NAVEED (Migration)

[2019] AATA 2859

NAVEED (Migration) [2019] AATA 2859 (21 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad NAVEED

CASE NUMBER:  1716553

HOME AFFAIRS REFERENCE(S):           BCC2017/1602055

MEMBER:P. Maishman

DATE:21 June 2019

PLACE OF DECISION:  Perth

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

Statement made on 21 June 2019 at 2:08pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – ground for cancellation – genuine student – enrolment record – non-payment of fees – non-commencement of study – consideration of discretion – fundamental breach – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116, 359AA,140
Migration Regulations 1994 (Cth), r 2.43

CASES
MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 July 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(fa)(i) on the basis that the applicant is not, or is likely not to be, a genuine student. 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. The applicant appeared before the Tribunal on 21 September 2018 to give evidence and present arguments.

4. 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

5. The Tribunal had before it a copy of the Department’s file containing the visa application and relevant documents.

6. The applicant gave the Tribunal a copy of the delegate’s decision record and notice of cancellation when he applied for his review. The visa history is summarised from the decision record as follows.

   a.The applicant is a 26-year-old citizen of Pakistan. He has been in Australia since 2012 on a student visa. The applicant finished a Diploma of Business on 25 August 2015. His enrolment in the subsequent Advanced Diploma of Business was cancelled for non-payment of fees on 16 March 2016.

   b.The applicant was enrolled in Certificate IV in Work, Health and Safety; Diploma of Work Health and Safety; and Advanced Diploma of Work Health and Safety and each of these were cancelled for ‘non-commencement of study’ on 22 September 2016.

   c.The Department gave the applicant a Notice of Intention to Consider Cancellation (NOICC) on 22 June 2017 to which the applicant gave a written response on 30 June 2017.

   d.The applicant enrolled in Advanced Diploma of Hospitality Management commencing on 7 July 2017.

7. At the hearing the applicant provided the Tribunal a copy of emails dated 29 April 2016 between him and World College Group; transaction statements indicating payments to Marshall Freeman (debt collectors) on 8 April 2016 in 21 April 2016; and an email from ******@pcbt.wa.edu.au dated 7 July 2017.

8. The Tribunal notes that only part of the email dated 29 April 2016 (i.e. applicant’s response not included) is contained on the Department’s file. The Department’s file also contains a comprehensive list of debt repayments between 8 April 2016 and 12 July 2017.  

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

   Does the ground for cancellation exist?

10. 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.

11. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

12. 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.

13. At hearing the applicant agreed that his response to the NOICC emailed to the Department on 30 June 2017 was true and correct. The Tribunal notes relevantly that the applicant responded that 2016 had been a tough time. He was paying debt recovery and thought the debt recovery payments would result in re-enrollment, and his uncle who provided financial support for him had been murdered in October 2016.

14. Adopting the procedure contained in s.359AA of the Act the Tribunal put the information contained in the Provider Registration and International Student Management System (PRISMS) records to the applicant. The Tribunal explained the Tribunal considered the information contained in PRISMS was information that without explanation would be the reason, or part of the reason for affirming the decision under review. The Tribunal explained that the PRISMS record was a database kept by the education providers and details enrolments, the dates the applicant remained enrolled and the outcome of the courses. The Tribunal explained that the information it contained indicated he did not complete a course he was enrolled in since 25 August 2015 and this was relevant to the review because it may lead the Tribunal to form the view that the applicant was not a genuine student. The applicant was offered the opportunity to comment or respond or to request additional time to comment or respond if he needed. The applicant agreed to comment on the information.

15. The applicant said that he arrived in Australia in 2012 and completed a Certificate IV and Diploma of Business in 2013. He was encouraged to do Hospitality training by his Migration Agent. He enrolled in a Certificate IV and Diploma in Hospitality but found he had food allergies. He had always planned to go into business in fashion design and returned to Business studies. He completed a Diploma of Business in August 2015 and commenced an Advanced Diploma of Business in October 2015.

16. The applicant said that there was no gap in his studies as asserted in the delegate’s decision. He did not know his enrolment in the Advanced Diploma of Business had been cancelled on 16 March 2016 and he continued to attend classes three days a week between 9:00 AM and 5:00 PM. He paid $1000 fees in cash. There was no payment schedule for the remaining fees, but when he tried to pay the fees the education provider said they had referred repayment to the debt collection agency. He had entered into an arrangement to repay the debt collector in instalments and considered this to be payment of the outstanding fees and so would be entitled to continue attending classes. He was not told at any time that his enrolment had been cancelled. He attended classes until October 2016 and obtained an Advanced Diploma in Business but was not given a certificate. The applicant received advice to follow-up a dispute about the cancellation of his enrolment due to non-payment of fees but did not take any steps to resolve his complaint until after the hearing. He cancelled the Certificate IV, Diploma, and Advanced Diploma of Work Health and Safety because he was continuing in the Advanced Diploma of Business.

17. The applicant sought, and was given, time after the hearing to provide evidence to the Tribunal confirming that he continued to attend classes between June 2016 and June 2017.

18. After the hearing the applicant provided a letter from Perth College of Business and Technology confirming he was enrolled in an Advanced Diploma of Hospitality Management with a course start date of 13 July 2017 and an expected course end date of 12 March 2019. The applicant provided a Confirmation of Enrolment in an Advanced Diploma of Hospitality Management with a course start date of 10 October 2018 ending 27 September 2019. The applicant also provided a list of card transactions showing payments of amounts to Perth College of Business and Technology between 19 June 2017 and 6 July 2018.

