Thrif (Migration)

[2020] AATA 4322

Thrif (Migration) [2020] AATA 4322 (9 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Furkhan Bin Nazeer Thrif

CASE NUMBER:  2001114

HOME AFFAIRS REFERENCE(S):          BCC2019/3263289

MEMBER:Frank Russo

DATE:9 September 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 9 September 2020 at 2:55pm

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 – significant breach – circumstances giving rise to non-compliance – inconsistent evidence – claimed to be a victim of fraud – not beyond the applicant’s control – provision of false information to the Department in response to the NOICC – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

CASES
ABT16 v Minister for Home Affairs [2019] FCA 836

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 January 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not maintained enrolment in a registered course at the same level as, or higher than, the registered course in relation to which his visa was granted, and therefore no longer met the requirements of sub-clause 8202(2)(b) of Schedule 8 to the Migration Regulations 1994 (the Regulations). 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 is a 28-year-old Indian national. The Student visa was granted in respect of the applicant’s enrolment in a Master of Professional Accounting at the University of New South Wales (UNSW).

4. The applicant appeared before the Tribunal by telephone hearing on 20 July 2020 and 6 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Zaheer Uddin Mohammed, who also appeared before the Tribunal by telephone.

5. The applicant was represented in relation to the review by his registered migration agent, Mr Rafi. The representative attended the Tribunal hearing by telephone.

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(2)(b) of Schedule 8 to the Regulations. If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

8. In addition to his application form and the reasons for decision of the delegate and copy of the notice of the decision sent by the Department, the applicant provided the Tribunal with the following additional documents:

   a.A response to hearing invitation signed on 29 June 2020;

   b.Appointment of authorised representative, signed 26 June 2020;

   c.A written submission from the applicant’s representative, dated 17 July 2020, which attached the following documents:

   i.Confirmations of Enrolment for the following courses:

   1.Master of Professional Accounting at UNSW commencing on 26 February 2018 and ending on 15 January 2020, created on 11 December 2017;

   2.Diploma of Business at Wakefield International Business School (Trading as Alpha Institute), commencing on 5 November 2018 and ending on 3 November 2019;

   3.Diploma of Information Technology Networking at Australian Harbour International College (AHIC), starting on 27 May 2019 and ending on 24 May 2020; and

   4.Advanced Diploma of Network Security at AHIC, starting 13 July 2020 and ending 11 July 2021.

   ii.Copy of the applicant’s secondary school certificate, issued in 2007, and year 12 certificate issued in 2010;

   iii.Letter of reference from Sri Gayathri Pharmacy, the applicant’s former employer, dated 20 December 2016;

   iv.Applicant’s marriage certificate;

   v.Three birth certificates of each of the applicant’s children;

   vi.Acceptance of the applicant’s application for a Bachelor of Business Administration at University of Euroregional Economy, Poland and copy of Polish student card;

   vii.Flight itineraries from 2017 for flights from Hyderabad to Warsaw and from Stockholm to Hyderabad;

   viii.Copy of the applicant’s Indian passport;

   ix.Referral letter from Lakemba Family Healthcare to Emergency Department, Canterbury Hospital, dated 27 January 2018;

   x.Discharge referral from Canterbury Hospital, relating to admission on 19 June 2018 and discharge on 21 June 2018;

   xi.Letter of consultant surgeon in relation to performance of appendicectomy, dated 25 June 2018; and

   xii.Death certificate for the applicant’s father’s death on 2 June 2019 and medical report from Khaja Banda Nawar Poly Clinic.

9. The Tribunal has read and had regard to these documents in making its decision. The Tribunal also notes and has read and had regard to the documents contained within the Department’s file.

   Does the ground for cancellation exist?

10. 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 full time registered course: 8202(2)(a)

    ·subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted: 8202(2)(b)

    ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

    ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

11. The Tribunal notes that under 8202(3), a holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    a.is enrolled in a course at the Australian Qualifications Framework level 10; and

    b.changes their enrolment to a course at the Australian Qualifications Framework level 9.

12. In the present case, the applicant’s visa was cancelled on the basis that the applicant had not maintained enrolment in a registered course at the same level as, or higher than, the registered course in relation to which his visa was granted. More particularly, the visa was cancelled because the applicant was not enrolled in a Masters degree course (AQF level 9) for a period of almost 22 months, when the initial grant of the Student visa was for the applicant to gain a Masters-level qualification.

13. The applicant was not enrolled in a course at AQF level 10, and therefore the consideration in 8202(3) is not relevant.

14. An examination of the delegate’s reasons for decision, a copy of which was provided to the Tribunal by the applicant, indicates that the applicant was granted a Student visa on 9 January 2018 for the purpose of undertaking a Master of Professional Accounting at UNSW. This would provide the applicant with a Level 9 (Masters degree) qualification from the Australian Qualifications Framework (AQF).

15. The applicant gave evidence at the hearing that he arrived in Australia on 20 January 2018 with a CoE for the Master of Professional Accounting. He explained to the Tribunal that his intention had been to obtain enrolment in a Bachelor of Commerce at UNSW, but he had been a victim of fraud perpetrated on him by an education agent in India by the name of ‘Mohsin’. He explained that he met Mohsin at the airport prior to his departure from India, and Mohsin handed over a file containing his CoE, which was for the Master of Professional Accounting, and not for the Bachelor of Commerce that he requested.

16. The applicant told the Tribunal that he went to UNSW to enrol, but after showing the university his CoE, he was told there was nothing in their system.

