Mohammed (Migration)

[2017] AATA 2513

Mohammed (Migration) [2017] AATA 2513 (14 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Adnan Moin Mohammed

CASE NUMBER:  1712756

DIBP REFERENCE(S):  BCC2017/130509 CLF2015/11880

MEMBER:David McCulloch

DATE:14 September 2017

PLACE OF DECISION:  Sydney

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

Statement made on 14 September 2017 at 1:28pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Not enrolled in a registered course – No meaningful progress in the studies – Untruthful witness

LEGISLATION
Migration Act 1958, ss 116(1)(b), 359AA
Migration Regulations 1994, Schedule 8, Condition 8202(2) - 8202(3)(b)

CASES
Hasan v MIAC (2010) 184 FCR 523
SZOFE v MIAC (2010) 185 FCR 129

STATEMENT OF DECISION AND REASONS

DID NOT APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 January 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act). The application for review was lodged on 15 June 2017.

2. The applicant is a national of India born on 18 December 1993. The visa that has been cancelled was granted on 27 March 2015. That visa was subject to condition 8202.

3. On 17 March 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he ceased to be enrolled in a registered course from 2 May 2016. The applicant provided no response to the NOICC.  On 31 January 2017, the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa. The applicant seeks review of the delegate’s decision.

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

5. The applicant appeared before the Tribunal on 29 August 2017 to give evidence and present arguments. The applicant was represented by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   JURISDICTION ISSUE

7. There was an issue for the Tribunal in that the application for review did not appear to have been received within required timeframes. The applicant’s representative in a letter dated 15 June 2017 submitted that the applicant never received the NOICC or the Notice of Cancellation. It is submitted that the effective date of the applicant being notified of the cancellation was on 14 June 2017 when the applicant was notified of the cancellation over the phone from a Departmental official.

8. The Notice of Cancellation indicates that it was sent to the applicant at an email address.  The Tribunal requested information from the Department concerning the last address held by the Department pertaining to the applicant. That information received indicates that the last email address provided by the applicant was a different email address than the email address to which the Notice of Cancellation was sent. The requirements for notification are set out in regulation 2.55.  The notification must be in writing. The applicant claims that he has never received the written Notification of Cancellation. The Tribunal accepts this. Therefore the applicant has not been notified of the primary decision. It is clear from judicial authority that, even if the time for applying for review has not commenced, a valid review application can still be lodged.[1]

   [1] SZOFE v MIAC (2010) 185 FCR 129; cf Hasan v MIAC (2010) 184 FCR 523, now considered to be overruled by.

9. Accordingly, the Tribunal has jurisdiction to consider the matter.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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?

11. 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 been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

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

13. The delegate’s decision indicates that the applicant has not been enrolled in a registered course of study since 2 May 2016.

14. There is nothing before the Tribunal to suggest that the applicant was a holder of a subclass 560 or 571 (School Sector) visa as a secondary exchange student, thus the applicant’s obligation under condition 8202(2) is to be enrolled in a registered course.

15. The applicant’s representative provided a submission to the Tribunal dated 10 August 2017, in advance of the hearing.  It is submitted that the applicant has continued to comply with condition 8202. The submission indicates that the applicant studied a Diploma of Management from 13 April 2015 until 10 April 2016. The applicant indicates that he has completed this course. The Tribunal noted that in the Provider Registration International Student Management System (PRISMS) indicates this course was studied for the period indicated.

16. It is submitted that, thereafter, the applicant studied an Advanced Diploma of Management from 11 April 2016 until 9 April 2017. The applicant indicates that he completed this course. The Tribunal notes that this is contrary to information in PRISMS which indicates that this course was cancelled on 2 May 2016 due to the applicant notifying cessation of his studies.

17. The Tribunal wrote to the education provider in relation to this course, Canterbury Business College, seeking clarification of the details of the applicant in relation to this course. In an email to the Tribunal dated 17 August 2017 the College indicated that the applicant did not continue with his studies in the Advanced Diploma of Management. The College indicates that the Advanced Diploma of Management was superseded by an Advanced Diploma of Leadership and Management as a consequence of which there was a change in the duration of the course from 52 to 78 weeks, and the applicant chose not to enrol in the new qualification.

18. The Tribunal sought further clarification from Canterbury Business College who, in an email dated 24 August 2017, confirmed that the applicant’s enrolment was cancelled on 2 May 2016 and he did not study with the College beyond that and he did not enrol in any units in the Advanced Diploma of Management.

