribunal asked the applicant when he provided the Department with his address. He responded that after he applied for a review with the Tribunal, he received a telephone call from the Department requesting his residential address and passport. When asked how he knew to appeal to the Tribunal, he responded that Junaid told him to check his visa, he did and his visa had been cancelled 3 days earlier. He stated that the details of the residential address and the email address were not his and were Junaid’s details. It was the applicant’s responsibility to ensure that he kept the Department informed of his address and contact details in Australia.
In written submissions to the Tribunal, the applicant’s migration agent submitted that the applicant was the victim of fraud emanating from Pakistan and that his non-compliance with visa conditions occurred due to exceptional circumstances beyond his control. In support of this submission, he provided the Tribunal with copies of text messages on WhatsApp between the applicant and Junaid and between the applicant and a second education agent named Usman. The first of the text messages between the applicant and Junaid is dated 2 July 2017. This is over 2 months after the applicant arrived in Australia. He asked Junaid “what happened with Danish’s visa?” It is not clear who Danish is.
There are a number of text messages between the applicant and Junaid in July 2017 with Junaid enquiring whether he wanted to change colleges, him enquiring whether “it won’t be deferred?”, him enquiring what to do about the college and him stating on 8 July 2017 that his COE will be cancelled. His evidence to the Tribunal is that he was informed 2 days after his arrival in Australia (on 28 April 2017) that his COE for the Master of Information Technology had been cancelled. He denied any knowledge of a second COE for a Master of Information Technology being cancelled on 22 August 2017 (see paragraph 11 above).
The fact that the text messages did not start until July 2017, the applicant’s text messages in July 2017 referring to a deferment and subsequently to the cancellation of his COE tends to indicate that he was aware of the second COE. In view of this evidence and his evidence that he was aware that he was not eligible to study a Master’s degree in Australia and that he thought the first COE was obtained fraudulently, the Tribunal has serious doubts that the applicant was an innocent victim of immigration fraud committed by Junaid as submitted by his migration agent.

The text messages between the applicant and Junaid indicate that Junaid travelled to Dubai and Pakistan and that they sometimes had difficulty contacting each other. A text message from the applicant on 31 July 2017 tends to indicate that he had financial problems and there was an issue with paying the fee. He also refers to not being able to work on ELICOS.[1] The only text message in August 2017 is dated 29 August 2017 and is from the applicant asking Junaid how he was. On 26 September 2017, there is a text message from Junaid indicating that he would send him an offer letter and asking him whether he had done the IELTS test There are a number of other text messages between them on 26 September 2017 in relation to him doing an IELTS test in order to get an “offer letter” for a Diploma and an Advanced Diploma.
[1] English Language Intensive Courses for Overseas Students.
There are then no text messages until March 2018 when the applicant states that he wants Junaid to do something for him. There is then an exchange of text messages in March 2018 which tends to indicate that Junaid was obtaining a visa for his father and he was paying his fees for doing that. On 26 March 2018, he sent text messages to Junaid about the “offer”, to obtain a COE without delay and enquiring how long it would take. On 31 March 2018, 3 April 2018, 10 April 2018, 17 April 2018, 22 April 2018 and 23 April 2018 there are text messages from the applicant inquiring about the COE. He also enquired about the visa (presumably for his father).
The text messages tend to indicate that there was a deterioration in the relationship between the applicant and Junaid in April and May 2018 with Junaid delaying in responding or not responding to the applicant’s text messages. The text messages indicate that Junaid referred him to someone named Usman to assist him with obtaining a COE. The text messages thereafter indicate that he had difficulties contacting Usman or Usman asking him for information he did not have. On 25 April 2018, he texted Junaid about going to another education agent named Arif who had obtained a COE for someone in 2 days. However, he continued texting Junaid and complaining that Usman was not responding to his messages.
The text messages indicate that on 6 May 2018 the applicant asked Junaid for his cancelled COE. The text messages that followed tend to indicate that he did not receive the cancelled COE. On 10 June 2018, the applicant asked Junaid whether he had received any mail about his visa. The next text is not until 4 September 2018 and the applicant stated that he had confirmed information that the visa was cancelled.
The Tribunal has also been provided with translated text messages between the applicant and the education agent Usman from 26 April 2018 to 11 May 2018. They indicate that he was seeking Usman’s help to obtain a COE.
Having considered the text messages, the Tribunal accepts that the applicant sought assistance from Junaid and Usman to obtain another COE. However, the responsibility to ensure that he was enrolled in a registered course of study and complied with condition 8202 remains with the applicant. The Tribunal does not accept that the applicant’s non-compliance with condition 8202 occurred due to exceptional circumstances beyond his control. The Tribunal also has serious doubts that he was an innocent victim of immigration fraud committed by Junaid.
