Syed (Migration)

[2017] AATA 2804

Syed (Migration) [2017] AATA 2804 (20 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Ali Syed

CASE NUMBER:  1613009

DIBP REFERENCE(S):  BCC2016/1375402

MEMBER:David McCulloch

DATE:20 September 2017

PLACE OF DECISION:  Sydney

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

Statement made on 20 September 2017 at 12:43pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Enrolment in a Higher Education course – Enrolment cancelled – Lack of academic progress – Applicant changed into multiple Vocational courses – Closure of two colleges – Studies completed in an unregistered course

LEGISLATION

Migration Act 1958, ss 116, 140

Migration Regulations 1994, Schedule 8 cl 573.223, 573.231, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 August 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 applicant is a national of Pakistan born on 22 November 1990. The visa that has been cancelled was granted on 1 July 2014. That visa was subject to condition 8202.

3. On 13 May 2016 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he ceased to be enrolled in a registered course from 26 March 2015. The applicant provided a written response to the NOICC.  On 11 August 2016, the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa. The applicant seeks review of the delegate’s decision.

4. The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 15 September 2017 to give evidence and present arguments. The applicant communicated in English.

6. 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

7. 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?

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

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

10. The applicant provided a copy of the delegate’s decision to the Tribunal which indicates that he has not been enrolled in a registered course of study since 26 March 2015.

11. There is nothing before the Tribunal to suggest that the applicant was a holder of a subclass 560 or 571 (School Sector) visa as a secondary exchange student, thus the applicant’s obligation under condition 8202(2) is to be enrolled in a registered course.

12. In the Tribunal hearing the applicant acknowledged that he ceased to be enrolled in a registered course from 26 March 2015 until he enrolled in an Advanced Diploma of Leadership and Management on 17 May 2016.

13. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

14. 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.

15. 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). These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose - whether there are extenuating circumstances beyond the visa holder’s control; the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (ie. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulment obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non refoulement obligations; and any other relevant matters.

16. The applicant provided the following response to the NOICC (not corrected for spelling or grammar):

    Thanks for your mail and I do appreciate your cooperation and gesture. My Cancellation Id C6ZNXNBCP, File ID: BCC2016/1375402 which has been reviewed due to breach my visa condition 8202. I do like to explain my situation and kindly request you to reconsider my application.

    As you mentioned in your mail that I came to Australia on October 2010 and started my Certificate IV in IT in AICL. After I came here AICL suddenly closed down that course due to some compliance issues. I paid them almost full course fees but they refused to refund my unused course fees. Instate of refunding they pushed all of us to take another course into AICL and scared us that they will make fail all units which I passed. I was new in this country and do not know what I have to do!

    After this misjudgment from AICL I got admission into Diploma and Advanced Diploma of Mechanical Engineering into TAFE NSW on June 2011. I have successfully completed Diploma of Mechanical Engineering but could not proceed that course anymore. As I was struggling to cop up with that course and due to this reason I did not proceed any more.

    I took on admission on Diploma of IT at SCBIT at July 2013. My miserable condition had not left me alone and SCBIT Closed almost end of my course. Alas! I had not received any attainment from as they closed without any notice.

    After all of these bizarre situation I took admission into Bachelor of Business in Kings Own Institute and continuing my course. The time I enrolled into KOi there tuition fees was $6500 but after one semester they dropped there course fees $4500 for all new students. On the time of admission they promised us that new tuition fees would be applicable for all existing students too which they did not respect. I started fighting with them and trying to sort out this issue into my following semester too. Meanwhile I went to Pakistan for 5 weeks holiday. They promised me on that time that following year they will adjust my fees but they did not which lead me to take admission into another provider. On top of this they refused to give transcript too.

    As KOI did not honor our agreement  I moved into AIH for Bachelor of Business. Everything was going well. While I study there, I found few of my Class mate studying Diploma of Management too by side. Because they can claim from exemptions from Bachelor units which can save their time and money too. I have consulted with their student advisor and according to his suggestion  have enrolled into another Diploma of Management course by side in All Australian Training Pty Ltd (AAT). I have studied there from 01 April 2015 and concluding 01 March 2016. As per his opinion I suppose to get few unit exemption whatever I have completed from there. This will save my time and money. I have successfully completed this course and see attach.

    In my little Australian educational life I have studied many places but never seen any dodgy and mean business oriented educational institute ever like AIH. Their marketing slogan is "Cheap fees for better education." They charge only $4500/per semester. Most interestingly they keep failed students intentionally and charge twice. Due to this process they robbed students money legally and if someone put any complained against them they always scared to report to DIBP.

