Raza (Migration)

[2019] AATA 1259

Raza (Migration) [2019] AATA 1259 (3 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ali Raza

CASE NUMBER:  1711328

HOME AFFAIRS REFERENCE(S):           BCC2017/909483

MEMBER:Stephen Witts

DATE:3 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 03 April 2019 at 1:44pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – genuine student – academic progression – not enrolled in higher education sector level – study gap of in excess of nine months – consideration of discretion – father’s illness – financial difficulties – responsibility to be aware of study responsibilities – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
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 22 May 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education 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 was not 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 3 April 2019 to give evidence and present arguments.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

5. The applicant was represented in relation to the review 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

   s.116(1)(fa) - not a genuine student

8. 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.

9. 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]).

10. 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.

11. According to the delegate’s decision record dated 22 May 2017, provided to the Tribunal by the applicant, the applicant was granted a Student (Temporary) Higher Education Sector class 573) visa on 1 May 2014 to study a Bachelor of Business (Management).

12. According to the delegate the applicant has been enrolled in the following courses here in Australia:

    a)Bachelor of Business (Accounting). This enrolment was cancelled due to non-payment of fees on 31 July 2015

    b)Bachelor of Business (Accounting). This enrolment was cancelled due to non-payment of fees on 16 October 2015

    c)Bachelor of Business (Accounting). This enrolment was cancelled due to non-payment of fees on 24 June 2016. The last confirmed the date of study in this course was 5 June 2016.

13. According to the delegate’s decision record as at 22 May 2017 the applicant held enrolments in a Certificate IV in Commercial Cookery which commenced on 27 March 2017 and was due to complete on 23 September 2017 and a Diploma of Hospitality Management which commenced on 19 November 2018 and was due to finish on 19 May 2019.

14. According to the delegate’s decision record since the grant of his visa on 1 May 2014 he has not maintained any studies in line with the purpose of his subclass 573 visa. The delegate also contended that the applicant does not hold a valid enrolment in a higher education level course as required by the conditions of his subclass TU573 Higher Education Sector visa and that prior to commencement of his current course (as at 22 May 2017) on 27 March 2017 his last confirmed date of study was 5 June 2016, a study gap of in excess of nine months.

15. According to the delegate based on this study record the applicant is not a genuine student given his lack of study and academic progression over a substantial period of time whilst remaining in Australia on a visa granted for the primary intention to study.

16. According to the delegate’s decision record the applicant was sent a Notice Of Intention to Consider Cancellation (NOICC) by email on 12 May 2017 and the notice invited the applicant to respond in writing.

17. On 7 April 2017 the applicant provided the following response (delegates file folio 19-20):

    “As mentioned in your above letter that my COE was cancelled several times due to non-payment of my fees. I want to explain that wide all happened. After getting my student visa and a subclass 573 (higher education) for bachelor of business and after arrival I change my course from bachelor of business to bachelor of business (accounting) because of more career opportunities in my home country i.e. Pakistan. As you are aware that because of stable democracy in our country and more investments in private sectors we have more opportunities for qualified accounts people especially after the start of China Pakistan Economic Corridor (CPEC). So I change my specialisation from business management to accounting.

    After that my COE was cancelled by College on 30 1 June 2015 and again on 24 June 2016 due to non-payment. The reason behind this was that my father fell sick and was diagnosed hepatitis C in March 2015 in Pakistan. As a result doctor advised him to get admitted to hospital and also asked him to have a complete rest until he recovered. He was in a very severe condition after that time and because of which he couldn’t pay much attention to his business and suffered a huge loss. And then he had to pay for his expensive medication as well.

    As he is my sponsor for my study in Australia and in a result he was unable to send me money on time. Although I requested my college to give some instalment plan for my tuition fee payment but they refused and as a result my first CoE got cancelled due to non-payment of my fees. But still my father tried and sent me money after some time and I got reenrolled and I continued my studies. But it happened once again that I couldn’t pay fees on time and my enrolment got cancelled. But I hardly managed after that and at last the conditions got worst and I couldn’t continue. I went to college after my last COE was cancelled and asked them to enrolled me and I will pay fees later on instalments but the college fee administration said they were unable to do so as I was cancelled a few times due to non-payment. So at last I couldn’t pursue my studies after June 2016. I have asked the college CIC for re-enrolment in November 2016 intake and initially they told me yes we will after receiving payment but then they cancelled my COE without informing me and when I got my admission in AITT in March 2017 then I got notification from immigration about my cancellation.

