Syed (Migration)

[2018] AATA 5429

Syed (Migration) [2018] AATA 5429 (22 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ata Moinuddin Syed

CASE NUMBER:  1701259

HOME AFFAIRS REFERENCE(S):           BCC2016/4296997

MEMBER:Brendan Darcy

DATE:22 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 22 November 2018 at 9:24am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – career plans – genuine student – failed to maintain enrolment for about eight months – degree of hardship – mental health conditions – credibility issues – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 18 January 2017 made by a delegate of the Minister for Immigration and Border Protection 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 the grounds for the cancellation existed and because the grounds for cancelling the visa outweighed the grounds for not cancelling. 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 30 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu 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 the applicant was not enrolled in a registered course.

9. According to the delegate’s decision record which was attached to this review application, the applicant had been granted a student visa for higher education purposes on 11 July 2014 and that the visa was set to expire on 15 March 2018.

10. During the scheduled hearing, the applicant elaborate that he had enrolled in a Diploma of Business at ATMC which he completed in February 2015 and a Bachelor of Accounting at Charles Darwin University. He claimed that he began the coursework for the Bachelor of Accounting but was not gaining good results and then decided to enrol in a Bachelor of Business at Holmes College.

11. The decision record further states that the Provider Registration and International Student Management System (PRISMS) indicate that the applicant had not been enrolled a registered course of study since 22 April 2016.

12. The Department validly issued a Notice of Intention to Consider Cancellation (NOICC) on 10 January 2017.

13. On 16 January 2017 and 17 January 2017, the applicant sent multiple emails in response to the Department’s NOICC. The applicant nominated a migration agent to represent him. In the response, neither the applicant nor his representative disputed the grounds for the cancellation of this student visa under review existed.

14. Attached to this NOICC response included that a copy of the applicant’s Confirmation of Enrolment (CoE) for a Bachelor of Business with the Australian School of Management dated 13 January 2017.

15. On 18 January 2017, the delegate proceeded to cancel the visa and the applicant applied to have the delegate’s cancellation decision review by the Tribunal on 24 January 2017. 

16. On the evidence before the Tribunal, the applicant was not enrolled in a registered course between 22 April 2016 and 13 January 2017 - a period of about eight months.  

17. Accordingly, the applicant has not complied with condition 8202(2) and the grounds for cancellation under s.116(1) of the Act existed.

    CONSIDERATION OF THE DISCRETION TO CANCEL THE VISA

18. 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 to and stay in Australia

19. According to the decision record, there is no evidence to suggest that the applicant’s original intention for his travel to and stay in Australia was not for the purpose of study since the granting of this student visa as the applicant had not been enrolled since 22 April 2016.

20. During the hearing, the applicant claimed that he wished to return to Hyderabad in India to work in his father’s interior design business as an accountant. He described the workforce of the business as small employing about five to six people. Since being in Australia he said that he had not worked in book keeping or accounting, even as an intern. When the Tribunal asked if a small business required a full-time accountant and not just a book keeper, the applicant further elaborated that accountants in his country are able to find better jobs. The Tribunal also notes the applicant’s post hearing statement in which he states that it was his dream to study abroad and in which he implausibly claimed that if he studied in Indian he would have to pay millions but it still not be enough knowledge to gain a good job.

21. The Tribunal accepts the applicant has completed a Diploma of Business, however it does not appear the applicant is particular motivated to complete a Bachelor’s degree relating to business or accounting, given he will be able to find work in the family business and that the skills required at best require book keeping skills and do not require a Bachelor’s degree. It also places not weight on the applicant’s enrolment in a Bachelor of Business on 13 January 2018 as it occurred after the issuing of the NOICC. While it is accepted the applicant wanted to study abroad, there is no compelling oral or written evidence that he applicant has any genuine career goals in becoming a professional accountant or fears competition in the Indian labour market.

22. The Tribunal finds it does not have any compelling reasons to accept the applicant is a genuine student for the purposes of this visa and the Tribunal gives this little weight in favour of the visa not being cancelled.

    The extent of compliance with visa conditions

23. The delegate’s decision does not record any information about further non-compliance. There is no evidence before me to indicate the applicant did not comply with other conditions. The Tribunal places some weight on this factor in favour of the visa not remaining cancelled.

