LULBADDA WADUGE DON (Migration)

[2019] AATA 2639

LULBADDA WADUGE DON (Migration) [2019] AATA 2639 (29 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr CHATURA BASHKARA LULBADDA WADUGE DON

CASE NUMBER:  1829169

HOME AFFAIRS REFERENCE(S):           BCC2018/1078151

MEMBER:Adrienne Millbank

DATE:29 April 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 29 April 2019 at 9:21am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Bachelor of Engineering – Hospitality Management – not enrolled in registered course for three months – prolonged and continuing poor performance and attendance – not genuine student – three dob-ins – allegations of illegal work – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 119, 359, 376
Migration Regulations 1994 (Cth), r 2.43, Public Interest Criterion 4013

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 October 2018 made by a Delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a 25 year old Sri Lankan national who first arrived in Australia on the Subclass 573 visa on 28 June 2015. His Provider Registration and International Student Management System (PRISMS) records indicate that he was enrolled from 29 June 2015 in a Diploma of Engineering supposedly leading to a a Bachelor of Engineering (Honours) in Electrical and Electronic Engineering Degree at Griffith University. His PRISMS records show that this enrolment was cancelled for the reason of unsatisfactory course progress on 15 March 2018. His PRISMS records show that from 3 April 2018 he was enrolled in a Diploma of Hospitality Management at New England Institute of Technology Pty Ltd, and that this enrolment was cancelled on 4 October 2018, following his visa cancellation.

3. The Delegate cancelled the visa under s.116(1)(fa)(i), on the grounds that the applicant was not a genuine student. The Department found, based on the applicant’s PRISMS records, that he had remained in Australia for extended periods of time without studying at the level appropriate to the higher education visa he held; without studying at all for longer than the allowable study gap (with no enrolment in a registered course of study for three months from 20 April 2017 to 27 July 2017); and without maintaining satisfactory attendance and progress.

4. The applicant was reported to the Department by his course provider on 15 March 2018 for unsatisfactory course progress in the Diploma of Engineering course. The course provider reported that the applicant’s grade average at below 3.5 was an unacceptably poor level of performance; that he had been subjected to penalties for plagiarism; and that his average attendance rate, at 62 per cent, was below the required 80 per cent.

5. The Department provided the applicant with a Notice of Intention to Consider Cancellation (NOICC) on 3 August 2018. The applicant responded on 9 August 2018, when he requested an extension of time, and on 16 August 2018. The applicant claimed in his response to the NOICC that he was treated unfairly by the university; that some of his recorded absences and a plagiarism finding were due to misunderstandings.

6. The Delegate in the decision record noted that the applicant had not maintained the study plan he outlined when he applied for the visa, and concluded that the applicant’s primary purpose for residing in Australia was not to undertake study.

7. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

8. The applicant appeared before the Tribunal on 12 April 2019 to give evidence and present arguments.

9. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing.

10. At the hearing the Tribunal handed the applicant a copy of a s.376 certificate, which the Tribunal advised it had found to be valid insofar as disclosure of the material it covered would be contrary to the public interest: the material could have disclosed, or enabled a person to ascertain the existence or identity of, a confidential source of information. The Tribunal invited the applicant to comment on the validity of the certificate, and advised him he could seek an adjournment and consult with his representative before responding. The applicant indicated that he was confused by the invitation to comment on the validity of the certificate. He advised that he understood why he couldn’t see the document it covered. The applicant did not seek an adjournment and made no comment on the validity of the certificate.