    They failed me only for 0.5% and did not allow me to seat for supplementary exam. Instead of that they pushed me to retake those units again and paid again. Clash started from them and denied to comply with their illegal intention. As a punishment they report about us and used our jeopardized  academic report against us. We were couple of student who faced this fatal situation.

    When I found that AIH intention is not well enough, I took admission into Strathfield College into Advanced Diploma of Business which can help me to complete my degree before time as I have wasted time here and there.      .

    On the other hand, I have to go back to take care of parent as well. I have found Bachelor of Business that is suitable for me and help me to understand a big part of accounting that is Finance.

    I choose Australia rather than my own home country. Before coming to Australia, my aim was to be an Engineering/IT personal and my parents' wish was to make me an engineer in future, they encouraged me to study in Engineering. But Alas! I cannot cop Up with

    Engineering study and reality pushed me to changed my track and want to make career into Business.

    My father is old and he definitely needs someone to take charge of his work and I am the one responsible for that as I am eldest son. My entire family is settled in Pakistan, so it is the easiest choice for me to go back to my country and settle down in the family business and make my life easier. Now a days you also need business and managerial background to do job any places. Due to that reason I chose Diploma of Business and Management too.

    From another focus you many noticed why I made only two (2) trips to overseas. Every time I went to Pakistan my family started asking when I am going to be completed my graduation and that is why I had not made any other trip to overseas and planning to go June 2017 as I am expecting to complete my Bachelor by that time.

    After that I couldn't see my family a long time it was so painful for me and it was hard for me to concentrate on my study as I miss my family but due to airfare not being that cheap, visiting them every year is also expensive and also effect my studies. I also suffered from illness, flu and back pain during the exam period.

    I choose Australia for higher education because students studying in Australia from all over the world. This renders studying in Australia a truly international experience where students are exposed to people from different cultures - just as in the real business world today, and Australia has given values and respects cultural diversity. One of the main reason is the Australian education system has ranked itself on the top in the world ranking. If I compare my choice with Pakistan, Australia is much better option for the career studies as Pakistani Education System is based on traditional structure. Australian education is much better  than Pakistani education and the persons who are working there in Pakistan with Australian degree, are at great jobs with great salary package. Australian education system upgrades student with most recent or future used knowledge where Pakistani education system based on traditional methods of mathematics and hardly review courses taught in decades.

    In most of the organizations, senior employees had their last degrees or qualification from foreign countries. Mostly those personals did advance or last degrees from abroad. That point not only drove me to convert my passion into my profession but also I came to know the importance of foreign studies as those foreign graduates not only had the advance knowledge of the field but also their personalities were stronger and diversified than a local qualified.

    When I will return to Pakistan I can easily get jobs like either in banking sectors or auditing firms. I will get job as a Financial Analyst, Finance Controller, Chief Accountant,  Internal Auditor, Finance Manager, Loan Administrator,  Bank Examiner, Bank Manager, Head of  Credit Department, International Banking, Taxation, International Finance. It is very easy to check my claim; if you go to LinkedIn you will notice that in Pakistan such positions are given to foreign graduates only. 

    So I can assure that I never breach any visa condition and also believe that these is an administrative/intentional error from AIH and I should not get punished due to someone else negligence.

    My intention is black and white to get higher degree from Australian  institution and lead a perfect normal life like other normal people do. I can provide you all the necessary documents for these and I hope this will help you to understand my situation and intention a well. Please allow me to study by accepting my application and let me know if you need more.

17. The applicant provided the following documents to the Department:

    ·Letter dated 18 March 2016 from Md Shazedul Islam Chief Executive Officer (CEO) All Australian Training Pty Ltd stating that the visa holder was a full time student in a Diploma of Management from 01 April 2015 to 28 February 2016.

    ·Certificate of Completion, dated 18 March 2016, in the Diploma of Management.

18. On the day of the Tribunal hearing the applicant provided evidence of completion of a Diploma of Business at IICT Pty Ltd dated 1 June 2016, which the applicant indicated he studied from March 2016 until June 2016.  He also provided a statement indicating he was deemed competent in six out of six units studied for this course.

19. Following the receipt of the response to the NOICC, the Department wrote to the applicant on 2 August 2016 indicating that it did not appear that All Australian Training Pty Ltd, which delivered the Diploma of Management that the applicant studied from 1 April 2015 until 28 February 2016 was a Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) approved provider. It was noted that only they can enrol and deliver education services to students in Australia on a Student visa.

20. The Tribunal also notes that there is no evidence before the Tribunal that the Diploma of Business that the applicant was awarded in June 2016 was a registered course and delivered by a CRICOS approved provider.

21. In an email response dated 9 August 2016 the applicant indicated that he did not know of this requirement and that it was an honest mistake. He indicates that he got credits and exemptions for his current course which saved him eight months and $12,000. He indicated that his friends had done the same thing.

