SINGH (Migration)

[2017] AATA 2500

SINGH (Migration) [2017] AATA 2500 (21 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr BHUPINDER SINGH

CASE NUMBER:  1600424

DIBP REFERENCE(S):  BCC2015/3089554

MEMBER:Tigiilagi Eteuati

DATE:21 September 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 21 September 2017 at 11:51am

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Satisfactory course attendance – Education provider certified failure to achieve satisfactory attendance – Significant discrepancies in submissions – Obvious dishonesty – Lack of desire and ability to successfully undertake higher education courses

LEGISLATION

Education Services for Overseas Students Act 2000, s 19

Migration Act 1958, ss 116, 359AA

Migration Regulations 1994, Schedule 2, Schedule 8, Condition 8202

CASES

Maan v MIAC (2009) 179 FCR 581

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 January 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that he breached the condition of his visa not be certified as not achieving satisfactory course progress. 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. The applicant appeared before the Tribunal on 2 March 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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.

   Did the applicant comply with Condition 8202?

7. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

   ·be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

8. In the present case, the applicant’s visa was cancelled on the basis that the education provider for the course being undertaken by the applicant, had certified the applicant as not achieving satisfactory course attendance for s.19 of the Education Services for Overseas Students Act 2000 (the ESOS Act), and standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (the National Code).

9. For this requirement, it is the certification by the education provider as to breach of its attendance policies that constitutes the breach of condition, and not the unsatisfactory attendance itself: Maan v MIAC (2009) 179 FCR 581 at [44]-[45].

10. The delegate found that on 4 December 2014 Skills Institute Australia certified the applicant as not achieving satisfactory course attendance. This is consistent with the records held by the Department and was conceded by the applicant’s representative.

11. As the education provider has certified the applicant as not achieving satisfactory course attendance within the terms of condition 8202(3)(b), the applicant has not complied with condition 8202(3).

    Consideration of the discretion to cancel the visa

12. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

13. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

14. The applicant said that when he arrived in Australia in October 2013 he was enrolled in a Certificate IV in Business and a Diploma of Business at TAFE, and a Bachelor of Business at QUT. He said that he failed both the Certificate IV and the Diploma in 2014. Because he had failed these courses his Bachelor course was cancelled. He said that he had difficulties with the different teaching methods in Australia and was homesick. The applicant said that he then enrolled in a Certificate IV in Business Administration and a Diploma of Business with Skills Institute Australia (Skills). He completed the Certificate IV in mid-2015 and started the Diploma course. His enrolment in the Diploma course was cancelled on 4 December 2015 for unsatisfactory course attendance.

15. While it was conceded that the applicant breached condition 8202 because it had been certified that the applicant had unsatisfactory course attendance, it was argued that the Tribunal should exercise its discretion to set aside the Minister’s delegate’s decision.

16. The applicant argued that he did not receive any warning letters from Skills and did in fact have satisfactory course attendance. This was the essence of his response to the Notice of Intention to Consider Cancellation (NOICC) dated 16 December 2015.

17. At the hearing however, the applicant provided the Tribunal a story which can only be described as unbelievable. The applicant said that he received correspondence on 4 December 2015 from the Department asking him to confirm his contact details. He said that as a result he went to Skills either that day or a few days later, his evidence on this was inconsistent, and asked whether his visa was being cancelled. He said that someone nicknamed Ruby at Skills told him that Skills had not cancelled his enrolment but rather that the Department had withdrawn his COE. The applicant then claimed that he was told that Skills had cancelled his enrolment because they were concerned with some criminal activity alleged against him. The applicant said that Skills had manufactured a narrative and faked documents in relation to his attendance because they did not want him enrolled with them because of his supposed criminal activity.

18. The Tribunal indicated that this story seemed to be inconsistent with a different, yet equally unbelievable, accusation put in the applicant’s written submissions, that is, that Skills had manufactured a narrative in relation to his attendance because they wanted him to re-enrol with them and pay more in tuition. The Tribunal indicated that the applicant was saying at the hearing that Skills manufactured the attendance story because they did not want him to attend their institute because of his supposed criminal activity and yet his written submissions asserted the opposite, that the reason that Skills manufactured the attendance story was so that he would re-enrol and pay them more money.

19. The applicant said that Skills told him that they cancelled his enrolment because of supposed criminal activity but if he was willing to apologise for not attending classes they would talk to the Department about allowing the applicant to re-enrol with Skills.