24. The applicant was not enrolled in a registered course for about eight months. The Tribunal considers this significant towards the question whether his visa should be reinstated and notes that eight months is a notable, but not a significant, amount of time to be non-compliant with condition 8202. The Tribunal gives this factor some weight towards the visa being cancelled.

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

25. The delegate’s decision accepted that there may be some hardships as a result of the cancellation, although he was unaware of any specific hardships as they were not addressed in the applicant’s NOICC response.

26. During the hearing, the applicant claimed that he would have feelings of hopelessness and guilt and that he could not face his family as he will be seen as breaching their trust that they placed in him to complete his studies. The applicant accepted that he could restart his studies in India but he would have to start from scratch and it might take as much as five years to complete a Bachelor’s degree in accounting or business. He also said that the quality of education in Australia was higher than in India. However the applicant was unable to demonstrate that the degree of these hardships would be great or significant.

27. The Tribunal accepts the applicant will have to face some emotional and psychological hardship in explaining to family members about his poor academic achievement in Australia. However he will be returning with a diploma and there is no question in him finding work with the family business. For these reasons, the Tribunal assess that the degree of financial, educational, emotional and psychological hardship to be face by the applicant in having this visa remained cancelled to be narrow and limited and not severe or significant. As the applicant has not demonstrated any significant hardships to the Tribunal, it accordingly gives this factor little weight towards the visa not being cancelled.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

28. According to the decision record, departmental records confirmed that the applicant was not meeting condition 8202 attached to his student visa as he was not enrolled in a registered course. In his written NOICC response to the Department, the applicant provided a medical reported dated 26 April 2016 that the applicant was experiencing mental health issues.

29. The medical evidence indicates that the applicant had been experiencing some mental and physical symptoms since 25 February 2016 in which the applicant had felt tiredness, anxiety dizziness, headaches and a lack of sleep. During the hearing, the applicant claimed that his treating physician advised the applicant to engage in exercise which the applicant claimed to do but that he did undertake ongoing counselling. The Tribunal accepts the applicant did in early 2016 experience some mental health symptoms as claimed but given the applicant’s only treatment was exercise this strongly indicates to the Tribunal that the degree of mental health problems were not so great that the applicant was unable to engage in his studies or remain enrolled.

30. The applicant further explained in the hearing that the applicant’s mental health problems were compounded with the news of the passing of his grandfather in October 2016 whose funeral he was unable to attend for fear of having his visa cancelled while offshore. He also mentioned that an uncle and a cousin also died. The Tribunal enquired into the reasons the applicant did not mention these significant events in his NOICC response; to which the applicant unconvincingly stated he could not remember them. In the applicant’s post hearing submission the applicant did not provide any death certificates. He did provide a copy of an affidavit from a relative from Hyderabad dated 10 September 2018 and a photograph of a tombstone (with no translation). There is no mention of the passing of any other relatives in this third party statement. The Tribunal finds this evidence to weak and lacking in credibility when cumulatively considered. Accordingly, it does not accept the applicant’s late oral and otherwise weak evidence about the mental health impact of dying or dead relatives to have been reliable or credible.    

31. On 20 February 2018, the applicant’s representative provided a submission outlining that the applicant encountered difficulties in remaining enrolled after the cancellation of his enrolment at Holmes College in April 2016 due to the unethical actions of his education agent. The submission stated that the applicant paid the agent $7800 which was more than a semester fees’ but that the agent ‘siphoned the money and never paid the fees to the Holmes college (sic) resulting in the applicant receiving final notice from the College to pay their fees’. During the hearing, the Tribunal asked the applicant to the reasons he chose to have fees paid through an agent and not directly to the education provider; to which the applicant responded that he trusted the education agent. He claimed that he did not make a complaint as his mental health problems prevented him. He also claimed that he paid the same agent to gain a new CoE in February 2017 after the NOICC had been issued (further indicating the applicant had the financial capacity to re-enrol earlier and inviting the Tribunal to consider that he did not have difficulties with this agent accused of unethical behaviour).  Had the applicant genuinely had difficulties with an education agent siphoning off tuition fees, it would have been reasonable to expect the applicant to have raised this issue during his NOICC response or to have made a complaint or not to continued using that same agent’s paid services. However the applicant did none of those things inviting the Tribunal to find these claimed circumstances were not credible or reliable explanations for his deterioration in mental health leading to the grounds for cancellation or even the length of time in which he was not compliant with condition 8202.    