22. The Tribunal discussed with the applicant in the hearing his circumstances in relation to the Bachelor of Business, which was due to commence on 2 March 2015 with AIH.  The applicant indicated that he studied at the institution for about a month and was told that his Confirmation of Enrolment had been cancelled. The applicant did not provide clear details to the Tribunal as to why the enrolment was cancelled. The applicant indicated that he was told by the education provider that he would have to re-enrol next semester.

23. The Provider Registration International Student International Management System (PRISMS) indicates that the Bachelor of Business was cancelled due to the applicant not commencing his studies. The applicant maintained in the hearing that he did study for one month.

24. As noted to the applicant in the hearing, he provided different information to the Department in response to the NOICC in relation to his study of the Bachelor of Business. The applicant provides details in his response which suggests that he was studying this course for some period. The response indicates that the applicant failed by 0.5% and was not able to undertake supplementary exams. As indicated to the applicant in the hearing, this does not suggest that the applicant only study for one month. In response, the applicant indicated that it was at another institution that he was failed by 0.5%.  This is not what the written response indicates.

25. The applicant has also not been consistent in claims that AIH advised the applicant to enrol in the unregistered Diploma of Management to study side-by-side with the Bachelor of Business. The applicant conceded in the hearing that he did not study the Diploma of Management side by side with the Bachelor of Business. He also conceded that his written claims were not correct in suggesting that AIH had suggested that he enrol in the unregistered course. The applicant did indicate that they told him, however, that he would have to study elsewhere.

26. The applicant indicated that he was advised by friends to study the unregistered Diploma of Management. He said that he consulted an agent who provided no indication that this would be a problem in terms of complying with his visa obligations. As indicated to the applicant in the hearing, the Tribunal has some difficulty accepting that an education agent would provide advice to an international student that he would be able to study a course that was not a registered course for the purpose of 8202.  This is a fundamental obligation in relation to many Student visas.

27. The applicant has indicated that the exceptional circumstance beyond his control for the 14 month breach of condition 8202 is that he did not realise that the two courses that he enrolled in from March 2016 were not registered courses for the purpose of condition 8202.

28. The Tribunal has difficulty accepting this to be the case. The Tribunal has taken into account the fact that the applicant has clearly provided misleading information in his response to the NOICC as indicated above. There are further misleading responses to the NOICC as acknowledged by the applicant in the hearing, which reinforce overall concerns as to the applicant’s credibility and his explanations as to non-enrolment.

29. The applicant provided misleading information in the NOICC as to the circumstances of him ceasing to study the Certificate IV in Information Technology in October 2011 when the applicant first arrived in Australia. In the written response to the NOICC the applicant indicated that he ceased this course when it was closed down due to compliance issues. In the hearing, the applicant acknowledged, that, consistent with information from PRISMS, he had ceased studying this course of his own volition with the course continuing. PRISMS indicates that the course was cancelled due to non-payment of fees. Similarly, the applicant indicated in the response to the NOICC that he did not complete the Diploma of Software Development that commenced on 25 July 2013 because the course was closed down. The applicant indicated in the hearing that this was not correct. He said that his enrolment was cancelled but he did not know why.

30. These various credibility issues cause the Tribunal to pay particular scrutiny as to the truth of the applicant’s claims that he did not know that the two courses he enrolled in from March 2015 were not registered courses meeting the requirements of condition 8202.

1. At the very least, the Tribunal further struggles to accept that it would not become readily apparent from other students studying the unregistered courses from March 2015 that the courses were not registered courses recognised for international students on Student visas. Even if the applicant was not aware, which the Tribunal considers very unlikely, that demonstrates a lack of proper investigation on the part of the applicant as to his visa  obligations and to make sure he was enrolled in appropriate courses. The Tribunal is not satisfied that the applicant was advised by an agent that the courses were suitable.

2. Considering the circumstances as a whole, the Tribunal considers that the applicant either did know, or should have known, that the two courses he studied from March 2015 until June 2016 were not recognised courses for the purpose of condition 8202. That being the case, the Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control for the breach.

3. The Tribunal discussed with the applicant a potential breach of condition 8516.

4. Condition 8516 states that: ‘The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa’. The criteria for the grant of the Student visa includes, amongst other criteria, subclause 573.231 and 573.223(1A).

5. Essentially, subclause 573.231 provides that, unless a person is an eligible higher degree student as set out in 573.223(1A), that person must be enrolled or the subject of a current offer of enrolment in a course of study that is the principal course of the type specified in an instrument for the subclass 573 visa.

