1500576 (Migration)

[2015] AATA 3291

1500576 (Migration) [2015] AATA 3291 (30 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Minh Dieu Huong Dau

CASE NUMBER:  1500576

DIBP REFERENCE(S):  BCC2014/2749637

MEMBER:George Haddad

DATE:30 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 30 July 2015 at 2:30pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 January 2015 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)(b) on the basis that the applicant breached Condition 8516 of her Subclass 573 – Higher Education Sector visa as she ceased enrolment in a course in the higher education sector . 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 15 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

5. 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

6. 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(). 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?

7. 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 the applicant’s visa. This condition requires:

   The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

8. The applicant was granted a student Subclass 573 – Higher Education Sector visa on 21 December 2012 valid until 15 March 2017 on the basis of enrolment in a Diploma of Business followed by Bachelor of Business (Accounting).

9. A delegate of the Minister’s had information which indicated that the applicant had ceased enrolment in a master degree or bachelor degree course and in a s119 Notice, (also known as ‘Notice of Intention to Consider Cancellation’ of ‘NOICC’) dated 24 October 2014 he set out this information indicating that the applicant has breached Condition 8516 of her visa and invited the applicant to provide comments as to why his visa should not be cancelled.

10. The applicant replied in writing on 27 October 2014 stating that:

    She obtained release from her original courses at Victoria University and changed to Ozford College with the addition of a letter of offer at Canberra University in a bachelor of Hospitality Management to commence in August 2015 which she thought was sufficient to continue meeting her visa conditions.

    But after receiving the (NOICC) from the [Department] she became aware that she should have a certificate of enrolment and will seek to obtain it as soon as possible.

    She was concerned about not having a certificate of enrolment at university and wanted to talk to her family. But she know of her family’s poor financial circumstances, she did not want to worry them and thought she would work and take care of her own expenses. But it is very difficult for her to gather the deposit amount to secure the certificate of enrolment and requested around 5 days to provide the certificate of enrolment from Canberra University.

    She attached the offer letter from Canberra University dated 19 February 2014 for a place in a Bachelor of Hospitality Management commencing on 10 August 2015.

    The review

11. In support of her application for review, the applicant provided:

    ·A copy of the letter of offer from the University of Canberra (same as described above);

    ·Certificate of Enrolment (CoE) in Bachelor of Business (Management) commencing on 15 August 2015 and ending on 29 July 2018 at Cambridge International College. The CoE was created on 10 November 2014;

    ·Transcript of Results issued by Ozford College  on 30 June 2015 for units completed by the applicant between February and December 2014 in Certificate III in Commercial Cookery;

    ·A Letter dated 30 June 2015 issued by Ozford College confirming that the applicant was enrolled in Certificate III in Commercial Cookery from 10 February 2014 and 7 December 2014 and she has completed the course. She was enrolled in Diploma of Hospitality from 16 February 2015 and 5 July 2015 but her enrolment was cancelled by “System”; and

    ·A written statement in which she states:

    Her visa was cancelled because she was studying in the “wrong subclass from 19/07/2013 to 30/10/2014. Her visa was a Subclass 573 and she was not enrolled in a bachelor degree course

    She was unaware of the difference between subclasses. She understood that she was required to only keep studying in a registered course. She maintained high attendance rates at Ozford College and at the same time she had a letter of offer at University of Canberra in a bachelor degree course.

    She was shocked to learn that she had breached visa condition when  she received the NOICC.  She was unaware of this requirement and tried to fix her mistake in a week from receiving the NOICC. She wants to complete her studies.

    The Tribunal hearing

12. At the commencement of the hearing I explained the provisions relating to the cancellation of the visa, the significance of Condition 8516 and that the cancellation is not mandatory if the ground for cancellations exists, but the relevant provision provides discretion whether the visa should be cancelled.

13. The applicant indicated that she understands that in her circumstances she has breached Condition 8516 of her Subclass 573 visa.

14. I have also verified independently that the applicant ceased her enrolment in the bachelor degree course while she held the Subclass 573 visa.

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

16. 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’.

17. At the Tribunal hearing, the applicant gave a brief account of her history as a student and presented arguments why her visa should not be cancelled. A summary of the evidence and discussion follows:

    The applicant completed around 75% of a diploma of accounting in Vietnam before arriving in Australia on 27 January 2013.

    She was granted the Subclass 573 visa on the basis of enrolment in Diploma of Business followed by a Bachelor of Business (Accounting). This was preceded by an English language course of 30 weeks’ duration. She did not have a specific career plan in mind but her family was building a hotel; her brother-in-law had a restaurant which was expanding and she thought she would study in a course which would help in his business.

    She applied for release from her originally planned courses at Victoria University and was given release in October 2013.

    She returned to Vietnam for a visit and saw the restaurant which confirmed her decision to study hospitality.

