1500769 (Migration)

[2015] AATA 3118

1500769 (Migration) [2015] AATA 3118 (28 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amjad Iqbal

CASE NUMBER:  1500769

DIBP REFERENCE(S):  CLF2015/2321

MEMBER:Hilary Lovibond

DATE:28 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 28 July 2015 at 2:02pm

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 had breached condition 8516 because he had ceased to be a person who would satisfy the primary criteria for the grant of the visa as he was no longer enrolled in a bachelor’s degree or master’s degree course or a course of study that is a principal course of type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A. 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 24 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.

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)(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.

   Does the ground for cancellation exist?

6. 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 that the holder continue to be a person who would satisfy the criteria for the grant of the visa.

7. The delegate’s decision indicates that the applicant appeared to be no longer enrolled in a bachelor’s or master’s degree, which appeared to indicate that he no longer met clause 573.231 or 573.223(1A), which require an applicant to be enrolled. This appeared to indicate that the applicant was in breach of condition 8516 and he was sent a notice of intention to consider cancellation (NOICC) on 24 October 2014 setting this out and asking for his response.

8. The applicant responded on 28 October 2014 by email, stating that:

   ·     he undertook his ELICOS course on arrival then moved to a private college because the pace of classes and assessments at Swinburne was too fast for him and he was scared of failing and having to pay additional fees;

   ·     he moved to another college to practice and get more ideas for higher education in the future;

   ·     he noted from the Department’s letter which he obtained from a friend that the Department would not cancel the visa of anyone who arrived before 14 January and moved to a private college (he provided a copy of the first page of the undated email letter headed “Subject:  Further update for EVCC members – Departmental campaign regarding ‘course hopping’” – hereinafter “the letter”);

   ·     he was looking to gain admission to a bachelor’s degree to protect his 573 visa but as he had a valid COE not many providers wanted to give him a CoE for 2016 so he kept studying and had a good academic record;

   ·     later his parents advised him to take a hospitality course because they planned to start a hospitality business, so he moved to a hospitality college and was studying hard;

   ·     he was unaware he had breached the conditions of his visa and did not consult any immigration lawyers;

   ·     he did not know the immigration rules;

   ·     he requested the visa not be cancelled and he would provide a CoE for a higher education course but would require at least 28 days because most providers take a lot of time.

9. The delegate considered the applicant’s response but found the ground for cancellation did exist and that the reasons for cancelling the visa outweighed the reasons for not cancelling it.  On 9 January 2015 the delegate cancelled the applicant’s visa on the basis set out above.

10. Before the Tribunal the applicant said he did not commence the Masters in IT (Professional Computing) course on the basis of which he was granted the visa and had cancelled his enrolment in July 2013.  This is consistent with the information before the Tribunal from the Provider Registration and International Student Management System (PRISMS) which indicates that his enrolment was cancelled on 31 July 2013 as he had not commenced the course.

11. At hearing, the applicant claimed that he did not write the response to the NOICC but just typed what the agent told him.  Despite this, the claims in his response to the NOICC to have enrolled in and completed a Certificate IV and Diploma in Business and to have been undertaking a cookery course (Certificate III in Commercial Cookery), with further enrolments in a Certificate IV in Commercial Cookery and a Diploma in Hospitality when his visa was cancelled are borne out by information before the Tribunal from PRISMS.  The Tribunal accepts he undertook these courses as claimed.

12. The Tribunal put to the applicant that notwithstanding the information in his response to the NOICC, on the evidence available it did not appear he was enrolled in a higher education course or that he had any plans to be.  The applicant agreed this was so.  Asked whether he thought he had complied with the conditions of his visa the applicant said he found out he had not only after getting the letter from Immigration.

13. The Tribunal explained that on the evidence available it appeared there was a ground for cancelling the visa.  The applicant agreed this was the case. 

14. 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

15. 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

16. Before the Tribunal the applicant said that he came to Australia to study because his brother is also here studying.  He completed a Bachelor of Computer Studies in India and another short post-secondary course in computing and worked as a systems administrator and a network administrator as well as for his family’s medical/pharmacy business.  He said his parents and four siblings are permanent residents in the US and he is being sponsored by his brother-in-law and is waiting for his visa.  Evidence of this claim is before the Tribunal in the form of copies of his parents’ visas and a letter from the US Department of State National Visa Centre (Tribunal file ff.41-45).  He chose the Master’s degree in IT because he had the Bachelor’s degree in computing.  The Tribunal accepts the applicant did intend to study IT when he arrived in Australia and accepts that he has studied throughout his time in Australia, albeit not in the higher education sector.