17. The applicant confirmed with the Tribunal that he did not enrol in the Master of Professional Accounting or commence this course.

18. The applicant has provided the Tribunal with a CoE for a Diploma of Business at Alpha Institute (AQF Level 5), which he commenced on 5 November 2018, but has not completed.

19. The applicant has also provided the Tribunal with a CoE for a Diploma of Information Technology Networking (AQF Level 5), at Australian Harbour International College, which he commenced on 27 May 2019, which he states he completed on 15 July 2020. At the time of the hearing the applicant was enrolled in an Advanced Diploma of Network Security (AQF Level 6) at Australian Harbour International College, which he states he will complete on 11 July 2021.

20. At the hearing the applicant acknowledged that he was not enrolled in a Masters level course (AQF Level 9) from 20 March 2018 until the date of the delegate’s decision on 16 January 2020, and agreed that there were grounds for cancellation of the visa.

21. On the evidence before the Tribunal as set out above, the Tribunal is satisfied that the applicant was not enrolled in registered course at the same level, or at a higher level than the registered course in relation to which the Student visa was granted, from 20 March 2018 until the date of the delegate’s decision on 16 January 2020. Accordingly, the applicant has not complied with condition 8202(2)(b).

    Consideration of the discretion to cancel the visa

22. 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 Procedural Instruction ‘General visa cancellation powers’.

    Evidence of Mr Mohammed

23. The Tribunal notes that, in response to the hearing invitation for the first hearing on 20 July 2020, the applicant provided a Response to hearing invitation, dated 29 June 2020, which was received by the Tribunal on 30 June 2020. This Response to hearing invitation does not list the details of any witnesses from which the applicant wished the Tribunal to take oral evidence.

24. At the commencement of the hearing on 20 July 2020, the applicant’s representative indicated that Mr Mohammed was present in the room with the applicant and the representative, and that the applicant was requesting that the Tribunal take oral evidence from Mr Mohammed. The Tribunal noted that no request had been received to take evidence from witnesses, but agreed to take evidence from Mr Mohammed.

25. The Tribunal asked the applicant’s representative whether there was a preference for Mr Mohammed to give his evidence before or after the applicant’s evidence. The applicant’s representative indicated that Mr Mohammed would give his evidence first. The applicant agreed to leave the room while Mr Mohammed gave his evidence.

26. Mr Mohammed gave evidence that he had known the applicant since childhood in Hyderabad. He stated that they lived in the same street. Mr Mohammed told the Tribunal that the evidence he wished to give related to his use of the same education agent in India as the applicant, and that the same thing which happened to the applicant occurred to him. Mr Mohammed gave evidence that he had met an agent named Mohsin, whose business he referred to as ‘SNS Associates’. He stated that the business was located near Owaisi Hospital in Hyderabad. He stated that he had asked Mohsin to get him a visa for a Master of Commerce in Australia. Mohsin told him that he could do that, and after 10 days Mohsin got in contact with him. Mr Mohammed stated that he gave Mohsin the required documents and he was told to get a medical examination. After one month, Mohsin told Mr Mohammed to meet him in a hotel, where he asked Mr Mohammed to pay $16,000. When he asked what the $16,000 was for, Mohsin told him that he had to pay the course fees for his course at UNSW.

27. Mr Mohammed stated that after he had paid the course fees to Mohsin, Mohsin told him to book his ticket to Australia. He stated that he asked Mohsin for the enrolment documents, but Mohsin told him to just book his ticket, and arranged to meet him at the airport, where Mohsin said he would give him his CoE. Mr Mohammed told the Tribunal that at the airport Mohsin gave him a CoE for a Master of Engineering, rather than a Master of Commerce. He stated that Mohsin told him not to worry, to go to Australia and that he would change the CoE.

28. Mr Mohammed stated that after 5 days passed he went to the university, but was told they had no record of enrolment. He called Mohsin, who asked that he give him 10 days. Mr Mohammed then called Mohsin again after 10 days. Mohsin then told him to give him another 10 days. When Mr Mohammed next tried to contact him, Mohsin told him not to call him, and that he would instead call Mr Mohammed. After 15 days passed Mr Mohammed called Mohsin again, but Mohsin did not take the call. Mr Mohammed stated that his father went to see Mohsin, and he called him again himself.

29. Mr Mohammed stated that the second time his father went to see Mohsin, he was told not to go there again ‘in a rough way’. He stated that his father went there may times, but then the office was no longer there and the phone had been switched off. Mr Mohammed gave his Tribunal case number, which was 2006902, and stated that the Tribunal had heard his matter and set aside the Department’s decision.

30. The Tribunal asked the applicant’s representative whether there were any other questions which he wished the Tribunal to ask Mr Mohammed. The applicant’s representative confirmed that there was no other evidence for Mr Mohammed to give, and submitted that when the applicant and Mr Mohammed came to him, their stories were ‘very identical’. He stated that he thought Mr Mohammed could give evidence in the current application for review to strengthen the argument that this kind of migration fraud is occurring overseas.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

31. The applicant told the Tribunal that the purpose of his travel to and stay in Australia is for his education. He stated that he has already completed the Diploma of Information Technology at Australian Harbour International College, and that he only requires a further 12 months so he can complete the Advanced Diploma of Network Security.

