Rizvi (Migration)

[2019] AATA 5722

Rizvi (Migration) [2019] AATA 5722 (20 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Syed Aamir Shabbir Rizvi

CASE NUMBER:  1809487

HOME AFFAIRS REFERENCE(S):          BCC2018/167768

MEMBER:D. Triaca

DATE:20 December 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 20 December 2019 at 3:34pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – not enrolled in registered course – ceased enrolment – grievances against college – COE cancelled by college – no hardship identified – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

CASES

Boettcher v Driscoll (2014) SASC

de Angelis v De Angelis [2003] VSC 432

Liu v MIMIA (2003) FCA 1170

Paduano v MIMIA (2005) 143 FCR 204

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The Applicant is a citizen of Pakistan. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 3 April 2018 cancelling his Subclass 573 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had failed to comply with visa condition 8202(2)(a) which required him to continue to be enrolled in a registered course of study (delegate’s decision).

3. The applicant’s visa had been granted on the basis that the Applicant would remain enrolled in, and make satisfactory progress in relation to, one or more registered courses of study for the duration of his stay in Australia.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. On 3 April 2018, the delegate decided to cancel the visa held by the applicant, having found that the applicant did not comply with condition 8202 of his Visa.

6. On 5 April 2018, the applicant sought a review of the delegate’s decision at the Tribunal and attached a copy of that decision with his application.

7. By letter dated 11 April 2019, the Tribunal wrote to the applicant, inviting him to attend a hearing on 30 April 2019. On 18 April 2019, the applicant responded to the Tribunal’s invitation and filed detailed written submissions in support of his application.

8. The applicant appeared before the Tribunal on 30 April 2019 to give evidence and present arguments.

9. 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.

10. The applicant’s visa was subject to a number of conditions prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’). In the present case, the issue is whether the Applicant has breached condition 8202 of the Regulations. If the applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

11. 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.

    Did the Applicant Breach Condition 8202?

12. Condition 8202(2)(a) of the Applicants visa require that the Applicant remain enrolled in a registered course.The requirements of condition 8202(2)(a) do not allow the visa holder to cease to be enrolled in a registered course. In the delegate’s decision record, the delegate identified the period from 11 July 2017 to 3 April 2018 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to approximately 8 months during which the Applicant was in continuous breach of the visa (the relevant period).

13. The delegate’s finding in this respect was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’). It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s COE in a course for which they had previously enrolled and the reasons for doing so.

14. The Department of Home Affairs wrote to the Applicant on 14 March 2018, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). That notice set out particulars of the alleged breach by the Applicant of condition 8202. The Applicant was invited to comment on these allegations before the Department moved to cancel his visa. The applicant responded to the NOICC on 15 March 2018 and did not suggest he was enrolled during the relevant period.

15. The applicant is a 38 year old citizen of Pakistan. He was granted a Subclass 500 Student Visa on 2 December 2016. In his oral evidence before the Tribunal, the applicant agreed and confirmed that he had not been enrolled in a registered course for the period of approximately 8 months identified in the delegate’s decision.

16. Based on the information before the Tribunal, it is satisfied that the applicant was not enrolled in a course of study while holding a Subclass 500 visa with condition 8202 attached from 11 July 2017 to 3 April 2018. Condition 8202(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 registered course (per Liu v MIMIA (2003) FCA 1170.

17. The Tribunal finds that on the basis of the evidence, the applicant ceased to be enrolled in a registered course, and therefore has breached condition 8202 of his visa.

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

19. 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’.

    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.

20. He arrived in Australia in 2014 intending to study a Master of International Community Development at Victoria University. He was unable to undertake that course of study for reasons outside his control because the University discontinued that course. He returned to his home country and the University refunded his fees.

21. He returned to Pakistan, was unable to resume his previous employment and in those circumstances returned to Australia in 2016 on a Student Visa with the intention of studying Early Childhood Education and Care. It is worth noting that the applicant was granted this visa on the basis he was enrolled in a registered course of study.

22. He states he completed a Certificate III in Early Childhood Education and Care and started a Diploma in Early Childhood Education and Care at Technical Education Australia (TEA).

23. The applicant’s evidence was that if possible he intends to remain in Australia and return to study to fulfil his academic goals.

24. Having regard to the applicant’s evidence the Tribunal accepts that the applicant may have travelled to Australia intending to study and he intends studying in Australia in the future. However, given his failing to continue to be enrolled as set out below, the Tribunal gives this only little weight towards the visa not being cancelled.