    After completing the English language course in December 2013; she applied to study Certificate III in hospitality at Gurkhas Institute.  But she was advised by a person she met through a friend who helps students change schools that this education provider is not an “SVP” approved provider (SVP refers to Streamlined Visa Processing; an arrangement with prescribed requirements in the Regulations and which specifies approved education providers for eligibility). She was further advised that Ozford College is an SVP provider. She was advised to enrol in the hospitality course and also to get a letter of offer at the University of Canberra in the Bachelor degree course in order to maintain eligibility for the Subclass 573 visa. But she was not told that she was required to have confirmation of enrolment to maintain eligibility.

    Asked what her future plan is, the applicant said that she wishes to complete her studies in Certificate IV in Hospitality; Diploma of Hospitality and Bachelor of Hospitality and return to her home country.

    I noted to the applicant that she appears to have been clearly aware of the SVP arrangement which is the arrangement under which she was granted the Subclass 573 visa. I noted her change from the principal course in bachelor of accounting, which would have taken to be a continuation or progression of studies she had part-completed in Vietnam at the time of her visa grant. When she completed the English language course, she did not commence the courses on which the decision to grant the visa was made. She changed to courses in an unrelated area in the vocational education and training sector. I noted that her evidence relating to advice she took regarding maintaining eligibility appeared to me to be an effort only to maintain eligibility for the visa she held and not necessary an intention to study in the higher education sector. In making this observation, I noted that she said she wished to complete her studies to Bachelor of Hospitality level but in fact she has submitted a certificate of enrolment in a Bachelor of Business. This cast further doubt about her intentions to study in the higher education sector.

    The applicant responded to my comments and observations and stated that she found that she liked studying hospitality after completing the certificate III level and when she saw the restaurant during her visit she determined that she would like to help in that business. She applied to study hospitality from a genuine interest not for reasons related to SVP.

    The applicant added that if she were to complete only the Diploma of Hospitality she would not be able to provide enough help in the family’s business her family. But if she were to complete the bachelor degree she could provide in more areas and to increase business.

    The applicant’s representative made an oral submission and added that qualifying at bachelor degree would enable the applicant to provide managerial help to expand the business in more sites.

18. I have considered the evidence, submissions and arguments. I am satisfied that the applicant is a genuine student and genuinely wishes to study hospitality. But the purpose of the Subclass 573 visa she is seeking to have reinstated is for studying in the higher education sector. I do not accept that the applicant had or has intentions to study in the higher education sector. I have formed the view and am satisfied that she applied for the Subclass 573 visa under the SVP arrangement because it has a considerably lower burden of evidentiary requirement.  The applicant breached the condition of her visa when she took the decision to cease enrolment in this sector.

19. I have considered the evidence relating to the applicant’s claim that her brother-in-law, and her sister, have a restaurant with a large seating capacity in Vietnam and I accept it. I do not accept the submission that a Diploma of Hospitality qualification from Australia is insufficient to qualify the applicant to take almost any role in a restaurant including at management, administration and strategic advice levels. I do not accept that a bachelor of hospitality is essential or necessary to take responsibility at the level the applicant has indicated would likely to be required in the family restaurant including a large seating capacity.

20. In addition, while the applicant, and her representative, argued that a bachelor of hospitality is necessary, the applicant has given evidence of enrolment in a Bachelor of Business after completing the Diploma of Hospitality. This appears to not support the insistence that qualifying in hospitality at bachelor level is essential. I am satisfied that the argument and submissions in this respect are due to the applicant grasping the significance of the question before the Tribunal of  whether the Subclass 573 – Higher Education Sector should not be cancelled.

21. I have also considered the hardship the applicant stated she would suffer if the visa were to remain cancelled. She said at the hearing that she would be responsible for any hardship this may cause because she chose to change her course of study. She said she would not be able to continue her studies and her future prospect of work would be uncertain. I am sympathetic to the applicant but I do not accept that she would not be able to continue her studies. I have found earlier that in my view she is a genuine student in the vocational education and training sector. The difficulty I have encountered is in reasonably finding that the higher education sector visa should not be cancelled because I am not satisfied that the applicant intends to study in this sector. The applicant may consider applying for the correct subclass of visa for her genuine intentions. In respect of her uncertain work future, I note that the applicant has completed Certificate III in commercial cookery. A perusal of the units completed in this one-year course indicates that she has competently completed a significant proportion of the practical subjects in the combined Diploma of Hospitality course. I understand through experience with student visa claims that Certificate III qualification qualifies the holder for work as ‘cook’, not an insubstantial trade qualification.

22. There is no evidence or submissions that there would be any consequential cancellations under s.140 of the Act as a result of the decision to cancel the visa. Similarly, there is no evidence that the cancellation would result in Australia breaching any of its international obligations; nor that it would lead to the applicant becoming an unlawful non-citizen or the possibility that the applicant would be subject to detention or indefinite detention as a result of the cancellation of the student Subclass 573 visa. as she holds a valid bridging visa.

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

    DECISION

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

    George Haddad
    Senior Member