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1211730 [2013] MRTA  1296  (3 June 2013)

Last Updated: 25 June 2013

1211730  [2013] MRTA 1296  (3 June 2013)

DECISION RECORD

APPLICANT: Mr Ritesh Khemchandbhai Patel Aka Parmat

MRT CASE NUMBER: 1211730

DIAC REFERENCE(S): CLF2012/77472

TRIBUNAL MEMBER: Patrick Francis

DATE: 3 June 2013

PLACE OF DECISION: Melbourne

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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 July 2012 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1) of the Migration Act 1958 (the Act).
2. The delegate cancelled the applicant’s Subclass 572 visa under s.116(1)(fa) on the basis that the delegate formed the view that the applicant was not a genuine student having failed to commence classes at two institutions. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
3. The applicant appeared before the Tribunal on 29 May 2013 to give evidence and present arguments.
4. 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

5. Under s.116(1) 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. Relevantly, to this case, these include the ground set out in s.116(1(fa). If satisfied that the ground for cancellation is made it 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, as set out in the departmental guidelines, Procedures Advice Manual (PAM3), which are attached to this decision.

Does the ground for cancellation exist?

6. 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, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.
7. The proper construction of s.116(1)(fa)(i) was discussed in Shrestha v MIMA (2001) ALD 669, in which the Court held that in introducing s.116(1)(fa)(i), it was not Parliament’s intention that a genuine student who had failed in attendance and/or academic performance due to ‘innocent temporary mishap’ or ‘transient misadventure’ should face cancellation (per Madgwick J at [19]). In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 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 with lecturers, 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]).
8. 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.
9. The delegate found that the applicant did not commence classes at Menzies Institute of Technology which were scheduled to commence on 13 April 2012. The applicant claims that he did commence classes from 28 April 2012 and that he was instructed by the student coordinator that classes commenced on that date, despite his confirmation of enrolment showing the course start date as 13 April 2012. The applicant conceded at hearing however that he attended classes for no more than two weeks in that course.
10. At hearing the applicant said that he lodged two pieces of assessment for the course at Menzies Institute of Technology which were marked and he was told he had passed. He later amended his evidence to be that he submitted those pieces of assessment for the purposes of the Certificate IV course and not for the diploma course at Menzies. He also referred to having lodged photographs of the class with the Department. No such evidence could be located on the departmental file or the tribunal file, although there were attachments to his letter (at folio 60 of the departmental file). The applicant did not have that evidence with him at the hearing. He acknowledged however that he has not spoken with his lecturer at Menzies Institute of Technology for the purpose of obtaining confirmation of his attendance at classes. The applicant later said at hearing that he commenced the course at Menzies and attended for one week only. He was told that the Department had contacted his education provider on the basis he was not attending classes. The applicant then handed to the tribunal a ‘Notice of Intention to Consider Cancellation’ dated 4 June 2012. The tribunal put to the applicant that logically this document could not have been given to him a week after he commenced his classes in April 2012. The applicant said that he attended classes from 13 April 2012 for one week. He later said that he attended Menzies for two weeks. He did not wish to study there any further because they were not supportive of him. The tribunal, referring to the applicant's letter at folio 60 of the tribunal file, put to him that he had claimed in that letter that he went to Menzies on 9 June 2012 to attend a scheduled class. The applicant was unable to offer an explanation for that apparent contradiction.
11. The tribunal put to the applicant that he seemed to have made little effort to obtain evidence that he attended the first two weeks of classes at Menzies Institute of Technology. He was silent and did not wish to respond to that matter. He later said that he went and spoke with Erica at Menzies Institute of Technology and asked her why the department had been advised that he wasn't attending classes. He was told in response by Erica that he was not attending classes. The applicant told the tribunal that he didn't want study there so he decided to go back to India and stopped studying there.
12. In relation to the question of why he ceased attending classes the applicant said that he hadn't seen his family for some time so he stopped study. His father was unwell however Menzies Institute said to the applicant that his father's health was not a sufficient reason for deferment. He then decided he didn't want to study and stopped attending college. He was thinking of his father who had had surgery and couldn't focus on his studies. In response to a question the applicant said he did not see a doctor. He was very upset however because he was close to his parents.
13. The tribunal asked the applicant why, having decided to cease study, he did not return to visit his parents. The applicant said that he was at the airport on 10 April or 11 April 2012 intending to depart Australia to see his parents when he was informed that he would not be able to return if he departed Australia. He was detained and his visa was cancelled.
14. The applicant also told the tribunal that after leaving Menzies Institute of Technology he went to an agent who told him to study at KAPS (Institute of Management). He obtained a confirmation of enrolment from that education provider. He decided he didn't want to study and just wanted to go back to India so he stopped attending classes. The tribunal asked the applicant why then in that context he should be considered a genuine student. The applicant said that he just wanted a one-month break and his request for deferment was refused. He did not attend any classes at KAPS. The tribunal noted that in accordance with his own evidence he had only just enrolled with that education provider when he decided to no longer attend. The tribunal asked the applicant if he should be considered a genuine student taking that into account given that he didn't return to India and didn't study. The applicant said that his parents’ health was not good; if he left Australia he couldn't come back. At that time he didn't want to go to school, he just wanted to go to back but he did not have any study rights. The tribunal put to the applicant that he did apparently have study rights before his visa was revoked. The applicant explained that once he realised he couldn't return he changed his mind.
15. The tribunal also discussed with the applicant the receipts for chiropractic services received in 2013 that he had lodged at the hearing. The applicant explained that he had had back pain since 2007 and had been recommended for orthopaedic surgery whilst he was in India in 2007. On the one hand he indicated that his own health was a further reason for returning to India and, on the other hand, he stated that seeking treatment was not a purpose of wishing to return to India; he just wished to see his family.
16. The applicant also gave evidence that he initially arrived in Australia in September 2007 and returned to India after 10 months having studied English. He arrived again in Australia on 5 December 2009 and since then he has achieved a Certificate III in Automotive Mechanical Technology and a Diploma of Management.

