Raja (Migration)

[2020] AATA 3454

Raja (Migration) [2020] AATA 3454 (10 July 2020)

v

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ibrahim  Khan Raja

CASE NUMBER:  1834527

HOME AFFAIRS REFERENCE(S):          BCC2018/4112408

MEMBER:Michael Bradford

DATE:10 July 2020

PLACE OF DECISION:  Sydney

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

Statement made on 10 July 2020 at 11:51am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – declined to attend Tribunal hearing – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – paucity of evidence before the Tribunal – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

Background and procedural aspects

1. This is an application for review of a decision made on 19 November 2018 by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had breached condition 8202 in that he had not been enrolled in a registered course of study since 8 March 2018 and that, at the discretionary level, the grounds for cancelling the visa outweighed the grounds for not cancelling it. 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 Review Application was filed in the Tribunal on 23 November 2018.

4. On 14 January 2020 a letter was sent to the applicant’s authorised migration agent, Mr Bimal Bhattarai, inviting the applicant to attend an in person hearing scheduled to take place in Sydney on 12 February 2020 at 9.30 am and requesting him to read and complete a Response Form, a copy of which was attached to the letter, within 7 days of receiving the letter and to provide, within that time, all documents on which he proposed to rely.

5. On 11 February 2020, that is to say the day prior to the scheduled hearing, the agent returned the completed form to the Tribunal indicating that the applicant did not intend to take part in the hearing and, in an email of the same date, requested the Tribunal to make a decision on the papers.

6. Later on that same date the agent sent another email to the Tribunal in the nature of a submission the content of which the Tribunal will consider later in these reasons.

7. Shortly prior to the scheduled hearing date the Tribunal obtained a PRISMS record, Movements Details for the applicant together with a copy of a Confirmation of Enrolment (COE) for the course referred to in the PRISMS record, namely a Master of Data Science (MDS) at the University of Queensland (UQ), a course due to commence on 23 July 2018 and to finish on 29 November 2019. The COE indicates that the applicant was required to pre-pay initial tuition fees for this course of $9097. The Tribunal notes that the COE for this course was issued on 9 February 2018 and cancelled, according to it and other records, on 8 March 2018, a few days before the applicant arrived here on 11 March 2018.   

8. On 14 February 2020 the agent sent another email to the Tribunal to which was attached an offer to the applicant for enrolment in an English course at the Australasia Language College (ALC). The agent stated in this email that the applicant wished to complete this course before returning home or enrolling in another course.

9. No further documents have been received from the applicant or the agent in support of his review case.

   The Department’s decision and associated material

10. The Notice of Intention to Consider Cancellation (NOICC), a copy of which appears to have been served on the applicant on 29 October 2018, was based on an asserted non-compliance with condition 8202(2)(a) which required enrolment in a registered course of study. The NOICC recites, and the applicant did not dispute, that according to the PRISMS record which the Department had obtained, he had not been enrolled in such a course since 8 March 2018 when his enrolment was cancelled for non-commencement of studies and, on this basis, the Department found that he did not meet that requirement. The NOICC invited the applicant to provide a response within 5 working days and that, if he did not so respond, a decision on whether to cancel his visa would be made using the information which the Department had at that time.

11. Among the other documents which the Department had at the time the NOICC was issued was an email of 18 October 2018 from UQ which confirmed that the applicant’s enrolment in the MDS was cancelled on 8 March 2018. The reason for the cancellation was given to the Department in an earlier email from UQ of 31 July 2018 in which the Deputy Manager of the UQ International Admissions informed the Department that the University had discovered that a group of 11 students from Pakistan had submitted fraudulent academic transcripts in the course of the admissions process after their COEs were issued and visas granted to them. This email goes on to state that UQ immediately cancelled their COEs, informed the students of this and advised them of the need to contact (sic) the Department urgently. According to VEVO checks which UQ had apparently carried out all of these students were on-shore at the time the email was sent and none of them had been released to other providers.

