Shah (Migration)

[2020] AATA 3500

Shah (Migration) [2020] AATA 3500 (16 July 2020)

DECISION RECORD

DIVISION:		Migration & Refugee Division
APPLICANT:		Syed Tasawar Hussain Shah
CASE NUMBER:		1831737
HOME AFFAIRS REFERENCE:		BCC2018/3937101
MEMBER:		Dr Jason Harkess
DATE:		16 July 2020
PLACE OF DECISION:		Melbourne
DECISION:		The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa

Statement made on 16 July 2020 at 4:23pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled at the required AQF level – consideration of discretion – circumstances giving rise to non-compliance – non-genuine student – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

INTRODUCTION AND OVERVIEW

Student Visa Cancellation – Application for Review

1. The Applicant is a citizen of Pakistan and is 32 years old. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 24 October 2018 cancelling his Student (Temporary) (Class TU) Subclass 500 visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’). The Applicant lodged his review application with the Tribunal on 29 October 2018.

Original Visa Grant

1. The Applicant’s visa was granted on 8 March 2018. It was granted because a delegate of the Minister had determined that he met the primary criteria for the grant of a student visa.[1]

   [1] The primary criteria for the grant of a student visa are set out in the Migration Regulations 1994 (Cth), Sch 2, cls 500.211 to 500.218.

2. The visa had an original expiry date of 26 October 2020 before it was cancelled. It provided for more than two years and seven months during which the Applicant would be permitted to reside in Australia for the purpose of full-time study. Specifically, the visa had been granted so that the Applicant could complete a Master of International Relations at the University of Queensland.

Reasons for Cancellation

1. The Applicant’s visa was cancelled because the delegate determined that a legal basis for cancellation had been established under s 116(1)(b) of the Act. The delegate found that the Applicant had not complied with a condition of his visa. Specifically, it was found that the Applicant had failed to comply with that condition which required him to maintain enrolment in a registered course of study that, once completed, would provide him with a qualification from the Australian Qualifications Framework (‘AQF’) that is at the same level as, or at a higher level than, the registered course in relation to which the visa had been granted. Upon making that finding, the delegate proceeded to consider all other relevant circumstances before concluding that the Applicant’s visa ought to be cancelled.

2. The delegate’s reasons are set out in a decision record. That decision record was provided to the Applicant when he was notified that his visa had been cancelled on 24 October 2018.[2] By lodging his review application, the Applicant contends that the delegate’s decision to cancel his visa is neither the correct nor preferable outcome in this case.

   [2] Notification was given in accordance with s 127 of the Migration Act 1958 (Cth) and reg 2.55(3)(d)ii) of the Migration Regulations 1994 (Cth) by emailing the notification and decision record to the Applicant’s last email address known to the Minister on the date of the decision. By the operation of reg 2.55(8) of the Migration Regulations 1994 (Cth), the Applicant is taken to have received the notification and decision record on that date.

Issues for Determination by Tribunal

1. The first issue requiring consideration by the Tribunal is whether the grounds for cancellation under s 116(1)(b) of the Act is made out, namely whether the Applicant did not comply with a condition of his visa. If the Tribunal determines those grounds are made out, the second issue requiring consideration is whether the Applicant’s visa ought to be cancelled.

Hearing of Application

1. The Tribunal convened a hearing to consider the merits of the application on 29 October 2019. The Applicant appeared before the Tribunal by video link to give evidence and present arguments. The Tribunal also received evidence from the Applicant’s friend and housemate, Mr Alingayab Kazim.

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

Tribunal’s Determination

1. The Tribunal has concluded that the decision to cancel the Applicant’s visa ought to be affirmed. In reaching its decision, the Tribunal has had regard to:

   (a)the delegate’s decision record;

   (b)the oral evidence of the Applicant given at the hearing;

   (c)all written material filed by or on behalf of the Applicant before, during and after the hearing; and

   (d)other relevant documents on the Tribunal and Department files.

