Malik (Migration)

[2019] AATA 971

Malik (Migration) [2019] AATA 971 (11 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manoj Malik

CASE NUMBER:  1711588

HOME AFFAIRS REFERENCE(S):           BCC2017/1180785

MEMBER:Brendan Darcy

DATE:11 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 11 January 2019 at 11:10am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector visa – breached condition 8202 – not enrolled in a registered course of study – real intention is to remain in Australia for work purposes – not a genuine student– credibility concerns–  decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 140,
Migration Regulations 1994, r 2.43, Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 May 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that he was satisfied the applicant had breach the visa condition 8202 which had been imposed on his visa and was unpersuaded by the reasons not to cancel the applicant’s 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. On 31 May 2017, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for the delegate’s cancellation decision to be reviewed. The decision record was attached to the review application.

4. The applicant appeared before the Tribunal on 21 September 2018 to give evidence and present arguments.

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

6. 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

7. 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 comply with Condition 8202?

8. 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).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

   Initial student visa

10. The applicant first arrived in Australia on 30 July 2013, while holding a Class TU Subclass 573 visa which was granted on 20 July 2013.

11. As discussed in the scheduled hearing, the applicant had initially enrolled in a package of course work which included a Certificate IV in Business and a Diploma of Management at the Kinggdom Institute of Management (NB: correct spelling) and in a Masters of Business Administration at the Charles Darwin University campus in Melbourne. The applicant completed the Certificate IV in Business and the Diploma but did not complete the Masters of Business. The Provider Registration and Information Student Management System (PRISMS) record indicates the applicant’s enrolment in this Masters was cancelled on 31 March 2014. At the scheduled hearing, the applicant claimed he found the coursework too challenging at that point in time, partially due to homesickness.

    Student visa under review

12. The applicant was granted a further Subclass 573 visa for higher education on 30 June 2016. This visa was set to expire on 15 August 2017. The applicant claimed that he was enrolled in an Advanced Diploma of Marketing and Associate Degree of Business at the Australian School of Management in Perth. The visa was set to expire on 26 May 2017.

13. The decision record indicates that the applicant had not been enrolled in a registered course of study since 7 September 2016.

14. The departmental file indicates that that the applicant was contacted by a departmental official by email prior to issuing the Notice of Intention to Consider Cancellation (NOICC) on 6 May 2017, inviting the applicant to provide reasons not cancel the student visa within a five-day timeframe

15. On 22 May 2017, the applicant responded by email to the invitation to respond to the NOICC. In that response, the applicant did not dispute there were grounds for cancelled and provided written reasons why the visa should not be cancelled. A number of attachments accompanied the applicant’s written response.

16. A delegate on behalf of the Minister proceeded to cancel the applicant’s student visa on 26 May 2017.

17. During the hearing, the applicant claimed that he tried to re-enrol in Bachelor of Business with Stott’s College and presented a letter of offer but no Confirmation of Enrolment document. According to the decision record, the letter of offer was obtained two days after the issuing of the NOICC letter.

18. On the evidence before the Tribunal, the applicant was not enrolled in a registered course study from 9 November 2014 until the date of cancelled in which he was enrolled in a vocational course, not a Bachelor’s or Master’s course of study. 

19. The applicant has acknowledged in his correspondence with the Department that his enrolment in a course was not in compliance and that he enrolled in a new course. During the scheduled hearing, the applicant acknowledged that his enrolment was cancelled in November 2014 and that no further enrolment until 29 July 2016, after the abovementioned NOICC had been issued.

20. On the evidence before the Tribunal, the applicant was not enrolled in a registered course from 7 September 2016 until the date of the visa being cancelled on 26 May 2017 - a period of about eight months.

21. Accordingly, on the evidence before the Tribunal, the applicant has not complied with condition 8202(2).

22. As the applicant has failed to comply with the visa condition, the ground for cancellation in s.116(1)(b) does arise. It follows that the visa can be cancelled.

    CONSIDERATION OF THE DISCRETION TO CANCEL THE VISA

23. Having found that the applicant has not complied with a condition of the 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’.

