Zia (Migration)

[2019] AATA 5854

Zia (Migration) [2019] AATA 5854 (23 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hafiz Zain Ahmad Zia

CASE NUMBER:  1836866

HOME AFFAIRS REFERENCE(S):          BCC2018/4087676

MEMBER:Christine Kannis

DATE:23 August 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 23 August 2019 at 8:03am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – not genuine student – multiple course enrolments cancelled – unsatisfactory attendance – lack of academic progress – not enrolled in registered course for 16 months – financial and emotional issues – lack of evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 359AA
Migration Regulations 1994 (Cth), r 2.43

CASES
MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 December 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant is not and is not likely to be a genuine student. 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 19 August 2019 to give evidence and present arguments.

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

6. The Tribunal advised the applicant that it had a copy of his Provider Registration and International Student Management System (PRISMS) records; his attendance records from his education provider and correspondence from the education provider to him that was provided to the Department. The Tribunal advised the applicant, following the procedure of s.359AA of the Act, that subject to his comment or response, this information would be the reason or part of the reason for the decision under review being affirmed. The Tribunal advised that this information was relevant because it comprised or added to evidence that he was not a genuine student. The Tribunal advised the applicant that at any time during the hearing he could seek an adjournment and consult with his representative before responding to any of the information or questions based on the information. He did not seek an adjournment at any time.

7. 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

8. 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)(fa). 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?

9. A visa may be cancelled under s.116(1)(fa)(i) if the Minister or the Tribunal is satisfied that the holder of a student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

10. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in s.116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

11. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the Minister or Tribunal may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision. There is nothing before the Tribunal to indicate that r.2.43(1C) or (1D) apply in this case.

12. On 1 August 2014 the applicant was granted a Subclass 573 visa to study a packaged course leading to an Associate Degree of Business.

13. PRISMS shows the applicant has been enrolled in an Associate Degree course and in a number of Diploma and Certificate courses which have been cancelled. PRISMS also shows the applicant finished a Certificate IV in Commercial Cookery and a Certificate IV in Business. Prior to the hearing the applicant provided certificates evidencing completion of these courses in 2015 and 2016. He also provided a certificate dated 19 October 2016 evidencing completion of a Diploma of Business.

14. On 16 November 2018 the Department of Immigration and Border Protection (the Department) issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) on the basis that he was not and was not likely to be a genuine student. The NOICC set out the PRISMS information and the following information:

    ·On 11 April 2016 he commenced a Diploma of Business. The CoE was cancelled due to unsatisfactory attendance. He was issued with a written notice of intention to report and he chose not to appeal within the 20 working days given to appeal. He was sent reminders but he did not respond.

    ·On 16 January 2017 he commenced a Diploma of Human Resources Management and the CoE was cancelled due to unsatisfactory course progress. He was issued with a written notice of intention to report and he chose not to appeal within the 20 working days given to appeal.

    ·Although he holds a Subclass 573 Higher Education Sector visa he has never studied at a higher education level and he has no current CoEs for this level.

    ·He has an extensive non-study period of 16 months, 24 days. He ceased study in the Diploma of Human Resources Management on 12 June 2017 and commenced study in the Diploma of Hospitality Management on 5 November 2018.

    ·He chose to remain in Australia for the entire non-compliance period of 16 months, 24 days.

    ·Student visas are granted for the purpose of studying towards and achieving an educational qualification in Australia. The principal basis for the grant of his visa and expectation of any genuine student is that they would give priority to ongoing enrolment and participation in a CRICOS registered course of study. His lack of academic progress whilst choosing to remain in Australia on a visa solely existing for engagement in study indicates he is not a genuine student.

15. On 22 November 2018 the applicant responded to the NOICC and provided the following information:

    ·He came to Australia to complete his studies and learn new skills so he could return to Pakistan and start a career.

    ·He is one of three brothers. His older brother is disabled. They are all dependent on their parents and he is the next person responsible for the well-being and maintenance of the family.

    ·Having this responsibility and strong family ties to his home country, he intends completing his courses and returning to Pakistan.

    ·He acknowledged he has not entirely complied with his visa conditions and is repentant however he has compelling reasons for this.