2. The Tribunal notes that not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference to that information that the Tribunal has been found to be fundamental or materially significant to the determination of the issues in the case.[3] The Tribunal also notes that, in this case, certain information contained in the Department file is subject to a certificate issued pursuant to s 376 of the Act. This information is relevant to the present review application. The Tribunal has exercised its discretion not to disclose it, as explained below. The Tribunal has not made reference to any of the information that is subject to the certificate in its reasons.

   [3] The Tribunal notes that it is not required to make explicit reference to every piece of relevant information before it because not all relevant considerations will be material or fundamental in any given case. See Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123, [30]-[31] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421, [49] (Bell, Gageler and Keane JJ); Shoukat v Minister for Home Affairs [2020] FCA 194, [25] (O’Callaghan J); Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.

SECTION 376 CERTIFICATE

1. Section 376 of the Act provides that the Minister or his delegates may certify that the disclosure of certain information would be contrary to the public interest for any reason specified in the certificate, and that the information should not be disclosed. Where a s 376 certificate is issued, the Tribunal may disclose the information to an applicant or a witness if the Tribunal considers it appropriate to do so.

2. In this case, a delegate of the Minister issued a certificate pursuant to s 376 of the Act relating to information contained in folios 1-3 of the Department file. The certificate is dated 6 November 2018 and signed by the delegate. It states that the information contained in these three folios was given to the Department in confidence and that s 375A does not apply. The certificate further states that the information is from a source who wishes to remain anonymous, and that the information provided contains details which could identify the source.

3. Prior to the hearing, the Tribunal reviewed the certificate and the documents which were subject to it. The Tribunal formed the preliminary view that there was a rational basis for the certificate being issued and that the certificate on its face appeared valid.

4. At the commencement of the hearing, the Tribunal drew the Applicant’s attention to the certificate and informed him that there is information on the Department file that had been provided by a confidential source who wishes to remain anonymous, and that this information relates to the Applicant. The Tribunal informed the Applicant that the Tribunal has a discretion to disclose the information to the Applicant, which the Tribunal would consider exercising, after hearing from the Applicant. The Tribunal did not consider it appropriate at this point to disclose any part of the information to the Applicant.

5. The Tribunal then invited the Applicant to comment on the validity of the certificate and make any submission in relation to whether the Tribunal should disclose any of the information subject to it. The Applicant did not wish to make any such submission. He made it clear that he did not have any particular view as to whether the information was disclosed to him or not. In these circumstances, the Tribunal finds that the certificate is valid.

6. Having regard to the nature of the information subject to the certificate, the Tribunal determined that it would not be appropriate to disclose the information to the Applicant in this case. The Tribunal considered that it would not be in the public interest to disclose the information because it may permit the Applicant to identify the source of the information and may place that person at risk. The information is indirectly relevant to the issues falling for determination in this case, in particular the general credibility of the Applicant’s claims as they became apparent throughout the hearing. The Tribunal exercised its discretion not to disclose the information to the Applicant.

7. In exercising its discretion, the Tribunal recognised that the information is adverse to the Applicant and potentially bears upon his credibility in relation to the claims he has made in the present review application. The Tribunal also recognised that s 359A of the Act creates a general obligation on the part of the Tribunal to put adverse information to a review applicant and invite them to comment on it. However, notwithstanding these considerations, in the Tribunal’s view it was not appropriate to disclose the information.

GROUNDS FOR CANCELLATION

Applicable Law

1. Section 116(1)(b) of the Act provides that the Minister may cancel a visa if satisfied that its holder has not complied with a condition of the visa. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’), when the visa was granted.

2. Condition 8202(2)(b) attaches to all student visas and creates a continuing obligation for the duration of the visa.[4] It requires the visa holder to maintain enrolment in a registered course of study that, once completed, would provide a qualification from the AQF that is at the same level as, or at a higher level than, the registered course in relation to which the visa had been granted.

   [4] Migration Regulations 1994 (Cth), Sch 2, cl 500.611(1)(a).