32. When questioned why he has now enrolled in IT-related courses when he originally wished to undertake a Bachelor degree in Commerce, the applicant stated because friends of his have jobs in the IT sector and he believes there are lots of opportunities in this sector in India. He stated that he believes he would be able to make a career for himself in the IT sector in India. The applicant also explained that when his father was alive, he sent him money for his education, and that his father wanted him to study Commerce so that the applicant could help him in his business. He stated that he lost hope after his father passed away, and that there was no-one to help with his education. However, he stated that he could afford the fees of $6,000 for the Diploma course and that his mother stepped in to run his father’s business and sends him some money.

33. When questioned as to his plans if the visa is not cancelled, the applicant stated that it has been a long time since he has seen his family, and that he just wishes to complete the Advanced Diploma of Network Security and then return to India. At the second hearing, the applicant stated that he wishes to return to India to be with his family, in particular his three children, the youngest of whom he has not seen in person. He stated that he does not wish to stay in Australia, and that he wishes to take his ‘certificate’ and return to India. He stated that he had successfully completed the Diploma course, that he had paid his fees for the Advanced Diploma course and that his wished to have the opportunity to complete this course.

34. The Tribunal notes that the grant of the Student visa was to enable the applicant to gain a Masters-level qualification in Australia. On the applicant’s own evidence he did not commence the Master of Professional Accounting or any other Masters-level course. He has recently completed a Diploma-level course and is currently studying an Advanced Diploma-level course (AQF Level 6). On his own evidence, the applicant’s purpose in staying in Australia is now to continue his studies at the Advanced Diploma level, following which he intends to return to India. On this basis, the Tribunal finds that the applicant’s purpose for his stay in Australia is no longer in line with the purpose for which the Student visa was originally granted.

35. While the Tribunal has concerns that the applicant does not intend to undertake studies at the AQF level for which the Student visa was originally granted, it considers there is evidence that the applicant genuinely wishes to obtain an education in Australia. He enrolled in a Diploma of Business with the Australian Chamber of Educations, which he completed in April 2019, although this was not a registered course. He enrolled in a Diploma of Business at Wakefield College, although he did not complete this course and his enrolment was cancelled in May 2019. He completed the Diploma of Information Technology in July 2020 and is now enrolled in the Advanced Diploma of Network Security. There is insufficient evidence to indicate that the applicant’s purpose for staying in Australia is for a reason other than undertaking a course of study. However, given the applicant’s purpose for his stay in Australia is no longer in line with the purpose for which the Student visa was originally granted, the Tribunal gives this consideration some weight in favour of cancelling the visa.

    The extent of compliance with visa conditions

36. The applicant was not enrolled in a course of study at the Masters level (AQF level 9) from 20 March 2018 until the delegate’s decision on 16 January 2020, a period of almost 22 months. On the applicant’s evidence, he did not commence the Masters course which was the subject of the Student visa. The Tribunal considers the length of this breach to be a significant breach of a condition of the visa.

37. The applicant gave evidence that he was aware of the work limitation condition of his visa, which he stated he has complied with. He stated that at the time of the hearing he was working 16-17 hours at Pizza Hut, but that he is called in only when they need him, and that because of COVID-19 it is difficult to get work.

38. In his written submission, the applicant’s representative submits that when the applicant started studying the Diploma of Information technology Networking, on a friend’s advice he lodged another Student visa application on 13 October 2019. He submits this was done in an effort to become compliant with visa condition 8202(2)(b), but that the applicant’s mother became the victim of fraud by a banker, who issued her with bogus financial documents, and that when it came to the applicant’s notice ‘he preferred to withdraw the application rather than going for litigation in India against the corrupt banker.’ He submits that 4 business days after the lodgement of the Student visa application, the applicant received the Notice of Intention to Consider Cancellation (NOICC) of his visa from the Department. The applicant gave evidence in support of this at the hearing, stating that he had applied to the Department for a visa to undertake his studies for the Diploma course, 4 days after which he received the NOICC from the Department. The delegate’s reasons for decision indicate that the applicant withdrew his second application for a Student visa on 5 January 2020 after a Natural Justice letter was issued by the Department on 11 December 2019 in relation to PIC 4020 criteria – production of bogus documents to obtain a visa.

1. While the Tribunal notes the applicant’s attempt to become compliant with 8202(2)(b) of his visa, this attempt was not made until 13 October 2019, over 18 months after his enrolment in the Master of Professional Accounting was cancelled on 20 March 2018. The Tribunal therefore gives little weight to this attempt, given the applicant had been in breach for a significant period of time. Given the duration of the breach, the Tribunal gives this consideration weight in favour of cancelling the visa.

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

2. When asked about the degree of hardship that may be caused as a result of the cancellation of his visa, the applicant stated that he would feel ashamed in front of his family and that he would be unable to give a good future to his children, who are young. He stated that it will reflect badly on his children, and that without him obtaining the certificate there will not be a good future for him or his children. He stated that he believes that if he returns to India without a qualification, he will not get a good position. He stated that his whole family depends on him and expects that he will complete the qualification.

3. The Tribunal questioned the applicant as to whether he has a Bachelor degree qualification from India, given in his response to the NOICC he stated that he completed a Bachelor of Commerce from Osmania University in 2015. In response the applicant gave evidence that he had completed year 10 in India in 2007. He stated that he completed year 12 qualifications in Civics, Economics and Commerce, but stated that he had not undertaken any tertiary studies in India. The applicant told the Tribunal that the certificate for the Bachelor degree which was provided with his application for the Master of Professional Accounting was fake. He stated that it was not his degree, and that the certificate for the degree had been created by Mohsin for his admission to UNSW.