The Tribunal does not accept the applicant’s evidence that he was unaware that Junaid was involved in fraudulent activities as it contradicts his own evidence. His evidence is that he was aware that he was not eligible to study a Master’s degree in Australia, he thought the COE for the Master of Information Technology at the University of NSW was obtained fraudulently and Junaid was definitely involved in fraudulent activities. The COE was given to him before he departed Pakistan. He would therefore have known or at the very least suspected, prior to leaving Pakistan, that the COE was obtained fraudulently, and that Junaid was involved in fraudulent activities.
The applicant gave evidence that Junaid gave him the COE at the airport in Pakistan and told him to produce it to Australian immigration (at the airport when he arrived in Australia) if necessary. He should have known that, by entering Australia on the pretext of studying a Master of Information Technology degree when he was not eligible to do so and relying on a fraudulently obtained COE, he was complicit in the immigration fraud committed by Junaid. He had the choice, at that time, either not to depart Pakistan or to enter Australia under these circumstances. He chose to enter Australia under these circumstances. This was not an exceptional circumstance beyond his control.
The applicant’s conduct after he arrived in Australia also raises concerns that he was not an innocent victim of fraud as submitted by his migration agent. His evidence is that 2 days after his arrival in Australia he was told by Junaid that his COE had been cancelled and he was advised not to go to the University of NSW as he would get into big trouble. The Tribunal would expect that, if he was an innocent victim of fraud, he would have asked Junaid why his COE was cancelled and why he would get into big trouble if he went to the University of NSW. The Tribunal would expect him to have lost confidence and trust in Junaid and to have instructed a new education agent in Australia to resolve this issue for him.
The Tribunal would also expect the applicant to have obtained immigration advise from a migration agent in relation to the impact of this on his Student visa. His evidence is that his brother lives in the United Kingdom, is a permanent resident there and he is able to borrow money from his brother. In these circumstances, he could have borrowed money from his brother if he was unable to pay for the costs of consulting an education agent and migration agent in Australia. He has demonstrated that he is a resourceful person in his ability to obtain accommodation in Australia and various jobs in Australia and should have been able to find and instruct an education agent and a migration agent.
Instead of seeking assistance from an education agent in Australia and advice from a migration agent to ensure that he complied with his visa conditions, he chose not to tell anyone about it and continued relying on Junaid. He stated that Junaid assured him that his Student visa would not be cancelled. His evidence is that he did not seek immigration advice from a migration agent until after he filed his application for review with the Tribunal. He also gave evidence that he has never approached the Department to seek their assistance to resolve his issues. When the Tribunal asked him about not fulfilling his responsibilities to his education provider and to the Department, he responded that Junaid told him not to worry about it. He chose to follow Junaid’s advice. These are choices made by him. They are not exceptional circumstance beyond his control.
The Tribunal is not sure about whether the applicant’s choices reflect poor judgment on his part or whether he feared involving other people in his problem because it could disclose his involvement in immigration fraud. The applicant gave evidence that Junaid told him at the airport in Pakistan that he was able to get him another COE within a week and informed him 2 days after his arrival in Australia that his COE for the Master of Information Technology at the University of NSW had been cancelled. Therefore, he would have expected to receive another COE in April or May 2017. This did not happen. The text messages in relation to obtaining another COE did not commence until July 2017. He claims that he was telephoning Junaid every 2 weeks.
When the Tribunal asked the applicant why he trusted Junaid, he responded that he paid him $1,200.00 (to obtain another COE). The receipt he provided the Tribunal in relation to the $1,200.00 is dated 26 March 2018. This is approximately 11 months after his arrival in Australia. If Junaid had not obtained another COE for him in the preceding 11 months, having told him that he could obtain another COE within 2 weeks, it is difficult to understand why he believed in March 2018 that Junaid would obtain a COE for him and pay him $1,200.00 to do so.
This is particularly concerning in light of the text messages between the applicant and Junaid on 26 September 2017. This includes Junaid asking him whether he had done the IELTS test, telling him to sit the IELTS test and telling him that once he passed the IELTS test he would be issued with an “offer letter” for a Diploma and an Advanced Diploma. This tends to indicate that Junaid had previously advised him to do an IELTS test and was checking whether he had done so. This also tends to indicate that he was unable to get a Letter of Offer (leading to a COE) for a Diploma and an Advanced Diploma until such time as he sat an IELTS test (and obtained the requisite scores).
