Zailani (Migration)

[2019] AATA 3979

Zailani (Migration) [2019] AATA 3979 (19 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Nur Zaim Zailani

CASE NUMBER:  1725168

HOME AFFAIRS REFERENCE(S):           BCC2017/2622147

MEMBER:Joseph Lindsay

DATE:19 June 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 19 June 2019 at 4:28pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – not enrolled in registered course for eight months – multiple course enrolments – financial difficulties – failed to take reasonable steps to maintain enrolment – bought cleaning business – inconsistent evidence – lack of evidence – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 359AA
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 October 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant attended the hearing before the Tribunal on 12 April 2019. The applicant was represented. The applicant spoke to the Tribunal in English and he indicated he did not need an interpreter.

3. 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

4. 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?

5. 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), and

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

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

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

7. The Tribunal asked the applicant about his student enrolment history in Australia.

8. In response he indicated that he enrolled at Baxter Institute in an English course. He indicated he had enrolled in a Diploma of Business but he did not complete that course. He indicated that after his student visa was cancelled he enrolled in a Diploma of Leadership and Management. When the Tribunal asked whether that was every course that he had been enrolled in in Australia he said “yes.” When asked whether he was sure, the applicant confirmed he was sure.

9. The Tribunal put information to the applicant in accordance with s.359AA of the Act that his Provider Registration and International Student Management System (PRISMS) record indicated he had enrolled a Certificate III in Light Vehicle Mechanical Technology and a Certificate IV in Automotive Mechanical Diagnosis, and also an Advanced Diploma of Leadership and Management. The applicant did not want additional time to respond.

10. The applicant said in response that at the time he did not want to be enrolled in the mechanical courses and he did not do those courses and in his own mind he only had enrolled in the business courses. He actually indicated he never started any of the mechanical courses. He indicated the only course he ever completed was the English course.

11. In the hearing, the Tribunal referred to information in the applicant’s decision record from the Department dated 6 October 2017 indicating that he had not been enrolled in a registered course of study from the time his enrolment was cancelled on 13 January 2017 up to the time he re-enrolled on 13 September 2017. In his response to the Tribunal, the applicant agreed that he had not been enrolled in a registered course of study from the time his enrolment was cancelled on 13 January 2017 up to the time he re-enrolled on 13 September 2017.

12. On the evidence before the Tribunal, the applicant was not enrolled in a registered course from the time his enrolment was cancelled on 13 January 2017 up to the time he re-enrolled on 13 September 2017. Accordingly, the applicant has not complied with condition 8202(2)(a). The Tribunal finds that the ground for cancellation for the applicant’s student visa is established in respect to s.116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

13. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers.’

    The circumstances in which the ground for cancellation arose

14. The Tribunal asked the applicant what circumstances led to his course enrolment being cancelled on 13 January 2017. In response the applicant indicated that he wanted to be in Australia for “proper study.” He indicated that the course provider, Baxter Institute, did not really require him to study and he did not have to use his brain. The applicant indicated that in regards to Baxter Institute, as long as the student paid Baxter Institute, the student would pass everything.

15. The Tribunal put to the applicant that he had put forward what he considered to be a problem he had with his course provider but that nevertheless he still stopped studying, to which he agreed.

16. The Tribunal asked the applicant how the problems he claimed to have had with his course provider caused him to stop studying. In response the applicant indicated that he wanted to change his course provider to another course provider, Della International College, to do the Diploma of Leadership and Management. He said that by this time his visa had been cancelled and that the course provider had refunded him his money. He indicated he did not go to any other school.

17. The Tribunal asked the applicant when he formed the view that he was not going to remain enrolled at Baxter Institute. In response he said “I don’t remember.” He again confirmed he did not remember.

18. The Tribunal put to the applicant that he had told the Tribunal that when he was at Baxter Institute he had formed the view he was not going to remain enrolled in his studies at that provider but that he did not know when he came to this conclusion.

19. The Tribunal asked the applicant whether he knew the year that he decided he was not going to remain enrolled at Baxter Institute and a response indicated he could not remember but then he said 2018. The Tribunal asked the applicant when he thought his student visa had been cancelled and he said 2018. The Tribunal asked the applicant whether he thought his student visa was cancelled in 2018 and he responded yes. The Tribunal asked the applicant why he thought his student visa was cancelled in 2018. In response the applicant indicated he had received an email from the Department. The applicant again confirmed that he thought he got an email from the Department telling him that his student visa had been cancelled in 2018.