    I have attached my father’s affidavit/undertaking on legal stamp paper and doctors reports with this email and letter for reference and your record. Now he is completely recovered and able to pay my fees and other expenses.

    I am genuine student and now I got admission at Australian Institute of Technical Training Propriety Limited in Certificate IV in Commercial Cookery (COE 8B523D57) and started my classes from 27 March 2017 and after that I will complete Diploma of Hospitality Management (COE 8B524F61) from same college.

    As I have started these new courses (certificate-IV) a few weeks back and I intend to apply for my new visa for these VET sector certificate and diploma courses in coming weeks, most probability in the first week of June 2017. Everything is ready for my NEW VISA lodgement for my NEW COURSES and these days I am just arranging my visa application supporting documents.

    Therefore, I humbly request you to kindly do not take strict action and please do not cancel my current visa. This will save my future and give me a chance to complete my current studies at Australian Institute of Technical Training (AITT), Melbourne. I am sure you consider my request on special grounds and review your decision of my visa cancellation and help me to continue with my studies.

    If there is any further questions or explanation you need I will be more than happy to help you with that.”

18. As stated above the applicant also provided an affidavit (delegates file folio 18) and a medical certificate (delegates file folio 17) referring to his father’s illness.

19. The Tribunal discussed the applicant’s study record with him. The Tribunal noted to the applicant that the delegate has contended that he had an obligation to study at higher education sector level and that he had not done so, and further, that as at the date of the delegate’s decision, that is 22 May 2017, that the applicant was not enrolled in a higher course of study. The applicant stated that that contention by the delegate was correct specifically that he was not enrolled during that period.

20. When questioned by the Tribunal as to the delegate’s contention that the applicant had a study gap of nine months during this period of time the applicant acknowledged that this was the case and that he had a 8 to 9 month gap in his study and enrolments from June 2016.

21. The Tribunal has considered the evidence provided by the applicant in regard to this specific matter and finds that the applicant has not provided adequate evidence that causes the Tribunal to not have satisfaction that the ground for cancellation in s.116(1)(fa) exists.

22. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(i) 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 Tribunal has considered any submissions provided Department, and to the Tribunal, and also the evidence taken at the Tribunal.

    ·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

25. The applicant stated that he has his parents and five brothers back in his home country and that he is the oldest brother. He stated that his family own a shop, properties, and some agricultural land. He stated that since his arrival here in 2014 he has not been back to his home country.

26. The applicant stated that he completed his high school level education in 2013 and studied for and successfully completed a Diploma of Business Management back in his home country. He stated that he then decided that he wished to come to Australia as an international student to study a Bachelor of Business (Management) as that would provide him with an international business degree.

27. The applicant stated that he studied for his Bachelor of Business (Management) for approximately one term before deciding that he did not want to do this particular kind of business course and so therefore decided to enrol in a Bachelor of Business (Accounting) as accounting would be a more appropriate course of study for him.

28. He then stated that his family developed financial problems because of his father’s illness and that therefore his enrolments in a Bachelor of Business (Accounting) were therefore cancelled on three occasions in July and October 2015 and June 2016.

29. The applicant stated that due to his family’s financial circumstances during this time he was unable to continue his study. He then stated that he subsequently enrolled in a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management but could not continue with these courses as his visa was cancelled.

30. The applicant provided evidence to the Tribunal indicating that his father was ill during this period of time, that is during the cancellations for his accounting degree, in particular between March 2015 and November 2016 with the applicant providing evidence that his father was suffering from an illness and consequential business complications associated with his inability to work that meant he was unable to send enough money to his son to pay for his student fees.

31. The applicant stated that he was unable to proceed with his studies for that reason and that was why there was also a nine-month study gap from June 2016. The applicant stated that he asked the educational provider for instalment plans to assist him in being able to maintain his study but was unable to be placed on such a plan.