Consideration of the evidence

17. On the basis of the evidence before it the tribunal is satisfied and finds that the applicant did not attend classes at either the diploma course at Menzies Institute of Technology or the diploma course KAPS Institute of Management in 2012. The applicant acknowledges that he did not attend classes at the latter education provider. Whilst he contends that he attended the first two weeks of classes at Menzies Institute of Technology (although he also gave evidence that he attended the first week only, in addition to a contradictory claim that he attended on 9 June 2012) the tribunal found the applicant's evidence to be contradictory and unreliable on this point, including on the issue of whether he attended for one week or two weeks. The tribunal does not accept the assertion in his letter of June 2012; that he was reassured by the receptionist at Menzies that he had attended. The tribunal was not satisfied that he commenced the diploma course at all. In reference to the photos claimed to have been taken by the applicant, whilst they were not before the tribunal, it is noted that the tribunal would have no way of identifying whether any such photos were taken of the Certificate IV class or the later Diploma class. In any event the applicant concedes he attended for no more than two weeks before ceasing.
18. The above discussion is in the context that the applicant’s education provider, Menzies Institute of Technology on 9 March 2012 certified that the applicant failed to comply with the condition of his visa, condition 8202 and that he had not attended any classes from 19 August 2011 until 18 December 2011 and that his attendance from 20 January 2012 until 4 March 2012 was also 0%. The request for the revocation of the automatic student visa cancellation was made on 10 April 2012. Ultimately the decision was made to revoke that visa cancellation on the basis that the applicant had not been the holder of a student visa for much of that period.
19. Having made a request for revocation of the automatic student visa cancellation on 10 April 2012 the tribunal does not accept that the applicant had any confusion about the obligation on him to maintain enrolment and attend classes.
20. The applicant claims that he was depressed because Menzies Institute of Technology did not grant him leave so that he could visit his father. He claims he was also depressed about his mother's health and because of Menzies Institute of Technology's attitude towards him. He claimed he was depressed about these matters and tried hard but could not concentrate (applicant's statement at folio 27 departmental file). The applicant provided brief medical certificates in respect of his father and mother. He did not provide any medical reports concerning his own health apart from the receipts for chiropractic treatment in February and March 2013.
21. The applicant's failure to attend classes in both the diploma course at Menzies Institute of Technology and at KAPS Institute of Management during the period of his enrolment and whilst holding a student visa is, in the tribunal's view indicative that the applicant is not a genuine student. The tribunal does not accept the applicant's explanations that he was so upset about his parents’ health that he was unable to attend classes. The tribunal does not accept that the applicant was depressed and unable to concentrate. The Tribunal accepts the applicant’s evidence that he decided he didn't want to study any more and so did not attend classes.
22. The tribunal has found the applicant did not attend the first two weeks of classes at Menzies Institute of Technology despite his claim to have done so. The applicant claimed that he wished to continue his study but conversely he decided he didn't want to study so he stopped attending. Having left Menzies Institute of Technology the applicant enrolled at KAPS yet even on his own account did not attend one class. In all of those circumstances the tribunal is satisfied and finds that the conduct of the applicant had been such that the applicant is not a genuine student and is not likely to be in the future.
23. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