19. The Tribunal does not find the applicant’s evidence plausible. The student administration officer from World College Group advised the applicant by email on 29 April 2016 that his COE (confirmation of enrolment) had been cancelled. The applicant confirmed his knowledge of the cancelled enrolment by his email response to World College Group on 29 April 2016. The Tribunal notes the applicant enrolled in several alternative courses, the enrolments for each of which were cancelled between 15 April 2016 and 22 September 2016. The Tribunal considers it unlikely that the applicant would have enrolled in the package of Work Health and Safety courses had he been attending classes in the Advanced Diploma of Business until October 2016. The Tribunal is concerned that on receipt of the NOICC on 22 June 2017 the applicant enrolled in an Advanced Diploma of Hospitality Management commencing on 7 July 2017 which was subsequently cancelled prior to the hearing of the application. The letter from Perth College of Business and Technology dated 4 October 2018 suggests ambiguously that the applicant was enrolled in the Advanced Diploma of Hospitality Management from 13 July 2017 to 12 March 2019, but that information is not consistent with the information contained in the PRISMS record which indicates that enrolment was cancelled prior to the hearing on 21 September 2018. The Tribunal acknowledges the card transaction accrual appears to be periodic payments towards some training from June 2017 to July 2018 however cannot discern what those payments are for taking into account the PRISMS record indicates course enrolments during that time were cancelled because the applicant did not commence studies. The Tribunal finds prefers the unambiguous information contained in the PRISMS record. The Confirmation of Enrolment provided by the applicant indicates that he enrolled in the Advanced Diploma of Hospitality Management course from 10 October 2018, that is, after the hearing.

20. The Tribunal finds the applicant knew that his enrolment in the Advanced Diploma of Business had been cancelled because of the non-payment of fees. The applicant last completed a course of study in August 2015 and the courses he has been enrolled in subsequently have been cancelled mostly because of non-commencement of studies. The applicant’s enrolment in an Advanced Diploma of Hospitality Management is inconsistent with his evidence that he ceased hospitality studies because of food allergies.

21. The evidence does not support a finding that the applicant is a genuine student.

22. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa) 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

23. 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 was granted a Subclass 572 Vocational Education and Training Sector to undertake study to obtain an educational qualification in Australia. The Tribunal applicant  gave evidence that he arrived in Australia in 2012 and had always planned a business enterprise in fashion design. He completed a Certificate IV and Diploma in Marketing and Business in 2013. His migration agent suggested he undertake courses in cookery and hospitality however he found he had allergies and went back to business studies. PRISMS shows the applicant finished further Diploma of Business studies in December 2014 and August 2015. The applicant enrolled in an Advanced Diploma of Business from 5 October 2015 but that enrolment was cancelled on 16 March 2016 because the applicant did not pay the required fees. The applicant obtained a number of enrolments in various courses commencing 6 June 2016 through until 6 March 2019 but did not commence any of those studies. The applicant says his only compelling need to remain in Australia is to retain his dignity.

25. The Tribunal finds that the purposes of the applicant’s travel and stay in Australia were to undertake studies to obtain qualifications in the vocational education and training sector. Albeit that the applicant was enrolled in other courses until 22 September 2016, the applicant ceased to be genuinely undertaking studies to obtain qualifications with the cancellation of his enrolment on 16 March 2016. The Tribunal finds the applicant does not have a compelling need to remain in Australia.

26. The Tribunal finds the applicant failed to maintain an enrolment in an approved course of study which is a fundamental breach of a student visa and weighs against the applicant in assessing whether the discretion to cancel the visa should be exercised.  

27. The Tribunal acknowledges the applicant’s claims that his parents had spent a lot and would be disappointed. The Tribunal does not put weight on the applicant’s claim to be taking antidepressants because he says he has not yet seen a doctor in Australia. The Tribunal accepts the cancellation of the visa may cause a degree of financial and emotional hardship and the Tribunal gives some weight in favour of the applicant in assessing whether the discretion to cancel the visa should be exercised.

28. The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but was not considered a genuine student. The applicant’s enrolment was cancelled because of non-payment of fees on 16 March 2016. Although he subsequently enrolled in courses, each of these enrolments were cancelled by 22 September 2016 because of non-commencement of studies. The applicant was not enrolled in any course until 19 June 2017 after receiving the Department’s NOICC. The Tribunal finds the circumstances in which the grounds of cancellation arose weigh in favour of exercising the discretion to cancel the applicant’s visa.

29. There is no evidence to indicate the applicant has not cooperated with the Department and the Tribunal has given some weight in favour of the applicant in assessing whether the discretion to cancel the applicant’s visa should be exercised.

30. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

31. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequence of the legislation and do not weigh against exercising the Tribunal's discretion to cancel the applicant's visa.

32. There is no evidence before the Tribunal that the cancellation of the applicant's visa would result in Australia breaching any international obligations including non-refoulement and the best interests of children.

33. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects of the applicant’s case that weigh somewhat in his favour, on balance the Tribunal is satisfied that the majority of considerations weigh against the applicant.

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

    DECISION

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

    P. Maishman
    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.