Rizvi (Migration)

[2018] AATA 5692

Rizvi (Migration) [2018] AATA 5692 (8 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shumail Rizvi

CASE NUMBER:  1621341

HOME AFFAIRS REFERENCE(S):           BCC2016/3313527

MEMBER:Joseph Lindsay

DATE:8 November 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Student (Temporary) (Class TU) Vocational Education and Training Sector (Subclass 572) visa.

Statement made on 08 November 2018 at 12:22pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU)  – Subclass 572 Vocational Education and Training Sector – incorrect answers – not enrolled in registered course – non-payment of fees – chose not to enrol – significant breach – Bachelor of Accounting – business studies – no compelling need to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 359AA
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 December 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 delegate cancelled the visa on the basis that the applicant did not comply with condition 8202(2)(a) of his visa, and the applicant was not enrolled in a registered course. In particular, the applicant has not been enrolled in a registered course of study since 19 October 2015.

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

4. The applicant appeared before the Tribunal on Thursday 6 September 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. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled. In particular, condition 8202(2)(a) requires that the visa holder must be enrolled in a full time registered course.

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

   Grounds for cancellation

8. In the hearing, the Tribunal made reference to the delegate’s decision record dated 7 December 2016, noting that the applicant provided a copy of the Department’s decision record together with their application to the Tribunal.

9. The Tribunal notes that when the applicant was asked if he knew why his visa had been cancelled, he did not know the reason the delegate provided, being that he had not remained enrolled in a registered course of study and had thereby breached condition 8202(2)(a) of his visa. The applicant went on to suggest that the reasons for the cancellation of his visa may have been that his educational documents had been misplaced and that his attendance at college was not good enough. The applicant actually had to ask the Tribunal why his student visa had been cancelled, and the Tribunal explained to him that the decision record indicated that because he had not been enrolled in a registered course of study since 3 September 2015, he had breached condition 8202(2)(a) of his student visa.  

10. The Tribunal noted the delegate’s decision record that the applicant was given notice of intention to cancel his visa on 18 November 2016 and that he responded to the notice on 23 November 2016. The Tribunal noted that the applicant in his response actually contested the grounds for cancelling the visa and claimed that there were no grounds for cancelling the visa. The applicant then subsequently admitted that he did not in fact remain enrolled in his course of study.

11. The Tribunal then put to the applicant that there were grounds for cancellation, to which he agreed that was correct, and that the decision record was correct in that he had not remained enrolled in his course and that he was in breach of condition 8202(2)(a). The applicant expressly told the Tribunal that it was his decision not to enrol in any other college.

12. Accordingly, the Tribunal finds that the applicant has not complied with condition 8202(2)(a) of Schedule 8 to the Regulations and the Tribunal finds that there is a ground for cancellation of the applicant’s visa under s.116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

13. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. 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

14. In response to this issue at the hearing, the applicant indicated his main purpose in travelling to Australia was to get an education, and not to work or enjoy himself. The applicant indicated that his sole motivation was to educate himself and return to Pakistan.

15. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

16. In response to this issue at the hearing, the applicant indicated he had complied with his visa conditions apart from the condition that required him to remain enrolled in a registered course of study – condition 8202.

17. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

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

18. In response to this issue at the hearing, the applicant indicated that he was on a Bridging Visa E, and was not allowed to work or travel or study. He indicated he asked the Department whether they would vary the conditions to allow him to study but was told by the Department they would not do that.  He indicated he had no documentary evidence of his request to the Department because he did it in person. Ultimately, the applicant indicated that he only verbally asked a Departmental representative about allowing him to study on the Bridging Visa E.

19. Specifically on the issue of the degree of hardship that may be caused to him should his study visa be cancelled, he indicated that his parents sponsored him and that he did not need to work.

20. The applicant indicated that it was his reputation in front of his parents and his society that he was concerned about. He indicated he would not be able to integrate into society with no education. He indicated that the whole situation was hard for him because he used all the savings he had. He indicated he could not work with the education he had acquired, and that would leave him with no options, and with no options he could not condition himself to be a better human being, to interact with people, to integrate into society and in front of his friends and colleagues.