19. In the Tribunal hearing the applicant indicated that he did not in fact complete the Advanced Diploma of Management, but indicated that he completed part of the course. When asked to provide details, the applicant indicated that he studied up until July 2016 and he passed four units. The Tribunal asked the applicant if he was, therefore, acknowledging that he ceased to be enrolled in the course from around July 2016, and he agreed that he did. The applicant then explained that this was because his father was unwell and this created depression and anxiety for him.

20. The Tribunal asked the applicant why his representative asserted that he completed the Advanced Diploma of Management and that there was no mention of a failure to be enrolled due to depression and anxiety concerning his father’s illness. The representative interjected that the applicant had instructed that he had completed this course which caused the representative not to ask questions about mitigating factors. The Tribunal indicated that it was for the applicant to explain why he instructed his representative in these respects.

21. In the hearing the Tribunal put to the applicant pursuant to the procedural requirements of s.359AA of the Act information indicated above from PRISMS indicating that the applicant ceased to be enrolled in a registered course on 2 May 2016. The Tribunal also put to the applicant the information indicated above received from Canterbury Business College confirming this to be the case and indicating that the applicant did not study with the College beyond that point or enrol in any units. The Tribunal put to the applicant information indicating that the Confirmation of Enrolment in relation to the applicant’s subsequent course, a Certificate III in Light Vehicle Mechanical Technology, was created on 10 April 2017.

22. It was indicated to the applicant that this information was relevant because it is inconsistent with the applicant’s initial claims that he continued to be enrolled in the Advanced Diploma of Management and that he completed it. It was also inconsistent with evidence given by the applicant in the hearing that he completed four units in the course up until July 2016. The consequence of relying on this information could be to conclude that the applicant ceased to be enrolled in a registered course on 2 May 2016 until 10 April 2017, which is a breach of a significant period. The assertion by the applicant that he continued and completed the Advanced Diploma of Management, or that he completed some of the course, could be seen as adverse to the applicant’s credibility generally in light of contrary information.

23. The applicant elected to respond to this information in writing following the hearing.

24. In the information that was subsequently provided, these issues were not specifically addressed. The applicant provides medical information relating to a Mr Mohd Akram Moin, who the Tribunal assumes is the applicant’s father. The applicant also provides a letter from the education provider of the Certificate III in Light Vehicle Mechanical Technology which indicates that the applicant is studying this course which started on 22 April 2017 and that the applicant has also enrolled in subsequent courses. It is indicated that the applicant has satisfactory attendance and fee payments. In a short email the applicant asks that the Tribunal help him get back on his feet and help his family.

25. The Tribunal accepts the PRISMS and Confirmation of Enrolment records indicating that the applicant ceased to be enrolled in a registered course on 2 May 2016 until 10 April 2017.

26. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

27. 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.

28. 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). These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose - whether there are extenuating circumstances beyond the visa holder’s control; the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (ie. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulment obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non refoulement obligations; and any other relevant matters.

29. The applicant indicated in the hearing that, following the granting of the Student visa in March 2015, his purpose in being in Australia has been to study. In the hearing, the applicant maintained earlier submissions from his representative that he successfully completed the Diploma of Management that he studied from 13 April 2015 until 10 April 2016. The Tribunal asked applicant to provide evidence of this following the hearing. No information establishing this was subsequentlyprovided.

30. Although PRISMS indicates that this course was finished, that only means that the applicant maintained enrolment until the course ended. It does not imply that the applicant successfully completed the course. The Tribunal is of the view that the applicant is a untruthful witness given his assertion initially that he completed the Advanced Diploma of Management and then his changed evidence in the hearing that he completed four units. It is readily apparent that the applicant did not proceed with this course at all.

31. Given the applicant’s untrustworthiness, and his failure to provide any demonstration of completion or passing any units in the Diploma of Management, the Tribunal does not consider that the applicant made any meaningful progress in this course.

32. Based on information from the education provider, the Tribunal accepts that the applicant is currently enrolled and studying a Certificate III in Light Vehicle Mechanical Technology which commenced on 22 April 2017, with the applicant enrolling in this course on 10 May 2017. That course is due to conclude on 12 May 2018. The applicant is thereafter enrolled in a Certificate IV and a Diploma in automotive related studies.