Text messages from the applicant to Junaid on 31 July 2017 refer to him having an issue with the fee, having lots of expenses and “I cannot work in ELICOS”. [2] This tends to indicate that they were discussing the applicant undertaking an English language course since at least July 2017. It also tends to indicate that the applicant’s priority was to work rather than to study. The Tribunal has not been provided with any evidence that he has undertaken an ELICOS course, an IELTS test or a PTE test in Australia.
[2] Ibid.
The applicant gave evidence that no college in Australia would enrol him in a course without a Letter of Release from the University of NSW. His evidence is that he did not contact the University of NSW to obtain a Letter of Release because Junaid told him not to contact the University of NSW and he followed that advice. This raises concerns about how Junaid would have been able to obtain a legitimate COE for him in these circumstances. Any COE obtained by Junaid, in these circumstances, would most likely have also been obtained fraudulently.
The applicant’s migration agent made oral submissions that the universities in Australia do not require education agents to be registered. He stated that education agents involved in immigration fraud provide fraudulent documents to the universities and the universities do not check the authenticity of the documents. He stated that (after the COE is issued and the Student visa granted) the students leave their country and enter Australia. He stated that the education agents then contact the university and inform them that the student is not coming to Australia and seek a refund of the fees (paid to obtain the COE). He stated that after the students arrive in Australia the education agents tell them not to attend university as they have got their fees back.
The Tribunal asked the applicant’s migration agent whether the students are involved in this fraud and he responded that they are. He stated that the students also take the risk. He stated that the applicant had been in contact with people who are not genuine, and they put him on a path to do a Diploma or an English course. He stated that he has come across students involved in this type of situation from the University of NSW, University of Melbourne and the University of Queensland. He stated that he asked his contacts in Islamabad to check and these people are “powerful and strong”. He stated that the applicant has a photograph of Junaid with Ministers in Pakistan.
The Tribunal asked the applicant’s migration agent whether he had reported this fraudulent activity. He responded that he did not know the avenue for reporting this. He stated that he is one person. He stated that if the universities are issuing COEs to non-registered education agents they are taking the risk. He stated that the students are happy to spend the money and get the opportunity to be in Australia. He stated that another student spent $27,000.00. He stated that, if a university issues a COE, there is a 99% chance that the Department will issue a Student visa. He stated that if the education agent gives them a “legal excuse” the university will refund the fees.
The applicant’s migration agent submitted that the education agents advise the students to make an application for review to the Tribunal (if their Student visa is cancelled) and, if unsuccessful before the Tribunal, to appeal to the Courts. He stated that they are advised to make an application for a Protection visa after the Court process in exhausted. He stated that they are told how to “gain time in Australia” until they are “pushed out”. He stated that these education agents win the hearts and confidence of these students.
The applicant’s migration agent submitted that, because Junaid obtained a Student visa for him, the applicant trusted him to arrange another COE for him. He submitted that he is 28 years old. He submitted that if he undertakes a 6 months ELICOS [3] course he will be able to study. He submitted that if he is able to do some studies, he will be able to leave Australia with something.
[3] Ibid.
Having considered all the evidence and the submissions, the Tribunal is not satisfied that the circumstances in which the ground for cancellation arose were due to exceptional circumstances beyond the applicant’s control. Even if the Tribunal gives him the benefit of the doubt and accepts that he was naïve, gullible, misplaced his trust in Junaid and was easily influenced by him, this does not relieve him of his responsibility to comply with the conditions of his Student visa and, in particular, condition 8202.
The Tribunal gives this consideration no weight in the applicant’s favour.
Past and present behaviour of the visa holder towards the Department
There is no evidence before the Tribunal to indicate that the applicant has not co-operated with the Department or that he has engaged in unfavourable behaviour towards the Department. The Tribunal gives this consideration some weight in his favour.
Whether there would be consequential cancellations under s.140 of the Act
There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in a consequential cancellation of another person’s visa under s.140 of the Act. The Tribunal does not give this consideration any weight in his favour.
Legal consequences of a decision to cancel the visa
If the applicant’s Student visa is cancelled, he will become an unlawful non-citizen and may be liable to detention under s.189 of the Act and removal under s.198 of the Act if he does not voluntarily depart Australia or resolve his immigration status. However, he may be eligible for a Bridging visa that would allow his lawful presence in Australia for a short period of time so that he can finalize his affairs in Australia before departing.
If the applicant’s Student visa is cancelled, he will be subject to s.48 of the Act which means he will have limited options when applying for further visas while in Australia and Public Interest Criterion 4012 which may prevent him from being granted particular temporary visas for a period of three years from the date of cancellation.
