SAPUTRA (Migration)

[2017] AATA 1995

SAPUTRA (Migration) [2017] AATA 1995 (16 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr I MADE INDRA DWI SAPUTRA

CASE NUMBER:  1615210

DIBP REFERENCE(S):  BCC2016/2630777

MEMBER:Antoinette Younes

DATE:16 October 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 16 October 2017 at 5:22pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa - Subclass 572 Vocational Education and Training Sector – Did not commence further studies – No response to hearing invitation and no appearance – Not genuine student

LEGISLATION

Migration Act 1958, ss 116,116(1)(fa)(i),116(1)(fa)(ii),116(1A),116(3),119

Migration Regulations 1994, Schedule 2, r 2.43(1C) and (1D)

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 16 September 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 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 is not, or is likely not to be, 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. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   HEARING INVITATION

4. On 14 September 2017, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled at 10.30am on 16 October 2017. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on the case without taking any further action to allow or enable the applicant to appear before the Tribunal or may dismiss the application for review without any further consideration. The applicant did not respond to the hearing invitation.

5. On 9 and 13 October 2017, the Tribunal sent to the applicant SMS to the telephone number provided by the applicant in the application for review reminding him of the scheduled hearing. The delivery of the first message failed and the Tribunal has no explanation.

6. The applicant did not appear at the hearing.

7. The Tribunal is satisfied that it has given the applicant a fair opportunity to attend a hearing and the Tribunal has no explanation for the applicant’s lack of attendance at the hearing scheduled at 10.30am on 16 October 2017.  In those circumstances, the Tribunal has decided to make its decision on the review without taking any further action.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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?

   Section 116(1)(fa) - not a genuine student

9. A visa may be cancelled under s.116(1)(fa)(i) if the Minister or the Tribunal 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.

10. 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]).

11. 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 Minister or Tribunal 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.

12. In support of the application for review, the applicant provided to the Tribunal a copy of the delegate’s decision record in which it is noted that on 13 February 2015, the applicant was granted a subclass 572 student visa. The applicant intended study plan was to undertake the following:

    ·     6E0B7291 English language programs, 16 March 2015 to 22 May 2015.

    ·     6E17A560 certificate II in business, 6 July 2015 to 4 September 2015.

    ·     6E0A3A18 certificate III in business, 28 September 2015 to 27 November 2015.

    ·     6E0A3B88 certificate IV in business, 18 January 2016 to 10 June 2016.

    ·     6E0A3C64 diploma of management, 4 July 2016 to 25 November 2016.

    ·     6E0A3E26 advanced diploma of management, 16 January 2017 to 9 June 2017.

13. The delegate’s decision record further indicates that:

    a.Information available in the Provider Registration and International Student Management System (PRISMS) shows that on 16 March 2015, the applicant commenced an English-language program at Australia International College and that he completed that course on 22 May 2015. The remaining five courses in the applicant’s original study plan were cancelled by the education provider on 3 August 2016 due to non-commencement of studies.

    b.PRISMS records indicate that further approved confirmation of enrolments (CoEs) were cancelled. Specifically, course 6E0A3937 (certificate of business cancelled on 13 January 2015 due to change to CoE/student details). Course 78973411 (certificate IV in frontline Management was cancelled on 11 March 2016 due to course change – departmental records show that during this intended study period, the applicant was offshore and did not undertake any studies for this course). Course 7D49B315 (certificate IV in leadership and management was cancelled on 6 July 2016 due to non-payment of fees).

    c.On 18 October 2015 until 1 December 2015, the applicant travelled outside Australia.

    d.PRISMS records indicate that the applicant, as at the delegate’s decision record, was studying in certificate IV in business commencing on 15 August 2016.

14. In response to the notice of intention to consider cancellation, the applicant provided the following submissions:

    a.He apologises for not maintaining “well” his student visa. When he came to Australia, he studied English and he knows that his English was still poor. After finishing the English course, he was supposed to study VET courses, however he felt he was not ready and he saw an education agency. He was advised to undertake further English courses so he studied English for another two weeks.

    b.He thought of studying something related to his hometown largest industry, namely tourism. He again consulted the education agency and they gave him various options and he chose frontline management. However he found it difficult to deal with the trainers and the school did not seem to match him.

    c.The school changed the course from frontline management to leadership and management so he decided to withdraw. He struggled with this decision and he discussed it with his family. He just wanted to go home and not return to Australia. His family supported him and gave him suggestions about his future plan.

    d.He really wants to have his own business in his home country and he regrets that he wasted so much time in Australia but he has learned from the experience. He wants to start all over again.  He has had good recommendations from his friends who are studying at the Wales Institute so he enrolled there. He has changed and he wants to be a better person. His intention is to study in Australia and he wants to make his parents proud.

15. The applicant has not provided any submissions to the Tribunal.  The evidence before the Tribunal indicates that the applicant has not achieved his original study plan. On the evidence before it, the Tribunal finds that although the applicant had completed an English-language course on 22 May 2015 and he enrolled in another course, five courses indicated in his original study plan were cancelled by the education provider due to non-commencement of studies. The applicant enrolled in the certificate IV in frontline Management but during the time of intended study, he was offshore and he did not undertake any studies for this course.

16. On the basis of the available information, the Tribunal finds that the applicant is not, or is likely not to be, a genuine student. 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 power to cancel the visa should be exercised.

17. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

18. The Tribunal has not had the opportunity to speak with the applicant in the course of a hearing so that the Tribunal could have asked the applicant for further information and details about his study history. The Tribunal would have asked the applicant about the circumstances that led to the cancellation of the visa and any relevant factors that might have had an impact. The Tribunal would have asked the applicant about his current circumstances and would have obtained a comprehensive understanding relevant to the considerations relating to the guidelines in PAM3.

19. The Tribunal when inviting the applicant to the hearing had indicated to him that the Tribunal was unable to make a favourable decision on the basis of the available information.  Without having had the opportunity to explore with the applicant at a hearing any relevant factors and ask about the circumstances that led to the cancellation, the Tribunal is not satisfied that there are any considerations in this case that mean that the visa should not be cancelled.  The Tribunal has given regard to the applicant’s submissions in response to the notice of intention to consider cancellation and the Tribunal is satisfied that the applicant is not, or is likely not to be, a genuine student and that there are no factors in the case that mean that the visa should not be cancelled.

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

    DECISION

21. The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

    Antoinette Younes

    
    Senior 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.