Rasool (Migration)

[2018] AATA 191

Rasool (Migration) [2018] AATA 191 (31 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kamran Rasool

CASE NUMBER:  1619629

DIBP REFERENCE(S):  BCC2016/3037977

MEMBER:Christine Kannis

DATE:31 January 2018

PLACE OF DECISION:  Perth

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

Statement made on 31 January 2018 at 7:30 am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Requirement to be enrolled in a registered course – Applicant not enrolled in a registered course – Consideration of discretion – No extenuating or compassionate circumstances

LEGISLATION
Migration Act 1958, s 116(1)(b)
Migration Regulations 1994, Schedule 8, Condition 8202(2)(a)

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 17 November 2016 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).

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 22 January 2018 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 30 June 2014 the applicant was granted a visa in Subclass 572 Vocational Education and Training 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. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since 30 October 2015. He was enrolled in an Advanced Diploma of Business which was cancelled on 30 October 2015. He was also enrolled in a Diploma of Human Resources and Certificate IV in Human Resources. His enrolment in those courses was also cancelled on 30 October 2015.

9. Having regard to the information in the PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 30 October 2015. 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  9 November 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. The applicant did not respond to the NOICC.

14. Prior to the hearing the applicant provided a copy of a prescription issued to him on 27 July 2017.

15. At hearing the applicant provided further documentation including evidence of communication between him and the Business Technology Institute of Australia (BTIA) with respect to outstanding fees in 2015. He also provided medical evidence in relation to his mother’s medical conditions of Hepatitis and a liver condition.

16. The applicant provided a letter from DNA Kingston Training dated 9 November 2015 advising of a Conditional Offer of a place in a Diploma of Management course. The letter confirmed the applicant had acknowledged that he was able to pay $4,500 for his first semester. The commencement date of the course was 2 December 2015.

17. The applicant told the Tribunal that the college he was attending (BTIA) was run by brothers from his village in Pakistan. He said sometimes he paid his fees in cash and sometimes he paid his fees into a nominated bank account. Prior to cancellation of his enrolment in October 2015, BTIA advised him that he had outstanding fees. He told BTIA that he had paid the outstanding fees into the nominated account in the name of one of the brothers, who he said was a teacher at BTIA. BTIA informed him that the account did not belong to BTIA. The documentary evidence provided indicates that the amount of the outstanding fees was $1,000.

18. The applicant told the Tribunal that the teacher committed a fraud upon him.

19. The Tribunal noted that the PRISMS referred to the reason for cancellation of his enrolment in the Advanced Diploma of Business was “unsatisfactory course progress”. He said this reason was provided because he was not permitted to attend classes due to having outstanding fees.

20. The Tribunal put to the applicant that he would have known he was in breach of a condition of his visa following cancellation of his enrolment. He said he attempted to rectify the breach by enrolling in a course at DNA Kingston Training however his enrolment was not accepted because he was unable to obtain a Letter of Release from BTIA. 

21. The Tribunal asked the applicant the reason he did not contact the Department once he was aware that he was no longer enrolled in a course. He said he discussed the matter with his friends and they told him not to go to a lawyer because a lawyer would advise him to contact the Department.

22. The applicant said another reason he did not contact the Department was because he thought that if he waited until his visa ceased, he would be able to obtain a Letter of Release from BTIA and then he could enrol in another college.

23. The applicant conceded that he was at fault in not contacting the Department when his enrolment was cancelled on 30 October 2015 but said the reason he did not do so was because of the stress he was under. Specifically he referred to the outstanding fees issue and his mother’s ill health. 

24. The applicant told the Tribunal that his mother suffers from a liver condition. He said her health together with the outstanding fees issue caused him to feel stressed and as a result he attended a doctor and was prescribed medication for anxiety, namely Lexapro. He said he attended the doctor 12 to 18 months ago. The copy prescription provided prior to the hearing was dated 27 July 2017. There was no evidence to support the applicant’s contention that he attended a doctor 12 to 18 months ago however even if this is accepted, this would mean he attended sometime after July 2016, several months after cancellation of his enrolment.

25. The Tribunal asked the applicant the reason he did not respond to the NOICC in November 2016. He said he believed the NOICC meant that his visa had already been cancelled. The Tribunal referred him to page 3 of the NOICC which advised the following:

    You must provide your response in writing with in five (5) working days after you are taken to have received this letter.

26. The NOICC advised that a failure to respond would mean that a decision whether to cancel his visa would be made using the information held at that time.

27. The applicant conceded that he was at fault in not responding to the NOICC. He said he was unable to manage his affairs due to stress.

28. The applicant said following cancellation of his enrolment in October 2015 he worked in 2016 but in 2017 he was not permitted to work. He said in 2017 he used his savings to pay for his living expenses.

29. The Tribunal asked the applicant the reason he came to Australia to study. He said he wanted to study Business Management and Business related things. He said he intended to use the qualification to work in his family’s heavy machinery and trading business in Pakistan. The applicant said a qualification would assist him to manage and grow the business and lead it to more success.

30. Noting that the PRISMS shows he was previously enrolled in Hospitality and Cookery courses, the Tribunal asked him the reason for those enrolments. He said that his passion is cooking and a business qualification would also assist him in starting a hospitality related business.

31. Regarding the potential hardship which would result from the cancellation of his visa, the applicant said his family do not know that he has not been studying since October 2015. He said that if they knew they would be disapproving. He said his mother might become stressed and this might affect her liver condition. The applicant said it would also be stressful and annoying for him because it would mean that he had not completed his studies.

    Conclusion

32. 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 applicant’s oral evidence and in the documentary evidence provided prior to and at the hearing.

33. The applicant did not dispute that he was aware that he was in breach of a condition of his visa following cancellation of his enrolment on 30 October 2015. He attempted to enrol with another education provider but was unable to do so without a Letter of Release from BTIA. The applicant did not contact the Department or a lawyer prior to the issuing of the NOICC, some 12 months later.

34. The applicant told the Tribunal that the cancellation of his enrolment was due to the fraudulent actions of a teacher. The Tribunal makes no findings regarding the applicant’s outstanding fees to BTIA in October 2015. The documentary evidence provided indicates the outstanding fees amount was $1,000. The Tribunal notes that the letter from DNA Kingston Training confirmed that the applicant had acknowledged that he was able to pay $4,500 for his first semester with a commencement date of the course being 2 December 2015. Whether or not a fraud was committed, the outstanding fees were payable by the applicant to BTIA and there was no evidence to suggest that he was unable to pay the fees.

35. The purpose of the student visa is to enable the visa holder to undertake study in Australia. The applicant has not been enrolled in a registered course since 30 October 2015 and over 12 months elapsed from that date until the NOICC was issued.

36. Based on the evidence, the Tribunal finds the applicant’s breach of condition 8202 of his visa to be significant because he was not engaging in study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.

37. Having considered all the matters raised by the applicant at hearing the Tribunal finds that it is positively satisfied that the applicant’s non-compliance with the visa condition was not due to exceptional circumstances beyond his control.

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

39. 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 his family will disapprove if he returns home before completing his studies.

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

41. There are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing to suggest, and the applicant does no claim, that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

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

    DECISION

43. 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.