32. When asked by the Tribunal to outline what compelling need the applicant would have to remain here in Australia on student visas the applicant stated that he had four brothers back in his home country and that he was the eldest one and that he wanted to send an example to his family as an international student. He stated that when he went back to his home country after having successfully achieved his bachelor level business qualification he could help in his father’s business. He further stated that it had become very hard to study here in Australia because he was particularly distressed by his father’s illness, and by his father’s inability to pay his tuition fees, and that he developed a gambling habit whilst here in Australia. He stated that he has a compelling need to remain in Australia and to be able to successfully study as a student and gain his business degree at bachelor level as people back in his home country, including his relatives, knows he is here and it would cause his family some shame if he had to go home to his home country without a degree. He further stated that he does have some completed units in accounting which he did complete whilst here prior to his cancellations. He stated that he was the only hope for his family as the eldest son and did not want to face his family without a degree level qualification. When asked by the Tribunal why he did not go home during the time of his father’s illness the applicant stated that he has not returned home at all since his arrival here in 2014 and did not want to face his father at this time due to the circumstances of his illness and to the applicant’s circumstances here in Australia at that time. He stated that his father is well now and is managing his business appropriately.

33. The Tribunal has considered the applicant’s evidence, in particular the applicant’s statements above, and finds that the applicant does not have a compelling need to remain in Australia on student visas. The Tribunal acknowledges that the applicant genuinely had financial difficulties here in Australia because of his father’s illness and was not able to continue his tuition fees for a period of time. The Tribunal also appreciates that the applicant may have tried to negotiate instalment plans with his education provider. However, it is the applicant’s responsibility to remain enrolled whilst on a student visa and progress academically. It was open to the applicant to seek a deferment for a period of time during his father’s illness and he could have returned home to deal with his family matters and then return to Australia at the appropriate time to continue his high-level study. The applicant did not do this. It is also noted by the Tribunal that the applicant’s initial enrolment in a Bachelor of Business (Management), which was the original enrolment for his higher education sector visa was cancelled by the applicant because he did not want to proceed with this enrolment, wherein he then proceeded with three cancellations of his accounting course due to his financial difficulties.

34. The Tribunal takes note of the applicant’s statements about the shame he would experience by having to return home without a degree qualification but does not accept that the applicant has demonstrated a compelling need to remain here on student visas. The applicant stated that he had had difficulties in his study here but that he had completed some of his accounting units but nevertheless the Tribunal is not confident that the applicant would be able to make a success with his high-level study here. The applicant could return to his home country and seek to study successfully at higher level noting that he has a diploma level qualification gained back in his home country after his high school and reconcile his relationship with his family having explained to them the reasons why he has not been able to get a degree as an international student. He could never the less still achieve some further qualifications back in his home country and go on and have a successful business career or work with his father or in another field and does not have a compelling need to remain in Australia on student visas.

    ·the extent of compliance with visa conditions

35. The applicant was granted a higher education TU573 student visa in order to study in Australia. As such his intention must be to study, maintain enrolment, attendance and course progress in the higher education sector.

36. The applicant also acknowledged that he did not contact the Department or make any effort to inform the Department that he was not enrolled and did not study during a significant part of his student visa period.

37. The Tribunal finds that the applicant is in breach of his student visa conditions and as such the Tribunal gives some weight to this in cancelling his visa.

    ·degree of hardship that may be caused (financial, psychological, emotional or other hardship)

38. When questioned by the Tribunal as to whether the applicant would suffer any hardship by not being able to remain here in Australia on student visas the applicant stated that he hadn’t finalised any qualifications whilst here and he wanted to set an example to his family by getting international business qualifications. He reiterated that at the moment he hadn’t achieved anything and he did not want to go home and feel shame through those circumstances.

39. As stated above the Tribunal does not accept that a feeling of shame or underachievement is a sufficient hardship that merits the applicant not having his student visa cancelled.

    ·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

1. The applicant and the applicant’s representative stated that the applicant’s visa cancellation was beyond his control because of his family circumstances where due to his father’s illness he was unable to pay the tuition fees for his courses here.