    Reason and extent of any breach of a visa condition (if relevant)

17. The applicant told the Tribunal that shortly after his family arrived in the US and he arrived in Australia they told him things were different there and he shouldn’t work for someone else but have his own business, so he should change to a business course.  Asked whether he planned to work in IT when he first arrived in Australia he said he talked to his family regularly and they said business was a better option so he changed.  The evidence before the Tribunal indicates his parents arrived in the US on 4 April 2013; the applicant arrived in Australia on 10 April the same year and his Master’s course was not due to start until August.  The Tribunal accepts the applicant changed to a business course and subsequently to cookery and hospitality courses on his parents’ instructions.

18. The applicant has conceded that he withdrew from the Master’s in IT for which his subclass 573 visa was granted in July 2013, has not been enrolled in a Bachelor’s or Master’s degree course since then and has no plans to enrol in such a course while he remains in Australia. The Tribunal therefore finds that the applicant was in breach of condition 8516 from 31 July 2013 until the cancellation of the visa on 9 January 2015, a period of more than seventeen months. 

19. The Tribunal regards a breach lasting for seventeen months as a significant breach and notes that the applicant has no intention of re-enrolling in a higher education course in Australia.  As discussed below, the applicant has claimed that he was unaware of the breach and relied on agents who misled him, a matter the Tribunal has considered but does not accept as wholly mitigating the seriousness of the breach.

    Circumstances in which ground of cancellation arose

20. In addition to the matters raised in his response to the NOICC, as set out above, the applicant told the Tribunal he was misled by the consultants and agents with whom he dealt who were only interested in taking money, and by the college who had issued him a CoE for a “572 course”.  He said the Tribunal may find that more people would claim to have been misled by the same agent.  He was told that when the time came they would get him a 572 visa but the agent only dealt with the money.  He said he was also misled by the fact he was not prevented from enrolling in the “572 course” and because Immigration did not take any action in relation to his visa for a year and a half after he withdrew from the higher education course.  He didn’t waste any time while he was here; he was a good student.  Asked whether he had sought advice from the institutions at which he was studying about whether he could change courses, the applicant said no.  Asked whether there were any reasons he thought his visa should not be cancelled he said Swinburne didn’t stop him, they didn’t stop him from getting the new CoE. 

21. The applicant repeated at multiple junctures during the hearing that he had relied on agents and been misled.  Asked whether he was visaed under the Streamlined Visa Processing (SVP) arrangements he said yes, but the consultant didn’t explain it.   Asked whether he understood the conditions of his visa he said they weren’t explained to him at the time; the consultant just wanted to get his money.  The consultant in the city told him it was easy to go from a 573 visa to a 572; when he asked how they said just get a letter of offer or cancel the course.  They didn’t explain the conditions on his visa when he got a new CoE.  The Tribunal explained that it understood things may have been difficult for him initially on arrival in a foreign country but had some difficulty accepting that as a competent adult he would not have made some attempt to inform himself about the conditions of his visa and the implication of changing courses. 

22. Asked whether he had contacted Immigration directly at any time to obtain information he said no; in his country it was a completely different environment so you would not deal directly with the government.  The Tribunal pointed out that he could have found information online without having to speak to anyone and that given he had a Bachelor’s degree in computing and several years’ work experience in India before coming to Australia it found it hard to accept that he would not even have thought of looking for information that way.  The applicant responded that he knew that now and he wouldn’t make that mistake again.  

23. The Tribunal noted that he had mentioned the Department’s letter about “course hopping” in his response to the NOICC and explained that the circumstances to which the letter referred were different from his, as he had not changed to another 573 course.  Asked if he understood this, the applicant said now he did but at the time he told the agent his CoE was cancelled and the agent said he had another option and gave him the letter.  He told the agent he wanted a 572 visa and the agent said he would give him a lawyer for $3000.

24. Asked whether he was dealing with an agent for his application for entry to the US the applicant said no.  The Tribunal asked why in that case he had relied so heavily on agents here and not dealt directly with the Australian government.  The applicant said it wasn’t him; it was his brother-in-law who was applying and sponsoring him.  The Tribunal noted that the letter he had tendered was addressed to him and he had told the Tribunal he was checking updates on his phone. The Tribunal explained that this suggested he was not relying on a third party and made it question even more his claim to have been entirely reliant on agents in Australia.  The applicant replied that they are family and would not mislead him.  The Tribunal pointed out that he had claimed to have no personal responsibility for his situation.  The applicant replied that now he knew better.

25. The Tribunal accepts the applicant dealt with a number of education and migration agents both before and after his arrival in Australia.  The Tribunal also accepts that some or all of these agents may not have acted in the applicant’s best interests and considers this an indictment of the regulation of the sphere in which the operation of education and migration agents intersect. 