25. On the evidence, the Tribunal does not consider the applicant has advanced a compelling need to travel to and stay in Australia. The Act or the PAM3 do not define the expression “compelling need” and there is nothing in the Act or PAM3 to suggest that the Parliament intended the phase to be given anything other than its ordinary and natural meaning.

26. The Federal Court has held that “compelling” in its wide, ordinary meaning means “forceful”, and forceful reasons for an absence may involve physical, legal or moral necessity or may, by reason of their forcefulness be convincing. Paduano v MIMIA (2005) 143 FCR 204 [31]-[47]. The reasons need not be confined to those incorporating an involuntary element, involving circumstances beyond a person’s control, involving physical or legal necessity, or circumstances such as those referred to in the Department’s guidelines.

27. Need is a relative concept: de Angelis v De Angelis [2003] VSC 432 at [45]; It is different from want. “In need of“ plainly means more than merely “want” but falls far short of “cannot survive without out.”:R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808. “Need” and “want” are not interchangeable. The difference between “need” and “want” is significant: Boettcher v Driscoll (2014) SASC at 86.

28. Having regard to the ordinary meaning of the expression compelling need, the applicant has not demonstrated he has a compelling need to remain in Australia.

    The extent of compliance with visa conditions.

29. The Tribunal notes the purpose of a Student visa is to allow for travel to and stay in Australia, in order to study. At the time of the delegate’s decision, the applicant had not been enrolled in a course of study for a period of approximately 8 months.

30. Whilst it is in the applicant’s favour that there is no evidence before the Tribunal of any previous non-compliance with visa requirements, I give this minimal weight as the Tribunal considers the applicant’s breach of condition 8202 to be significant, given the length of time in which the applicant failed to maintain enrolment. The Tribunal also considers this to be a serious breach given the significance of enrolment in a registered course, for the visa granted and this weighs in favour of the visa being cancelled.

    The circumstances in which the ground for cancellation arose – whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

31. Further, based on the information before it, the Tribunal is not satisfied the breach occurred in circumstances beyond the applicant’s control, or that any extenuating circumstances exist.

32. The background to this matter is well set out in the detailed submissions filed by the applicant. The applicant provided detailed written evidence, supplemented by his oral evidence, in relation to the circumstances leading to the cancellation of his enrolment at Technical Education Australia (TEA). The level of detail provided warrants a careful consideration. In summary, the applicant’s circumstances are as follows.

33. At some stage in 2017 he became dissatisfied with the teaching methods of the College. Specifically, he considered that teaching staff were using a “plagiarised teaching method” and “irregular / unprofessional operating procedures”. It appears he raised his concerns with the College, setting off a chain of events that ultimately led to the cancellation of his CoE.

34. His evidence was that in or about June 2017, he was telephoned by an unknown person who questioned him in relation to his failure to attend classes. He stated the context of his non-attendance was that he was advised by his instructor that she was “not feeling well” and classes were cancelled that week. He says he was then “threatened” by the unknown person who told him there would be “horrible consequences” for him in response to his “objection I raised against this kind of plagiarised teaching method.”

35. In his evidence before the Tribunal, he elaborated on the phone call. He said that the unknown person spoke to him in his native language. He would not give his name. He said that his perception of the conversation was that he was being threatened due to him raising concerns in relation to the College’s teaching methods. Notwithstanding he may have felt threatened, the applicant did not report the matter to the Police.

36. It is apparent that this telephone conversation led to a situation where the applicant was in a dispute with the College. The Tribunal has read and had regard to the submissions and documentation provided to the Tribunal by the applicant. This included a series of emails between the Applicant and the College.

37. These emails reveal, and the applicant does not dispute, that the College sought a meeting with the applicant to attempt to resolve the dispute. The applicant’s evidence was that he refused to attend such a meeting in circumstances where he believed he had been threatened. The College persisted in seeking a meeting with the applicant, who refused all attempts to meet and instead sought a release letter. He stated in his oral evidence that he had indicated to the college that he would meet with the college in the presence of Police or a “Government Official”.

38. On 5 June TEA emailed the applicant requesting a meeting on 12 June and stated relevantly, “you have not paid your fees, the due instalments, since the previous almost four months, which incidentally are due on a monthly basis …it is further notified with regrets that when you were contacted in this regard, instead of being cooperative you misbehaved with the staff member, who now has formally complained on this matter … we would like to invite you to the institute and provide rebuttal to the charges laid against you of being impolite and uncooperative with the concerned staff member.”

