Wan Mohammad Abedullah Hakim (Migration)

[2018] AATA 1041

Wan Mohammad Abedullah Hakim (Migration) [2018] AATA 1041 (16 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wan Afiq Wan Mohammad Abedullah Hakim

CASE NUMBER:  1700909

DIBP REFERENCE(S):  BCC2016/3903132

MEMBER:Christine Kannis

DATE:16 March 2018

PLACE OF DECISION:  Perth

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

Statement made on 16 March 2018 at 7:44am

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 570 Independent ELICOS Sector visa – No longer enrolled in a registered course of study – Breach of Condition 8202 – Not fulfilling the purpose of his travel to and stay in Australia – Practice and Procedure – Did not provide oral evidence regarding previous studies – Post hearing submission – Applicant stressed

LEGISLATION
Migration Act 1958 ss 116, 140, 189, 359AA
Migration Regulations 1994 Schedule 8 Condition 8202

CASES
Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 January 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 570 Independent ELICOS Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

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

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal on 6 March 2018 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent.

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. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevant to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

8. On 18 November 2014 the applicant was granted a visa in Subclass 570 ELICOS Sector with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

9. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since 25 February 2016. His enrolment in a Certificate IV in Spoken and Written English-Employment was cancelled on 25 February 2016 and he has not been enrolled in a registered course since that date.

10. Having regard to the information in the PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 25 February 2016. The Tribunal finds that he breached condition8202(2)(a) of his visa.

11. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

12. 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).

13. On  20 December 2016 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of his visa. 

14. On 22 December 2016 the applicant sent multiple responses to the NOICC. The delegate noted that the applicant did not provide any relevant information in his responses to the NOICC.

15. The Tribunal asked the applicant about his responses to the NOICC. He indicated he did not recall receiving the NOICC or responding to the NOICC.

16. The applicant told the Tribunal that he continued to pay his tuition fees to the Australian Institute of Commerce and Technology (AICT) after his enrolment had been cancelled.

17. The Tribunal asked the applicant, on multiple occasions, to describe the study he was undertaking in 2016. In particular the Tribunal asked the applicant whether the academic year was divided into semesters or terms. The Tribunal asked the applicant the timing of any holiday periods/breaks during the 2016 academic year at AICT. He was unable to provide any details regarding the periods during which he was studying in 2016 including when he commenced study in 2016. He said he could not remember any of these details.

18. The Tribunal noted from the applicant’s Movement Records that he departed Australia on 20 January 2016 and returned on 1 March 2016; that he departed Australia on 30 April 2016 and returned on 13 May 2016; that he departed Australia on 2 July 2016 and returned on 11 July 2016 and departed Australia on 4 November 2016 and returned on 22 November 2016. The Tribunal put this information to the applicant pursuant to s.359AA of the Act. The Tribunal informed the applicant that subject to his comment or response, the information would be the reason or part of the reason for it affirming the decision under review.

19. In response to this information being put to him the applicant shook his head and when asked by the Tribunal whether shaking his head meant he had no response he said it did mean he had no response.

20. The evidence before the Tribunal included receipts dated 15 December 2014, 8 September 2015, 19 January 2016, 16 August 2016 and 10 October 2016. The receipts were hand written and were described as receipts for payment of course fees or tuition fees. The receipts had been stamped indicating that they were issued by AICT Australian Institute of Commerce + Technology. Two of the receipts were dated after the applicant’s enrolment was cancelled.

21. The receipts were not on any official letterhead and were of a type that can be purchased at any office stationery supplier.

22. The Tribunal noted that the receipts provided minimal detail of the nature of the payments and in particular whether they were payments for a particular course or time period. The Tribunal asked the applicant whether he received invoices explaining the payments he was required to make. He said he was advised by email of the payments and indicated that he could access them on his phone. The Tribunal allowed him until COB on 8 March 2018 to provide the emails/invoices. 

23. The Tribunal had regard to an undated letter from the applicant’s representative in which the following information was provided:

    ·The applicant was the victim of misconduct by his previous education provider.

    ·The applicant continued to pay his tuition fees to AICT after his enrolment was cancelled by his provider. He was not aware that his enrolment had been cancelled.

    ·Evidence of fraudulent activity by AICT came about in August 2016 and the Australian Skills Quality Authority issued an order for AICT to stop accepting students. AICT appealed the decision and are still accepting students pending the outcome of the appeal.