20. The Tribunal put to the applicant that if he had indeed read his decision record he would be aware that his student visa was cancelled on 6 October 2017. In response the applicant said he was a bit confused. The Tribunal asked the applicant why he was confused. In response the applicant said it was the last year or the last two years. The Tribunal asked the applicant how he could not know when his student visa was cancelled. In response he said that when his visa was cancelled he went to try and sort it out. The Tribunal put to the applicant that he had the year of his visa cancellation wrong, not the day or month, but the year. The applicant indicated he was confused. The Tribunal put to the applicant that it was not apparent why he was confused about the time that his student visa had been cancelled. When the Tribunal asked the applicant if there was a reason for his confusion he said no.

21. The Tribunal asked the applicant what course he had been enrolled in at the time his provider cancelled his enrolment. He responded “diploma of business.” The Tribunal asked the applicant whether he was sure about that and in response he said “yes I am.”

22. The Tribunal put information to the applicant in accordance with s.359AA of the Act that his PRISMS record did not reflect what he was saying.

23. The Tribunal put to the applicant that his PRISMS record indicated that the course he had been enrolled in that was cancelled on 13 January 2017 was not a Diploma of Business, but it was a Certificate III in Light Vehicle Mechanical Technology and a Certificate IV in Automotive Mechanical Diagnosis and the reason given for cancellation by the course provider was “non-commencement of studies.” The Tribunal put to the applicant that what he had told the Tribunal was inconsistent with his PRISMS record and that the information was relevant to the review because the Tribunal may find that the applicant was not giving the Tribunal credible information. The applicant did not want additional time to respond. The applicant indicated in response that he never enrolled in the Certificate III in Light Vehicle Mechanical Technology or the Certificate IV in Automotive Mechanical Diagnosis because he never finished the Diploma of Business. He indicated that no one at Baxter Institute told him he had to attend for enrolment or studies for either the Certificate III in Light Vehicle Mechanical Technology or the Certificate IV in Automotive Mechanical Diagnosis. The applicant then said he did apply to enrol in the Certificate III in Light Vehicle Mechanical Technology and the Certificate IV in Automotive Mechanical Diagnosis.

24. The Tribunal put to the applicant that he had indicated that by early 2017 he thought he was still enrolled in the Diploma of Business, to which he responded yes. When the Tribunal asked the applicant why he thought that by early 2017 he was still studying for the Diploma of Business he responded before the break he was still in the Diploma of Business and that he made very clear to Baxter Institute that he did not want to enrol in the Certificate III in Light Vehicle Mechanical Technology or the Certificate IV in Automotive Mechanical Diagnosis.

25. The Tribunal asked the applicant if he had voluntarily enrolled in, and whether it was his choice to enrol in, the Certificate III in Light Vehicle Mechanical Technology or the Certificate IV in Automotive Mechanical Diagnosis, and in response he said yes.

26. The Tribunal put information to the applicant in accordance with s.359AA of the Act that his PRISMS record did not reflect what he was saying.

27. The Tribunal put to the applicant that there were actually several entries for the Diploma of Business in his PRISMS record. The Tribunal put to the applicant that his first enrolment for the Diploma of Business started on 22 January 2016 and concluded on 14 October 2016, he varied his Confirmation of Enrolment (COE) on 24 June 2016 and his second enrolment for the Diploma of Business started on 11 June 2016 and concluded on 14 October 2016. The Tribunal put to the applicant that after 14 October 2016 he was not enrolled in the Diploma of Business. The Tribunal put to the applicant that the next enrolment that happened after the Diploma of Business was the enrolment in the Certificate III in Light Vehicle Mechanical Technology that commenced on 2 December 2016. The Tribunal put to the applicant that he had said he thought in early 2017 he was still studying for a Diploma of Business but that the information from the PRISMS record indicated he could not have been studying for the Diploma of Business because the end date for the Diploma of Business was 14 October 2016. The Tribunal put to the applicant that this information indicated he was not studying for his Diploma of Business after 14 October 2016 and he was not studying for his Diploma Business in early 2017. The Tribunal put to the applicant that the information was relevant because it indicated that the applicant was not giving the Tribunal credible information.

28. The applicant confirmed he understood what the Tribunal had explained to him. The applicant indicated he did want five minutes to consider his response to the Tribunal. Accordingly, the Tribunal granted the applicant’s request and adjourned the hearing.