Consideration of discretion

24. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the department’s policy guidelines which are attached to this decision.
25. The tribunal notes that the applicant's enrolment was not deferred or temporarily suspended by the education provider or providers (in reference to r.2.43(1D)). The tribunal considers that the applicant's conduct in failing to commence classes in two consecutive courses with different education providers is indicative that he is not a genuine student. The tribunal does not accept that his failure to attend classes was due to an innocent temporary mishap or transient misadventure. As set out above, having made a request for revocation of the previous automatic student visa cancellation on 10 April 2012 the tribunal does not accept that the applicant had any confusion about the obligation on him to maintain enrolment and attend classes. The tribunal does not accept that the applicant was unable to fulfil that obligation. Rather he decided not to. The applicant was granted a student visa in order that he could study. His failure to maintain enrolment and attend classes is therefore significant. The information before the tribunal does not suggest that any obligations Australia has under international agreements would be breached as a result of the cancellation. Nor would it suggest that the degree of hardship faced by the applicant would be particularly significant. The Tribunal has rejected the applicant’s claims that he was unable to focus on his studies due to his concerns for his parents. Nor has the applicant achieved qualifications other than a Certificate III in Automotive Mechanical Technology and a Diploma of Management since his arrival in December 2009. In such circumstances it is not appropriate to exercise the discretion in the applicant's favour.
26. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

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

Patrick Francis
Member

ATTACHMENT – Discretion to cancel a visa under s.116 - Policy guidelines

The following are a summary of departmental policy guidelines (PAM3) of matters that may, where relevant, be considered when deciding whether to cancel a visa under s.116 of the Act:

• the purpose of the visa holder’s travel to and stay in Australia
• if cancellation is being considered because of a breach of visa condition (and cancellation is not mandatory) – the reason for and extent of the breach
• the degree of hardship that may be caused to the visa holder and any family members
• the circumstances in which the ground for cancellation arose (for example, whether extenuating or compassionate circumstances outweigh the grounds for cancelling the visa)
• the visa holder’s past and present behaviour towards the department
• if cancellation is being considered because of the circumstances set out in r.2.43(1)(la) – the range of mitigating, compassionate and compelling factors outlined in PAM3: Sch2Visa457
• whether there are persons in Australia whose visas would, or may, be cancelled under s.140
• whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, such as:
  • if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, the best interests of the children are to be treated as a primary consideration
  • whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations - that is, removing a person to a country where the person faces persecution, death, torture, cruel, inhuman or degrading treatment or punishment
• any other matter the visa holder raises.
  

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.