Shahzad (Migration)

[2019] AATA 3890

Shahzad (Migration) [2019] AATA 3890 (15 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abid Shahzad

CASE NUMBER:  1810297

DIBP REFERENCE(S):  BCC2017/3638473

MEMBER:Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:          15 April 2019 at 3:06 am (VIC time)

DATE OF WRITTEN RECORD:                12 June 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 12 June 2019 at 2:24pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 572 Vocational Education and Training Sector visa – enrolment in a registered course – applicant ceased courses – limited academic progress – no evidence of claimed maintained enrolment – decision under review affirmed    

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2 cls 500.211; Schedule 8; Condition 8202

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 April 2018 to cancel the applicant’s Subclass 572 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 15 April 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral decision and the reason for that decision in case number 1810297, the matter of Abid Shazad before the Administrative Appeals Tribunal in relation to a decision made by the delegate of the Minister to cancel his Subclass 572 student visa pursuant to Section 116(1)(b) of the Migration Act 1958. That decision was made on 5 April 2018 in relation to a student visa that had been granted on 24 June 2016 with an original expiry date of 9 November 2018.

4. The 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 that visa while he stayed in Australia. More specifically the two courses upon which that visa was granted was a Diploma of Advanced Hospitality and a Diploma of Business to be undertaken at the South Pacific Institute in Melbourne.

5. The visa was granted on the basis that he would also maintain satisfactory progress in relation to the registered courses of study. The delegate cancelled the applicant’s visa on the basis that he had breached that condition of the visa which required him to continue to be enrolled in a registered course. 

6. The issues in the present case firstly are whether the ground for cancellation is made out and if that is the case whether the visa should be cancelled. The applicant appeared before the tribunal this afternoon with the assistance of his registered migration agent.

7. The applicant’s visa was subject to a number of conditions as described by Schedule 8 of the Migration Regulations. In the present case the issue is whether the applicant breached Condition 8202 of the Regulations. If he did breach that condition the visa may then be cancelled pursuant to Section 116.

8. Condition 8202 of the applicant’s visa as set out in Schedule 8 of the Regulations requires that the applicant be enrolled in a registered course continually. In the delegate’s decision record the delegate identified the period from 16 March 2017 to 5 April 2018, 5 April 2018 being the date of the delegate’s decision to cancel the visa.

9. It was during that period that the applicant was apparently not enrolled in a registered course of study or, more precisely, those registered courses that he had enrolled in originally at the South Pacific Institute. This amounted to a total time of more than 12 months when the applicant was in continuous breach of the visa. 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 known as PRISMS

10. The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000. It provides a means for education providers in Australia to compile legislative requirements relating to international students studying in Australia. In this regard the PRISMS database performs two important functions. First, it permits registered course providers to issue confirmation of enrolment certificates (‘COEs’) to students upon enrolling in a registered course of study.

11. The COE may then be used by the student when applying to the Department of home affairs, formerly the Immigration and Border Protection Department, for a student visa. A current COE is treated by the Department as prima facie evidence for a visa application of current enrolment in a registered course of study for the purposes of Clause 500.211 of the Regulations. Being enrolled is an essential to the preliminary requirement that must be satisfied for a student visa to be issued.

12. Secondly, and of relevance to this case, 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 similar compliance with visa conditions once the visa has been issued. In particular it may be used by the course provider to report that they have cancelled a particular student’s COE in a course for which they had previously been enrolled and also sometimes the reasons for doing so.

13. The PRISMS report obtained by the delegate indicated that the applicant had not been enrolled in a registered course of study since 16 March 2017.  As is evident before the tribunal today, the applicant did not concede that he had not been enrolled in a registered course of study, or more precisely, he denied any knowledge of having his enrolment terminated at South Pacific Institute. He stated that the first notice he received of his enrolment at South Pacific Institute being terminated was when he received a notice from the Department of Home Affairs, formerly the Department of Immigration and Border Protection, that his visa was about to be cancelled. That notice was sent to the applicant approximately one year after South Pacific Institute had terminated his enrolment.

14. The applicant was unable to produce any evidence which might have corroborated his version that he continued to remain enrolled at South Pacific Institute. He was unable to produce any correspondence or any academic records or any invoices or bank statements which might have demonstrated he had paid tuition fees. Ultimately absolutely nothing was shown to demonstrate that the PRISMS record was inaccurate. In these circumstances I am satisfied that the delegate was correct in reaching the conclusion that the applicant was in breach of condition 8202 of the visa for approximately 12 months.

15. Having found the applicant had not complied with the conditions of the visa the tribunal must consider whether the visa should be cancelled. There are no maters 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 circumstance 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.

16. First I turn to the consideration of the purpose of the visa holder’s travel vouch failure and whether the visa holder has a compelling need to remain in Australia. 

17. The purpose of the student visa which was the subject of the cancellation decision was for education purposes. The applicant said in evidence that he originally arrived in Australia at the end of 2011 having been granted an earlier visa - that was never the subject for cancellation. And he enrolled in and commenced a Diploma of Information Technology at ALTEC College in Melbourne.