20. The Tribunal does not accept either story. First, it is not clear how Skills would be affected if the applicant had been involved in criminal activity. There is certainly no reason why they would involve themselves in fraudulent behaviour by manufacturing a story about his non-attendance and creating fake attendance records and warning letters to support their manufactured story. In addition, even if this did occur, it beggars belief that Skills would tell the applicant that that they had done so.

21. As to the second claim about seeking to have the applicant re-enrol. It seems clear that the best way for Skills to have the applicant re-enrol with them was for him to successfully complete the course he was taking, just as he continued with them once he had completed his Certificate IV with Skills. It is not even clear how Skills could have thought that the applicant would be able to re-enrol with them and complete a course once his visa was cancelled which was the almost inevitable consequence of them certifying his unsatisfactory attendance.

22. The Tribunal notes that neither story was contained in the response to the NOICC which was dated after the applicant was supposedly told by Skills that they cancelled his enrolment because of supposed criminal activity. This gives additional weight to the view that the applicant has simply fabricated his evidence to excuse his failure to maintain satisfactory attendance with skills.

23. The Tribunal accepts the attendance records provided by Skills indicating that the applicant only attended 7 out of 38 days from 24 August 2015 to 16 November 2015. The Tribunal also accepts that the applicant was sent 3 letters by Skills in relation to his non-attendance, 2 warning letters dated 11 September 2015 and 9 October 2015 and a Notification of Intention to Report for Unsatisfactory Course Attendance dated 1 November 2015. This information was put to the applicant for comment in the way specified in section 359AA and he essentially said that the records and the letters were all fabricated.

24. The Tribunal finds that the applicant has fabricated his various stories about Skills manufacturing a story about his non-attendance and manufacturing records in order to support that story. As a result, the Tribunal has serious concerns about the applicant’s credibility and raised these concerns with the applicant.

25. The applicant’s written submissions (some 112 paragraphs on un-numbered pages with more than 100 pages of attachments and received the morning of the hearing) appeared to focus almost entirely on alleged defects in the delegate’s decision rather than putting forward a cogent argument on the merits as to why the Tribunal should set aside the cancellation decision. However, there were some arguments, repeated at the hearing which went to hardship to the applicant should his visa remain cancelled. These included that the applicant would be prevented from studying in Australia for some time if his visa remained cancelled, that he has lost the tuition he paid to Skills in relation to the Diploma enrolment that was cancelled, that he would face emotional distress and cultural embarrassment if he had to return to India and that he has paid a high opportunity and financial cost in being unable to study for so long.

26. The Tribunal indicated that because of the applicant’s poor attendance during his last course and the fact that he had failed two vocational level courses that the applicant may not have the will or the ability to successfully undertake a higher education course in Australia.

27. The applicant indicated that he had the desire to study and would work very hard to ensure that he passed his courses.

28. The Tribunal finds that the applicant does not have the desire or ability to successfully undertake a higher education course in Australia.

29. The applicant had very poor attendance during his last course in which he only attended 7 of 38 course days. Given the obvious dishonesty displayed by the applicant before the Tribunal in relation to his story about Skills institute manufacturing a non attendance story, the Tribunal does not believe the applicant’s claims that he now has the will to successfully undertake a higher education course in Australia.

30. In addition despite being in Australia since October 2013, the applicant was only able to complete a Certificate IV in Business Administration vocational course. His visa was granted to him for a period ending on 30 August 2017 to complete a Certificate IV, a Diploma and a Bachelor degree. Instead, the applicant failed both the first Certificate IV and the Diploma. Had he been successful in his studies, at the time his visa was cancelled, he would have completed a Certificate IV, a Diploma and would have been a year into a Bachelor’s degree. The Tribunal finds that given the applicant’s poor academic history the applicant does not have the ability to successfully undertake a higher education course in Australia.

31. The Tribunal is willing to accept that the applicant and his family members may experience disappointment that the applicant’s visa was cancelled before he was able to complete a higher education course in Australia. The Tribunal has also considered that, as the applicant’s visa has been cancelled, he may have to wait for some time to be granted another visa in Australia. In addition the Tribunal accepts that the applicant may face emotional distress and embarrassment at not being able to remain in Australia to study. However, it was the applicant’s responsibility to comply with the conditions of his visa and to inform himself of those conditions. The applicant had every chance to study the courses for which he came to Australia to study but instead decided to abandon his Bachelor course and to have poor attendance during his Diploma course with Skills.

32. In any event, the Tribunal finds that the applicant’s lack of desire and ability to successfully undertake higher education courses in Australia heavily outweighs any hardship that he or his family members may face because of the cancellation of the applicant’s visa.

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

    DECISION

34. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Tigiilagi Eteuati
    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.