4. The Tribunal has also had regard to the written submissions made by the applicant’s representative, which claim that the applicant’s future and entire career depends on his successful completion of his proposed studies in the Diploma of IT Networking and the Advanced Diploma of Network Security before returning to India. Mr Rafi also sets out the expectations and the hopes of the applicant’s wife and parents, and the disappointment, embarrassment and shame it will bring to them if the applicant is not able to complete the studies, in addition to it bringing about an ‘end to his dream’.

5. The Tribunal accepts that the applicant would experience some hardship if the visa is cancelled, in particular that he may experience emotional and psychological hardship, difficulty in his family relations. The Tribunal accepts that it may also cause some financial difficulty if the applicant is unable to complete the course which he has paid fees for, and if he is unable to continue to work in Australia. The Tribunal notes that the applicant has provided evidence of his employment in India as a sales assistant in a pharmacy, and as a customer service representative with an insurance company, and considers he would be able to obtain similar roles upon his return to India, and therefore provide for his family. The applicant has also had the opportunity to complete the Diploma of Information Technology Networking and has not provided information regarding the additional opportunities which may arise from the completion of the Advanced Diploma of Network Security. I however accept that the Advanced Diploma is a higher qualification than the Diploma, and may therefore open up some additional opportunities. Given the above hardship which I accept may be caused, I give this consideration some weight against cancelling the visa.

   Circumstances in which ground of cancellation arose

6. At the start of his evidence the applicant stated that he arrived in Australia in January 2018 with a CoE for the Master of Professional Accounting at UNSW. He gave evidence that he was the victim of fraud, as he had intended to obtain enrolment in a Bachelor of Commerce, but his agent in India had instead provided him with a CoE for the Masters course. He stated that his agent told him that he would arrange for a CoE for the Bachelor of Commerce to be issued to him. He stated that he had lost all of his money to obtain the enrolment and that his agent did not respond to his enquiries. He stated that in addition he suffered health problems and was admitted to Canterbury Hospital, that his wife was also pregnant, that he did not know what he should do.

7. When asked at the hearing specifically about the circumstances in which the ground of cancellation arose, and whether there were any extenuating circumstances that were beyond his control, the applicant responded that his father had died, prior to which he had open heart surgery twice, which was very expensive. He stated that his father also had diabetes and had a leg amputated. When questioned whether there were any other circumstances, the applicant stated that there weren’t. He stated that he enrolled in the Diploma of Business at Alpha Institute, but after a few days of enrolling there his father became ill. He stated that he did not complete the Diploma of Business as a few months after his enrolment his father passed away.

8. The Tribunal questioned the applicant as to the circumstances which resulted in the cancellation of his enrolment in the Master of Professional Accounting. The applicant told the Tribunal that after he arrived in Australia he went to UNSW, but after showing them the CoE for the Master of Professional Accounting provided by his education agent, the staff stated that there was ‘nothing in their system’. He stated that they did not give him a proper response. He told the Tribunal that he spoke to his agent in India, who told him that he would contact the university to obtain enrolment in the Bachelor of Commerce. He stated that after 10-15 days had passed, his agent said he had spoken to the university and would arrange another enrolment for him, but he did not do so.

9. The applicant gave evidence that the agent’s name was Mohsin. When asked how he met the agent, he stated that the agent is famous, and that his business was located in a tourist area with famous restaurants. He stated that he met him in a back street near his office, and that it was near the Owaisi Hospital, which is a landmark in the area. He stated that he first met with Mohsin in 2017 and told him that he wanted to ‘go for’ a Bachelor of Commerce. Mohsin told him it was a good time to apply for a visa, and that he would have to pay $16,000 in university fees for one semester, as well as his travel costs. The applicant stated that in the beginning he didn’t pay, as his father told him not to pay everything. He told Mohsin to start the process, and then within one week, Mohsin advised the applicant to obtain a medical. After a further month, Mohsin called the applicant and told him that he had been successful in obtaining the visa. The applicant stated that Mohsin did not show him anything at this stage. He stated that he was ‘big happy’, and that Mohsin advised him to book his ticket and would meet him at the airport with all of the documents. He stated that at the airport, Mohsin handed him a file, which contained his visa and his CoE.

10. The Tribunal questioned the applicant as to when he realised he had a CoE for a course other than the Bachelor of Commerce. The applicant stated that he realised at the airport. He stated that he had no idea what the visa said, but Mohsin told him to go to Australia, and that he would change the CoE from the Masters of Professional Accounting to the Bachelor of Commerce. He stated that Mohsin was an agent, therefore he believed him, but when he arrived in Australia the story was different.

11. The applicant stated that after two days of arriving in Australia he went to UNSW with his CoE, but the university staff said they could not find his CoE in the system. He stated that the university staff then responded to other people and not him. He stated that he called his father, who said not to worry and to call his agent. He stated that he called Mohsin, who said he would enrol the applicant in the Bachelor of Commerce and asked the applicant to give him time.

12. The applicant stated that his father also went to see Mohsin, but he has not taken any legal action against him as ‘these people have a strong political background’. He stated that a friend of his father’s had told his father that the police would not do anything about it and that they would take a bribe and put the case on hold. The applicant also stated that he didn’t take any legal action or other steps against Mohsin because he believed nothing would happen, and because he needed to protect his family and did not want to cause any other issues for them. He stated that what happened had happened, and that when he goes back to India he will have all the evidence. The Tribunal questioned whether the applicant had any other evidence to support his claim that he had been issued with a CoE for the wrong course. The applicant responded that he had the CoE and the visa which had been handed to him in a file.