11. The Tribunal advised the applicant, following the procedures of s.359AA of the Act, that information in the material covered by the s.376 certificate would lead or could contribute, subject to his comments in response, to the decision under review being affirmed. The Tribunal advised that this information comprised a dob-in, in February 2019, the gist of which was that the applicant was engaged in illegal work while on a Bridging visa E, and that he was involved in the organisation of finances to lodge a visa claim based on fraudulent documents. The Tribunal advised the applicant that it had further information, in the Departmental ICSE records and other material on the Department file, that would lead or could contribute to the decision under review being affirmed, and that information was that he had been dobbed in for illegal work previously, in August 2017 and November 2018. The Tribunal advised the applicant that one of these dob-ins was in the form of an email in which the informant stated that the applicant was involved in running a cleaning business on the Gold Coast that underpaid workers; that he worked illegally for longer hours than allowed on his Student visa; and that he thought Australians were ‘stupid’.

12. The Tribunal also advised the applicant that it had a copy of his PRISMS records; his attendance and academic records from Griffith College; correspondence from the College to him that was provided to the Department; and correspondence from the College to the Department. The Tribunal advised the applicant that this information also could lead or contribute to the decision under review being affirmed. The Tribunal advised that information in these documents as well as the above information was relevant because it comprised or added to evidence that he was not a genuine student. The Tribunal advised the applicant that he could seek an adjournment and consult with his representative before responding to any of the information or questions based on the information.

13. The applicant advised that much of the information was addressed in his response to the NOICC, a copy of which he had provided to the Tribunal. The applicant sought and was granted a brief adjournment during the hearing, following which he denied the allegations in the dob-in information that he has worked illegally in Australia while on Student and Bridging visas.  

14. 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

15. 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), which states, at s.116(1)(fa)(i) that the Minister may cancel a student visa if its holder is not, or is likely not to be, a genuine student. 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?

16. 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.

17. 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. The Tribunal has considered the prescribed matters and concluded that they are not relevant in this case. There is no information before the Tribunal that the applicant’s participation in courses of study was deferred or temporarily suspended by the course provider.

18. The applicant in his response to his NOICC acknowledged that he struggled to pass ‘two or three’ subjects. He claimed this was for reasons to do with group assignments, whereby other group members made him do all the work himself, and the unsympathetic and unhelpful attitude of his lecturer. He claimed that from his second semester ‘all these unfair and unlucky things started on me’. He claimed his poor academic performance was in part due to his course providers not acknowledging his medical certificates and not allowing deferred assessments. He claimed his poor attendance record was in part due to errors made by the university (for example recording an absence on a public holiday), his course providers not accepting his explanations (for example having lectures on two subjects in one day), and course providers and administrators refusing to correct the records.

19. The applicant claimed his first of two plagiarism charges was also the result of unfair treatment or misunderstanding, whereby he believed he had obtained permission from his lecturer to submit the same work twice. He attached an email from his lecturer dated 20 March 2016 which he claimed constituted permission. The lecturer advised the applicant:

    ‘When you send an email to a tutor it is important to be concise. Remember that we have many students across various classes, so say concisely which course and class you are in. Are you repeating this class for the first time or have you failed it more than once?

    Yes, you can submit the same items again. However, I would STRONGLY suggest that, given you failed last time, you improve these based on the feedback you received from the previous tutor.

    I also need to verify your attendance …’

20. The applicant’s enrolment was cancelled on 10 November 2016 as he failed to enrol in Semester 3, 2016. At hearing the applicant confirmed that he did not obtain another Confirmation of Enrolment from Griffith University until 13 March 2016. He acknowledged further that he was not enrolled during the period 20 April 2017 to 27 July 2017. He confirmed that he did not return to Sir Lanka during these periods. He explained that there were delays in his receiving his results, and in his payment of tuition fees.

21. The applicant provided to the Tribunal copies of pages of course material, showing he had attended classes at Griffith University where this was handed out. The Tribunal put to the applicant that while it accepted that on a number of occasions mistakes and misunderstandings might have occurred, his attendance records showed, from his second semester, consistently unsatisfactory attendance, including 37 per cent in Semester 3, 2015; 54 per cent in Semester 1, 2016; and 58 per cent in Semester 2 2016. The Tribunal put to the Tribunal that a copy of his academic record as at 6 June 2018 showed that he failed 9 out of the 16 units he undertook.  The Tribunal put to the applicant that the University sent him many letters cautioning him about his consistently unsatisfactory grades (below 3.5), and attendance (below the required 80 per cent for all but his first semester).

