1420645 (Migration)

[2015] AATA 3062

1420645 (Migration) [2015] AATA 3062 (6 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lovepreet Singh Brar

CASE NUMBER:  1420645

DIBP REFERENCE(S):  BCC2014/2297549

MEMBER:Tim Connellan

DATE:6 July 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 06 July 2015 at 3:43pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 December 2014 made by a delegate of the Minister for Immigration to cancel the applicant Mr Lovepreet Singh Brar’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)(b) on the basis that by changing enrolments from the Higher Education Sector to the Vocational Education and Training Sector he had breached condition 8516 and was no longer an eligible higher degree student and therefore did not satisfy cl.573.231. 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. Mr Brar appeared before the Tribunal on 30 April 2015 to give evidence and present arguments.

4. For the following reasons, the Tribunal has concluded that the decision to cancel Mr Brar’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The Hearing

5. The applicant told the Tribunal he had read and understood the primary decision to cancel his visa which he believed was because he had breached condition 8516.

6. The Tribunal discussed the fact that the applicant had been granted a subclass 573 visa under the Streamlined Visa Processing (SVP) arrangements to study a range of courses leading to a Bachelor of Business at Charles Sturt University. The preparatory courses were a Certificate III in Accounts Administration, a Certificate IV and a Diploma of Accounting at Holmesglen Institute. As the visa was granted under the SVP he was required to provide significantly reduced evidentiary requirements relating to Financial Capacity and English.

7. Student visas carry condition 8516 which require the visa holder to continue to satisfy the requirements for the grant of the student visa for example, the visa holders main course of study must continue to be a course in the education sector that matches his or her student visa subclass.

8. He said that he began the Certificate III in Accounts Administration but found the standard of education to be very high and he could not understand the subject matter of accounting.

9. When asked why, with an arts background he would study accounting, he said a relative in Australia (an aunt in Perth) told him accounting was very good and it was an area in which he could get a good job.

10. He provided an Academic Transcript of the first semester which showed he had failed to pass a subject. The Tribunal observed that two of the subjects were :

    ·Participate in Occupational Health and Safety Processes, and

    ·Write Simple Documents

    and asked why he had struggled with these non-accounting units. He provided no coherent answer.

11. The Tribunal asked why he had chosen to study in Australia when his principal course was available in India. The applicant responded with a vague response that did not address the question.

12. He said he then enrolled in a Certificate IV in Commercial Cookery which commenced on 3 February 2014.

13. When he was required to do practical elements of the course he was required to handle meet including beef which is completely against his religion. He said he and his family were very religious and it is against his belief to touch beef which is cow’s meat. He said he was completely vegetarian and did not even touch eggs.

14. The Tribunal asked why he would have considered studying a commercial cookery course in Australia, which he must have realised would have involved handling meat. He said he was not sure and had not asked anyone.

15. The Tribunal told the applicant it found it difficult to believe that he would choose to study commercial cookery in a country where the majority of the population were meat eaters believing he could do so without touching meat.

16. He said he studied commercial cookery for 5 months attending theory but no practical classes. He did not have any evidence of his attendance or study or results of this course.

17. He said he then phoned his parents and explained he had not passed any subjects in the cookery course and they suggested he studied agriculture. He said there was no agriculture available but he could study horticulture.

18. He transferred to a Certificate III in Production Horticulture. Because of his change he decided to apply for a 572 visa but it was refused.

19. The Tribunal told the applicant the evidence provided showed that he had cancelled his enrolments at Holmesglen on 27 June 2014 which also cancelled the Bachelor of Business enrolment at Charles Sturt University and it was the cancelling of those enrolments that created the breach of condition 8516.

20. The Tribunal asked the applicant on what basis, having breached condition 8516 and failing to remain enrolled in an SVP course with a recognised provider, he believed his visa should not be cancelled. He provided a rambling response which did not provide any reasons, saying he had gained an enrolment in a Bachelor of Business at Stotts College. The Tribunal told the applicant that Stotts College was not a recognised provider under the SVP arrangements, however, regardless of the status of Stotts, the Tribunal asked why, when he had not been able to cope or understand a Certificate III in Accounts Administration where he had failed to pass a subject, he believed he could successfully study a Bachelor of Business degree at University. He said at the time he was confused.