3. The AQF is an objective measure for categorising courses within the Australian education system. It creates a hierarchy of levels associated with all courses that are registered under its framework. The AQF level of a particular course is an indication of the relative complexity of the course and the depth of achievement and the autonomy required that successful completion of the course represents. A course that is classified as AQF Level 1 (Certificate I) has the lowest levels of course complexity, achievement depth and student autonomy. A course that sits at AQF Level 10 (Doctoral Degree) has the highest levels.[5]

   [5] The AQF is administered by the Department of Education and Training. See generally <>

   The imposition of Condition 8202(2)(b) draws attention to the fact that all student visas are issued for a specific kind of study purpose that is tailored to the particular visa holder. The visa holder is legally obliged to adhere to that study purpose for the duration of their stay in Australia. While the condition contemplates that, at some point after the visa has been issued, the visa holder may have good reason for changing their course of study, they are specifically prohibited from ‘downgrading’ to a simpler course. In that regard, Condition 8202(2)(b) is one of many student visa conditions designed to ensure that Australia’s student visa program is not abused.

Has the Applicant Failed to Comply with Condition 8202(2)(b)?

Delegate’s Allegations and Findings

1. As noted above, the Applicant’s visa was originally granted on the basis that he was enrolled in, and would successfully complete, a Master of International Relations. The course was due to start on 23 July 2018 and end on 26 June 2020. A Masters course sits at AQF Level 9.

2. As the delegate’s decision record notes, the Applicant’s enrolment in the Master of International Relations course was cancelled by the course provider on 8 March 2018. The Applicant subsequently enrolled in a Diploma of Business with a course commencement date of 13 August 2018 and end date of 11 August 2019. Diploma courses sit at AQF Level 5. The failure to re-enrol in a Masters level course or higher resulted in an on-going breach of Condition 8202(2)(b).

3. The delegate’s findings were 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’).[6] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. It 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.

   [6] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

4. On 24 September 2018 the Department notified the Applicant of its intention to consider cancelling his visa (‘the NOICC’). At this stage, the Applicant had been in breach of Condition 8202(2)(b) for a continuous period of more than six months. In accordance with s 119 of the Act, the NOICC:

   (a)gave particulars of the allegation that the Applicant had not complied with Condition 8202(2)(b) of his visa;

   (b)gave particulars of the information obtained from the PRISMS database that founded the allegation;

   (c)informed the Applicant that not complying with Condition 8202(2)(b) constituted grounds for cancelling his visa; and

   (d)invited the Applicant to show the Department that those grounds did not exist or that there was a reason why his visa should not be cancelled.

Applicant’s Initial Response to Allegations

1. Receipt of the NOICC prompted the Applicant to enrol in a Master of Business Administration course at Universal International Colleges in Sydney on 27 September 2018. Enrolment in this Masters level course effectively put a halt to the Applicant’s continuing breach of Condition 8202(2)(b).

2. The Applicant provided a copy of the Confirmation of Enrolment (‘CoE’) in relation to that enrolment with his written response to the NOICC, which the Department received on 27 September 2018 (‘the NOICC response’). In his NOICC response, the Applicant did not dispute that he was in breach of Condition 8202(2)(b) of his visa as alleged, although he sought to explain the circumstances giving rise to the breach and submitted that his visa should not be cancelled.

Evidence Given by Applicant at Hearing

1. At the hearing before the Tribunal on 29 October 2019, the Applicant admitted that he was in breach of Condition 8202(2)(b) of his visa for the for the period 8 March 2018 to 27 September 2018.

Conclusion

1. Based on the evidence before the Tribunal, it is reasonably clear that the Applicant was in breach of his visa as alleged by the delegate. The Tribunal finds that the Applicant did not comply with Condition 8202(2)(b) of his visa.

CONSIDERATION OF DISCRETION TO CANCEL VISA

1. Having found that the Applicant failed to comply with a condition of his visa, the Tribunal must proceed to consider whether his visa should be cancelled.