29. When the Tribunal resumed the applicant responded that when he had first enrolled with his course provider he enrolled in a full package of courses that consisted of the Certificate III in Light Vehicle Mechanical Technology, the Certificate IV in Automotive Mechanical Diagnosis and the Diploma of Business. He indicated that at the time he told Baxter Institute he did not want to do the Certificate III in Light Vehicle Mechanical Technology and the Certificate IV in Automotive Mechanical Diagnosis. He indicated that Baxter Institute indicated to him he did not have to do the Certificate III in Light Vehicle Mechanical Technology and the Certificate IV in Automotive Mechanical Diagnosis and that he could simply do the Diploma of Business.

30. The Tribunal asked the applicant what the point was of him giving this information to the Tribunal. In response the applicant said that at the time his student visa was cancelled he had not completed the Diploma of Business and did not know why the PRISMS record indicated that he had finished the course. The Tribunal explained to the applicant the record merely indicated that the course date had concluded on 14 October 2016 and it did not mean that he had completed the course.

31. The Tribunal again asked the applicant what the point was of him giving this information to the Tribunal. He said he was confused of the year and there was a lot of stress at home (Malaysia) and here (in Australia).

32. The Tribunal again explained to the applicant that he had told the Tribunal that in early 2017 he thought he had been enrolled in the Diploma of Business but the Tribunal had put information to the applicant that his PRISMS record indicated that he could not have been enrolled in the Diploma of Business from 14 October 2016 onwards and that by early 2017 he was enrolled in the Certificate III in Light Vehicle Mechanical Technology.

33. The Tribunal put to the applicant that there appeared to be no reasonable basis for his belief that he had been enrolled in a Diploma of Business. The applicant again indicated that he thought he had been enrolled in a Diploma of Business.

34. The Tribunal put to the applicant that as the visa holder he was reasonably responsible for his student enrolment, to which he agreed.

35. The Tribunal asked the applicant if there were any other reasons why he did not remain enrolled in his course of study. In response he indicated that he had purchased a cleaning franchise (24/7 Superb Cleaning Services) and that he had a lot of responsibility.

36. The Tribunal asked the applicant why he had bought a cleaning franchise whilst he was on a student visa. In response the applicant indicated that he was studying business and that he wanted to make this business big (the cleaning franchise).

37. The Tribunal asked the applicant when he bought the cleaning franchise. In response he said it was two years ago. The Tribunal asked the applicant if he could give the year that he bought the business and he said “2017.” The applicant indicated that it was a full-time business he was running and that he had two Australian employees.

38. The applicant confirmed that it was a full-time job for him. The Tribunal asked the applicant whether he thought there could be any other breach of his visa conditions noting he had just said he was working full time. The applicant then claimed that he never actually worked in the franchise but that he just managed it.

39. The applicant then provided a copy of his franchise agreement with Fantastic Services.

40. The Tribunal asked the applicant what the purpose was of him giving this information to the Tribunal. In response he said that the Department had told him that in 2017 his student visa was cancelled and the reason why he was confused about whether it was in 2017 or 2018 was because he had a lot of things going on at the time, like managing the cleaning franchise and at the same time back in Malaysia he had declared bankruptcy. The applicant confirmed he had been declared bankrupt in Malaysia.

41. The Tribunal put to the applicant that it was endeavouring to find out from the applicant why he did not remain enrolled in his registered course of study and the applicant had indicated that there were two other reasons: one, that he was managing a cleaning franchise; and two, he had been declared bankrupt in Malaysia. The Tribunal asked the applicant how these circumstances stopped him being enrolled. The applicant responded “it doesn’t.”

42. The Tribunal asked the applicant why then was he telling the Tribunal of the circumstances and in response he said he was a bit confused and stressed at that time of year in 2017 but he was adamant that he never enrolled in the Certificate III in Light Vehicle Mechanical Technology and the Certificate IV in Automotive Mechanical Diagnosis.

43. The Tribunal put to the applicant that what he said was not reflected in his PRISMS record as had already been discussed in the hearing.