32. There was also an additional residual consideration provide by the applicant, namely the family business was negatively impacted upon by a fire in July 2016. During the hearing, the applicant claimed there was no documentary evidence such an insurance claim about the firs but he may be able to submit photographs. The applicant submitted some photographs which do not clearly indicate the business being burnt and the affidavit mentioned above which stated there was a fire affecting the family business. However, the applicant did not mention this specific incident as one of the reasons he was breached condition 8202 in his NOICC response or in his statement from February 2018. In the context of the Tribunal’s earlier adverse credibility findings, it places no credibility in the submitted photographs and an affidavit as supportive of this particular claim and finds that the applicant fabricated this late specific claim to consolidate his otherwise weak case that he encountered extenuating circumstances that were beyond his control leading to the breach of condition 8202 and the length of the breach’s non-compliance.

33. During the hearing, the applicant claimed that he asked his education provider for a deferment in April 2016. He claimed he went to see them on many occasions prior to the enrolment’s cancellation. The applicant then undertook to provide a copy of an email or letter requesting deferment of his studies. While the applicant provided a post hearing submission, there was no documentary evidence submitted and no explanation for the absence of this material provided by either the applicant or the applicant’s representative. While the Tribunal notes there is a vaguely worded medical document that states the applicant was ‘not feeling well in himself’ in support of a deferment, the medical letter dated 26 April 2016 appears to be a rear-guarded or belated attempt to seek deferment as it was date of the cancellation of his enrolment in 22 April 2016. For these reasons, the Tribunal does not accept the applicant sought any suspension or deferment of studies prior to his enrolment being cancelled, as claimed.

34. While the applicant genuinely had some mental health conditions, the applicant was in a position to seek out such a deferment but did not do so and did not have any significant barriers from doing so. In this regard, the Tribunal concurs with the delegate that the applicant was in a position to mitigate the visa condition 8202 being breached as his accepted health concerns were not significant and because the applicant has provided other fabricated extenuating circumstances.

35. The Tribunal gives little weight the applicant had experienced mental stress arising beyond the applicant’s control in favour of not cancelling the visa.

36. Past and present conduct of the visa holder towards the Department

37. According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department. The Tribunal gives this some weight in his favour.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

38. Not relevant.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

39. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained or even forcibly removed. The applicant may also be barred from re-entering Australia for up to three years.  He has presented no specific evidence in relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

40. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

41. The applicant claimed that he has not received any threats from his parents and does not expect them to harm him if he returns to India. Given the applicant has not applied for a protection visa in the past and will not be subjected to any bar, there is no evidence before the Tribunal that this factor is relevant and it gives this factor no weight.

    Whether any international obligations would be breached as a result of the cancellation

42. The applicant claimed that he has not received any threats from his parents and does not expect them to harm him if he returns to India. Given the applicant has not applied for a protection visa in the past and will not be subjected to any bar, there is no evidence before the Tribunal that this factor is relevant and it gives this factor no weight.

    Other relevant reasons

43. In this decision, the Tribunal identified a number of fabrications that were designed to augment his claims that while the grounds for cancellation existed there were extenuating circumstances beyond his control. The Tribunal finds that these fabrications reflect poorly on the applicant as an unreliable person. These fabrications have invited the Tribunal to consider that he will further breached conditions imposed on him if the visa were to be reinstated as the applicant lacks considerable credibility.  The Tribunal places significant weight on this factor in having the visa remain cancelled.

    Consideration of the discretion to cancel the visa

44. 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.

45. 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).

1. While there was some favourable factor in considering not cancelling this visa, the applicant failed to demonstrate that he was a genuine student who would uphold the conditions on any further student visa or that he would face any significant hardships if the visa remains cancelled. He also failed to provide any credible evidence that there were extenuating circumstances beyond his control leading to the grounds of the cancellation of this visa under review. 

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

   DECISION

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

   Brendan Darcy
   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.