Relevant Factors

1. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

2. The matters that ought to be considered are specifically listed in PAM3 as follows:

   (a)the purpose of the Applicant’s travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;

   (b)the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant’s control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);

   (c)the extent of the Applicant’s compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;

   (d)the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;

   (e)the Applicant’s past and present behaviour towards the Department (eg, whether they have been truthful and co-operative in their dealings with the Department);

   (f)whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;

   (g)whether there are mandatory legal consequences arising from a decision to cancel the visa;

   (h)whether Australia has obligations under any relevant international agreements that would be breached as a result; and

   (i)any other relevant matter.

Circumstances

1. The Applicant first sought to explain the circumstances giving rise to his non-compliance with the Condition 8202(2)(b) in the NOICC response. In summary, he attempted to explain the circumstances of the breach as follows:

   (a)He arrived in Australia on 17 March 2018 having been granted his visa on 8 March 2018. After a few days, he went to university and he discovered that there were procedures associated with his enrolment that he was not aware of. Ultimately the university refused to proceed with his enrolment in the Masters course because he was ‘too late’. It was for this reason his CoE in that course was cancelled.

   (b)The Applicant ‘panicked’ and was unable to think properly. He looked for other course providers but kept getting rejected because he did not have the necessary English proficiency scores which he needed to do first. He found it difficult to cope.

   (c)The Applicant finally enrolled in a Diploma course. His core focus was to start his studies.

   (d)He did not have any intention to breach his visa conditions. When he became aware of the NOICC, he applied for and successfully obtained admission into the Master of Business Administration course.

2. The Applicant’s explanation surrounding the circumstances of the breach of Condition 8202 was somewhat different by the time the matter came before the Tribunal. Prior to the hearing, he had filed a statement with the Tribunal dated 11 October 2019. In that statement, the Applicant said:

   (a)He arrived in Australia on 17 March 2018.

   (b)His course at Queensland University was supposed to start on 23 July 2018. However, when he went to the University for enrolment in the first week of July 2018, student services informed him that his enrolment had been cancelled because the University had refunded his tuition fees at the request of his agent in Pakistan.

   (c)The Applicant was shocked at this revelation. He contacted his agent in Pakistan to raise the issue, who said that he ‘would get back to’ the Applicant. Further attempts to contact the agent were unsuccessful. The agent stopped responding to him.

   (d)The Applicant did not know what to do. When he called his family back in Pakistan, his father had suffered a heart attack because his business contract had been cancelled leaving him with significant financial debt. His father subsequently passed away after a second heart attack. It was very stressful for the Applicant. He could not fly back for the funeral.

   (e)Due to the financial difficulties of his family, he was unable to enrol in a Masters level qualification.

   (f)He has now taken steps to improve his academic performance and overcome his depression. Most recently, he has enrolled in a Graduate Diploma of Management.

1. At the hearing before the Tribunal, the Applicant admitted that his enrolment in the Master of International Relations course was cancelled on 8 March 2018. When the Tribunal drew to the Applicant’s attention to the fact that his enrolment was cancelled on the same day that his student visa application had been approved, when he was still in Pakistan, the Applicant stated that he knew nothing about the enrolment cancellation at that time. He gave evidence that was generally consistent with his written statement dated 11 October 2019. His ultimate suggestion in evidence was that his agent in Pakistan had defrauded him and he knew nothing about it until the University told him in Australia that his agent had been refunded the initial payment of $8,000 in tuition fees.

2. The Tribunal asked the Applicant about his arrangement with the agent in Pakistan. The Applicant stated that he had paid a total of $14,000 to his agent to secure the student visa that was granted on 8 March 2018. He said that he paid $5,000 initially, and then a further $9,000 when the agent gave him the relevant paperwork (the visa and the Confirmation of Enrolment) on 8 March 2018. The Applicant said that he then made arrangements to travel to Australia.