24. The applicant provided a written response dated 22 May 2017 to the Department’s NOICC. Attached to the response was the following:

    ·A completed Certificate IV in Business dated 24 August 2015 from the Kinggdom Institute of Management indicating the applicant completed this course work;

    ·A completed Diploma in Business dated 10 April 2015 from the Kinggdom Institute of Management

    ·A medical certificate from an Australian medical professional indicating that the applicant was unfit for studies between 10 January 2015 and 24 January 2015 for an unspecified medical condition;

    ·The applicant’s travel itinerary indicating the applicant departed Australia on 16 September 2016 for India before returning on 22 October 2016;

    ·A medical certificate from an Indian medical professional indicating that the applicant was under his treatment for hypertension between 20 September 2016 and 9 October 2016;

    ·A doctor’s certificate dated 6 April 2017 indicating that the applicant underwent a medical examination for a commercial driver position, indicating the applicant has hypertension and that he will require an annual check-up; 

    ·The applicant’s Pearson Test for English (PTE) score report issued on 09 April 2017;

    ·An initial offer of letter addressed to the applicant inviting him to study a Bachelor of Business at Stott’s College. The letter is dated 17 March 2017 with commencement date of 20 March 2017; and

    ·A revised offer of letter addressed to the applicant inviting him to study a Bachelor of Business at Stott’s College. The letter is dated 17 March 2017 with a commencement date of 24 July 2017.

25. The applicant and the applicant’s representative submitted a number of the documents to the Tribunal. This included many of those documents already provided to the Department and the following additional documents:

    ·A legal submission (undated) prepared by the applicant’s representative outlining to the Tribunal the reasons the visa should not remain cancelled;

    ·A Confirmation of Enrolment indicating that the applicant had been enrolled in an Associate Degree of Business with the Australian School of Management Pty Ltd on 18 February 2014;

    ·A medial certificate from an Australian medical certificate dated 17 December 2013 indicating that the applicant is an overseas student who has lived all his life in the countryside and that he feels uncomfortable living in Melbourne, suffers from anxiety and would like to condition studies in the countryside.

    ·A statutory declaration from Surender Kumar attesting that the applicant ‘is medically not ok an mentally disturb’. (sic). It is dated 18 January 2014.

    ·Medical certificates from an Indian medical professional regarding the applicant’s father indicating the father was hospitalised and treated for a serious medical condition; and

    ·A letter from the Department dated 24 November 2015 seeking comment about adverse information regarding the applicant’s subsequent student visa application.

    The purpose of the visa holder’s travel to and stay in Australia

26. According to the decision record, the applicant stated that his intended purpose for travelling to Australia was to study. However the delegate noted the applicant had not enrolled in a registered course of study since 7 September 2016 and that the stated intention at the time of application did not constitute a reason not to cancel the applicant’s visa.

27. While the Tribunal notes that the applicant completed the vocational coursework in which he had been enrolled, the enrolments for a Masters of Business Administration and a Bachelor of Business had both been cancelled. The applicant claimed that the first degree had been cancelled because he could not cope with a Masters’ degree and that his second degree had not been cancelled due to medical, emotional and psychological reasons.  The applicant also disclosed that he had completed a law degree in his home country but was not provided with an opportunity to completing an article clerkship. The applicant also claimed that he worked in a recruitment company in its information technology area.

28. During the scheduled hearing, the applicant vaguely explained that it was his desire to work in the corporate field as a manager. The applicant was unable to elaborate on this. The Tribunal finds the applicant’s claimed career goal to be vague lacking in specificity which invited the Tribunal to further consider the applicant did not have any serious academic or career goals in mind.  

29. While the Tribunal accepts the applicant completed a law degree in his home country, it finds that given such challenging coursework is entailed in such a degree the applicant’s cancelled enrolments strongly indicated that the applicant has the capacity to complete the less demanding course work pertaining to degrees in business. 

30. According to the delegate’s decision, departmental records indicate that the applicant applied for a Subclass 457 visa for temporary skilled work on 6 June 2016. The applicant was later withdrawn in December of the same year. The delegate stated that it would be reasonable to expect that by lodging for a work visa shortly after completing his last course work indicated the applicant’s intention is not study, but to work full time. During the hearing, the applicant elaborated that he had applied for a nominated position relating to information technology and that he withdrew the application because there was uncertainty over a bogus document relating to his work experience. He added that he had the opportunity to apply for a regional skilled work visa as it did not need the work experience but did not provide an adequate reason for not doing so. This testimony strongly indicates to the Tribunal that the applicant is not interested in being a full time student in the immediate or foreseeable future but intends to remain in Australia for the purposes of work. Furthermore, while the applicant has been candid about a bogus document, such an admission still invites the Tribunal to consider that the applicant has presented a less than accurate account regarding his intentions about academic and career advancement as well as evidence about other factors when the Tribunal is exercising its discretion in having the visa remain cancelled. 

31. The Tribunal places no specific weight on the applicant having a letter of offer to enrol in a degree after the NOICC had been issued.

