ZANZARI (Migration)

[2019] AATA 2356

ZANZARI (Migration) [2019] AATA 2356 (21 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MUHAMMAD ILMAN ZANZARI

CASE NUMBER:  1722843

HOME AFFAIRS REFERENCE(S):           BCC2017/2562258

MEMBER:Joseph Lindsay

DATE:21 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 21 June 2019 at 12:37pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – responsibility to manage enrolment – non-commencement of studies – no response to NOICC – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 September 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 9 April 2019. The applicant was not represented. The applicant spoke to the Tribunal in English and, whilst an interpreter was present, he indicated he only needed to occasionally use the 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)

   ·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 enrolment history in Australia.

8. In response he indicated that he enrolled in an English course (certificate IV), and that later he was enrolled in a Certificate in Business and that was when he stopped studying. He indicated he did not finish his Certificate in Business. He indicated he arrived in Australia in the winter of 2015 on a “holiday visa” and then he transferred to a 572 visa. He indicated that he was not sure if he enrolled in any further courses, and then he said he did not remember if he enrolled in any further courses.  He then said it was someone who works for CAC (the course provider) that enrolled him in further courses. He said he did not want to further enrol but the person from CAC enrolled him in further courses anyway. He thought it was a diploma that he might have enrolled in but he did not know exactly what the course was. He claimed that he asked for his completion certificate for his English course, but CAC would not give him his completion certificate for his English course unless he enrolled in further courses, so he agreed. He then indicated that CAC referred his student debts for his Certificate in Business to a debt collector because he did not pay his course fees. He said he has not paid his course fees. He then indicated that CAC did not refer his student debts to a debt collector but rather they just asked him to pay his course fees. He indicated that he did not pay his fees because he did not want to do the Certificate in Business but CAC forced him to enrol because he did not think before he signed. He indicated that he didn’t know why he signed the enrolment. He indicated that he wanted to study elsewhere but did not end up studying elsewhere. He indicated that CAC wanted him to do something he didn’t want to do (their course), and because he didn’t want to do their course he did not do it.  He then said he never started his Certificate in Business. He then indicated that after his enrolment in the Certificate in Business, he did not know if he was enrolled in further courses. He indicated it would be a surprise to him if he found out that he was enrolled in further courses. He claimed he was telling the truth about his enrolment history.

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 Diploma of Marketing and a Diploma of Leadership and Management and that his course provider had cancelled his enrolment in these courses on 21 November 2016 due to his “non-commencement of studies”. The Tribunal put to the applicant that this information was relevant because 21 November 2016 was when the applicant ceased to be enrolled in a registered course of study, and therefore he breached condition 8202(2) of his student visa. The applicant did not want additional time to respond and he did not want an adjournment.

10. In response, he indicated that he did not know he was enrolled in the Diploma of Marketing or the Diploma of Leadership and Management. He indicated he was not comfortable with what was happening with his course provider because they were trying to make him do a course he did not want to do.

11. The Tribunal put to the applicant that by November 2016 he would have reasonably known he had an enrolment with his course provider for a course he did not want to do. He indicated that he did talk to someone about it but he could not recall whether it was his agent or a representative of his course provider (someone named “Joe”). The applicant indicated he originally enrolled with his course provider (CAC) through the person named “Joe” but he did not know whether “Joe” was an agent or a person employed by the course provider. He indicated he organised his student visa in Australia through “Joe.” The applicant indicated that he did contact the Department of Immigration about his circumstances and that they said to contact his agent who enrolled him.

12. The Tribunal put to the applicant that as the holder of a student visa, he was responsible to take reasonable steps to manage his enrolment, and that he has not taken reasonable steps to manage his enrolment because he could not identify with any certainty who “Joe” is and whether “Joe” was his course provider or agent. In response, he indicated that he spoke to a person named “Sashin” who was “Joe’s” friend.

13. On the evidence before the Tribunal, the Tribunal finds that the applicant has not been enrolled in a registered course of study since 21 November 2016. Accordingly, the applicant was not enrolled in a registered course and the applicant has not complied with condition 8202(2)(a). The Tribunal finds that the ground for cancellation of 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

14. 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

15. Much of the discussion above is related to the circumstances in which the ground for cancellation arose. The Tribunal further discussed this issue with the applicant.

16. The Tribunal put to the applicant that, whether or not he had spoken to Sashin or Joe, he was on a 572 visa and he would reasonably know that he needed to remain enrolled in a registered course of study to comply with the conditions of his student visa. The applicant did not answer.

17. The Tribunal put to the applicant that he had stopped studying and then the Department had given the Notice of Intent to Consider Cancellation (NOICC) to the applicant on 24 August 2017, approximately nine months after his course enrolment was cancelled, and that he did not respond to the NOICC. In response, he indicated that he tried to call “Joe” and that he wanted his completion certificate from the course provider.

