I Gede Darmawan (Migration)

[2020] AATA 167

I Gede Darmawan (Migration) [2020] AATA 167 (23 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr I Gede Darmawan

CASE NUMBER:  1803928

HOME AFFAIRS REFERENCE(S):           BCC2017/3805918

MEMBER:Wendy Banfield

DATE:23 January 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 23 January 2020 at 12:30pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector visa – applicant was not a genuine student – unsatisfactory progress in his studies– applicant failed to maintain enrolment in a full time registered course – breached condition 8202 – lost a large sum of money through online activity –no evidence provided– worked excessive hours in breach of the terms of Student visa– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116
Migration Regulations 1994 (Cth), r 2.43, Schedule 8

CASES
MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 February 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116 s.116(1)(fa)(i) because the applicant had not demonstrated satisfactory progress in his studies as would be expected of a genuine student. He had also changed education providers often and failed to maintain enrolment at times while holding a Student visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. Background

   The applicant is a citizen of Indonesia and is currently 31 years old. He came to Australia on 21 May 2015 as the holder of a Subclass 572 Student visa. Since then the applicant was granted a further Student visa on 9 May 2016 that was valid until 7 June 2019.

4. The applicant appeared before the Tribunal on 29 October 2019 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent. The representative did not attend the hearing.

6. Prior to the hearing the applicant submitted the evidence of having completed a Diploma of Accounting on 1 August 2019 including a certificate and academic transcript. The Tribunal has also taken into account evidence submitted to the Department including a Confirmation of Enrolment certificate for a Diploma of Accounting, evidence of payments made to his education provider, and a written response to the Department’s Notice of Intention to Consider Cancellation (NOICC).

   Evidence of the visa applicant

7. The applicant advised the Tribunal that he had not received any notification from his education provider that his enrolment would be cancelled. He began to provide reasons why he did not attend college but the Tribunal asked the applicant to first explain what he had been enrolled in and what course had been cancelled. The applicant said he has since completed a Diploma of Accounting but it was a Certificate IV course that had been cancelled. According to the applicant he was sent money by his parents but he used it to carry out foreign exchange online and lost all the money for his studies. He said he then had to work hard to get the money back for his studies.

8. The applicant said previously he had always paid his fees but he then had a responsibility to pay fees himself. As to when this occurred, the applicant said it happened in March 2016. He claimed to have lost $25,000 in one month because he had zero knowledge of foreign exchange. The applicant said he was sent two amounts of $10,000 and one of $5,000. He said he had thought it would be a way to make money but it ruined his life and he stopped. The applicant said he had not told his parents as they would be mad.

9. The applicant said he did not attend college for this reason but he had paid the course fees. He claimed his enrolment was cancelled without the college making inquiries about his non-attendance and it should be investigated. The applicant said he paid $6,000 in fees but only attended for one or two weeks. After that he took more work to pay his rent and his fees and worked 10 or 12 hours a day, seven days a week at a cleaning job. The applicant said he understood his visa conditions did not allow him to work that amount of hours. The applicant advised he still wants to complete an Advanced Diploma prior to returning to his home country and his current course will be completed in May 2020. He reiterated his education provider did not contact him or his agent prior to cancelling his enrolment.

10. The applicant advised he was not aware his enrolment had been cancelled until he received notice that his visa would be cancelled. He did concede that he did not attend the college but said he should at least have been notified so he could give reasons. According to the applicant, his agent told him a staff member at the college had cancelled the enrolments of 25 students.

11. The Tribunal advised the applicant it was accepted his intention when he first came to Australia was to study. He was asked whether he had a compelling reason why he needed to remain in Australia and he said he wanted to start his own business in Indonesia after studying accounting and needs an Advanced Certificate to do that in Bali. He plans to open a juice bar there based on his experience in Australia. The applicant said he decided to study in Australia as the standard is higher than in his home town in Indonesia.

12. Regarding any hardship that may result from his visa being cancelled, the applicant acknowledged his mistakes that led to the Department cancelling his visa. He said the Department’s finding that he was not a genuine student broke him and he just wants to get his visa back and finish his studies.

13. The applicant advised no one else has a visa that is dependent upon his visa and he does not have children. However, he has married a fellow Indonesian student who has her own Student visa. The applicant confirmed he understood the legal consequences, including that his Bridging Visa E would likely be cancelled, he would be required to leave Australia, and may be prevented from applying for another visa for three years. The applicant requested that he be allowed to complete an Advanced Diploma before returning to Indonesia which would take eight more months.

14. The Tribunal asked the applicant how long his wife’s visa is and he said it is valid until 2022. He said if he is required to depart after completing his studies his wife has said she will go with him. The applicant confirmed he did not have any civil or political issues that would prevent his return to Bali. The applicant asked whether he will be able to continue his studies on a Bridging visa if the Tribunal decides to cancel his visa. He was informed about the process the Tribunal is engaging in and that if his visa remains cancelled, he will likely be required to depart. The applicant concluded by reiterating that if his visa is cancelled all his hard work will be lost.

15. 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

16. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116((1)(fa)(i). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

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

18. 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 at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

19. 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 decision-maker may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision.