21. The Tribunal repeated the question why he did not do these studies in India, noting that the Punjab University offered a Bachelor of Business program. He said studies in Australia were at a higher level.

22. The Tribunal told the applicant that in considering whether or not his visa should be cancelled it was required to look at all the circumstances. In summary, he had changed from one course to another without explanation other than he could not understand the subject matter and had failed all units before switching to Commercial Cookery where he could not continue for religious reasons which he had not foreseen. He then chose to study agriculture or horticulture because it is related to what his family do and now you says he wants to study business. It was business that was his initial academic goal but he stopped when he didn’t understand it. When asked what has now changed? The response is that he was confused and did not understand. The Tribunal told the applicant it did not believe there was any evidence to support the argument that anything had changed and that from the available evidence and his study history in Australia it did not believe he had a considered study plan. The Tribunal believed his motivation for again enrolling in a Bachelor of Business was to meet the requirements of subclass 573 and an attempt to rectify the breach of 8516.

23. When asked if he had anything further to add, the applicant said his parents had spent a lot of money sending him to Australia to study and if he returned empty-handed it would be shameful and bring dishonour on his parents. He said if given another chance he would study hard.

    Does the ground for cancellation exist?

24. 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)(b). 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.

25. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 attached to Mr Brar’s visa. This condition requires a visa holder to continue to be a person who would satisfy the primary and secondary criteria as the case requires for the grant of the visa.

26. Mr Brar was granted a visa under the Streamlined Student Visa Processing programme (SVP) under which visas are granted with significantly reduced evidentiary requirements for eligible higher degree students to undertake specified higher education sector courses at SVP participating providers.

27. Mr Brar was granted a visa to study a package of courses leading to and including a Bachelor of Business degree at Charles Sturt University. The preparatory courses were a Certificate III in Accounts Administration, a Certificate IV and a Diploma of Accounting at Holmesglen Institute.

28. Mr Brar said he studied the Certificate III course for a semester and provided an academic transcript indicating he failed to pass a subject which he claimed was because the education standard was high and he could not understand the subject of accounting. He provided no coherent answer as to why he failed the non-accounting subjects of Participate in Occupational Health & Safety processes and Write Simple Documents.

29. He transferred to a Commercial Cookery course which became impossible as his religious beliefs did not permit him to handle meat. He said he stuck with this course for one semester attending the theory but not the practical classes before failing academically. He had not realised prior to commencing this course that it would entail having to handle meat.

30. The Tribunal told the applicant it was implausible that someone would enrol in a cooking course in Australia not realising it would involve the need to handle meat.

31. Mr Brar claimed that after consultation with his parents he then enrolled in a Certificate III in Production Horticulture and applied for a subclass 572 visa which was refused.

32. On 27 June 2014 he cancelled his enrolment in the preparatory courses at Holmesglen Institute resulting in the cancellation of his enrolment in the Bachelor of Business at Charles Sturt University, the higher education level course for which his visa was granted.

33. Enrolment in courses at a VET sector level and the cancellation of his enrolment in a Higher Education Sector course created a breach of condition 8516.

34. 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

35. 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 Mr Brar’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’.

36. It was only after he was advised that he was in breach of his visa condition and consideration was being given to cancelling his visa that he enrolled in a further Bachelor of Business course, however, the chosen education provider is not an SVP provider.

37. From his study history and his evidence at the hearing, the Tribunal believes that Mr Brar’s motivation for enrolment in a degree course was not to pursue a planned study programme but an attempt to satisfy visa requirements.

38. The Tribunal is not satisfied Mr Brar has provided any evidence on which the Tribunal should exercise the discretion to not cancel the visa.

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

    DECISION

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

    Tim Connellan
    Member