12. Although the 31 July 2018 email does not identify any of the students in the group and refers to no attachment, situated immediately behind the email in the Department’s file is a partially redacted list of 11 students which does include the applicant. This list was apparently generated by the Department as it appears to have been attached to an internal email sent later on the same date.       

13. From the Tribunal’s examination of the Department’s file, and as is recited in the Department’s decision, the applicant did not respond to the NOICC.

14. The Notice of Cancellation (NOC) was based on the findings in the decision and was issued on 19 November 2018. It simply reiterates the content of the PRISMS record, recites the finding that the applicant was in breach of condition 8202(2)(a) in that he had not been enrolled in a registered course of study since 8 March 2018 and states that, after weighing up all of the information available in relation to the matters in the Department’s Procedures Advice Manual 3 (PAM3), the decision was made to cancel the applicant’s visa pursuant to the general power in Sec 116 of the Migration Act 1958.

15. The decision contains no findings as to the reason for the cancellation of the applicant’s enrolment in the MDS, it simply recites that his enrolment was cancelled prior to the commencement of this course and that he had not been enrolled in any other registered course of study since 8 March 2018. It goes on to consider the relevant PAM3 factors, notes that the applicant had remained in Australia for the past 8 months without having re-enrolled in another registered course, finds this was an extensive non-compliance, notes that the applicant had not sought to explain his position or to rely on circumstances which might have mitigated or ameliorated the effect of the breach and, after considering the other factors, concludes that the visa should be cancelled.

16. The NOICC and the NOC recite that the applicant was granted the Student (Temporary) (Class TU) Student (Subclass 500) visa on 22 February 2018. This visa was obviously granted to enable him to travel to Australia and study. As will be seen shortly, this has not in fact occurred.

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

    Review issues and the Tribunal’s approach to them

18. At the outset the Tribunal notes that the applicant has led almost no evidence on the review. Apart from providing some documentary material which, for reasons to be stated shortly, does not assist him, the Tribunal has not been provided with any evidence from him to explain the circumstances in which his enrolment was cancelled or to provide any reasons as to why his visa should not be cancelled.

19. The Tribunal must consider the submissions which the agent has been made on his behalf, such as they are, but is not prepared to treat any of them as evidence, nor is it prepared to act on them unless they constitute an admission against his client’s interest.

20. Moreover, having elected to have the review determined on the papers, having apparently had the assistance of a registered migration agent in making that election, and having failed to provide any meaningful evidence beyond the tender of the ALC offer referred to earlier in these reasons, the applicant must bear responsibility for the way in which his review case has been presented. It is not the Tribunal’s statutory function to fill in the blanks by extracting evidence from an applicant such as this one or to investigate the merits of his review case independently of evidence which reasonably calls for elucidation or comment. Indeed, a review on the papers does not enable the Tribunal to go down that path.

21. In circumstances such as these, the Tribunal is also entitled to have recourse to information which it has obtained from other sources, namely the records referred to earlier in these reasons together with the evidence which was before the Department, and to make findings on that evidence whether or not the Department has done so.

22. In the submission of 11 February 2020, the agent appears to take issue with the Department’s finding that the applicant was in breach of condition 8202(2)(a) although he does not appear to dispute the essential facts on which that finding was based, namely that the applicant’s enrolment in the MDS had been cancelled on 8 March 2018. The submission seems to be that the applicant sent money to UQ for the initial tuition fees but was told after he arrived here that the funds had been released to an unidentified third party, that the applicant could not afford to pay them again, that his visa was cancelled because he had no enrolment and that he has since been prevented from enrolling in any other registered course of study.

23. There are three fairly obvious fundamental difficulties with those submissions. Firstly, it implicitly (if not explicitly) accepts that the applicant’s enrolment in the MDS was in fact cancelled by the University on 8 March 2018; secondly, to the extent that it might be read as suggesting that the breach of condition 8202(2)(a) was not within the applicant’s control, it is not based on any evidence from him; and, thirdly, it is incompatible with the other evidence which the Tribunal has regarding the circumstances in which the applicant’s enrolment was cancelled.