6. The relevant instrument sets out a list of relevant courses in the higher education sector.

7. In the hearing the applicant acknowledged that he had failed to be enrolled in higher education sector course from 26 March 2015 until he enrolled in a Bachelor of Professional Accounting on 10 August 2016. The applicant has therefore been in breach of condition 8516 for this period.

8. In the hearing, the applicant equivocated as to whether he knew that he had an obligation to be enrolled in higher education sector course. He said that at the time of ceasing the Bachelor of Business in March 2015 he was confused, that this was not in his mind, and that his main focus was to study any course.

9. As in relation to condition 8202, the Tribunal is of the view that the applicant did not pay sufficient regard to his visa obligation to be enrolled in a higher education sector course. The Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control for the breach of condition 8516 period of almost 17 months, a considerable breach.

10. The failure to abide by condition 8516 for a significant period is a discretionary factor adverse to the applicant.

11. The applicant indicated that his purpose in being in Australia since 2010 on Student visas has been to study. Other than completing one one-month English course in 2011, the applicant acknowledged in the hearing that he had completed no course of study in a registered course. The applicant has provided a variety of excuses in response to the NOICC as to why he did not complete any of the many courses he was enrolled in. As indicated above, a number of those excuses are clearly not true – they were repudiated by the applicant in the hearing. Other than claims that the applicant struggled with the courses, the Tribunal is not inclined to accept other excuses which are suggested as being extenuating beyond the applicant’s control. The applicant’s poor study history in Australia over a long period is adverse to the applicant in the exercise of the Tribunal’s discretion.

12. Having said that, the Tribunal acknowledges that the applicant did undertake and complete two unregistered courses from March 2015 until June 2016. Albeit not meeting visa obligations, the Tribunal accepts that there was some commitment by the applicant to being a student in Australia. Evidence has been provided by the education provider of the applicant’s progress in the Bachelor of Professional Accounting which he has been studying from August 2016. The applicant has passed four units, failed four units and has eight courses credited in light of past study. The Tribunal accepts that the applicant is making an effort in relation to this course and making some progress albeit with some courses failed. The Tribunal is prepared to accept that the applicant is currently engaged as a genuine student with a intention to complete the Bachelor of Professional Accounting.

13. The applicant indicates that it is very important that he complete the Bachelor of Professional Accounting given his long history of study in Australia. This is important for his future career and providing input into the family business. It is important to the well-being of his family, particularly his sick father, and himself. The Tribunal accepts not insignificant hardship to the applicant and his family if the visa remains cancelled and he is not able to complete the Bachelor of Professional Accounting.

14. The Tribunal accepts a hardship to the applicant if the visa remains cancelled in that this would impose restrictions on applying for various visa subclasses onshore.

15. There is no evidence that there are third parties whose visas would be cancelled consequential upon the cancellation of the applicant’s visa. As indicated above, based on the applicant’s evidence in the hearing, he has misled the Department in relation to a number of issues as to the various circumstances of the breach of condition 8202 in response to the NOICC and this is adverse to the applicant.

16. In terms of mandatory legal consequences if the visa remains cancelled, in the absence of evidence to the contrary, the Tribunal is not satisfied it is likely that the applicant would be subject to mandatory detention for being an unlawful noncitizen given his ability to apply for a Bridging visa to legitimise his visa status while he makes arrangements to leave the country or pursues review or appeal processes.

17. In the hearing, the applicant indicated that he does not fear persecution or significant harm on return to Pakistan. The Tribunal is therefore does not consider that Australia’s non-refoulement obligations are enlivened. There is no evidence that the interests of children in Australia would be affected by the continued cancellation of the visa. There is no evidence which make relevant any other factors.

18. In summary, the applicant has been in breach of condition 8202 for 14 months and in breach of condition 8516 for 17 months. The Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control for the breaches. The applicant has completed no registered course since being in Australia in 2010, except a short English course. The applicant has provided misleading information to the Department in response to the NOICC.  Cumulatively considered these matters are significantly adverse to the applicant.

19. Balanced against these matters are the fact that the applicant is genuinely attempting to make progress in a Bachelor of Professional Accounting. The Tribunal accepts that it will be a hardship to the applicant and his family if he is unable to finish this course and has to return to Pakistan without obtaining any academic qualifications in Australia. The Tribunal accepts that there will be a hardship to the applicant if the visa remains cancelled in terms of his inability to apply for many subclasses visas onshore.

20. The Tribunal has some sympathy for the applicant given his current commitment to his studies and the hardship as a result of not being able to complete his current course. However, the period of the breaches without extenuating circumstances combined with the applicant misleading the Department and very poor study progress over many years in Australia result in the Tribunal deciding to exercise its discretion to cancel the visa.

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

    DECISION

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

    David McCulloch
    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.