20. The Tribunal has considered the claims and submissions made by the applicant as well as prescribed matters under the Act where applicable, findings and reasons relating to the conduct of the applicant and whether the applicant is or is likely to be a genuine student or whether such conduct is contemplated by the visa held. The applicant’s education history in Australia is that he was first granted a Student visa on 8 May 2013 with a study plan that included General English, a Certificate IV and Advanced Diploma of Marketing. As a Student in Australia the applicant was enrolled in Marketing, Travel and Tourism; Business Administration and Accounting with different providers. Prior to the Student visa being cancelled the applicant had completed Certificates IV in Marketing and Business Administration. After cancellation the applicant finished a Diploma of Accounting. 

21. The applicant gave evidence that he had enrolled in an Accounting course with education provider Infotech Professionals Pty Ltd and had paid the fees to begin as planned. However, the applicant claims that in March 2016 he lost a large sum of money through online currency trading that had been provided by his family for his education. As a result he had to discontinue studying and work full-time to recover the funds he had lost. The applicant did not dispute that he failed to attend college but declared his enrolment was cancelled without warning or an opportunity to provide reasons to his education provider.  

22. The Tribunal considers that given the applicant’s behaviour in the time he has held a Student visa since 2013, there are grounds to cancel his visa. The applicant has not complied with the conditions of his Student visa by failing to attend courses, not making academic progress as would be expected and by working full-time instead of studying in breach of visa conditions. No evidence was provided to support the applicant’s claims of having lost a large sum of money through online activity, and no evidence was submitted about his employment at the relevant time.

23. 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 visa should be cancelled.

    Consideration of discretion

24. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    ·     the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

25. The applicant came to Australia in 2013 to study course in English and Marketing and commenced his studies on arrival. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

26. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. In response the applicant said was planning to start his own business, a juice bar, in Indonesia after completing accounting studies in Australia. According to the applicant he needs an Advanced Certificate to do that in Bali. The applicant said he had worked in a juice bar in Australia for a time and had enjoyed it. He submitted the education standard in Australia was better than in Bali.

27. The Tribunal accepts the applicant may wish to remain in Australia to continue his studies but is not satisfied he needs to complete an Advanced Diploma of Accounting in order to achieve his plans in Bali. He has already completed studies in Business Administration and Accounting and according to his evidence, has some work experience in the type of business he wants to operate. As such, he has not demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

28. The applicant gave evidence that he did not comply with other visa conditions, specifically the work limitation attached to his Student visa. Failure to maintain enrolment or engage in a course of study; and working more than is permitted while holding a Student visa are fundamental breaches that weigh against the applicant in this case.

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

29. The Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. The applicant acknowledged his mistakes that led to his visa being cancelled. He expressed being upset emotionally as a result of the Department’s findings that he was not a genuine student and indicated he wants to return to his studies. He also submitted that he paid approximately $6,000 in fees to his educations provider prior to his enrolment being cancelled. The Tribunal accepts there will be a degree of hardship caused because of the applicant’s visa being cancelled and affords some weight in his favour in considering this criterion.

30. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why the visa should not be cancelled.

    ·     circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

31. The applicant’s visa was cancelled because he remained in Australia as the holder of a Student visa but did not behave in a manner expected of a genuine student. The applicant gave reasons regarding the setbacks that occurred in his education; he advised the Tribunal that he had lost a significant amount of money that had been provided to him by his parents for his education. He claimed to have done this by engaging in online currency exchange transactions without having the requisite knowledge. According to the applicant he had paid his education provider at the time and had planned to attend the course but due to having lost a large amount of money, he had to take additional work and ultimately was working full-time, seven days a week. The applicant said he had to do this because his employment was relatively low paid. The Tribunal notes the applicant did not provide this explanation to the Department in response to the NOICC letter sent to him prior to cancellation.

32. The applicant explained that this issue was the reason he did not attend his Accounting course as planned. The applicant gave evidence to the Department and to the Tribunal that his education provider Infotech Pty Ltd failed to comply with its obligations to inform him of their intention cancel his enrolment and give him an opportunity to respond or provide an explanation. The Tribunal accepts this may have been this case and gives some weight in the applicant’s favour in this regard; however, there is no evidence the applicant took any action to inform the college when he made the decision to work instead of study as he was required to do. In addition, there is no evidence the applicant sought a deferral of his studies until he was in a position to resume. Instead he made the decision to work excessive hours in breach of the terms of Student visa.

33. The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, the applicant’s failure to study, make acceptable academic progress and work full-time in breach of visa conditions. Therefore, the Tribunal places limited weight on the circumstances in which the ground for cancellation occurred.

    ·     past and present behaviour of the visa holder towards the department

34. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.

    ·     whether there would be consequential cancellations under s.140

35. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act. The applicant advised he is married to a fellow international student but she holds her own Student visa in Australia.

    ·     whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

36. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not be cancelled.

    ·     whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

37. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

38. The Subclass 572 Student Visa is not a permanent visa.

    ·     any other relevant matters

39. There are no other relevant matters to be considered in the applicant’s case.

    Conclusion

40. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh against the applicant. The Tribunal considers the length of time the applicant has spent without behaving or progressing as would be expected of a genuine student to be significant. The Tribunal is not satisfied the issues encountered by the applicant are sufficient reason for the visa not to be cancelled.

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

   DECISION

2. The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

   Wendy Banfield
   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.