MASVAURE (Migration)

[2017] AATA 2788

MASVAURE (Migration) [2017] AATA 2788 (18 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr TINASHE MASVAURE

CASE NUMBER:  1617928

DIBP REFERENCE(S):  bcc2016/2859301

MEMBER:Christine Kannis

DATE:18 December 2017

PLACE OF DECISION:  Perth

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

Statement made on 18 December 2017 at 6:47am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Requirement to be enrolled in a registered course – Applicant not enrolled in a registered course – Financial hardship – Significant period not enrolled – Failure to notify department

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8202

CASES
Liu v MIMIA[2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 October 2016 made by a delegate of the Minister for Immigration 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 issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal on 4 December 2017 to give evidence and present arguments.  

5. 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

6. 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. Relevant to this case, these include the ground set out in s.116(1)(b). 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?

7. On 28 January 2014 the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

8. The Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since 5 May 2014. He was enrolled in a Bachelor of Engineering (Computer Systems)/Bachelor of Computer Science which was cancelled on 5 May 2014. The reason for cancellation was indicated to be for non-payment of fees.

9. Having regard to the information in the PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 5 May 2014. The Tribunal finds that he breached condition8202(2)(a) of his visa.

10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

11. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

12. On 15 September 2016 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of his visa.

13. In his response to the NOICC, sent by email on 5  October 2016, the applicant said:

    ·He had completed 34 of his 43 units of his course when, due to unforeseen financial difficulties from a family business based in Perth, he was unable to pay his fees as an international student which resulted in the breach of one of his visa conditions.

    ·On 26 July 2016 he applied to resume his Bachelor of Engineering (Computer Systems)/Bachelor of Computer Science at Edith Cowan University (ECU). His application was required to be assessed by the School of Engineering and applications were being accepted at the end of September 2016.

    ·On 21 September 2016 he submitted his application for re-enrolment and it was approved. This meant that he could be enrolled as a full-time student. On the same date a student connect officer prepared his course planner and his application for a Confirmation of Enrolment (CoE) and with the approval of the reinstatement, he would receive his new CoE. 

14. The Tribunal informed the applicant that there was no documentary evidence before it confirming that he had attempted to re-enrol in the Bachelor of Engineering (Computer Systems)/Bachelor of Computer Science course on 26 July 2016 or on any date prior to the issuing of the NOICC. The applicant undertook to provide this documentary evidence following the hearing. The Tribunal told the applicant that provision of such evidence would be one factor only in considering the application for review.

15. Following the hearing the applicant provided four emails from ECU and a CoE from ECU. Three of the emails were dated in July 2015 and related to cancellation of the applicant’s enrolment, payment of outstanding 2014 fees and resumption of his studies in semester 2 2015. The Tribunal notes the applicant did not resume his studies in 2015 or in 2016.

16. An email dated 4 October 2016 was provided. The email advised the applicant that his application to resume his Bachelor of Engineering (Computer Systems)/Bachelor of Computer Science course had been conditionally approved. This email was sent after the applicant received the NOICC. The email did not refer to the date the applicant submitted an application to resume his course.

17. When asked about the reason for cessation of his enrolment from 5 May 2014, the applicant said that he had been unable to pay his fees and consequently his enrolment had been cancelled. He said that from 2008 until 2012 his parents had sent him money to pay his course fees. They have a transport business. He said in 2012 the situation changed, the economy changed and the rules changed. The Tribunal asked him to clarify these changes. He said his parents had been unable to secure payment for work they had undertaken and he also referred to changes in the currency his parents used when transferring money to him.

18. Noting that in his response to the NOICC the applicant had advised that unforeseen financial difficulties from a family business based in Perth was the reason he had been unable to pay his fees, the Tribunal asked him to explain the relevance of the Perth business. He said he had overseen a transport family business in Perth which had commenced operating in March 2013. The business used two vehicles and subcontracted to Rio Tinto and Centurion. The work ceased and the expenses of the business were incurred weekly. Payments for work undertaken were received on a monthly basis and no overdraft facility was available. The business ceased operating in 2013 and the vehicles were repossessed. No documents were provided to evidence the existence or financial affairs of the business.

19. The applicant told the Tribunal that after the Perth business closed down, his parents started sending him money again to pay for his course fees. The Tribunal noted that his enrolment was cancelled in May 2014 for non-payment of fees and that he did not re-enrol until after he received the NOICC in 2016.

20. The Tribunal asked the applicant about the payment of his fees when he re-enrolled in 2016. He said his parents had continued to work and by that time they had been able to send him money to pay his course fees.

21. Noting that he ceased to be enrolled in a registered course on 5 May 2014, and that he was sent the NOICC more than two years later, the Tribunal asked the applicant what he did after he ceased to be enrolled and whether he was aware that he was in breach of a condition of his visa. He said he has been employed by Apple since November 2014.  He conceded that he had been aware that he was in breach of a condition of his visa.