22. The Tribunal put to the applicant that he had not availed himself of the university’s counselling, support or appeal mechanisms, despite repeated invitations to do so. The Tribunal cited letters sent on 4 May 2017; 8 May 2017; 18 July 2017; 7 August 2017; 5 September 2017; and on 20 November 2017 when he was advised he was on probation for the reason of his poor grades and unsatisfactory attendance. The applicant responded that he did seek to discuss matters with college personnel, but was advised that it was too late.

23. The applicant acknowledged that his attendance for all but one semester of his studies at Griffith University was below the required rate. He acknowledged that the second plagiarism charge, for which he was penalised, had substance. He acknowledged that his academic performance was, from his second semester, below the required level.

24. Regarding the dob-ins, the applicant responded, after an adjournment with his representative, that the first came about because he refused to become involved in a visa scam. He stated that a friend in Brisbane told him he could get a sponsored visa for $50,000 with fraudulent documents provided, and that he must have been dobbed in for the reason that he refused to become involved. He advised that at the time of this dob-in, he was working in a supervisory position in a hotel in Tenterfield, but claimed he did not work more than the 20 hours a week allowed on his Bridging visa. The Tribunal asked the applicant why he was targeted for the scam, considering he had described to the Tribunal his intention to return to Sri Lanka and work in the hotel industry, and so would not have been interested in a sponsored work visa. The applicant did not provide an explanation as to why he was targeted.

25. Regarding the dob-ins in August 2017 and November 2018, the applicant stated that he was working in a supervisory capacity in a cleaning contract business at the Gold Coast, and that the dob-ins must have come from disgruntled employees whose work he had found substandard. He claimed that he never worked more than the 20 hours a week allowed on his Student visa. The Tribunal put to the applicant that while it might accept his explanation regarding one anonymous informer, it was more difficult to dismiss three dob-ins, one of which was not anonymous, two of which came from people evidently familiar with his circumstances, and all of which made the same claim regarding his illegal work in contravention of his visa conditions. The applicant in response repeated his explanations.

26. The Tribunal asked the applicant why, if he was not working full-time ‘day and night’ as asserted in one of the dob-ins, he did not attend more of his classes, spend more time on his studies, and/or seek help when or before he failed his units. The Tribunal pointed out that, as shown in his academic and attendance records, the applicant failed 9 out of the 16 units he undertook at Griffith University; that he had an attendance rate in the order of 37 per cent and 50 per cent for several semesters, well below the required 80 per cent. The applicant provided no explanation for his poor attendance and grades further than that he did not get on with his lecturers. He stated that he was thinking about transferring to another institution and studying something in the area of hotel management when his enrolment was cancelled.

27. The Tribunal accepts that the applicant attended classes and made satisfactory progress in his Diploma of Hospitality Management course before his enrolment was cancelled. The Tribunal notes however that he enrolled in this course only after being advised that his enrolment at Griffith University was being cancelled on the grounds of unsatisfactory course progress, and that he had 28 days in which to obtain enrolment with another provider or leave the country.

28. The Tribunal was not convinced by the applicant’s explanations regarding his poor attendance and academic performance, or the dob-in information. The Tribunal notes that tin nearly four years in Australia the applicant has achieved little progress in his studies and obtained no qualification. The evidence does not support and the Tribunal does not find that he has been a genuine temporary entrant for the purpose of study. The Tribunal considers that the applicant has used his Student visa to reside and work in Australia, and that he is not a genuine student.

29. 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

30. 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’.