13. When questioned whether there were any other circumstances that were relevant, the applicant stated that there were not. However, the Tribunal notes that later in the hearing the applicant stated that he also experienced homesickness. The Tribunal also notes that the applicant has also provided copies of medical evidence relating to his treatment in Australia for medical conditions, as well as evidence relating to his father’s health. In relation to his own health conditions, the applicant has provided:

    a.Referral letter from Lakemba Family Healthcare to the Emergency Department, Canterbury Hospital, dated 27 January 2018, with the reason for presentation recorded as ‘Severe abdominal pain, Vomitting for 12 hours’;

    b.Discharge referral from Canterbury Hospital, regarding admission on 19 June 2018 and discharge on 21 June 2018, with a principal diagnosis of Appendicitis; and

    c.Report from a Consultant Surgeon at Canterbury Hospital, dated 25 June 2018, regarding the applicant’s admission with acute appendicitis and surgery on a ruptured appendix;

14. In relation to his father’s conditions the applicant provided a death certificate which certifies that his father passed away on 2 June 2019, as well as a letter from his treating doctor at Khaja Banda Nawar Poly Clinic, which certified that he had been registered as his private patient since March 2017 and suffered from various conditions and that a significant amount had been spent on his treatment.

15. The Tribunal raised potential concern with the applicant’s evidence that soon after arriving in Australia he went to UNSW and was told that they had no record of him in their system. The Tribunal noted that the applicant had provided the Tribunal with a copy of the CoE for the Master of Professional Accounting, which on its face appeared to be a genuine document, and therefore it would be unusual for the university to have no record of him in its system, when such CoEs are issued by the education provider. The applicant responded that he did not know whether it was a genuine CoE or not, but that the CoE was not related to the course of study that he wanted to study, and therefore he contacted Mohsin to obtain an enrolment for a Bachelor of Commerce. The applicant stated that the woman he spoke to at UNSW said the CoE was not showing up in their system, but the university did not give him a proper response. He stated that he did not know the rules and regulations, so he talked to his agent.

16. Adopting the procedure in s.359AA of the Act, the Tribunal put to the applicant information from his enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal explained to the applicant the consequences of relying upon the information. In particular, the Tribunal noted that according to the applicant’s PRISMS record, he was enrolled in a Master of Professional Accounting commencing on 26 February 2018 and ending on 15 January 2020, which was cancelled on 20 March 2018 due to non-commencement of studies.

17. The Tribunal put to the applicant that CoEs are created by education providers in Australia and that they are also cancelled by the education provider, and the information contained in his PRISMS enrolment record indicates that not only was the applicant issued with a CoE for the Master of Professional Accounting, but it was cancelled on 20 March 2018 because of non-commencement of studies. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments or wished to respond in relation to the information contained in his PRISMS enrolment records and advised that he may be granted time to comment on or respond to the information if needed.

18. The applicant indicated that he wished to have a break of two minutes to discuss the information with his representative. The Tribunal granted the applicant a brief adjournment of a few minutes, after which the applicant indicated that he was ready to proceed with the hearing and wished to respond to the information at the hearing. The applicant told the Tribunal that Mohsin had given him a CoE at the airport as he was leaving for Australia. He stated that he had told Mohsin that he had completed year 12 and was interested in the Bachelor of Commerce, but he was instead given a CoE for the Masters course at the airport. He stated that when he went to UNSW he asked about the Bachelor of Commerce, but was told that it was not showing in their system, although the Masters course was showing. He stated that he had already told Mohsin that he did not want to proceed with the Masters course and that Mohsin had promised him he would proceed with obtaining him an enrolment in the Bachelor course within two days. The applicant stated that he could not afford the Masters course and that Mohsin had created the certificates that had been submitted with his application for admission and he does not know what else Mohsin did in the processing stage. He stated that he was advised that ‘these people are dangerous’ and not to take action against them, in order to protect his family.

19. The Tribunal also raised concern with the applicant regarding the response he provided to the NOICC issued by the Department. The Tribunal noted that in the written response he provided to the Department on 29 October 2019, the applicant stated that he has a Bachelor degree from Osmania University, and gave a different set of reasons for not enrolling in the Master of Professional Accounting. These reasons were that it was the first time he had gone somewhere to study in a place where everything was new and unknown, and that it was ‘both happening and exciting’ for him. He stayed with a friend for a few days and that he found it a challenge to get his own place. He stated that in addition the people and culture were new, and he was all alone. He stated that he tried coping with the new environment, but failed, and that he was not able to recover from depression and home sickness, and as a result he

    ‘… couldn’t … follow up with the university. I couldn’t enrol myself in university till I realise and try to complete I crossed the deadline I got depressed and devastated.’

    He stated that this made him depressed and he lost interest in his studies and that he stopped meeting people. He stated that after ‘some months in complete isolation’ he realised that he was ruining his life by acting this way, but by then it was too late. He stated that he eventually took his father ‘into confidence’ and explained what had happened. His father suggested he study a Leadership-related course so the applicant could take over his business and ‘start working in any company’.

20. The Tribunal noted that the explanation of the circumstances that the applicant provided to the Department was very different to that provided in his oral evidence, and that this may indicate that the account he had given to the Department or to the Tribunal was false, and that this may also raise issues regarding his credibility as a witness.

