Ramjaun (Migration)

[2022] AATA 3872

Ramjaun (Migration) [2022] AATA 3872 (26 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Altaaf Hussein Ramjaun

REPRESENTATIVE:  Mr Derrick  Peters (MARN: 1175659)

CASE NUMBER:  2209641

HOME AFFAIRS REFERENCE(S):          34458654835

MEMBER:Noelle Hossen

DATE:26 October 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 26 October 2022 at 3:01pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a course of study – applicant convicted of offences and detained – gap in studies – several courses cancelled – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 116, 140, 189, 359, 499
Migration Regulations 1994, r 2.43

CASES

Wan v MIMA (2001) 107 FCR 133                 

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 30 June 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant was convicted on the 31/03/2022 of reckless driving to escape pursuit by police, whilst he had no authority to drive and failed to comply with a direction to stop. 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 2022 to give evidence and present arguments.

4. The Tribunal caused a search of PRISMS, being the Provider Registration and International Student Management System register, to be undertaken. The purpose of this search was to ascertain whether the first named applicant was enrolled in a registered course.

5. According to the PRISMS website, the Department of Education, Skills and Employment is responsible for the Commonwealth Register of Institutions and Courses for Overseas Students. It is recorded that PRISMS is a computer system developed by the Department in association with the Department of Home Affairs for the purpose of receiving and storing information about accepted overseas students that is given to the Secretary under the Education Services for Overseas Students Act 2000. It is further noted that PRISMS provides a secure system for providers of registered educational institutions to comply with legislative requirements by issuing confirmations of enrolments as ‘evidence of enrolment’ in a registered full-time course as required by the Department of Home Affairs and reporting changes in course enrolment, particularly where study ceases, or the duration of the study changes.

6. It is therefore apparent that PRISMS is a business record of the Department of Education, Skills and Employment and is used by the Department of Home Affairs as evidence of enrolment for the purposes of assessing the grant of student visas. While it is possible providers may not update PRISMS as required, the Tribunal accepts that PRISMS is a reliable record of enrolments, unless there is specific evidence to the contrary in relation to a particular case. There is no such evidence in this case.

7. The PRISMS search revealed that the applicant did not hold a current confirmation of enrolment in a registered course as of 23 September 2022 being the date of the search.

8.    On the 3 October 2022 the Tribunal sent the following s.359A letter to the applicant:

In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

Please note, however, that we have not made up our mind about the information.

The particulars of the information are:

A recent check of the Provider Registration and International Student Management System (PRISMS) indicates that you appear to not be studying in a registered course between 15/07/2019 and 13/07/2020 and after 21/01/2022.

The PRISMS records showed that you had enrolled in a Certificate III in 3 times. This would suggest that you failed to pass the Certificate III course when enrolled between 13/07/2020 and 12/11/2021.This indicates that you made little or no academic progress in your studies from 15/07/2019.

This information is relevant to the review because you have applied for a Student visa and it is a requirement for the grant of a Student visa that you are enrolled in a course of study at the time of decision (clause 500.211). A course of study is defined as a fulltime registered course. There are limited exceptions to this requirement which do not appear to be relevant to your review (such as where you are a Foreign Affairs, Defence or secondary exchange student).

If we rely on this information in making our decision, we may find that you are not currently enrolled in a course of study. This would mean that you do not meet clause 500.211. The consequence of the Tribunal relying on this information is that it would be the reason or part of the reason for the Tribunal to affirm the decision of the delegate to refuse to grant you a Student visa.

1. The applicant was given until the 17 October 2022 to comment on or respond to the information.

2. On the 17 October 2022 the applicant responded and provided a statement from himself, a letter from his treating addiction specialist and a short note from the treating medical practitioner setting out the details of his treatment days.

3. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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. 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)(g). 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?

   s 116(1)(g) - prescribed ground

6. A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (the Regulations).

7. The applicant was granted a TU-500 Student Visa on the 25 October 2021.He received the Notice of Intention to consider cancelling the Visa on the 30 June 2022.