31. At hearing the applicant advised that his intention at the time of application was to complete a Bachelor of Engineering degree, and then move on to the United Kingdom (UK) or Canada to do a Masters Degree in Engineering. He advised that his intention at the time of decision is to complete his Diploma of Hospitality Management, and then to obtain a Bachelor Degree in the area of hotel management. He stated that his father owned construction companies in Sri Lanka and had recently branched into the hotel business. He advised that he married in 2016; that his wife works as an accountant in the hotel industry in Sri Lanka; and that he now also intends to work in his father’s hotel business.

32. The applicant confirmed at hearing that he would obtain employment through his father’s businesses regardless of any overseas qualifications. When asked why he had not returned home rather than failing and not attending his classes at Griffith University, he stated that his father had spent around $80,000 on his studies in Australia and that he feels obligated for this reason to obtain a qualification before returning home. The Tribunal accepts that the applicant might feel some obligation towards his father, but does not find this a compelling reason for him to remain in Australia. The Tribunal notes that the applicant has been in this country for nearly four years during most of which he has demonstrated little motivation to obtain qualifications.

33. As noted the applicant stated that he does not need Australian qualifications to obtain employment in Sri Lanka and that he intends and is expected to work in one or another area of his father’s businesses. The applicant did not claim that cancellation of his Student visa would cause hardship beyond the damage to his pride of returning to his family in Sri Lanka without an overseas qualification, having wasted his father’s money.

34. The ground of cancellation arose when the applicant did not achieve satisfactory course progress or attendance. The Tribunal accepts that there were misunderstandings and that the applicant has reasonable explanations for some absences and unit failures. The Tribunal however notes that the applicant’s enrolment and visa were cancelled only after prolonged and continuing poor performance and attendance. The Tribunal also notes that the applicant, on his own admission, was advised on repeated occasions to seek advice and support from the university’s advisers, counsellors or welfare officers. For these reasons the Tribunal does not accept that the circumstances in which the cancellation occurred were beyond the applicant’s control.  

35. The applicant provided to the Tribunal a copy his notice of intention to exclude and report for unsatisfactory program progression from Griffith College, advising that the cancellation of his enrolment would be reported to the Department, and that he had 28 days in which to make alternative enrolment arrangements with another provider; to make alternative visa arrangements; or to make arrangements to return home. As noted, the applicant provided evidence that he enrolled in a Diploma of Hospitality Management in New England College from 3 April 2018, ‘before the 28 days expired’. He provided a letter from the course provider confirming his enrolment; that he has maintained satisfactory academic progress; that he has attended classes regularly; and that he has his paid tuition fees on time. As noted, this enrolment was cancelled on 4 October 2018.

1. The applicant responded to his NOICC. The Tribunal accepts that the applicant attempted to regularise his stay by enrolling in another course, but notes that this was only after being advised of the imminent cancellation of his enrolment by Griffith University, and warned regarding the implications of this for his visa and stay in Australia. 

2. There would be no consequential cancellations. While cancellation would result in the applicant becoming unlawful and subject to detention, there is no information before the Tribunal to indicate that he would not be able to apply for and be granted another Bridging E visa while organising his departure. The applicant may be subject to s.48 of the Act preventing him from applying for further visas while in Australia, and he may also be affected by Public Interest Criterion 4013 limiting the granting of a further temporary visa for a specified period. The Tribunal considers that these are the intended consequences in such a case.

3. The applicant has not demonstrated that he has the ability or the motivation to pursue overseas qualifications at the Bachelor and Master Degree levels. For this reason the Tribunal gives little weight to the applicant’s claim that cancellation could affect his prospects of being granted visas to pursue Masters Degrees in the UK or Canada.

4. The applicant did not claim and there is no information before the Tribunal to indicate that 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.

5. No other relevant matters were raised by the applicant or otherwise before the Tribunal.

6. Considered overall, the circumstances do not weigh in favour of the applicant. The Tribunal concludes that the visa should be cancelled.

   DECISION

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

   Adrienne Millbank
   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.