3. The Tribunal asked the Applicant whether he had any receipts that could establish the payments that he had made to his agent. He said that he had nothing, as the transaction was carried out on ‘trust’. The Tribunal asked the Applicant whether he had made a complaint to police in Pakistan about the agent that had defrauded him. He said that his brother in Pakistan had made a complaint on his behalf. The Tribunal asked whether he had a copy of the police compliant. He said that he did not, but that he could obtain one. None has been provided to the Tribunal since the hearing last year.

4. The Tribunal asked the Applicant why he did not raise the issue of his agent defrauding him with the Department. He said that he did not know what to do.

5. In the end, the Tribunal has very serious concerns about the Applicant’s explanation as to how his breach of Condition 8202 has occurred. The circumstances of the Applicant’s visa being granted on 8 March 2018 and then, on the same day, his enrolment which formed the basis of the grant being cancelled raises an immediate suspicion that the student visa application was, at the outset, a sham. The Applicant’s evidence given at the Tribunal hearing, taken at face value, would suggest that he was an unwitting party to this sham and that it only came to his attention after his arrival in Australia when it was too late. However, the fact that there is no documentary evidence produced by the Applicant, relating to his payments which he claims to have made to the agent in Pakistan and to the complaint he says was made to police, raises significant doubt as to whether the Applicant’s evidence should be accepted.

6. The Tribunal’s concerns in this respect are heightened when consideration is given to the information that is subject to the s 376 certificate. While hearsay, the information nevertheless raises general credibility issues which do not in any way move the Tribunal towards forming the view that the Applicant is a witness of truth.

7. On balance, the Tribunal is not satisfied with the Applicant’s account and does not accept it. The Tribunal is also not satisfied that the Applicant was ever a genuine student visa applicant. The only claim of the Applicant that appears to have a ring of truth is the fact that his father was ill and passed away, which was corroborated by medical reports.

8. The Tribunal finds that the Applicant consciously and voluntarily chose to breach his student visa because he did not intend to pursue studies in the Master of International Relations course at the University of Queensland. The Tribunal finds that he had no genuine intention of pursuing studies at the Masters level in Australia.

Purpose of Applicant’s Stay in Australia

1. The purpose of the Applicant’s stay in Australia, as reflected in the essential purpose of a student visa, was to study on a full-time basis in Master of International Relations course. As the Tribunal has found that the Applicant never intended to pursue that originally proposed study plan, no purpose is served by permitting the visa to remain valid. The Tribunal finds that the Applicant’s subsequent enrolments in other courses are were disingenuous. They were designed to suggest (falsely) that he is a genuine student.

Extent of Applicant’s Compliance with Visa Conditions

1. The Tribunal has given consideration to the Applicant’s compliance with other visa conditions. But for the non-compliance with Condition 8202(2)(b) that is now before the Tribunal, it appears that the Applicant has otherwise been compliant with the conditions of visas that have been issued to him. The Tribunal has given this some weight in his favour. However, given the Tribunal’s findings that he probably never had a serious intention of studying in Australia, it is of little consequence.

Hardship

1. The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia. It will be hard for him to make arrangements to return to Pakistan given travel restrictions in place because of COVID-19. The Tribunal gives no weight to the Applicant’s claim of being disappointed if he is forced to return to Pakistan without a qualification because the Tribunal has found his claims in this respect to be disingenuous. He never intended to be a genuine student.

Applicant’s Behaviour towards Department

1. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department. There is no adverse evidence before the Tribunal in that regard.

Other Visa Holders

1. There do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

Legal Consequences

1. The Tribunal notes that if his visa is cancelled, the Applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. They reflect the seriousness of the breach of a visa condition.

2. The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements to depart Australia. He is a citizen of Pakistan and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia.

International Obligations

1. The Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

Other Relevant Matters

1. There do not appear to be any other relevant matters material to the outcome of the present review application.

Conclusion

1. In all the circumstances, the Tribunal is satisfied that the Applicant’s visa ought to be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa.

Dr Jason Harkess
Member