These are the intended legal consequences in the legislation when a visa is cancelled under these grounds and it reflects the seriousness of a breach of a visa condition and consequent cancellation of a visa. The Tribunal gives this consideration little weight in his favour.
Australia’s international obligations
The Tribunal asked the applicant whether there was any reason why he could not return to Pakistan. He responded that he is afraid of Junaid as he is powerful in Pakistan. He stated that Junaid told him not to do anything and he told him he gave all the information to the Department. He stated that there is a guy in Perth to whom the same thing happened. He stated that that guy paid $27,000.00 for a visa. When asked what he gave to the Department, he responded that he could give it to the Tribunal. When asked if he gave any information (about Junaid) to the Department, he responded no.
The Tribunal asked the applicant why he told Junaid he gave information about him to the Department if he did not do so. He responded that he thought if he had a problem Junaid should too. He stated that Junaid called him back and he blocked him. When asked if he had reported Junaid (to the Pakistani authorities), he responded no. He stated that his father was not in Pakistan and his younger brother is very young and he did not want a problem for his family. He stated that his father travelled to the United Kingdom.
The Tribunal asked the applicant whether he felt any responsibility to stop Junaid. He responded that he is “big mafia” and even if he reports him to the Police in Pakistan, they will not do anything.
The Tribunal finds the applicant’s evidence to be contradictory and unconvincing and does not accept it. His evidence that he thought if he had a problem Junaid should too is not consistent with his evidence that he did not report Junaid to the Department or to the Pakistani authorities. Therefore, Junaid did not have a problem in Australia or Pakistan and was able to continue doing what he did undeterred. Further, his evidence that he did not want a problem for his family in Pakistan is not consistent with his evidence that he told Junaid that he gave information about him to the Department. If Junaid is as powerful and “big mafia” as he claims, just telling him that he had provided information about him to the Department would have put his family in Pakistan at risk of harm. Therefore, it is highly unlikely that he would have said that to Junaid.
Further, despite his claim that he is afraid to return to Pakistan because he fears harm from Junaid, the applicant has not sought protection in Australia even though he is represented by a migration agent and has access to immigration advice. It has been 1 year and 10 months since his Student visa was cancelled. The Tribunal does not accept that the applicant told Junaid that he gave information (about him) to the Department.
In written submissions to the Tribunal, the applicant’s migration agent submitted that the applicant wants to get an Australian education before returning to Pakistan. He submitted that he is ready to disclose “all information” in relation to people involved in migration fraud who are “powerful and well established in Pakistan”. He submitted that he has a fear of being tortured, inhuman or degrading treatment or punishment in Pakistan by “the same nexus/mafia”. He requested that the Tribunal consider the applicant’s compelling circumstances and allow him to stay in Australia to complete his proposed plan of study before departing Australia.
The Tribunal assumes that these submissions were based on instructions from the applicant. The submissions make no reference to the applicant telling Junaid that he had provided information about him to the Department. The fact that the applicant is “ready to disclose” information does not mean that he will, particularly as it may implicate him in the fraudulent activities, or that Junaid may think that he will. Further, the submission that the applicant fears being subject to torture, inhuman or degrading treatment or punishment in Pakistan is not consistent with the submission that he wishes to get an Australian education and return to Pakistan. The Tribunal is not persuaded by these submissions.
Having considered the evidence and in view of the above findings, the Tribunal is not satisfied that the cancellation of the applicant’s Student visa would result in the breach of Australia’s international obligations. The Tribunal does not give this consideration any weight in his favour.
Any other relevant matter
In written submissions to the Tribunal, the applicant’s migration agent submitted that the applicant’s “current psychological health has caused extremely severe range for depression, anxiety and stress. It is requested for special consideration to give him an opportunity to complete some education before going back to Pakistan”.

The Tribunal asked the applicant a number of questions and gave him several opportunities to provide oral evidence to the Tribunal. He made no mention of suffering from depression, anxiety and stress. The Tribunal also gave him further time after the hearing to provide addition evidence. The Tribunal was not provided with any evidence from a Psychologist or Psychiatrist to support these submissions made by his migration agent.
The Tribunal accepts that the applicant may have felt anxious and stressed about the cancellation of his Student visa, the proceedings before the Tribunal and having to explain his situation to his family.
The Tribunal does not give this consideration any weight in his favour.
CONCLUSION
Having considered all the evidence cumulatively, the Tribunal is of the view that the grounds for cancelling the applicant’s Student visa outweigh the grounds for not cancelling his Student visa. Therefore, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
L. Symons
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.

[2020] AATA 3421

30 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Appeal