21. The applicant stated in response that his friend had given him advice at the time he responded to the NOICC and had told him not to change the story, and said, ‘just mention the same thing’, and that honesty wins. The Tribunal then questioned the applicant why, if this was the case, he had not mentioned the provision of the incorrect CoE for the Masters course to the Department in his response to the NOICC. The applicant stated that his friend had told him not to mention it to the Department. The applicant then stated that the ‘story’ written in response to the NOICC is not the correct version, and ‘The situation is whatever came in my mind and whatever my friend advised.’ He stated that agents were taking his money, and that he ‘wrote whatever came in my mind.’ He stated however that the account he had given to the Tribunal in his oral evidence was correct.

22. In his written submissions, dated 17 July 2020, the applicant’s representative submitted that the circumstances which resulted in the cancellation of the applicant’s visa were the result of migration fraud emanating from India, and that the applicant is the victim of such fraud. He submits that because of reasons that were beyond his control, the applicant was unable to maintain enrolment at the same level or higher than the registered course in relation to which the visa was granted, and set out the circumstances regarding the alleged fraud perpetrated by the agent named Mohsin, which are substantially similar to the events which the applicant recounted in his oral evidence to the Tribunal.

23. In his oral submissions, the applicant’s representative stated that the applicant’s story is ‘exactly identical’ to that of Mr Mohammed. He stated that he has a few other clients who had obtained CoEs through the same agent in India, and who are also going through appeals to the Tribunal. He stated that it requires an extensive investigation of the documents and submitted that in order ‘properly investigate these matters’ to ‘please check the system’. Mr Rafi indicated that the applicant had completed years 10 and 12 in India, but to obtain admission to UNSW Mohsin must have used ‘other year 10 and 12 documents as well’ as the applicant did not have the 70% marks for years 10 and 12 which are required for admission to UNSW. The Tribunal notes that certificates for completion of years 10 and 12 have been provided by the applicant as an attachment to his representative’s submission. Mr Rafi stated that if the Tribunal wanted to check the applicant’s story, the Department can check whether the original year 10 and year 12 documents of the applicant were submitted as part of the application to admission to UNSW. He submitted that if all of the documents are fake, then ‘some relief’ needs to be given to the visa applicants, as ‘a normal person’ is not able to combat this kind of fraud. He submitted that he has many clients who have experienced the same situation and that all of their stories are identical.

24. Mr Rafi submitted that agents lodge applications with emails they create for each student, and therefore potential students do not see the documents which are submitted. He submitted that once the admission documents are shown to students, they have already made up their mid to come to Australia, and they know the value of UNSW. He submitted that the course fee for the Masters at UNSW is $89,900 and the initial payment for one semester is over $16,000. Mr Rafi submitted that the potential student would consider this a legitimate amount to be paying for the course they intended to enrol in. He submitted that the Masters degree requires competence, whereas the applicant has only completed years 10 and 12 in India. He stated that the agent then considers their role complete once the student is in Australia, and does not assist them further.

1. The Tribunal has considered all of the evidence provided by the applicant as to the circumstances which resulted in the breach, as well as the submissions made by the applicant’s representatives. As noted above, the Tribunal has concerns regarding the inconsistency of the account the applicant gave to the Department in response to the NOICC and that given in his oral evidence. The applicant’s response to the NOICC was provided to the Department on 29 October 2019, less than 9 months before the first hearing, yet it contains no mention of the applicant’s claims regarding the alleged fraud or the provision of an incorrect CoE by an agent in India. Rather, the applicant provided the Department with an explanation which was inconsistent with that provided to the Tribunal, essentially that he was overwhelmed with the experience of moving to Australia, that he tried to cope with the new environment, but failed, and that he suffered depression and homesickness, and that he did not follow up with the university about his enrolment until the deadline for enrolment had passed.

2. In his response to the NOICC, the applicant also stated that he had completed a Bachelor of Commerce at Osmania University in 2015, however in his evidence before the Tribunal he admitted that he did not obtain any tertiary qualifications in India and that the information regarding this degree was false. In his response to the NOICC the applicant also claims that when he arrived in Australia in January 2018 it was the first time he went to study ‘in a place where everything was new and unknown.’ The Tribunal notes however that the applicant has provided evidence of his travel to Poland in 2017 for the purpose of studies towards a Bachelor of Business Administration. This includes travel itineraries which suggest that he was in Europe from 18 March 2017 to 17 November 2017. The Tribunal also notes the applicant was issued with an Indian passport in Stockholm on 13 November 2017.

3. While the Tribunal accepts that fraud involving Student visa applications from India is a widespread issue, and that students may themselves be the victims of such fraud, based on the evidence before the Tribunal, I do not consider that the applicant is an entirely innocent victim of such fraud.

4. The applicant gave evidence that he realised that he had been issued with a CoE for the wrong course at the airport prior to leaving India, yet despite this he continued with his plans to travel to Australia on his Student visa, knowing the CoE which had been issued to him was not only for the wrong course, but for a course at a level which was not consistent with his highest qualification, which was year 12 high school. While the applicant gave evidence that both he and his father contacted Mohsin several times to have the CoE for the correct course issued to him, there is no evidence that the applicant raised this issue with the university or the Department. Rather, the evidence before the Tribunal indicates that the applicant withheld this information from the Department, and as late as October 2019 provided false information to the Department regarding his qualifications from India, representing to the Department that he had the Bachelor degree qualification which enabled the issuing of the CoE for the Masters course and the subsequent grant of the visa.