    ·He entered Australia in September 2011 to study an Associate Degree of Aviation Aeronautics and he completed the degree. Soon after he reassessed and wanted to change career options. He researched opportunities in Pakistan and settled on Hospitality Management. He believes having an international education will give him a head start in entering a managerial positon serving overseas clients in Pakistan.

    ·Due to the change in career path he had to start studying from the bottom as he had no exposure to studies in Hospitality. He intends studying for a degree in this field.

    ·After some struggle to adapt to a new field of study he completed a Certificate IV in Commercial Cookery in September 2015.

    ·He commenced a Diploma of Hospitality but found it difficult to cope and therefore he commenced and finished a Certificate IV in Business in May 2016 and then a Diploma of Business in October 2016.

    ·Around this time he received information from Pakistan that his older brother was seriously ill and required intensive medical attention. Thereafter he enrolled in a Diploma course on many occasions but failed to cope emotionally and financially with the tuition fees. He had to send all his earnings and savings to Pakistan to help his parents pay for his brother’s treatment. The family was under tremendous stress.

    ·His younger brother who lives in Australia was sharing the financial burden of their family in Pakistan.

    ·These are the reasons he could not comply with his visa conditions.

    ·His brother’s condition has now stabilised and he has commenced study again, to complete the Diploma of Hospitality and the Bachelor of Business before returning to Pakistan.

    ·Other than the study obligations, he has always complied with other conditions of previous visa.

    ·He constantly enrolled (attempted to study) but failed to cope given his personal and financial circumstances.

    ·He is from a middle class family with limited financial resources. His parents and disabled brother will be dependent on him in the longer term.

    ·If he returns to Pakistan without completing his education he will not be able to secure a job in a very competitive market and this will cause emotional and financial hardship for his parents, his disabled brother and him.

    ·He has been offered a job in Pakistan after the completion of his Bachelor’s degree.

16. At the time of responding to the NOICC the applicant provided a medical certificate for his older brother, evidence of money transfers to his older brother and a letter of offer of employment from the Grand Regent.

17. The delegate noted that the applicant’s study record indicated that he had not maintained his visa obligations as he had not followed the study plan advised on his student visa application. The delegate noted at the time of cancellation the applicant was not enrolled at the Higher Education Sector level for which his visa was granted and had never commenced study in the Associate Degree of Business course and that the CoE had been cancelled due to non-commencement of studies. The delegate noted that for the duration of his Subclass 573 visa, being 4 years, 4 months and 13 days at the date of cancellation, the applicant had completed only two courses at the Vocational Education and Training level.

18. The applicant told the Tribunal that he did respond to the written notice of intention to report issued for unsatisfactory attendance in relation to the Diploma of Business. He said he may have been late in responding to the education provider and may not have appealed within the given 20 working days. He said he asked for another chance however the education provider relied on his less than 80% attendance and would not allow him to complete the course.

19. The applicant told the Tribunal that in October 2016 he commenced a Diploma of Hospitality. He said a few weeks into the course he received terrible news from Pakistan that his older brother had fallen ill. The medical evidence provided was that Mr Waleed Ahmed Zia suffers from a condition known as meningomyelocele. The Tribunal understands this to be a form of spina bifida. The medical evidence referred to his condition deteriorating in the second half of 2016. No details of the nature of the deterioration, any additional treatment requirements or any additional expenses were provided. The applicant said he struggled to attend class because of the news of his brother’s deterioration. He said he couldn’t focus and he couldn’t sleep because his family was in trouble and that was the only thing on his mind. As a result he failed the units. He said he dropped out of the course.

20. When asked whether he sought any medical assistance for his emotional difficulties the applicant said he had not done so.

21. The applicant said in 2016 he discussed visiting Pakistan with his family however they told him to focus on his study. As a result he obtained a CoE from another education provider and commenced study in January 2017 in a Diploma of Human Resources Management. He said he thought he might be able to cope with this different study however he could not keep up and dropped out.

22. The applicant said after this he thought it would be better for him to provide financial assistance to his family. He said his family did not ask him for money but they had provided him with financial assistance in the past and so he wanted to help them if he was able to do so.