39. On 10 June a person from TEA emailed the applicant stating relevantly, “We encourage you to come over and attend the meeting with the college which is being attendant (sic) by the senior staff of TEA including the General Manager Marketing … and IT Senior Officer… your complaint has been forwarded to a committee to hear your concerns in detail and investigate and redress the issue as soon as possible. The committee will investigate and forward its report including recommended actions, to me and CEO within seven working days… subsequently if you feel justice is not done to your case, you can directly approach the CEO … or TEA’s legal adviser… we strongly recommend you to do attend the said meeting … we look forward to your attendance at the meeting.”

40. On 3 July 2017, a Trainer at TEA emailed to applicant stating relevantly, “this is to inform you that we have made multiple attempts to contact you on your provided contact details but to no avail. Your course progress is highly unsatisfactory as your assessments are overdue so you need to visit the institution to complete your course progress report. I would request you send an acknowledgement to this email and visit TEA office before 4 July 2017 and discuss your case with your Trainer. If we do not hear from you by mentioned date 4/7/2017 institute will have no choice but to take strict action against you.”

41. In a further (undated copy provided by the Applicant) email from TEA, the college stated, “In all this process you are ignoring your principle commitment as a student, which is resulting in poor progress, and as a result leading towards the policy action, that is, cancellation of your CoE. TEA still do not wish to take this action and once again express your grievances with evidence or logical explanation against both the “person” who threatened you, and your trainer in front of the Committee… kindly inform TEA administration, when you can come to meet the committee to express your grievances. If you do not provide any date for the meeting within the next 4 calendar days or by the 8^th of July 2017 the institute will be forced to cancel your CoE based on both non-payment of your fees instalments and poor performance.” If you do not attend the meeting, the outcome may result in providing you with an option of: resume your studies, after you have cleared your dues plus institute appropriate action against individuals who are found guilty. Issue you the release letter, after you have cleared your dues plus i plus institute appropriate action against individuals who are found guilty.”

42. The applicant provided emails he had sent the college on 3 July 2017 and 5 July 2017, whereby the applicant requested a release letter, “so that I can continue my study at a more secure and safer place while pursuing quality education.”, raised the issue of the threats against him and sought the name of the person who had threatened him and raised the issue of plagiarism and unprofessional conduct from the teaching staff.

43. It emerged from the emails that in addition to his lack of academic progress, the college was concerned that the applicant had not paid overdue fees. The Tribunal questioned the applicant about this allegation. He denied he failed to pay fees. He stated that he had paid all moneys owed to the college at the relevant time, which he states was $580 paid in March 2017. The applicant did not provide any documentary evidence in support of this claim, however on the evidence, particularly the applicant’s email dated 6 June 2017, there was clearly some dispute between the parties in relation to outstanding fees and in the absence of any determinative evidence the Tribunal does not weigh the issue of alleged non-payment of fees adversely against the applicant.

44. In any event, in July 2017, the parties reached a stage where the applicant refused to return to the college and the college stopped requesting he attend a meeting to air his grievances. The applicant stated he never returned to the college after July 2017. The evidence shows that the CoE was cancelled by college in July 2017.

45. There is no evidence that the applicant made any official appeal in relation to the CoE at the college. His evidence was that he has formally raised the issues he has with TEA and their teaching methods through “Government Departments” including the VIQRA Educational and Welfare services and the Commonwealth Ombudsman but he has been unsuccessful in progressing his complaints against the University.

46. The applicant states he was unaware that the college cancelled his CoE. He says his first knowledge of the CoE being cancelled was in 2018 when the Department wrote to him for the first time. The Tribunal does not consider it likely that the applicant had no knowledge of the cancellation of the CoE until 2018. It is apparent from the documentary evidence that the college raised the consequence of failing to address his poor performance and fee issues would be the cancellation of the CoE, including the following email, “kindly inform TEA Administration, when you can come to meet the committee to express your grievances. If you do not provide any date for the meeting within the next 4 calendar days, or by the 8^th of July 2017, the Institute will be forced to cancel your CoE based on both non-payment of fees and poor performance.” Further, the applicant must have been aware that after July 2017 he was not studying in any capacity and consequently he was not making any academic progress.

47. The applicant states that for the balance of 2017 and 2018, he attempted to obtain support for a proposed PhD research at University level including at the University of New England. He states that he holds a Master of Philosophy from an overseas university and such further study would be consistent with his previous education. He reported that he was not successful in obtaining the required support as an overseas student. The Tribunal makes no adverse finding against the applicant with regard to his attempts to explore further study options.