33. In the hearing the applicant indicated that his period of non-enrolment, which he claimed was from July 2016 when he dropped out of the Advanced Diploma of Management until enrolling in the Certificate III in Light Vehicle Mechanical Technology on 10 May 2017, was due to his father being unwell and this creating stress and anxiety for the applicant. The Tribunal asked the applicant if he sought medical assistance. The applicant indicated that he consulted his GP and was told that he should rest. The Tribunal asked the applicant if he had any evidence of this and the applicant indicated that he did not.

34. The medical information relating to the applicant’s father provided after the hearing does indicate a series of serious health conditions, the first evidence of which is in April 2016.

35. The Tribunal questioned the applicant in the hearing as to why his father’s health issues were not referred to in the submission by his representative who instead indicated that he had been instructed the applicant that the applicant had completed the Advanced Diploma of Management. Following the hearing, the Tribunal wrote to the applicant requesting further comments in this respect. No information was subsequently provided.

36. The Tribunal indicated to the applicant in the hearing that, even if he had depression and anxiety as he claimed, then he would have been in a position to seek a deferral of any course on medical grounds. This would have ensured compliance with visa obligations. Following the hearing, the Tribunal wrote to the applicant requesting further comments in this respect. No information was subsequently provided.

37. As indicated, the Tribunal is not satisfied that the applicant has been a credible or honest witness. The clear propensity of the applicant to provide untruthful evidence to the Tribunal, together with the failure of earlier submissions to indicate the failure to enrol was due to depression and anxiety as a product of his father’s illness, causes the Tribunal to not be satisfied that this is the reason for the failure to be enrolled. In any event, if the applicant was suffering from such conditions then he should have maintained enrolment and sought a deferral on compassionate or medical grounds rather than simply allowing his enrolment to cease.

38. Considering all of the evidence, the Tribunal is not satisfied that there are compelling circumstances beyond the applicant’s control for the breach.

39. The Tribunal is not satisfied that the applicant has made any meaningful progress in his studies from commencing a Diploma of Management in April 2015 until commencing the Certificate III in Light Vehicle Mechanical Technology in April 2017. The fact that the applicant has not been fulfilling the purpose of his time in Australia whilst holding a Student visa for this period of two year, which is the study, is adverse to the applicant in the exercise of the Tribunal’s discretion. The Tribunal is prepared to accept that the applicant is making progress in the course that he commenced in April 2017.  The Tribunal takes note of the fact that the applicant is enrolled in future courses relating to automotive issues.

40. The applicant indicated that a hardship to him or his family if the visa remains cancelled would be his inability to continue his studies in Australia which is also a compelling reason for him to remain in Australia. The applicant indicated that he is the only breadwinner in his family and further study will improve his career prospects and the ability to support his family. The Tribunal does acknowledge that the applicant is currently studying. The Tribunal accepts a degree of hardship to the applicant and his family if he is not able to continue his studies and gain qualifications in Australia.

41. The Tribunal accepts a hardship to the applicant if the visa remains cancelled is that this would impose restrictions on applying for various visa subclasses onshore.

42. There is no evidence that the applicant has acted in an adverse way towards the Department. There is no evidence that there are third parties whose visas would be cancelled consequential upon the cancellation of the applicant’s visa.

43. In terms of mandatory legal consequences if the visa remains cancelled, in the absence of evidence to the contrary, the Tribunal is not satisfied it likely that the applicant would be subject to mandatory detention for being an unlawful noncitizen given his ability to apply for a Bridging visa to legitimise his visa status while he makes arrangements to leave the country or pursues review or appeal processes.

44. In the hearing, the applicant indicated that he does not fear persecution or significant harm on return to India. The Tribunal therefore does not consider that Australia’s non-refoulement obligations are enlivened. There is no evidence that the interests of children in Australia would be affected by the continued cancellation of the visa. There is no evidence which make relevant any other factors.

45. In summary, the applicant has been in breach of condition 8202 for a period of 11 months, which is a significant breach. The Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control for the breach. The applicant made no meaningful progress in his studies for the first two years while being in Australia on a Student visa. The applicant has told multiple untruths to the Tribunal. The cumulative impact of these issues is significantly adverse to the applicant in the exercise of the Tribunal’s discretion.

46. The Tribunal acknowledges that the applicant is currently enrolled and studying and is enrolled in future courses relating to automotive technology. The Tribunal accepts some hardship to the applicant if he is unable to continue his studies. The Tribunal accepts some hardship to the applicant in restrictions on his ability to apply for various visa subclasses onshore if the visa remains a cancelled. The Tribunal is not satisfied that these matters or any other discretionary factors overcome the cumulative effect of the matters adverse to the applicant.

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 Class TU visa.

   David McCulloch
   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.