44. The Tribunal put to the applicant that assuming the enrolment in the Certificate III in Light Vehicle Mechanical Technology and the Certificate IV in Automotive Mechanical Diagnosis was not there, and that he had not enrolled, his last enrolment would have been the Diploma of Business that concluded on 14 October 2016 – and that 14 October 2016 would have been the end date of his enrolment period before he enrolled in the Advanced Diploma of Leadership and Management on 13 September 2017. The applicant indicated he understood what the Tribunal had explained to him. In response the applicant indicated that he was asked to re-enrol and he indicated he had paperwork about that somewhere. The Tribunal put to the applicant that, even so, he had not maintained his enrolment.

45. The Tribunal asked the applicant if there was anything else he wanted to say. In response he indicated that Baxter Institute cancelled his enrolment in his Diploma of Business but they wanted money from him for the Diploma of Business. He claimed that Baxter Institute asked him to take the package back but he didn’t want it. He claimed that after a five or six-month gap he decided to go to Della International College.

46. The Tribunal asked the applicant if at any stage he approached the Department to tell them about any of the issues that he just told the Tribunal about. In response he said “never.” The Tribunal asked the applicant if there was any reason why he did not tell the Department. In response, he said he knew it was his fault that he didn’t check with the visa and how to deal with this kind of situation. He indicated that when his enrolment was cancelled he thought he still had his student visa that he could just wait until he enrolled to another provider without telling the Department. The Tribunal put to the applicant that the Department had written to him on 15 September 2017, to which he agreed.

47. The Tribunal put to the applicant that he had written back to the Department on 2 October 2017, to which he agreed he had said:

    My name is Zaim Zailani and I am 27 years old. I come from Malaysia. I wish to apologize for not being able to reply sooner in regards to this matter.

    I understand that my COE was cancelled by Baxter Institute. I have recently enrolled in a Leadership and Management course at DELLA institute and am about to start classes. The reason that I stopped attending Baxter Institute was mainly due to the college not being transparent in terms of fee payments. I was asked to pay several amounts without being given an explanation on what it is for or being shown a payment plan. Apart from that, I noticed certain ways of doing thing within the college in which I dislike. I was facing some challenges coping with certain subjects and did ask the lecturer for guidance but was not really given any attention. My lecturer showed favoritism and was not really fond of helping me with my studies. He even gave answers during in class exams to certain people which he is close to. I have decided that this is unacceptable and that I need a better place to complete my studies before heading back to Malaysia. I am deeply sorry for not informing the relevant department in regards to my plans of changing but I was clueless of what to do in my circumstances. I do hope that you would kindly consider not cancelling my visa as I have enrolled in a new course and am about to start class as well. Thank you so much for taking the time to go through my case. Apologize for all the inconveniences once again. Have a nice day!

1. The Tribunal noted that the applicant had also provided a COE for two courses at Della International College dated 13 September 2017 – the Diploma of Leadership and Management and the Advanced Diploma of Leadership and Management.

2. The Tribunal put to the applicant that as the visa holder he was reasonably required to manage his course enrolment and comply with his visa conditions and that he was responsible for notifying his course provider and the Department when there were any problems with his course enrolment. The Tribunal asked the applicant whether he had any documentation to support having spoken to Baxter Institute about the problems he was having at the time. In response he said he only spoke with them face to face and never on email.

3. The Tribunal asked the applicant what would happen to him if his student visa was cancelled. In response he said that things would be very bad for him in Malaysia because he can’t get a loan to study or do a business or anything. Whilst the applicant agreed that there were other institutions in which he could study in Malaysia all required loans which he would not be able to get.

4. The Tribunal put to the applicant that in his response he alluded to the fact that he had difficulty in paying his course fees. In response the applicant agreed he did have difficulty in paying his course fees. The Tribunal asked the applicant why he had difficulty in paying his course fees and in response he said he had to support his family in Malaysia, including his single mother and three brothers and sisters (17, 20 and 24 years of age).

5. The Tribunal put to the applicant that when he was on his student visa he had given a financial guarantee indicating that he could pay his course fees and support himself. The applicant indicated that he knew he was responsible for paying his course fees and supporting himself and that he had given a financial guarantee as part of his student visa.

6. The Tribunal acknowledged that the applicant was working to support his family in Malaysia but he was still required to pay his course fees whilst on his student visa.

7. He indicated that his cleaning business was going well but that back in Malaysia his mother had been blacklisted from getting a loan. He explained that he and his mother had a business together but that they both went bankrupt. He indicated that both he and his mother were in a television and film production company. He indicated that the business was his but that his mother was a scriptwriter for the business. He indicated that his mother was not just an employee but also his business partner. The applicant explained his role in the business was in relation to video and animation. He indicated the name of his company in Malaysia was “One Asia Creative and Trading.” He indicated his mother was now working as a freelance writer. He indicated that none of his brothers or sisters were either studying or working.