5. The applicant gave evidence that he has not commenced any legal action against the agent in India or reported the matter to the police, and when asked whether he has any documentary evidence regarding the issuing of the wrong CoE, he indicated that he only had his CoE and visa that had been provided by Mohsin. There is therefore no documentary evidence before the Tribunal to support the applicant’s claim that he was a victim of fraud. Rather, there is documentary evidence that he was complicit in this fraud as late as October 2019, when he provided false information about his qualifications to the Department in response to the NOICC and gave an explanation to the Department which he now claims is untrue.

6. The Tribunal also has concerns regarding the evidence the applicant provided about his attempt to enrol in the Master of Professional Accounting. The applicant stated that after arriving in Australia he went to UNSW, but after showing his CoE was told that there was nothing in the university’s system. Later in his evidence he stated that he went to UNSW with his CoE, but the staff could not find the CoE in the system. The Tribunal finds it difficult to accept that the applicant’s details could not be found in the university’s system when his PRISMS record, which is updated by the education provider, records both his enrolment in the Masters course and the cancellation of the enrolment on 20 March 2018, after the enrolment period. When this was put to the applicant, he clarified that what he meant was that the university could find the CoE for the Masters course, but not for the Bachelor of Commerce that he wanted to enrol in. The Tribunal does not find this explanation convincing, and notes that according to applicant’s evidence, he went to UNSW with his CoE (the only one he had been issued with at that time was for the Masters course), yet they could not find it in their system.

7. The Tribunal considers that even if the applicant were the victim of fraud conducted by an agent in India, the circumstances which resulted in the breach were not beyond the applicant’s control. The applicant was aware that the wrong CoE had been provided to him at the airport in India, yet decided to travel to Australia on a visa to study a course which he was not qualified to enrol in, given he has no undergraduate qualifications. He claims that both he and his father made attempts to contact Mohsin, and that Mohsin had told him that he would obtain a CoE for a Bachelor-level course, however when it became clear that no further assistance from this agent would be obtained, the applicant chose to remain in Australia in breach of his visa condition until at least 13 October 2019, when he made an application for another Student visa for study at the vocational level. This attempt at taking corrective action was taken approximately 18 months after the applicant’s enrolment in the Master of Professional Accounting was cancelled, and only 5 months before his Student visa was due to expire (on 15 March 2020). This is a substantial period of time, during which the applicant chose to remain in Australia in breach of the visa condition, knowing that he was not qualified to undertake studies at the Masters level. There is no evidence that the applicant attempted to take corrective action in relation to visa condition 8202(b)(2) at an earlier stage or that he attempted to resolve the issue by obtaining advice from UNSW (other than his claim that he attended UNSW on one occasion to enrol) or with the Department. Given the significant duration of the breach, and the applicant’s decision to remain in Australia despite holding a visa for a course that he was not qualified to enrol in, I find the circumstances in which the ground for cancellation arose were within the applicant’s control.

8. The Tribunal has considered the submissions made by the applicant’s agent, in particular the submissions that argue that the kind of fraud which the applicant argues he has suffered is widespread, and that the Tribunal should offer some relief to persons who are the victims of such fraud as such circumstances are beyond their control. While the Tribunal accepts that such fraud is widespread and that students may often be the victims of such fraud and find themselves in a powerless situation, in the present case, the Tribunal places weight on the applicant’s provision of false information about his academic qualifications to the Department as recent as 29 October 2019. The applicant has in the very least been complicit in the fraud by providing the Department with false information which had initially been generated as part of the fraud of which he alleges he was the victim. The Tribunal therefore does not accept the applicant’s representative’s submission that there are compelling and compassionate circumstances which explain the extent of the breach.

9. The Tribunal has had regard to the evidence provided by Mr Mohammed and the decision of the Tribunal in relation to Mr Mohammed’s application for review (Case No. 2001114, decided on 10 July 2020). Mr Rafi submitted that the relevance of Mr Rafi’s evidence was that it supported the applicant’s claim that the kind of fraud the applicant alleges is widespread. As noted above, I accept that the type of fraud which the applicant alleges occurred is widespread and that students may be the victims of such fraud. I have also considered Mr Rafi’s claims that the circumstances outlined by the applicant are identical to those given my Mr Mohammed in his application for review. The Tribunal notes that it is not bound by the findings of the Tribunal, differently constituted, in other applications for review. In any case, I note that from the Tribunal’s reasons for decision in Case No. 2001114, there are material differences which distinguish the claims made in that application for review from the circumstances in the current application. In particular, according to the Tribunal’s reasons for decision in Case No. 200114, Mr Mohammed did not respond to the NOICC which had been issued by the Department. There was therefore no evidence in that case of the provision of false information by the applicant directly to the Department, as there is in the current case. According to the Tribunal’s reasons for decision, the evidence provided by Mr Mohammed was consistent with the information contained in contemporaneous documents, whereas in the current matter the Tribunal has serious concerns with the statement the applicant gave to the Department in response to the NOICC, where he gave false information which had originally been produced as part of the alleged fraud. In addition, the period of the breach of the visa condition in the current matter is of a much greater duration.