1. I make no finding in relation to the concerns raised by the applicant regarding the conduct of the college including allegations of plagiarism. Similarly, I make no finding on whether or not the applicant was threatened in or about June 2017. These matters are not relevant to the cancellation of the applicant’s visa. Even if these matters occurred as claimed by the applicant, I consider the applicant has, and continues to have, the opportunity to raise any concerns he may have with the appropriate authorities. The Tribunal has some sympathy for the applicant and accepts he had genuinely held concerns for his safety at the relevant time, the Tribunal does not consider that the breach of the condition 8202 of his visa occurred in extenuating circumstances that were out of his control. Objectively, he was given every opportunity by TEA to raise his grievances in the appropriate forum and seek to resolve the dispute with the college, and chose to ignore the requests to meet and therefore chose not to study in Australia for an extended period.

2. One further matter in relation to the allegations of threats made by the applicant. The college appears to have responded to the matters raised reasonably in the circumstances. By email dated 10 June 2017, the Tribunal referred the applicant to its procedures for handling student grievances, referred to the institution of a committee to hear the applicant’s concerns and indicated that the committee would investigate and report and lead to action being recommended to the CEO within 7 days. Further, it indicated that if the applicant was dissatisfied with the approach, it was open to the applicant to directly approach the colleges’ CEO and legal advisor and provided their names and CCed them into the email. The college also advised the applicant that if he remained dissatisfied he would be advised of further action he could take. The college then stated, “We assure you that you will be looked after and listened to, at the meeting. To ensure that you are heard completely, it will be ensured that the “other person” is not present when you have to present your case to the committee. We strongly recommend that you do attend the said meeting and focus your time and attention to prepare your case against the three allegations you have raised.“

3. In this context, the applicant has refused to attend any meeting with the college. The Tribunal notes further that the college persisted with their approaches to the applicant and attempts to resolve matters for over one month.

4. The Tribunal notes the purpose of a student visa is to allow for travel to and stay in Australia in order to study. The applicant has not been enrolled in a registered course of study since July 2017. The Tribunal considers that it must have been apparent to the applicant that he was in breach of his visa conditions throughout the second half of 2017 and he failed to inform the Department or take any steps to ensure he complied with his obligations.

   The degree of hardship that might be caused to the visa holder and any family members.

5. The Tribunal acknowledges that the cancellation of the applicant’s visa will be disappointing to the applicant because he wishes to remain onshore. The Tribunal notes the applicant has not identified any hardship that may be caused by the cancellation of the visa. The applicant stated the cancellation of the visa would lead to him “losing face” in his home country. The Tribunal has given consideration to the applicant’s expressed desire to remain in Australia. It accepts that it will be difficult for him if he were not allowed to successfully complete an Australian qualification. He has expended time and financial resources in his time in Australia so far. The Tribunal accepts his evidence that he highly values studying and his family will be disappointed if he does not return home with an Australian qualification. However, the Tribunal’s concerns is tempered by the extent of the applicant’s non-compliance with the conditions of the visa which obliged him to prioritise studying. In the Tribunal’s view he has not provided a satisfactory explanation for not complying with the fundamental condition of his student visa, continuously for a period of 8 months.

6. The Tribunal notes that any hardship the applicant may face is also tempered by the fact that he holds a Master of Philosophy from an overseas university and the Tribunal anticipates that degree will assist him in furthering his career in his home country.

7. There is no other evidence in relation to this consideration before the Tribunal. The Tribunal places minimal weight on this consideration in favour of the applicant.

   Whether there are mandatory legal consequences of a cancellation; whether cancellation would result in a visa holder becoming unlawful and being liable to detention and removal; or whether indefinite detention is a possible consequence of cancellation; or whether the visa holder would be prevented from making a valid visa application without the Minister’s intervention.

8. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to ss.189 and 198. The applicant would need to seek advice pertaining to his immigration status. Having made that finding, I also note that the applicant would have available to him the possibility of applying for a bridging visa E, which would allow him to finalise his outstanding matters.

9. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being grated further visas in Australia and that he could also be subject to a three-year exclusion period if he applies for a visa that requires Public Interest Criterion 4013 to be met. I give these matters minimal weight in favour of the applicant.

   Whether there would be consequential cancellations under s.140

10. There are no persons in Australia whose visas would, or may, be cancelled under s.140 and I give this factor no weight.

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

11. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under the relevant international agreements that would be breached as a result of the visa cancellation. I give this factor no weight.

    Past and present behaviour towards the department.

12. Nothing adverse is known about the applicant’s past and present behaviour towards the Department and the Tribunal places minimal weight in favour of the applicant in this regard.

    Any other relevant matters.

13. The Tribunal considers that the evidence reflects that the college acted reasonably in its dealings with the applicant in response to his concerns.

14. The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    D. Triaca
    Member