8. The applicant’s representative suggested to the Tribunal that since the applicant had re-enrolled (on 13 September 2017) before the Notice of Intention to Consider Cancellation (NOICC) was given to the applicant, that indicated that the applicant wanted to be able to go back to Malaysia having done a course in Australia and that this would enable him to have a proper life in Malaysia. The representative also indicated that the applicant took responsibility for his course enrolment but that Baxter Institute was just taking his money and so he wanted to go to another course provider.

9. In respect to the above, the Tribunal makes the following findings:

   ·The applicant ceased to be enrolled in a registered course of study from the time his enrolment was cancelled on 13 January 2017 up to the time he re-enrolled on 13 September 2017.

   ·The applicant had been enrolled in a Diploma of Business but he did not complete the Diploma of Business.

   ·The applicant had been enrolled in the Certificate III in Light Vehicle Mechanical Technology and the Certificate IV in Automotive Mechanical Diagnosis but he never commenced the courses.

   ·The applicant had difficulty in paying his course fees and is working to support his mother and siblings in Malaysia.

   ·The applicant signed a five year franchise agreement on 18 July 2017 – approximately six months after he ceased to be enrolled and without approaching the Department to advise them about his situation.

   ·The applicant was then issued with a NOICC from the Department on 15 September 2017, to which the applicant provided a response on 2 October 2017.

   ·On 13 September 2017, the applicant obtained an enrolment in the Advanced Diploma of Leadership and Management at Della International College.

   ·The applicant was without an enrolment in any course of study for approximately eight months.

10. The Tribunal finds that the applicant was vague and evasive in respect to his responses as to exactly why he ceased to be enrolled in early 2017. The Tribunal finds that the applicant gave inconsistent evidence to the Tribunal in respect to why his course enrolment was cancelled. In his response to the Department on 2 October 2017, he had concerns about Baxter Institute’s fees and some of the lecturers as well as his ability to cope with his studies. The applicant did not put any of this information to the Tribunal in the hearing initially. It was only after raising these issues identified from his response to the NOICC that the applicant admitted that he did have difficulties in paying his course fees. He readily admitted he knew he was responsible for paying his course fees and supporting himself and that he had given a financial guarantee as part of his student visa. The Tribunal finds that the applicant was working to support his family in Malaysia but he was still required to pay his course fees whilst on his student visa.

11. The Tribunal accepts that the applicant faced difficulties in regards to paying his course fees, but the Tribunal places low weight on this evidence in the applicant’s favour because he knew had given a financial guarantee as part of his student visa.

12. The Tribunal finds that the applicant did sign a franchise agreement with Fantastic Services in his capacity as a director of Superb Cleaning Services Pty Ltd on 18 July 2017 for a term of five years. However, the Tribunal gives this information no weight in the applicant’s favour. The applicant told the Tribunal that he did not remain enrolled in his registered course of study because he was managing a cleaning franchise and he had been declared bankrupt in Malaysia. The Tribunal does not accept that the applicant did not remain enrolled in his registered course of study because he was managing a cleaning franchise. He signed his franchise agreement approximately six months after he ceased his course enrolment on 13 January 2017. Accordingly, the Tribunal finds that the cessation of the applicant’s course enrolment in early 2017 had nothing to do with his decision to start a cleaning business in mid-2017.

13. The Tribunal also does not accept the applicant’s claims that he or his mother had been declared bankrupt in Malaysia or that he was financially supporting his mother and three siblings back in Malaysia. There is simply no documentary evidence whatsoever in support of the applicant’s claims in this respect. The Tribunal asked the applicant how these circumstances stopped him being enrolled. The applicant responded “it doesn’t.” Accordingly, the Tribunal gives this information no weight in the applicant’s favour.

14. The Tribunal finds that at no stage did the applicant ever approach the Department to tell them about any of the issues he claimed he had that impacted on his ability to remain enrolled.

15. Whilst the Tribunal accepts that the applicant re-enrolled on 13 September 2017, two days before he received the NOICC from the Department, the Tribunal gives this information low weight in the applicant’s favour because by this time the applicant had not been enrolled for approximately eight months.