22. The Tribunal noted that the applicant did not contact the Department from May 2014, despite being aware that he was in breach of his visa condition. When the Tribunal put this to the applicant he said he did not contact the Department because he thought things were going to change and that he would be able to continue with his study. The Tribunal noted that the period from the date he ceased to be enrolled until the issuing of the NOICC was more than 28 months.

23. A CoE dated 28 October 2016 which showed that the applicant enrolled in a Bachelor of Engineering (Computer Systems)/Bachelor of Computer Science again was provided. The CoE indicated that the course commenced the course on 27 February 2017 and that it will end on 31 December 2017.  

24. The applicant told the Tribunal that he has eight more units to complete to finish his course. He said he has four more units after the current semester units are completed. The exams for these four units took place in November 2017 however he did not sit the exams having requested they be deferred on medical grounds. The applicant provided the Tribunal with a Medical Certificate from Dr Sundararajan Thiagarajan. Dr Thiagarajan certified the applicant was unfit to continue his usual occupation from 13 November 2017 to 17 November 2017 because he received medical treatment during that period.

25. The applicant told the Tribunal that on the scheduled exam dates he had to have dental work done because his gums were swelling and his teeth were breaking. No evidence was provided to demonstrate that the applicant required dental treatment during the exam period. The Medical Certificate refers to “medical treatment” and does not provide any further particulars. The Medical Certificate also refers to the applicant unfit being to continue his usual occupation rather than being unfit to study or take exams.

26. When asked about the potential hardship if his visa is cancelled the applicant said that everything he wants is based on his obtaining a Bachelor of Engineering (Computer Systems)/Bachelor of Computer Science, including his intention to become a Permanent Resident of Australia. He wants to stay in Australia and continue to work for Apple or obtain similar employment. The applicant said recent political events at home means he has no desire to return home. He referred to a coup in Zimbabwe.

27. The applicant told the Tribunal he would like to continue to study. He said he made a mistake when he ceased to be enrolled because he did not pay his fees. He wants to use his qualification to enable him to have a better life.

    Conclusion

28. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of the breach and reasons for the breach as set out in the response to the NOICC and in the applicant’s oral evidence at hearing.

29. The purpose of the student visa is to enable the visa holder to undertake study in Australia. The applicant’s enrolment was cancelled because of non-payment of fees. The applicant was not enrolled in a registered course from 5 May 2014 and 28 months elapsed from that date until the NOICC was issued.

30. No documentary evidence, in relation to the applicant’s parents’ business or the Perth business, was provided to support his reasons for not being able to pay his course fees. The Tribunal notes his evidence was that he has worked for Apple since November 2014.

31. The Tribunal notes that even if the applicant’s evidence regarding his family’s business which resulted in his inability to pay his fees is accepted, the applicant did not provide a satisfactory reason for his failure to contact the Department for more than 28 months after he ceased to be enrolled in a registered course. He remained in Australia and he has worked since November 2014. It was the applicant’s responsibility to ensure he complied with the conditions of his visa.

32. The applicant re-enrolled in his course which commenced on 27 February 2017 and ends on 31 December 2017. At the date of hearing he had not taken the exams in relation to the four units in which he is currently enrolled. He said his exams had been deferred because he was unable to sit them on the scheduled dates due to medical reasons. No evidence of deferment was provided and the Medical Certificate provided did not refer to the applicant being unable to take his exams.

33. The Tribunal finds that the applicant was not fulfilling the purpose of his travel to, and his stay in Australia, because he was not enrolled in a registered course from 5 May 2014. He did not commence study again until February 2017. The Tribunal finds that the applicant’s non-enrolment from 5 May 2014 is a significant breach given the central importance of enrolment to a student visa and given the period of time which elapsed until the NOICC was issued. The Tribunal placed significant weight on the applicant’s disregard for compliance with a condition of his visa over an extended period, noting his admission that he was aware that he was in breach of his visa condition.

34. Having considered all the matters raised by the applicant at hearing the Tribunal finds that the applicant’s non-compliance with the visa condition was not due to exceptional circumstances beyond his control. In making this determination the Tribunal noted that no documentary evidence with respect to his parents’ business or the family business in Perth was provided.

35. The Tribunal finds that there are no extenuating or compassionate circumstances in this case.  

36. The Tribunal had regard to the email from ECU dated 4 October 2016 and the CoE from ECU dated 28 October 2016, both of which were issued after the applicant had received the NOICC. In the absence of any documentary evidence to the contrary, the Tribunal decided that the applicant did not make any attempt to re-enrol until after he was issued with the NOICC.

37. The Tribunal accepts that the applicant will suffer hardship by cancellation of his visa because he will not be able to apply for a visa to return to study in Australia in the near future. The Tribunal also accepts the applicant’s evidence that he wants to complete his course and remain in Australia. 

38. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

39. There is nothing to suggest that there are persons in Australia whose visas would, or may, be cancelled under s140. There is nothing to suggest that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

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

    DECISION

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

    Christine Kannis
    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.