    ·The applicant was ignorant and did not intend to breach his visa condition.

    ·The applicant was assisted to apply for his student visa by a former employee of AICT. He was not aware that AICT staff were not responsible for his student visa application and should not have assisted him. He was not aware of the visa condition placed on him and placed full trust in the employee of AICT and the school. This led to the confusion and his inexperience, resulting in not responding to the NOICC.

24. Noting the reference in the representative’s letter to the applicant’s reliance on AICT staff the Tribunal asked the applicant whether he wished to comment on this matter. In response the applicant shook his head and when asked by the Tribunal whether shaking his head meant he had no response he said it did mean he had no response.

25. Regarding the potential hardship which would result from the cancellation of his visa, the applicant shook his head and when asked by the Tribunal whether shaking his head meant he had no response he said it did mean he had no response.

26. At the conclusion of the hearing the Tribunal asked the applicant’s representative whether he wished to make any submissions. He said the applicant was stressed and had been avoiding him because he had not settled his account. The representative said he accepted that more documentary evidence could have been provided however the applicant had not communicated with him for more than 12 months.

    Evidence and submission provided post-hearing

27. On 8 March 2018 the applicant provided copies of invoices issued by AICT. Two of the invoices were dated after the date the applicant’s enrolment was cancelled and only one of the invoices could be matched to the receipts provided. The invoices did not indicate the period/semester/term for which the payments were due and in particular whether the payments were for tuition during 2016.

28. A written submission from the applicant’s representative was also provided on 8 March 2018. The submission sought to explain the applicant’s failure to respond to the Tribunal’s questions during the hearing and attributed his failure to stress including financial stress. The submission conceded that the applicant had frequently travelled in 2016 and that had led to his poor attendance at classes and poor performance during that year. The submission contended that while the applicant may not have been a good student, that did not excuse AICT from unlawfully cancelling his enrolment.

    Conclusion

29. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of the breach and reasons for the breach as set out in the documentary evidence and in the applicant’s oral evidence at hearing.

30. The purpose of the student visa is to enable the visa holder to undertake study in Australia. The applicant has not been enrolled in a registered course since 25 February 2016 and ten months elapsed from that date until the NOICC was issued.

31. The applicant was not able to provide any oral evidence at hearing about the study he was undertaking in 2016. The Tribunal informed him that given that his enrolment was cancelled on 25 February 2016 and that he was unable to provide any details of his academic year, these factors may result in the decision under review being affirmed. He said he could not remember any details of the periods during which he studied in 2016.

32. The Tribunal had regard to the applicant’s Movement Records and to his lack of comment with respect to his absences from Australia in 2016.

33. The Tribunal had regard to the two receipts provided which were dated after cancellation of the applicant’s enrolment and the invoices dated after cancellation of his enrolment. It was not clear from the documents whether the tuition fees invoiced/paid were for tuition in 2016. The Tribunal could not be satisfied that AICT unlawfully cancelled the applicant’s enrolment however it accepts that the evidence indicates that AICT may have continued to accept tuition fees for 2016 after his enrolment was cancelled.

34. Whilst the Tribunal acknowledges that it is possible that the ground for cancellation may have arisen due to extenuating circumstances beyond the applicant’s control (and the Tribunal makes no findings in this regard), the Tribunal placed significant weight on the applicant’s failure to provide any evidence about his study in 2016 and the information provided in the written submission after the hearing.

35. The applicant was not enrolled in a registered course from 25 February 2016 and the Tribunal decided that the applicant was not undertaking study in 2016. 

36. Based on the evidence, the Tribunal finds the applicant’s breach of condition 8202 of his visa to be significant because he was not engaging in study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.

37. In relation to the contention made by the applicant’s representative (in his undated letter) that the applicant was not properly assisted by the staff at AICT, the Tribunal gives this no weight in his favour not to cancel his visa because whilst it is plausible that he received poor assistance, the responsibility sits with the applicant to ensure he meets the requirements of the visa.

38. There was no evidence before the Tribunal that cancellation of the applicant’s visa will be result in any hardship to the applicant or his family members.

39. The Tribunal has no evidence before it that the applicant’s past and present behaviour towards the Department has been untruthful or unco-operative.  It considers this is a consideration that is in his favour and it has taken this into account.

40. 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. The applicant would need to seek advice pertaining to 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.

41. There are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

42. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

43. The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Christine Kannis
    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.