8. His immigration history can be summarised as follows:

   22/05/2019 First arrived in Australia holding FA-600

   09/08/2019 TU-500 Visa Grant

   25/10/2021 TU-500 Visa Grant

   31/03/2022 Convicted of Offences

   30/06/2022 TU-500 cancelled under Section 116(1) (g)

   30/06/2022 Detained under Section 189(1)

   01/07/2022 Lodged application for review

   01/07/2022 Lodged a BVE from detention

   04/07/2022 DRO notified of BVE

   05/07/2022 BVE interview conducted

   06/07/2022 BVE refused

9. The handwritten record of decision stated as follows: “The client has been convicted of several criminal offences and has been sentenced to a total of 12 months imprisonment, namely Reckless Driving to Escape Police. These actions resulted in the creation of an unacceptable risk to the Australian community having travelled at 140km per hour in a 60 km zone. He also held previous convictions for speeding, demonstrating a pattern of driving offences, and disregard for the safety of the Australian Community.”

10. In his initial interview by the Department, it is noted as follows: “The client stated that he does not dispute the grounds for cancellation and understands why the grounds have been enlivened. The client does not dispute that he has been convicted of the attached offences.”

11. On the 30 June 2022 the applicant’s visa was cancelled by a Delegate of the Minister. The delegate concluded that the grounds existed for a cancellation of the visa under Section 116(1)(g) and that the visa should be cancelled. The applicant lodged an application for review of the delegate’s Decision with the Tribunal on the 1 July 2022.

12. At the time of the hearing, the evidence before the Tribunal is that the applicant was convicted of several criminal offences and had to serve a term of imprisonment. His actions resulted in the creation of an unacceptable risk to the Australian community because he was convicted of reckless driving and drove at speeds of up to 140km per hour in a 60 km per hour zone. He had previous convictions for speeding offences and driving without a licence.

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

14. If satisfied that the ground for cancellation under section 116 is made out, the decision maker has discretion whether to cancel the visa. Neither the Act nor the Migration Regulations 1994 (the Regulations) specify mandatory considerations that should be taken into account by the decision maker when exercising the discretion, nor has the Minister issued any directions under s.499 of the factors to be considered. It is long established principle that the Tribunal on review is considering the matter afresh based on the material before it and is not bound by the findings of the Delegate. The Tribunal has also 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.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia:

15. The applicant stated that he had travelled to Australia on a Visitor’s Visa to visit his sister and that he decided to study after his arrival. He told the Delegate that he had arrived in Australia to study Automotive Engineering at the cost of his uncle in Mauritius. The PRISMS record showed that the applicant had not progressed well in his courses whilst studying in Australia:

16. The applicant had enrolled in the following courses:

    Certificate III in Light Vehicle Mechanical Technology 15/07/2019 - 12 /07/2020 cancelled

    Certificate III in Light Vehicle Mechanical Technology13/07/2020 to 12/11/2021 Finished

    Certificate III in Light Vehicle Mechanical Technology 15/11/2021- 27/01/2022 Finished

    Certificate III in Commercial Cookery 25/07/2022- 28/07/2023 cancelled

17. The applicant did not provide the Tribunal with a copy of any Certificates to prove that he had finished any of the courses as set out above. The applicant has been living in Australia at the time of the review hearing for 3 years and he had not completed and passed a registered course in its entirety.

18. In his response to the Section 359A he said that he was enrolled at Skills Institute Australia from the 15/07/2019 to 12/07/2020 in a Certificate III in Light Vehicle Mechanical Technology and he was paying monthly instalments and that he has proof of his payments. He went further to explain that he was a “victim of drug abuse” and that he had taken steps towards rehabilitation at the Fresh Start Clinic. He did not explain what he meant by the statement that he was a victim of drug abuse.

19. He said that the reason that he was enrolled in a Cookery Course was because his mother had enrolled him in that course as she found out on the 25 March 2022 that his enrolment was going to be cancelled.