32. Taking all this relevant information into cumulative consideration regarding about the applicant’s purpose to travel to and stay in Australia, the Tribunal finds there is little evidence that the applicant has presented any detailed or convincing case that he is a genuine student whose purpose is to achieve academic advancement towards any specific career. The Tribunal also finds that the admission about a bogus document from a law graduate so disturbing that it undermines the applicant’s overall credibility. Furthermore, the applicant’s visa history involving an application for a work visa prior to the cancellation of enrolment has invited the Tribunal to find that the applicant has little interest in completing any Bachelor or Master’s degree and that the applicant’s real intention is to remain in Australia for work purposes.

33. Overall, the Tribunal is not satisfied that the applicant is a genuine student whose intention is to remain in Australia for full time study to advance their stated career goals and gives this little weight in this factor in favour of the visa being reinstated.

    The extent of compliance with visa conditions

34. There is no evidence before the Tribunal to indicate the applicant did not comply with other conditions. The delegate decision does not record any information about further non-compliance. The applicant was not enrolled in a registered course for a considerably long period of time, more than eight months and he had sufficient time to address this non-compliance. The Tribunal considers this significant to the question whether his visa should be reinstated. While the applicant has provided an explanation for this significant length of time in not being compliance with condition 8202, the Tribunal gives this factor some weight towards the visa being cancelled.

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

35. The delegate’s decision accepted that there may be some hardships as a result of the cancellation but he will have an opportunity to finalise any outstanding matters before departing and that he will subject to limited opportunities to apply for other visas.

36. During the scheduled hearing, the applicant did not claim any significant financial hardship in returning to India and acknowledged that he would return with some qualifications from Australia. However he feared that in disclosing to his parents about his visa being cancelled and being barred from Australia for up to three years, this would disappoint his parents, exacerbate his father’s poor health conditions.

37. Whilst the Tribunal accepts that the applicant may suffer some hardship, including emotional hardship arising from his parent’s disappointment, if the visa remains cancelled, it finds on the evidence that he has not demonstrated any serious or significant hardships. The Tribunal gives these hardship considerations little weight towards the visa not being cancelled.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

38. According to the decision record, departmental records confirmed that the applicant was not meeting condition 8202 attached to his student visa as he was not enrolled in a registered course and had not been attending classes right up to the NOICC being issued. The applicant did not disagree with this.

39. The applicant claimed that he suffered from a medical condition when he was supposed to be enrolled in August 2016 and that he travelled back to India for emotional and medical support. The medical evidence indicates that the applicant was being treated for hypertension. Given the applicant was being treated for this condition; the Tribunal does not accept that this was a significant medical barrier in itself to maintain full time study.

40. With regards to the applicant’s psychological conditions in which led to or contributed to the grounds for cancellation, the applicant accepts that there is some medical evidence from 2013 that the applicant suffered anxiety. His representative argued that the applicant had also ‘went into depression’ while there was uncertainty in granting the applicant his second student visa. However, the Tribunal notes that the medical certificate does not mention any referrals or medical treatment and there is no mention of depression or depressive symptoms at all. It also notes that there is a statutory declaration from the applicant’s friend describing him as mentally disturbed; however the Tribunal does not find it credible to argue that the applicant felt homesick because he lived in one large Australian city (Melbourne) only to seek to move to another (Perth) and not the countryside or a regional town as the 2013 medical evidence had indicated. The Tribunal also enquired into whether the applicant had ever engaged a psychologist either in Australia or India; to which the applicant responded that he has not and that the only treatment recommended by a doctor had been to take painkillers for a two month period. Had the applicant experienced significant or serious psychological and emotion injuries leading to his non-compliance, it would be reasonable to expect the applicant to accessed psychological counselling and other more intensive and ongoing treatment than has been claimed. While it is accepted the applicant has experienced anxiety and homesickness and at the time of his non-compliance, it does not accept the applicant’s conditions were so significant or extenuating that these accepted conditions requiring only minimal medical treatment and no psychological referral had meaningfully contributed to the applicant not being enrolled for such a long period of time or that the conditions could be reasonably characterised as circumstances beyond the applicant’s control.

41. During the scheduled hearing, the Tribunal asked whether the applicant had ever sought a deferment of his studies. He responded that the education provider had not told him. The Tribunal challenged this as overseas students are regularly informed about the rights and obligations about deferment, class attendance and other significant aspects of academic life. The applicant responded to this by stating he was so stressed he did not seek deferment. In the context of the Tribunal’s earlier adverse credibility finding arising from his admission about a bogus document, the Tribunal does not accept the applicant was ignorant or uninformed about deferment. Given the Tribunal does not accept the applicant’s psychological conditions were significant, it follows the applicant was not incapable in seeking deferment and maintaining his enrolment.