18. The Tribunal asked the applicant if there was any other reason why he did not remain enrolled or why he did not enrol again, and he responded that he did enrol in another course but he did not have any documentary information to show that he enrolled in another course. The applicant then said he wanted to enrol but the school asked for his completion certificate.

19. In respect of the above, the Tribunal makes the following findings.

20. In respect of precisely why the applicant ceased to be enrolled on 21 November 2016, the Tribunal finds that the applicant was vague and evasive when the Tribunal questioned him during the hearing. It is a concern to the Tribunal that the applicant was so evasive in his responses. It is a concern to the Tribunal that the applicant said he did not know that he had been enrolled in the Diploma of Marketing and a Diploma of Leadership and Management. However, the Tribunal finds that he was enrolled in the Diploma of Marketing and a Diploma of Leadership and Management and that these enrolments ceased on 21 November 2016. The Tribunal places high weight on this information against the applicant.

21. The Tribunal finds that the applicant never started his Certificate in Business and that he did not pay his course fees for the Certificate in Business, yet for some unknown reason his course enrolment was not cancelled for the Certificate in Business – all events that occurred before 21 November 2016. The Tribunal places high weight on this information against the applicant.

22. The Tribunal finds that the applicant’s explanation in regard to his actions in managing his course enrolment was vague and evasive. The Tribunal finds that, as the holder of a student visa, the applicant was responsible to take reasonable steps to manage his enrolment and that he did not take reasonable steps to manage his student enrolment because he could not identify with any certainty who “Joe” is and whether “Joe” was his course provider or agent. The Tribunal places high weight on this information against the applicant.

23. The Tribunal finds that the applicant was without an enrolment for approximately nine months until the Department had given him the NOICC and even then he did not respond to the NOICC. The Tribunal places high weight on this information against the applicant.

24. Despite the applicant’s claims that he wanted to leave his course provider (CAC) and enrol elsewhere, the Tribunal does not accept that the applicant enrolled in any other course because he did not have any documentary information to show that he enrolled in another course. The Tribunal places high weight on this information against the applicant.

25. 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 high weight on this information against the applicant 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

26. The applicant indicated that he came to Australia to study and that he now wanted to study fitness.

27. 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

28. 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)

29. The Tribunal spoke to the applicant about the hardship that may be caused to him if his student visa was cancelled.

30. The applicant indicated in response that the hardship he faced after the cancellation of his student visa was mainly with enrolment in other institutions, and also money, and he had a problem with his lawyer (Elmtree Migration Lawyers) who was meant to lodge an application for his Bridging visa E before the student visa expired. The Tribunal asked the applicant to explain how this was hardship.

31. The applicant explained that the lodgement of a visa application should have been done before 21 November 2016 but for some reason the lawyer did not lodge the visa application yet he did get the Bridging visa E although his main hardship he faced was supporting himself financially in Australia.

32. The Tribunal put to the applicant that the issue was what hardship he would face if his student visa was cancelled and he was required to return to his country of origin (Malaysia). He indicated it was hard for him to study in Malaysia because he said he has to support his family as well. He claimed his mother was a single parent.

33. The Tribunal asked the applicant if the issue was that he could not afford to pay his course fees. In response he said he borrowed money from his friends. He said he could afford to pay for his student fees now and he was only supporting his mother with her food costs in Malaysia.

34. In respect of the above, the Tribunal accepts that the applicant may face some financial hardship if his student visa was cancelled and he was required to return to his country of origin (Malaysia). In all the circumstances, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    Past and present behaviour of the applicant towards the Department

35. 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

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

37. 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

38. 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.

39. 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 chooses not to return to Malaysia.

40. 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.

41. 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

42. The Tribunal asked the applicant if he feared anything in returning to Malaysia. In response the applicant indicated his living conditions and his financial situation were more comfortable living in Australia compared to Malaysia.

43. The Tribunal again asked the applicant if he feared anything in returning to Malaysia. He indicated that he could support himself better financially in Australia and also he wanted to get a better education in Australia. He then said his mother is also sick and he is supporting her from Australia.  When asked whether he could support his mother in Malaysia, he indicated he was not from a wealthy background in Malaysia.

44. 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

45. When the Tribunal asked the applicant whether there were any other relevant matters before the Tribunal, he indicated that if he could have his student visa he would enrol in a fitness course.

46. The Tribunal asked the applicant if he had any documentation indicating that he had made any enquiries or taken any steps in looking into any fitness courses. In response, he indicated he did not have any such documentation at the hearing.

47. In considering the above information, the Tribunal does not accept that the applicant has made any enquiries or taken any steps in looking into any fitness courses or has any genuine intent to enrol in a fitness course should he have a student visa.

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

    Conclusion

49. The Tribunal finds that the applicant received his Student (Temporary) (Class TU) Subclass 572 Vocational Education and Training Sector visa on 17 October 2015.

50. The Tribunal finds that the applicant has not been enrolled in a registered course of study since 21 November 2016. Accordingly, the applicant has not complied with condition 8202(2)(a).

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

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

    DECISION

53. 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.