10. While the Tribunal also accepts Mr Rafi’s claim that the circumstances which are outlined in this case and that of Mr Mohammed may warrant further investigation by the Department, it does not consider that further investigation of documents not already in the Tribunal’s possession is required in order for the Tribunal to make a decision in this case. Although it is well-established that the role of the Tribunal is inquisitorial, a decision-maker is not required to make the applicant’s case. The Tribunal’s inquisitorial role does not extend to requiring the Tribunal to seek out evidence to support an applicant’s claim, even though the Tribunal is entitled to do so (ABT16 v Minister for Home Affairs [2019] FCA 836). As noted above, the Tribunal accepts that the type of fraud alleged by Mr Rafi is widespread and that students may also be the victims of such fraud. However, in the current case the Tribunal considers the applicant has continued to rely on information which was generated as part of the fraudulent activity and provided this information directly to the Department in response to the NOICC, over 18 months after the alleged fraud initially occurred. Therefore, the Tribunal does not consider the applicant an entirely innocent victim of such fraud. Having regard to this concern and the duration of the breach, the Tribunal does not consider that further evidence of fraud committed by an education agent would change its findings regarding the circumstances in which the breach occurred.

11. The Tribunal has also considered the medical evidence which the applicant has provided. While the Tribunal accepts that the applicant suffered appendicitis, which required hospital admission and an operation in June 2018, and the applicant’s father passed away in June 2019 following treatment for several conditions, and that both of these events are likely to affect an individual’s ability to study and be grounds for a temporary deferral of studies, the Tribunal does not consider that either were material reasons for the applicant’s breach of condition 8202(2)(b), which resulted from the cancellation of his enrolment in a Masters-level course in March 2018 and his failure to enrol in a course at the same or higher level during the period of breach from 20 March 2018 to 16 January 2020. The Tribunal has also considered whether these events impacted on the applicant’s ability to take corrective action to remedy the breach of his visa condition, and has had regard to them, but considers they do not provide sufficient reason for the breach which occurred for a duration of 22 months.

12. Similarly, the Tribunal has had regard to the applicant’s claims of homesickness and depression, but gives little weight to them, as again the material issue is the applicant’s inability to enrol in a course at the Masters level or higher, given he does not possess undergraduate qualifications. The Tribunal notes that in addition the applicant has not provided any medical evidence to support his claim of depression or of any other psychological condition and considers there is no evidence to support such a claim. The Tribunal also notes the applicant’s travel for a period of approximately 10 months to Europe in 2017, which does not support his claims that his homesickness was caused as a result of being away from home for the first time.

13. Overall the Tribunal considers there are concerns with the evidence the applicant has provided regarding the circumstances which resulted in the breach. However, even if the Tribunal were to accept the events which the applicant recounted in his oral evidence, it considers that a significant period of time elapsed following the cancellation of his enrolment in the Master of Professional Accounting on 20 March 2018, despite which the applicant chose to remain in Australia in breach of condition 8202(2)(b), and despite his awareness that he does not possess the prerequisite qualifications for enrolment in a Masters-level course. While he has attempted to take some corrective action to change his visa, he did not do so until October 2019. Accordingly, the Tribunal does not consider the circumstances which resulted in the breach were beyond the applicant’s control. The Tribunal gives this consideration weight in favour of cancelling the visa.

    Past and present behaviour of the visa holder towards the department

14. The applicant stated that there were no issues that he was aware of, and that he had complied with requests for information made by the Department and complied with rules and regulations.

15. The Delegate noted in his decision that there was no evidence to suggest that the applicant has been deliberately uncooperative with the Department and that he had responded to the NOICC and engaged in the cancellation process.

16. The Tribunal notes however that the applicant has provided false information to the Department in his response to the NOICC. In his response the applicant stated that he completed a Bachelor of Commerce from Osmania University in 2015. In his oral evidence before the Tribunal, the applicant confirmed that he does not have a Bachelor degree and that the copy of the bachelor degree submitted by Mohsin with his application for the Master of Professional Accounting was fake. Given the applicant has now admitted to providing false information to the Department, and that information was both relevant to the visa which he held at the time and to the Department’s enquiries, the Tribunal gives this consideration weight in favour of cancelling the visa.

    Whether there would be consequential cancellations under s.140

17. The applicant confirmed at hearing that there are no persons in Australia whose visas would, or may, be cancelled under s.140. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.

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

18. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189, however he could apply for a Bridging visa in order to settle his affairs in Australia. The applicant would need to seek advice regarding his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal asked the applicant whether there were any particular considerations it should have regard to, given these mandatory legal consequences, to which he stated that he had lost all of his savings to pay for the $16,000 in course fees, that he wanted to concentrate on completing his studies and then return to his home country. The Tribunal has considered these considerations, however it has also considered the evidence as a whole, including the evidence that the applicant provided false information to the Department regarding his educational qualifications. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

19. Not applicable.

    Any other relevant matters

20. The applicant confirmed that there were no other relevant matters for consideration, although he requested that the Tribunal grant him the opportunity to complete his studies, which he stated would require 11 months. The Tribunal finds that it has already considered this matter in its reasons above, in particular in considering the purpose of the applicant’s travel to and stay in Australia and the potential hardship to the applicant. The Tribunal finds that there are no other relevant matters in addition to the matters considered above, and weighs this consideration neither in favour nor against cancelling the visa.

21. The Tribunal notes that it has given weight to several of the above considerations in favour of cancelling the visa, in particular the extent of compliance with the visa condition, the circumstances in which the ground for cancellation arose and the visa holder’s behaviour towards the Department.

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

    DECISION

23. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Frank Russo
    Member