24. Despite these obstacles, it will be necessary for the Tribunal in this case to consider two issues on this review; firstly, whether the applicant has not relevantly complied with condition 8202(2)(a) and, secondly, if he has in fact breached that condition, whether his visa should be cancelled under Sec 116(1) of the Act.

    Evidence and findings on the review

    Is the power to cancel the visa enlivened-has the applicant breached condition 8202(2)(a)?

25. The applicant’s TU-500 visa was clearly subject to condition 8202(2)(a). The Movements Details record confirms as much and the applicant has not disputed that his visa was granted to him on that condition.

26. The other evidence available to the Tribunal on this review, such as it is, clearly establishes that the applicant’s enrolment in the MDS was in fact cancelled by UQ on 8 March 2018. The PRISMS record, when read with the 18 October 2018 email from UQ, is clearly to this effect. The Tribunal has no reason not to act on the basis of the information in these independent records.

27. In the absence of evidence from the applicant to support his agent’s contention that the enrolment cancellation came about because of the fraud of a third party, the Tribunal simply cannot find on this review that the breach of the relevant condition arose in circumstances which can fairly be regarded as being beyond his control. To the contrary, the Tribunal has evidence in the form of the 31 July 2018 email that the applicant was indeed directly responsible for the cancellation in that he attempted to defraud UQ in its admissions process by submitting to it a fraudulent academic transcript.

28. There is nothing in the objective features of this case which casts doubt on the veracity and/or reliability of the assertions in the UQ email that the applicant’s enrolment in the MDS was in fact procured in that way. Certainly, it is unusual in the Tribunal’s experience for a course provider, let alone a higher level provider such as UQ, to initiate an enrolment cancellation about 4 months before the student is due to start the course, as was done in this case. It is also highly unusual for a student to enrol in a Master’s course and then, without having engaged in any study in that course, to want to regress into a 6 month English course.

29. In any event, whatever be the reason for it, the applicant’s enrolment in the MDS was cancelled by UQ on 8 March 2018. This being so, the breach by the applicant of condition 8202(2)(a) is clearly established on the evidence and the power to cancel his visa under Sec 116(1) is enlivened.

    Should the visa be cancelled?

30. Having found that the applicant has not complied with a condition of his visa the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or in the Regulations made under the Act which must be considered in the exercise of this discretionary power. Obviously, the Tribunal must have regard to the individual circumstances of the case, as revealed in the evidence, including the matters raised by the applicant, if there be any, together with the other matters referred to in PAM3, or its equivalent, to the extent to which the evidence and submissions relate to them.

31. As was noted earlier, the independent documentary evidence reveals that the applicant was enrolled in the MDS on 9 February 2018, that he was granted the TU-500 visa on 22 February 2018 and that he arrived in Australia from Pakistan on 11 March 2018. The evidence also establishes that his enrolment in that course was cancelled by UQ on 8 March  2018, now some 2 years and 4 months ago, for the reasons given in its email of 31 July 2018, and that the applicant has not been enrolled in any other registered course since that time.

32. Despite having been requested by the Tribunal on more than one occasion to provide documents in support of his case, the only evidence which the applicant has provided is a copy of the ALC offer for the English course referred to earlier in these reasons. This offer, which is the form of the ALC letter of 13 February 2020, was made subject to conditions including payment of the total tuition fee prior to the scheduled start date of 16 March 2020. But there is no evidence from the applicant to establish that this condition, or for that matter any of the other conditions, have been met. Nor, indeed, is there any evidence from him to the effect that he has accepted, or purported to accept, the offer. Certainly he has not signed the Declaration on the end of the letter evidencing acceptance.

33. The timing of this offer is not unimportant and leads the Tribunal to infer that it was likely procured for strategic reasons rather than with a genuine desire on the part of the applicant to become proficient in English.