23. The Tribunal noted that the evidence of money transfers from the applicant were transfers made to his older brother and not to his parents. The transfers were made in July 2016 and August 2016, prior to the deterioration in his older brother’s condition. The applicant said he also sent money after October 2016 however he did this through another person. No evidence was provided to substantiate the applicant’s claims that he provided financial assistance to his family after October 2016 due to the deterioration in his brother’s condition.

24. Utilising the s.359AA procedure the Tribunal put to the applicant that the delegate had referred to him applying for a Subclass 187 work visa on 24 February 2017. He said he did not seek out this visa. An acquaintance of an acquaintance told him that someone was looking for a cook and offered to sponsor him. He said he applied for the visa as a distraction from his worry about his family and work was never his priority.

25. The delegate referred to the applicant ceasing study on 12 June 2017. He told the Tribunal he ceased study in about May 2017. He said he did not have enough money to continue paying for tuition fees and to send money to home. He said it was a blunder on his part to have ceased study for 16 months and he should not have made sending money home a priority.

26. The delegate referred to the applicant having never studied at a Higher Education Sector level course and having no current CoEs for this level at the date of cancellation. The applicant said it was not his intention to not study at the higher level. He said he tried on multiple occasions this year to obtain a CoE for a Bachelor course and was only successful in July 2019.

27. The applicant’s representative contended that the application for a Subclass 187 visa should not be considered to be inconsistent with the applicant’s stated intention to study. He said when the opportunity arose to work the applicant took it up as a way to settle down and stay in Australia permanently. He said the applicant was entitled to explore this opportunity and it didn’t work out and he has moved on.  The Tribunal respectfully disagrees and considers that the application for a Subclass 187 visa demonstrated an intention and desire to work in Australia and not study in Australia. The Tribunal observes that such a visa would have required the applicant to work for the nominator for two years on a full-time basis.

28. The applicant’s representative said that in Asian cultures family responsibilities are just as important as study and the applicant was entitled to choose to send money home rather than pay for his tuition fees. The Tribunal does not disagree regarding the importance of family responsibilities however the applicant was the holder of a student visa and his obligations included that he must study, maintain enrolment, attendance and course progress, in a registered course.

29. The purpose of the applicant’s visa was to allow him to study. For more than 16 months the applicant did not study. He claims he was unable to study because of financial and emotional issues. The Tribunal finds the evidence with respect to the emotional impact of his brother’s illness on his ability to study unpersuasive. Regarding the applicant’s claim that he was unable to pay his tuition fees because he was sending money home to his family, no evidence was provided to substantiate this and the only evidence of transfers was prior to his brother’s claimed deterioration. No evidence of the additional expenses incurred or the family’s financial circumstances was provided. The Tribunal finds the information in PRISMS with respect to the applicant’s unsatisfactory attendance, unsatisfactory progress and his failure to re-engage in any study until 5 November 2018 is strong evidence that he is not a genuine student. The Tribunal noted that he was issued with written notices of intention to report in 2016 and in 2017 and did not appeal within the 20 working days given to appeal.

30. The Tribunal finds that the ground for cancellation in s.116(1)(fa)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

31. 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 purpose of the visa holder’s travel to and stay in Australia

32. The applicant was granted a Subclass 573 visa on 1 August 2014 on the basis that he was enrolled in full-time study in registered courses and his intended study plan consisted of Certificate IV courses and Diploma courses leading to an Associate Degree of Business.

33. The Tribunal noted that the applicant was in Australia for four years, four months and 13 days at the date of cancellation and at that time he had only completed courses at the Vocational Education and Training level. The applicant did not follow his study plan and was not enrolled in a Higher Education Sector course at the date of cancellation.

34. The Tribunal has found that the applicant was not studying for a period of more than 16 months, from 12 June 2017 to 5 November 2018.

35. The applicant’s non-engagement in study for an extended period weighs in favour of visa cancellation.

    Whether the visa holder has a compelling need to travel to or remain in Australia

36. The Tribunal questioned the applicant as to whether there were any compelling reasons for him to remain in Australia. He said he needs to obtain an Australian qualification to secure employment in Pakistan.