21. In consideration of the applicant’s response, the Tribunal accepts that the applicant completed his Diploma of Business in 2014 and he therefore holds an Australian qualification. Accordingly, the Tribunal does not accept that the applicant’s reputation would suffer if he went back to Pakistan, or that he could not work with the education he had acquired. Because the applicant has already completed a Diploma of Business, the Tribunal does not accept the applicant’s submission that he could not condition himself to be a better human being, to interact with people and to integrate into society in front of his friends and colleagues. The Tribunal does not accept that the applicant would suffer financial hardship as he has the financial support of his parents.

22. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    The circumstances in which the ground for cancellation arose

23. In the hearing, the Tribunal asked the applicant to explain the circumstances in which the ground for cancellation arose. In response, the applicant indicated that his enrolment was cancelled because he made the decision not to study anymore. In his reasoning for his own decision not to enrol in a course of study, the applicant indicated that he needed to acquire his student records from a previous provider or else he would have to pay for all the education fees again. He indicated it was very costly and that his parents already gave the fee to him and he would have to ask his parents for more money.

24. When asked why he cancelled his enrolment, he indicated it was because he would have to study the same subjects again. He indicated that he was enrolled in Carrick Institute for his Bachelor of Accounting and that he completed some subjects in that course. He indicated that he couldn’t make his ‘helper’ at the university agree to change his subjects to the subjects he hadn’t studied, and to complete the specific ones he had done later. He indicated that was impossible and he had to do the course according to the university policy and he had to make the decision either to pay twice the fee or acquire his degree somehow. He indicated he had completed his degree but could not prove it because ‘they’ had not given him his transcripts.

25. The Tribunal asked the applicant whether he had any documentation to support any of his oral claims, including his claim that the new course provider (in this case, Cambridge International College) would not give him prior recognition for studies he had completed elsewhere, to which he indicated he had no documentary evidence. The applicant confirmed that he did not further enrol in his course of studies because he did not want to pay any more money.

26. In assessing the information above, the Tribunal reasonably expects that if the applicant had genuinely wished to continue his studies, and continue to comply with his visa conditions, he would have paid the required course fees first and then taken steps after that in an endeavour to resolve any issues regarding recognition of prior learning. The applicant freely admitted he chose not to pay those fees even though he had the means to pay the fees.

27. Accordingly, the Tribunal finds that the circumstances in which the ground for cancellation arose neither reasonably nor sufficiently explain the applicant’s decision to allow his course enrolment to lapse in 2015 and does not convince the Tribunal that the Tribunal’s discretion should be exercised in the applicant’s favour.

    Past and present behaviour of the applicant towards the Department

28. In the hearing, the Tribunal referred to what the delegate had stated in regard to this factor, including that there is no evidence that the visa holder has been uncooperative with the Department in the past.

29. In response, the applicant indicated that he hoped his behaviour was better from the past and that he believed in the process.

30. In regard to this specific issue, the Tribunal accepts that there is no evidence that the visa holder has been uncooperative with the Department in the past. Having taken this into consideration, I give these considerations some weight in the visa holder’s favour.

    Whether there would be consequential cancellations under s.140

31. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that there were no dependants attached to his student visa.

32. The Tribunal places low weight on this information in the applicant’s favour.

    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

33. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that he was aware of the legal consequences of the cancellation of his student visa.

34. The Tribunal accepts that if the applicant’s student visa is cancelled, he would need a visa to remain in Australia lawfully.

35. At present, the applicant is on a Bridging Visa E for the purposes of the review. However, once the decision is affirmed, that Bridging Visa E will cease to remain in force at some point in the future. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chose not to return to Pakistan.

36. The Tribunal accepts that the applicant will receive a three year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

37. The Tribunal places low weight on this information in the applicant’s favour.

    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

38. The applicant provided no information to the Tribunal on this point. There is no indication that there would be a breach of any international obligations if his student visa was cancelled.

39. The Tribunal places low weight on this information in the applicant’s favour.

    Any other relevant matters

40. The Tribunal asked the applicant whether there were any further matters that he wanted to raise, and he indicated there were no matters he wanted to raise. 