1. Furthermore the applicant provided medical and oral evidence that he had been working in 2016 and that he had applied for full time work when he applied for a Subclass 457 visa – both of which further indicates that the applicant had the physical and psychological capacity for full time study and undermines the credibility of the applicant’s claims about experiencing significant physical, emotional or psychological conditions, cumulatively considered, leading to grounds for breaching condition 8202 as extenuating circumstances that were beyond the applicant’s control.   

2. The Tribunal also notes that he applicant claimed in his written NOICC response that he was unable to re-enrol or gain a letter of offer for a degree because he was informed that his English language prerequisite had expired and that he gained a PTE result before he could enrol, leading to an extended period of non-compliance. However, as the delegate noted the applicant completed the English language requirement test in April 2017 prior to the issuing of the NOICC. The Tribunal places no weight on this evidence as relevant in finding any further extenuating circumstances leading to the applicant’s non-compliance. 

3. Overall, the Tribunal finds these claimed reasons for extenuating circumstances that were beyond his control not to have been supported by the available evidence, unpersuasive and to have been undermined by the applicant’s overall lack of credibility. None of the reasons put forward by the applicant indicated circumstances that were beyond his control in the sense they were credible barriers to maintaining enrolment in a relevant course or continuing related studies that would indicate to the Tribunal the applicant’s purpose in remaining in Australia was to study.  On the evidence before it, the Tribunal does not accept that there were any extenuating circumstances beyond the applicant’s control and gives these arguments little weight towards the visa not being cancelled.

   Past and present conduct of the visa holder towards the Department

4. According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department.

5. However, the Tribunal is unable to overlook the deeply serious matter of the applicant having participated in submitting a bogus document to the Department for a skilled work visa. While it appreciated that the applicant candidly admitted this offence, this past conduct strongly invites the Tribunal to adversely consider the applicant has significantly embellished or contrived other written or oral evidence about the circumstances leading to the applicant’s non-compliance with condition 8202, about his genuineness as a full time student in the future and whether he will be able to uphold the conditions imposed on him on any visa in the future. The Tribunal accordingly places considerable weight on this poor conduct in favour of the visa remaining cancelled.

   If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

6. Not relevant.

   whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

7. During the scheduled hearing, the Tribunal discussed the effect of section 48 of the Act if the cancellation of the applicant’s visa were to proceed. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia, arising from the operation of section 48 in limiting the applicant in applying for other visas and may have to depart or he may even be detained or forcibly returned to his country of nationality. Neither the applicant nor his representative in a written submission presented specific evidence in relation to this factor. During the hearing, the applicant reiterated his fears of upsetting his father if the visa remained cancelled. Accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

   Whether there would be consequential cancellations under s.140

8. During the hearing, the applicant did not claim to have any dependents. There is no evidence before the Tribunal that the visa’s cancellation will result in consequential cancelled of any dependent visa holders and it gives this factor no weight.

   Whether any international obligations would be breached as a result of the cancellation

9. As noted in the hearing, the applicant has not applied for a protection visa to date and is eligible to seek Australia’s protection obligations. The applicant explained to the Tribunal he merely held the fear that if he returned to India it would exacerbate his father’s health. He elaborated that his father had a stroke in 2016 and is aged 62 years.

10. There is no evidence before the Tribunal that this is relevant factor regarding international obligations being breached and it gives this factor no weight.

    Any other relevant considerations

11. There are no other relevant matters to consider in this review application.

    Consideration of the discretion to cancel the visa

12. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

13. In summary, the fact remains the applicant was non-compliant with condition 8202 and he presented very weak reasons as to his student visa should not remain cancelled. He failed to demonstrate any credible significant hardships if the visa remains cancelled or that he is genuinely interested in advancing academically for any specific career. The evidence pertaining to his visa application for skilled visa indicates that the applicant intention to remain in Australia is for work and not study purposes. Furthermore his overall credibility was significantly and adversely compromised by his admission that he was involved in submitting a bogus document. For these and other reasons outlined above, the Tribunal is unable to accept the applicant is a genuine student who is willing and capable of upholding the conditions imposed on him in the foreseeable future.

14. Having considered all the evidence and arguments, the Tribunal makes the cumulative finding that the significant factors towards the visa remaining cancelled considerably outweigh those factors in favour of the visa not being cancelled.

15. Considering the evidence provided and on weighing the above factors and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

16. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

    Brendan Darcy
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.