37. The Tribunal is not satisfied that the applicant has a compelling need to travel to or remain in Australia which would mean his visa should not be cancelled. The absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

    The extent of compliance with the visa conditions

38. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal gives this some weight in his favour.

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

39. Regarding the potential hardship which may result from cancellation of the visa, the applicant said his family expect him to complete his studies and return to Pakistan and take over the family’s financial responsibility. He said an Australian qualification is highly regarded in Pakistan and said he does not know how he will cope if he has to return to Pakistan without one.

1. The Tribunal acknowledges that the cancellation of the applicant’s visa would be disappointing to the applicant and his family and that there are financial and emotional consequences. However, the Tribunal is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

   Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control

2. The applicant’s visa was cancelled because he is not and is not likely to be a genuine student. This was based on his failure to obtain an academic qualification since the grant of the Subclass 573 visa, his lack of academic progress, his poor attendance record and his extensive gap in study.

3. His enrolment in a Diploma of Business was cancelled due to unsatisfactory attendance.  His enrolment in a Diploma of Human Resources Management was cancelled due to unsatisfactory course progress. He said he was unable to study because he was thinking about his older brother and the family. He did not seek professional assistance to cope with his emotional distress.

4. The Tribunal is mindful that such claims are common in situations such as the present one and is not prepared to accept these claims without probative and convincing evidence. There was no evidence that the applicant suffered from any emotional distress or that he suffered any emotional distress that affected his ability to study or attend classes.  The Tribunal is of the view that if the applicant had an illness or condition which was debilitating he would have sought some form of treatment and be able to provide the Tribunal of evidence of such. 

5. During the 16 month gap in study the applicant claimed he did not have money to pay for tuition fees because he was sending money home to pay for expenses in relation to his older brother’s deterioration in his medical condition. There was no evidence to substantiate these claims.

6. Regarding the applicant’s claim that he had to help his family to pay for his brother’s medical costs and as a result caused him financial difficulties, the Tribunal notes that it is a requirement for the grant of a Student visa that visa holders can financially support themselves for travel, living costs and tuition fees during the stay in Australia.  

7. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The Tribunal finds there are no extenuating or compassionate circumstances in this case. The Tribunal finds this weighs in favour of visa cancellation.

   Past and present behaviour of the visa holder towards the department

8. Nothing adverse is known about the applicant’s past and present conduct towards the Department.  The Tribunal gives this some weight in the applicant’s favour.

   Whether there would be consequential cancellations under s.140

9. The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled.

10. There is no evidence that there would be consequential cancellations in this case.

    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

11. 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.

12. However, the applicant’s approach to his studies has demonstrated a disregard for the visa and its requirements over the most part of his time in Australia and not just for an isolated period. Accordingly, the Tribunal is not satisfied that there are consequences of the cancellation which mean that the visa should not be cancelled.

    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

13. There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation.

14. There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation.

    Any other relevant matters

15. On 5 November 2018 the applicant commenced a Diploma of Hospitality Management.  Prior   to the hearing the applicant provided a Diploma of Hospitality Management dated 11 June 2019 issued by Stanley College.

16. At hearing the applicant provided a CoE for a Bachelor of Business commencing on 26 August 2019. The CoE was created on 25 July 2019 and is the only CoE the applicant has held in a Higher Education Sector course since 27 September 2016.  This suggests to the Tribunal that the applicant had only enrolled in the course in an attempt to obtain a favourable outcome in relation to the cancellation, rather than, out of genuine interest, intention or desire to undertake the course. If he did have such a desire, he would have enrolled in a course prior to now.

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

    Conclusion

18. The Tribunal has considered the applicant’s circumstances. The Tribunal has found that the applicant is not a genuine student. The Tribunal has formed the view that the applicant has not been fulfilling the purpose of his travel to and stay in Australia because he has not successfully completed any study in Australia and because for the study that he did undertake before his visa was cancelled, the applicant had poor academic performance. The Tribunal has formed the view that the grounds for cancellation did not arise in circumstances beyond the applicant’s control. The Tribunal is prepared to accept that cancellation would cause some hardship to the applicant. The cancellation would not result in breach of Australia’s international obligations and would not affect any other person’s visa.

19. 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

20. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Christine Kannis
    Member

    
    

    ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.