41. In accordance with s.359AA of the Act, the Tribunal spoke with the applicant about his PRISMS record and the applicant’s history of academic enrolment. The applicant indicated he did not want to adjourn and wished to respond to the information in his PRISMS record.

42. The applicant indicated he was enrolled at the Victorian Institute of Technology but that he had no documentary information about where he was enrolled. The applicant then indicated he might have been enrolled at the Victorian Institute of Culinary Arts and Technology in Spotswood, and that he might have given the documents to the Tribunal but he could not be sure.

43. The Tribunal notes that the applicant had provided a document from Mr Paul Kulkens from Kaplan Australia dated 25 September 2017 and a Statement of Academic Results from Cambridge International College dated 25 August 2017. 

44. The Tribunal put to the applicant that he got his student visa on 22 December 2014 yet barely two months later his enrolment was cancelled due to non-payment of fees. The applicant explained that he changed his course provider to Cambridge International College in 2015 because it was a lot nearer to him and more convenient for him.

45. The Tribunal put to the applicant that the PRISMS record showed that his enrolment in the Bachelor of Business (Accounting) was to commence on 10 August 2015, and indicated that there was a gap in time in which the applicant was not enrolled (11 February 2015 to 10 August 2015). The Tribunal put to the applicant that there was not just one period in which he ceased enrolment in a course of study but in fact there were two periods of time in which he had ceased to be enrolled in a course of study – to which he indicated that was correct. In his explanation he indicated that while he had the money he did not pay. The Tribunal then put to the applicant that on 27 May 2013, when he had first been enrolled in the Bachelor of Accounting, his course was cancelled due to his non-payment of fees. In response, the applicant indicated that it’s all the same in Australia and that he then had to stay in Australia for five or six years just to acquire his transcripts to get his reputation back. In summary, the applicant indicated he had stayed in Australia just to acquire his transcripts and that even TEQSA (Tertiary Education Quality and Standards Agency) could not help him. The applicant then put forward a very vague explanation indicating that in addition to the convenience for him in changing course providers, he was promised exemptions for courses.

46. The Tribunal put to the applicant that he had changed his explanation for his decision to allow his enrolments to cease, and that may cause the Tribunal to find that the applicant was not telling the truth. In response, the applicant indicated he was telling the truth and that he had the right to get his educational documents. The Tribunal indicated to the applicant that he had first indicated that he changed course providers because it was more convenient for him, and then barely two months later allowed that enrolment to lapse because he claimed he had to do subjects that he had already completed. In response the applicant indicated that he had completed courses at Carrick Institute. The Tribunal referred to the document from Mr Paul Kulkens  dated 25 September 2017 but noted that the document did not refer to any courses he had done with anyone let alone Carrick. In response the applicant indicated he cannot convince anyone he has done courses at Carrick Institute. 

47. In assessing the above information, the Tribunal finds the applicant’s explanation for his pattern of behaviour in not paying his course fees and then subsequently allowing his enrolments to repeatedly cease to be neither a reasonable or satisfactory explanation for his decision to allow his enrolment in his courses to cease and thereby be in breach of his student visa conditions, in particular condition 8202(2)(a).  The Tribunal also finds that the applicant’s explanation as to the circumstances as to why he allowed his enrolments to cease was inconsistent and finds that the applicant did not give credible evidence in relation to the circumstances as to why he allowed his enrolments to cease.

    Conclusion

48. The Tribunal finds that since the applicant received his Student (Temporary) (Class TU) Vocational Education and Training Sector (Subclass 572) visa on 22 December 2014, now nearly four years ago, the applicant has not completed any courses.

49. The Tribunal finds that since 19 October 2015 the applicant has not been enrolled in a registered course of study and, accordingly, the applicant has not complied with condition 8202(2)(a).

50. The Tribunal is not satisfied that the applicant’s circumstances warrant the Tribunal exercising its discretion to not cancel the applicant’s student visa.

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

    DECISION

52. The Tribunal affirms the decision to cancel the applicant’s Student (Temporary) (Class TU) Vocational Education and Training Sector (Subclass 572) visa.

    Joseph Lindsay
    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.