1417764 (Migration)

[2015] AATA 3455

1417764 (Migration) [2015] AATA 3455 (5 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arshdeep Singh Gill

CASE NUMBER:  1417764

DIBP REFERENCE(S):  BCC2014/2224745

MEMBER:David Corrigan

DATE:5 October 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 05 October 2015 at 5:20pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 October 2014 made by a delegate of the Minister for Immigration 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 under s.116(1)(a) on the basis that the circumstances which permitted the grant of the visa no longer exist. 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 5 October 2015 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 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)(a). 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?

6. A visa may be cancelled under s.116(1)(a) if the Minister or the Tribunal is satisfied the circumstances which permitted the grant of the visa no longer exist. The proper construction of s.116(1)(a) was discussed in detail by the Full Federal Court in MIMA v Zhang (1999) 84 FCR 258. The Court held that s.116(1)(a) is concerned with a material change in the circumstances (per Merkel J at [74]). The relevant circumstance is the subject of the ministerial reflection and does not extend to the Minister’s own state of mind (per French and North JJ at [54]).

7. It was a criterion for grant of the applicant’s Subclass 573 visa if cl.573.223(1A) does not apply that the applicant is enrolled in, or the subject of a current offer of enrolment in a principal course of a kind specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application: cl.573.231. 

8. Clause 573.223(1A) relevantly provides:

   (1A) If the applicant is an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

   (a)      the applicant gives the Minister evidence that the applicant has:

   (i)      a level of English language proficiency that satisfies the applicant’s eligible education provider; and

   (ii)      educational qualifications required by the eligible education provider; and

   (b)      the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (i)      the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

   (ii)      any other relevant matter; and

   (c)      the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

   (i)      the costs and expenses required to support the applicant during the proposed stay in Australia; and

   (ii)      the costs and expenses required to support each member (if any) of the applicant’s family unit.

9. Eligible higher degree student is defined as clause 573.111 as follows:

   eligible higher degree student means an applicant for a Subclass 573 visa in relation to whom the following apply:

   (a)      the applicant is enrolled in a principal course of study for the award of:

   (i)      a bachelor’s degree; or

   (ii)      a masters degree by coursework;

   (b)      the principal course of study is provided by an eligible education provider;

   (c)      if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study:

   (i)      the applicant is also enrolled in that course; and

   (ii)      that course is provided by the eligible education provider or an educational business partner of the eligible education provider.

10. The applicant was granted a Subclass 573 Higher Education Sector visa on 7 February 2014 on the basis of his enrolment at the Melbourne Business Institute of Technology (MBIT) and Deakin University in a Diploma of Computing and a Bachelor of Information Technology (IT) as an eligible higher degree student under the Streamlined Visa Processing (SVP) arrangements which require lesser evidential requirements.  MBIT is an eligible business partner of Deakin, the eligible education provider.

11. On 16 July 2014, the applicant withdrew from his Diploma of Computing course.   He then enrolled in Certificates III and IV in Commercial Cookery at Australian Careers Education (ACE) on 28 July 2014.  He applied for a subclass 572 visa but this was rejected on 5 September 20154.  On 12 September 2014, he was sent a Notice of Intention to Consider Cancellation (NOICC). He obtained a letter of offer from Kent Institute for a Bachelor of Business on 16 September 2014.  He then enrolled in a Bachelor of Business at Stott’s College on 17 September 2014.  His enrolments in this course and the Bachelor of IT course were later cancelled by Deakin University and ACE after the delegate’s decision.

12. ACE is not an eligible business partner of Deakin University or an eligible education partner under the relevant instrument (IMMI 14/007 or indeed any instrument).  The evidence before the Tribunal shows that on 16 July 2014 the applicant ceased to be enrolled in another course of study to be taken before, and for the purposes of, the principal course of study that was provided by an eligible education provider or an educational business partner of the eligible education provider and he has not been enrolled in such a course since.  He therefore at the time of the delegate’s decision and this decision was and is not an eligible higher degree student and therefore the circumstances which permitted the grant of the visa no longer exist.

13. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(a) 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

14. 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 Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

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

15. The Tribunal is satisfied that the applicant travelled to Australia with the intention to study and has given this factor some weight in his favour.

    The extent of compliance with visa conditions

16. The Tribunal has no evidence before it that the applicant has not complied with visa conditions.  It considers this is a consideration that is in his favour and it has taken this into account and given it some weight.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

17. The applicant claimed that he failed all the subjects of his Diploma of Computing and he had difficulties adjusting to Australian life and missed his family and called them every day.  He submitted an academic transcript which shows that he failed the three subjects he attempted. He said he went to a doctor who told him he was missing his family.   Asked who see sought assistance from, he said he spoke to his family but he did not seek any help from the educational provider or their counselling services.  The Tribunal has taken into account that overseas students can experience difficulties adjusting to life in Australia away from their family and friends but on the applicant’s own evidence he did not seek the assistance of the educational provider and its counselling services to address these.  The Tribunal has no independent medical or other evidence before it that suggests that the applicant did suffer serious mental or other health issues.  It is not satisfied, on the evidence before it that what he experienced and felt, constituted extenuating circumstances beyond his control that led to the ground existing.