20. It was noted by the Delegate that the applicant had stopped attending classes prior to the Visa being cancelled. It states that the applicant told the Delegate that he had stopped attending his classes in January or February 2022.

21. He had provided the Tribunal correspondence from the medical practitioners who were treating him for his drug addiction that he had to have implants placed in his body as part of his treatment for drug addiction on the 24/05/2019, 22/01/2020, 13/07/2020, 12/11/2021 and 15/12/2021.It was noted by the medical specialist that the treatment may have affected his capacity to learn. There was no evidence of how that was the case.

22. The PRISMS records do outline that the applicant did not progress academically in his courses and has yet to complete and pass a Course in its entirety.

23. The Tribunal places some weight on those facts against the applicant’s case and in favour of cancelling the Visa.

    The extent of compliance with visa conditions:

24. There is no evidence that he has not complied with his visa conditions save that he has been attending classes prior to his custodial sentence.

25. However, he did have a poor attendance record for the Certificate III in Light Vehicle Mechanical Technology Course that he was enrolled in, in 13/07/2020 to 12 /11/2021.He had an attendance rate of 45 percent. This was well before he was placed in prison. His treating addiction specialist explained that his low attendance rate may have been because of his treatment from Fresh Start as he had implants inserted in his body that might have made him less capable of attending his course.

26. The Tribunal is of the view that he may not have complied with his visa obligations if he did not attend his course. The evidence is that he was unable to pass a course in its entirety since his arrival in Australia.

27. As the evidence is not conclusive as to whether he complied with his obligations the Tribunal does not place any weight for or against cancelling the Visa.

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

28. At the hearing the applicant stated that it would cause his family who have accompanied him to Australia, hardship if they had to return to Mauritius.

29. However, the applicant and his parents came to Australia on temporary visas to study. He said that his sister is now on a Graduate Visa and that she works for a mining company. She lives independently with her husband.  

30. He told the Tribunal that he worked for his uncle at a mechanical workshop in Admin before he came to Australia. His Uncle still lives in Mauritius. His grandfather lives there too. He has friends and family in his home country. He said that he was hoping to set up his own business if he had obtained qualifications in Australia. There was no evidence before the Tribunal relating to his business plans.

31. There is no doubt that the fact that the applicant may have to return to his home country without his close family members who would still be in Australia may cause him some temporary hardship. He does not have a partner and any dependants. The Tribunal does place some weight on those facts in favour of not cancelling the Visa.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control: 

32. The circumstances in which the ground of cancellation arose were not beyond the applicant’s control as he was the person who committed the offences. The applicant should not have been driving as he did not have authority to drive. The applicant is fully responsible for his actions that led to his convictions so the Tribunal places weight against the applicant’s case and in favour of cancelling the Visa.

    Past and present behaviour of the visa holder towards the Department:

33. In the Delegate’s handwritten decision, it is stated that the Delegate found the applicant to be cooperative during the interview and there is no evidence that the applicant has behaved badly towards the Department.

34. The Tribunal places some weight in favour of not cancelling the Visa.

    Whether there would be consequential cancellations under s 140:

35. There are no consequential cancellations under s140.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention:

36. The applicant has been in detention since he left prison because his Visa has been cancelled. The reason for his detention is because he was deemed to present an unacceptable risk to the Australian public because he drove at high speed in a 60 km zone and failed to stop when asked to do so by the police.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

37. The visa has been cancelled since the 30 June 2022 and the applicant has become unlawful and has been in detention. There is nothing before the Tribunal to suggest that the cancellation of the applicant’s visa would breach international obligations. The Tribunal places some weight on those facts in favour of cancelling the Visa.

    If it’s a permanent visa, whether the former visa holder has formed strong family, business or other ties:

38. This paragraph is not relevant as the applicant did not hold a permanent Visa.                 

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

    decision

40. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Noelle Hossen
    Member