2. The Tribunal does not accept that these circumstances demonstrate that the visa cancellation was beyond the visa holder’s control. The applicant could have sought a deferment for a period of time to allow him to deal with his financial and family circumstances and then proceeded to study successfully here.

3. The Tribunal therefore finds that there are no grounds for cancellation beyond the visa holder’s control.

   ·past and present behaviour of the visa holder towards the department

4. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the department or the Tribunal in his dealings. However, this is expected of all visa holders.

   ·whether there would be consequential cancellations under s.140

5. There is no evidence of consequential cancellations under s.140.

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

6. The Tribunal is mindful that the applicant could become an unlawful noncitizen and detained and removed from Australia pursuant to ss. 189 and 198, and it may be difficult to be granted further visas, and he may be subject to a three-year exclusion period unless relevant Public Interest Criterion is met.

7. However, it is unlikely that the visa applicant will be detained but rather provided with a time limited period in which he can leave the country or apply for review of the decision.

   ·whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

8. There is nothing before the Tribunal to indicate any international obligations to consider.

   ·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

9. No such considerations are relevant in this case.

   ·any other relevant matters

10. The applicant’s representative, on behalf of the applicant, stated that the applicant was very young when he came to study here in Australia and that he did not understand the difference between higher education study and VET sector study. He stated that it was his migration agent’s fault because the agent did not explain the difference between such enrolments or explain to the applicant the level of study required to successfully study in the higher level education sector. The applicant’s representative stated that the applicant’s migration agent should have structured a program with the applicant whereby he studied at lower level first before attempting a high-level degree qualification. The applicant’s representative also stated that the applicant’s agent was known to the family back in his home country and that complicated matters and meant that the applicant could not communicate with his agent. The applicant’s migration agent also stated that the applicant had sought payment plans from the educational institutions that he was enrolled with. He further stated that the Tribunal should take into account the shame the applicant will experience should be made to return home without a qualification. He asserted that the applicant had a gambling problem and had been very distressed here in Australia which should be taken into account when considering the applicant’s circumstances.

11. The Tribunal finds that it is not sufficient to blame the migration agent for the applicant not understanding the difference between a visa commitment to study at higher education level or at VET level. It is the applicant’s responsibility to get the right advice and be aware of his study responsibilities for his visa here. The Tribunal has considered the other evidence provided above in regard to the migration agents connection with the applicant’s family and also with the applicant’s attempt to negotiate an instalment plan for his tuition fees but finds that this evidence is not sufficient to conclude that the visa should not be cancelled.

12. The Tribunal has also considered the evidence provided as to the applicant’s distress whilst here and to the shame he would feel having to return home without a qualification and, whilst acknowledging that these are real concerns, does not find that this is sufficient to conclude that the visa should not be cancelled.

13. The Tribunal has given consideration to the applicant’s evidence in regard to any reasons why the applicant’s student visa should not have been cancelled. In particular the Tribunal has considered the applicant’s evidence regarding his difficulties here in Australia maintaining his enrolments and the stated reasons why he was having these difficulties. However, the Tribunal does not find that this is an adequate set of circumstances that presents as a compelling need for the applicant to remain here on student visas.

14. The Tribunal also appreciates that an education from Australia may enhance the applicant’s career, however if he does not achieve this, it would not prevent him from gaining employment or developing a professional career back in his home country. It is noted by the Tribunal that the applicant has completed his high school level education and has a diploma level qualification in business management and that he could continue his education at higher level back in his home country. The economy of Pakistan is significant and its rapid development would ensure a demand for appropriately qualified graduates, or alternatively, the applicant could return and work in some capacity in his father’s business.

15. The Tribunal has considered the applicant’s statements and evidence given at the hearing, however finds that the applicant was in breach of his visa conditions, and that the evidence provided by the applicant was not adequate enough to demonstrate that the applicant had a compelling need to remain in Australia on student visas or would suffer any particular hardship of a financial, psychological, emotional, or other hardship, by having to return to his home country. The Tribunal concludes that the visa should be cancelled as the applicant is not, or not likely to be, a genuine student.

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

    DECISION

17. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Stephen Witts
    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.