18. The applicant stated that the first visa was for a period of approximately two years.  He subsequently changed to a business course in 2012 and he completed a Certificate IV in Business. He also completed a Diploma of Management at the Angad Australian Institute of Technology in 2013. He also completed a Certificate III and Certificate IV in Cookery in 2014 and 2015.

19. So for the first several years of a stay in Australia, the applicant has demonstrated that he has undertaken studies and completed the qualifications, although not originally as anticipated with IT. He has sought and obtained a number of qualifications by completing the courses.

20. He was granted his second visa on the basis of the two proposed courses to which I referred earlier, being the Diploma of Business and the Advanced Diploma of Hospitality that he had been enrolled in at South Pacific.  Both enrolments ceased on March 2017. The applicant stated that he only became aware that those enrolments have been cancelled by the course provider approximately one year after that decision was actually made.

21. The tribunal found this very difficult to accept. The applicant gave evidence that he had no idea as to why these enrolments were cancelled. He stated that he had paid his tuition fees, he stated that he continued to attend classes although he did mention that when he handed assignments in they were returned and he was told by his teachers or tutors that they were not good enough.

22. As mentioned earlier, the applicant has not provided any evidence of his attendances or his success or otherwise at the South Pacific Institute for that year long period between March 2017 and March 2018. He has provided no evidence of having paid the tuition fees as specified in the COEs which he handed to the tribunal although he asserted in evidence that he had made those payments and that there is no electronic trail because he paid in cash.

23. The tribunal has not been apprised of any information that can make the tribunal aware of the circumstances for his non-attendance. The applicant has given evidence on the basis that he continued to attend and he is effectively inviting the tribunal to accept he was completely oblivious as to the possible legitimate reasons why his enrolment was cancelled.

24. When the tribunal asked him whether he had made any complaints or formal complaints to the college, the South Pacific Institute, in relation to the termination of his enrolment he stated that he had not. When the tribunal pointed out that he asserted that he had paid money and received nothing for it he could not provide a satisfactory explanation as to why he had made no formal complaint to the college for ceasing his enrolment.

25. In all of the circumstances, the tribunal does not accept the explanation in relation to why the applicant’s enrolment had ceased. On the face of the PRISMS record the college has terminated his enrolment for reasons that could only possibly be because he has not paid his tuition fees or there has been unsatisfactory attendance, although it is not clear from the actual PRISM report itself. In the absence of any contradictory evidence from the applicant of substance, the tribunal accepts that the cancellation of his enrolment by the course provider was for legitimate reasons.

26. That being the case the tribunal is unable to ascertain any exceptional circumstances or otherwise which might fall in the applicant’s favour in relation to exercising the discretion whether or not to cancel his visa.

27. In relation to the extent of compliance or otherwise with the conditions, the tribunal notes that for the first visa that was granted to him there appeared to be no issues at all. He did demonstrate satisfactory compliance with that first visa but in relation to this visa now on review, the one that is now the subject of the cancellation decision, there was a continuous period of 12 months where he simply did not remain enrolled in a registered course of study. The reasons given by the applicant for this breach are regarded unsatisfactory by the tribunal.

28. The tribunal has taken into account the degree of hardship that may be caused to the applicant if indeed his visa is cancelled and those hardships are very real. The applicant noted that he wished to complete his studies and that without the qualifications which he seeks in Australia he will be forced to return to Pakistan without the job opportunities that otherwise would have been presented to him with Australian qualifications under his belt.  He will lose out on those job opportunities. He specifically referred to Five Star Hotels and the tribunal accepts that there will be hardships in that respect and that he will have a difficult time in dealing with having to return to Pakistan and answer to his family and social network for not having obtained these qualifications.

29. The tribunal has no information before it that might suggest that he has acted adversely towards the Department since has been in Australia, so that certainly does not operate against him in the exercise of discretion. There are no apparent consequential cancellations that will follow under the Act if his visa is cancelled.

30. There may be some mandatory legal consequences that are likely to arise if the visa is cancelled. Certainly eligibility will exist for the submission of an application for a bridging visa which may allow a lawful presence in Australia so that any outstanding matters can be finalised. The tribunal also notes that he will become an unlawful non-citizen and may be liable to detention under Section 189 and removal under Section 198 of the Act if he does not voluntarily depart Australia.

31. He will also be subject to Section 48 which means he will have limited options if applied for further visas in Australia, Public Interest Criterion 4013 will be applied which means he may not be able to be granted a temporary visa for three years from the date of this cancellation.

32. The circumstances of this case are not such that would engage Australia’s International obligations. There appear to be no other matters of relevance. In all of the circumstances on balance the tribunal considers that it was appropriate to cancel the applicant’s visa. 

33. It is 3.08 pm in case number 1810297. The tribunal affirms the decision under review.  That completes the hearing.

    DECISION

34. The Tribunal affirms the decision under review.

    Dr Jason Harkess
    Member