34. The Tribunal notes that in the agent’s email of 14 February 2020 there is no claim to the effect that the applicant has in fact accepted the ALC offer. The only claim made in this email is that he wished to complete the “intended (ALC) course” before returning home or undertaking a further (unspecified) course.

35. The strong probability in these circumstances is that the applicant has either not accepted the ALC offer or that it was withdrawn by the provider prior to acceptance. The fact that PRISMS has no record of his enrolment in this course tends to confirm as much.

36. On the evidence the Tribunal cannot be satisfied that the purpose of the applicant’s travel to Australia in March 2018 was indeed to study, or that he has stayed here for that purpose. The breach is in any event an extensive one and it is, on his case, totally unexplained. In the Tribunal’s view, these are very weighty if not overwhelming adverse considerations at the discretionary level.

37. More particularly, the Tribunal has no evidence from him to explain why his enrolment was cancelled, nor is there any evidence from him to refute the assertions made in the 31 July 2018 email from UQ. The email of 18 October 2018 confirms the cancellation and states that the applicant applied to be released to another provider but was not able to obtain an alternative offer and, consequently, his request for the release was denied by the University on 27 July 2018. According to this email, he was given until 24 August 2018 to appeal but did not do so, apparently.

38. There is no evidence from the applicant to explain why he did not appeal or which could otherwise have thrown a different light on the circumstances in which the cancellation of his enrolment in the MDS took place. 

39. In the agent’s submission it is said that the applicant is “very upset and heartbroken” at having his enrolment cancelled and that he wishes to study English for a year before returning, presumably to Pakistan. The Tribunal is unable to accept any of these assertions. Not only is there no evidence to support them, apart from the fact that the applicant has managed to procure the ALC offer, his failure to enrol in any registered course since 8 March 2018 is most likely to be explained on the basis that he has been unable to do so because of the circumstances in which his enrolment in the MDS was cancelled.

40. As noted earlier, the Tribunal is simply not prepared to act on any of the assertions in the agent’s submission in these circumstances unless they constitute admissions and, more particularly, is not prepared to find that the applicant is currently enrolled in the ALC course or any other course. The documentary evidence, in the form of the Movements Details, establishes that he has nonetheless remained in Australia since March 2018. The agent’s submission accepts as much.

41. Just as importantly, the Tribunal has no evidence, and the agent has made no submissions, to throw any light on what the applicant has been doing in Australia since his enrolment in the MDS was cancelled. On the evidence led he has been totally unproductive in an academic sense during this period. Nor does the Tribunal have any evidence from him as to why he enrolled in the MDS, or to explain the relevance of that course, or any other course, to his future in Pakistan.

42. The proper if not inescapable inference is, in these circumstances, that the applicant has been malingering, that he has been using the migration legislation to maintain a residence here and that he will continue to do so for as long as he can, if given the opportunity. Indeed, given the way in which the applicant’s review case has been conducted, when assessed against the documentary records and the flimsy evidence which he has seen fit to provide in support, it can only be described as rather audacious.    

43. The Tribunal has regard to the mandatory legal consequences to the applicant which flow from this decision but these are the intended effects of the legislation and the Tribunal sees no reason in this case to give them other than minimal if any weight.

44. There are no other relevant matters arising on the evidence or which the Tribunal need otherwise take into account.

45. Overall, the considerations set out above weigh heavily in favour of the Tribunal exercising its discretion to affirm the decision to cancel the applicant’s visa.

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

    DECISION

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

   Michael Bradford
   Member

   
   

   ATTACHMENT

   Migration Regulations 1994

   …

   Schedule 8

   8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

   (a)a Defence student; or

   (b)     a Foreign Affairs student; or

   (c)      a secondary exchange student.

   (2) A holder not covered by subclause (1):

   (a)      must be enrolled in a full time registered course; and

   (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

   (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

   (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

   (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

   (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

   (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

   (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.