18. The applicant claimed that he went to a migration agent who advised him to take up studies in cookery and hospitality and open up a restaurant in India and that this agent arranged his enrolment in these courses. He claimed he was misadvised by this agent as to the consequences of this.  He said that after he was sent the NOICC he went to another agent who advised him to enrol in a Bachelor of Business which he did at Stotts but that his visa was still cancelled.  The applicant told the Tribunal that he did not seek the assistance or advice of the Department in relation to his course changes and that he had not complained to the Migration Agents Registration Authority (MARA) about the alleged conduct of the agents.   Accordingly, the Tribunal is not satisfied that the applicant was misadvised as he has claimed and it considers that the circumstances were not extenuating or beyond his control as he had an obligation to be aware of the basis of the grant of his visa as an eligible higher degree student and of the need to be enrolled in a preliminary course that is provided by an eligible education provider or an educational business partner of the eligible education provider as these were the circumstances that permitted the grant of his visa.

19. The applicant was granted the visa to study at the higher education level (under the SVP arrangements which require lesser evidentiary requirements) and failed to maintain enrolment in his Diploma of Computing which was a preliminary course to the Bachelor of IT. The Tribunal considers that there are not any extenuating circumstances beyond the applicant’s control that led to the ground existing.  The Tribunal has given considerable weight to these factors which support the cancellation of the visa.

    The degree of hardship that may be caused to the visa holder and any family members: decision-makers should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision

20. The Tribunal has taken into account that the applicant may be required to return to his home country if the visa is cancelled.  The applicant told the Tribunal that his brother was also involved in computing and that he wanted the applicant to go to Australia so they could help each other with their jobs.  The Tribunal does not consider this not eventuating constitutes hardship of any sort to the applicant and his brother and it notes that the applicant stopped studying computer courses and enrolled in the totally unrelated field of cookery and hospitality which is inconsistent with this.  The Tribunal does not consider, on the evidence before it, that cancellation will cause any degree of hardship (including financial, psychological or emotional) to the applicant and family members and has given no weight on this factor.

    The visa holder’s past and present behaviour towards the Department (for example, whether a person has been truthful in statements or co-operative in their dealings with the Department)

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

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140

22. This is not relevant.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

23. The applicant did not raise any matters that indicated that this was an issue and the Tribunal finds there would not be any breach of any obligations under relevant international agreements and the Tribunal finds this factor is not relevant.

    The impact of cancellation on any victim of family violence, or if family violence is a factor

24. The applicant did not raise any matters that indicated that this was an issue and the Tribunal finds this factor is not relevant.

    Whether there are mandatory legal consequences to a cancellation decision, such as:

    ·     whether indefinite detention is a possible consequence of the cancellation decision , if a person cannot be removed from Australia consistently with Australia’s non-refoulement obligations 

    ·     whether there are provisions in the Act which prevent the person from making a valid application for a visa without the Minister personally intervening (for example, s46A, s46B, s48, s48A, s91E, s91K and s91P of the Act) and

    ·     whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and liable to be detained under s189, and liable for removal under s198.

25. The applicant told the Tribunal that he was the current holder of a Bridging visa and that he doesn’t have any problems in India.  The Tribunal therefore finds that the applicant will not become an unlawful non-citizen as a direct result of the cancellation of the student visa and be liable to be detained and removed.  There are no provisions of the Act that that prevent him from validly applying for a protection visa without the Minister personally intervening.  Nor is the Tribunal is satisfied, on the evidence before it, that indefinite detention is a possible consequence of the cancellation decision because he cannot be removed from Australia consistently with Australia’s non-refoulement obligations.  It considers these are not factors that support not cancelling the visa. 

    Any other relevant matters

26. The Tribunal considers his study history is indicative that he did not ever intend to study at the higher education level for which the visa was granted.  The applicant told the Tribunal that in India he had undertaken an Advanced Diploma of Computer Applications and worked for a year at a Computer Institute.  He then came to Australia to study computer and IT courses at the Diploma and Bachelor level and was granted a visa on this basis.  He told the Tribunal that he “was a little bit interested in cookery” and that he had worked in an Indian restaurant in Melbourne.  He told the Tribunal that if his visa was not cancelled he would try to re-enrol in a Diploma of Computing and Bachelor of IT at MIBT and Deakin.  However, in his written statement to the Tribunal he stated that he wished to study a Bachelor of Business course.

27. The Tribunal is aware that it should allow for reasonable changes to study and career pathways.  However, the applicant enrolled in cookery and hospitality courses that were unrelated to his previous study and employment history in India and his evidence did not indicate that he had any real commitment or interest in studying in this field.  He enrolled in another unrelated course (a Bachelor of Business) after the issuing of the NOICC.  The applicant did not seek the assistance of his education provider MIBT over the claimed difficulties he said he was experiencing in his life and studies and the Tribunal is not satisfied that he had such difficulties that substantially affected his ability to study the Diploma of Computing.  The Tribunal considers his study history and plans in Australia is indicative that he did not and does not intend, during the period of his visa, to study at the higher education level for which the visa was granted.  The Tribunal is not satisfied that the applicant has or had a genuine intention to study a Bachelor of IT or a Bachelor of Business.  The Tribunal has given considerable weight to these factors which support the cancellation of the visa.

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

    DECISION

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

    David Corrigan
    Member