16. The Tribunal places high weight against the applicant given that the applicant remained without any enrolment at all for approximately eight months.

17. In assessing the above, the Tribunal finds that the applicant failed to take reasonable steps in regard to maintaining his enrolment in his registered course of study. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    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

18. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

19. The Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

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

20. The Tribunal spoke to the applicant about the hardship that may be caused to him if his student visa was cancelled. The applicant’s submissions and responses are detailed above.

21. For the reasons given above, the Tribunal does not accept that the applicant would not be able to get a loan to study in Malaysia. As indicated above, there is simply no documentary evidence whatsoever in support of the applicant’s claims that he or his mother was ever declared bankrupt in Malaysia or anywhere else. There is no documentary evidence whatsoever in support of the applicant’s claims that he was financially supporting his mother and three siblings back in Malaysia.

22. The Tribunal does accept that the applicant is operating a cleaning business in Australia and he is earning income from that enterprise and that if he returns to Malaysia it will be harder for him to operate his cleaning business. However, the Tribunal gives this information low weight because the primary object of the student visa is for the applicant to be in Australia to undertake a course of study and complete it.

23. In all the circumstances, the Tribunal gives no weight in the applicant’s favour in regard to this factor.

    Past and present behaviour of the applicant towards the Department

24. There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

25. The applicant does not have any dependents on his student visa who would be affected if his student visa was cancelled.

26. Accordingly, the Tribunal places no weight on this information in the applicant’s favour.

    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

27. The applicant indicated he is aware of the legal consequences of the cancellation of his student visa and he is aware of the three-year exclusion period as a consequence of his student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

28. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chose not to return to Malaysia.

29. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

30. The Tribunal places low weight on this information in the applicant’s favour.

    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

31. The Tribunal asked the applicant if he feared anything in returning to Malaysia. In response the applicant indicated he had nothing to fear. He indicated that if he went back to Malaysia he wants to join the Royal Malaysian Police (RMP) as a policeman.

32. In consideration of the above, there is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places low weight on this information in the applicant’s favour.

    Any other relevant matters

33. When the Tribunal asked the applicant whether there were any other relevant matters he wished to raise before the Tribunal, he indicated that he wanted to discuss his arrangements with the cleaning franchise. He indicated he was the franchise owner. The applicant confirmed he had to pay $16,500 to have the franchise for five years.

34. The Tribunal put to the applicant that the student visa he had been granted commenced on 3 September 2015 and ceased on 6 August 2018, to which he agreed. The Tribunal asked the applicant that if he had bought into a franchise business with Fantastic Services in 2017 for the next five years that this may indicate that the applicant intended to stay in Australia longer than the stay period of his visa allowed. In response the applicant said “no” and he said he had a business partner (named Ali).

35. The Tribunal put to the applicant that when he signed the franchise agreement on 18 July 2017, he was not enrolled, he had not re-enrolled, but he started a business for five years, to which he said “yes.”

36. The Tribunal asked the applicant how this indicated that the applicant did not intend to stay in Australia for that five-year period. In response he indicated that his intention was to have the franchise continue and that on his return to Malaysia he would have had some income paid to him from a business outside of Malaysia. He indicated he never wanted to stay in Australia. The applicant indicated that it was never his intention to stay in Australia beyond 6 August 2018. The Tribunal then asked the applicant why he re-enrolled. In response he said he never received any certificate from Baxter Institute.

37. The Tribunal put to the applicant that the fact that he had re-enrolled and the fact that he had signed a five-year franchise agreement indicated he did have an intention to stay in Australia beyond 6 August 2018, and in response he said “no.”

38. In considering the above information, the Tribunal finds that the applicant initially did not have an intention to stay in Australia beyond 6 August 2018 when he started his cleaning business and re-enrolled in 2017.

39. No other relevant matters were put to the Tribunal.

    Conclusion

40. The Tribunal finds that the applicant received his Student (Temporary) (Class TU) Subclass 572 Vocational Education and Training Sector visa on 3 September 2015.

41. The Tribunal finds that the applicant was not enrolled in a registered course of study from 13 January 2017 up to the time he re-enrolled on 13 September 2017. Accordingly, the applicant has not complied with condition 8202(2)(a).

42. The Tribunal finds that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are not exceptional circumstances.

43. 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 Subclass 572 Vocational Education and Training Sector visa.

    Joseph Lindsay

    
    

    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.