26. Despite this, as discussed at some length with the applicant the Tribunal does not accept that his claimed total reliance on agents indicates that he bore no personal responsibility for ensuring he complied with the conditions of his visa.  At the time of his entry to Australia the applicant was twenty five years old; he had completed an undergraduate degree and several short courses in Pakistan and had worked in several different jobs.  As put to him at hearing he is not a child and might reasonably be expected to have informed himself about what he could and could not do.  He told the Tribunal he did not consult with any student counselling or support services before discontinuing his enrolment in the Master’s degree and claims not have even thought about seeking information online.  Despite his claimed reliance on agents in Australia he is also in the process of negotiating an application for migration to the US without the aid of an agent, although the Tribunal notes that he claimed his brother-in-law was doing this.  Having regard to all the applicant’s circumstances, the Tribunal does not accept that the fact he sought advice from and may have relied upon the advice of education and migration agents exonerated him of all responsibility for understanding and complying with the conditions of his visa.   

    The degree of hardship that may be caused

27. Asked what hardship he or anyone else would suffer if his visa remained cancelled the applicant said he has no-one in Pakistan to go back to; in response to further questions he conceded he does have aunts, uncles and cousins but said they have their own families and culturally he cannot live with them.  The Tribunal queried why, as an adult, he would need to live with anyone else and the applicant said it is more than two years since he has seen his parents and his family’s system is that even if you are married you need to stay in the one household.  As soon as he gets a visa for the US he can transfer his course there.  Asked if he had any indication how long it would be for his application for the US to be decided he said the maximum is roughly two years but he gets an update every month which he checks on his phone so it could be sooner.

28. The Tribunal asked the applicant why he could not run his own IT business, given his qualifications and work experience.  The applicant said his father wanted to invest in the business and wanted him to run it and said a food business would be the best.  The applicant’s evidence about the restaurant he planned to run was vague and he told the Tribunal his parents had done nothing in respect of the plan since telling him to switch courses because his father’s background was in pharmacy.  Asked how he felt about this change to his future career the applicant said in computing you are always working for someone else and his father wouldn’t be able to invest his money.  The Tribunal noted again that he would have good prospects of opening his own IT business.  The applicant responded that culturally he preferred to follow the word of his parents. 

29. The Tribunal is sympathetic to the applicant’s wish not to return alone to Pakistan but finds his claim that he must remain within his parents’ household is comprehensively undermined by the two years he has spent in Australia while his parents have been in the US.  In light of the applicant’s age, education, work experience, the time he has spent in Australia and the fact that he lived in Pakistan until the age of twenty five and has relatives still living there, the Tribunal finds he may be inconvenienced but would not suffer any hardship were the cancellation of his visa to result in his return to Pakistan.

30. The Tribunal is also sympathetic to the applicant’s claimed cultural preference to adhere to his parents’ wishes and accepts that his parents may be disappointed if they are not able to proceed as they have planned and have the applicant open a restaurant in the US.  However, the Tribunal notes that such an occurrence would be conditional on more than the applicant completing his cookery and hospitality studies in Australia as he has yet to be granted a visa for the US.  Further, the applicant has completed two business courses in Australia which would appear directly relevant to his stated intention of running his own business.  The Tribunal also considers that given his qualifications and work experience the applicant might reasonably be considered to have the option of opening his own IT business, whether in the US or elsewhere.  In these circumstances, the Tribunal finds neither the applicant nor any member of his family would suffer any hardship for these reasons as a result of the cancellation of his visa.

    Past and present conduct of the visa holder towards the department

31. Following the issue of the NOICC the applicant has responded within relevant timeframes to the department’s correspondence in relation to the cancellation of his visa.  The Tribunal is not aware of any adverse conduct on the part of the applicant towards the Department beyond the matters discussed above.

    Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

32. The applicant currently holds a Bridging visa.  If his visa is cancelled, he can remain lawfully in Australia until that visa expires.  Should the applicant remain in Australia after the expiry of that visa, without any other visa being granted, he would become unlawful and subject to detention.  There is nothing to suggest that any detention in such a hypothetical situation would be indefinite.

    Any other relevant matters raised by the visa holder

1. The Tribunal asked whether there were any other reasons his visa should not be cancelled.  The applicant again said that he had been misled by agents who had not explained things to him.  The applicant said he had refused to pay $500 to the agent who had briefly represented him at the Tribunal and had also lost $2500 to Swinburne.  He also said he has not wasted time in Australia. 

2. The applicant said time is running out for him and asked why he shouldn’t be able to apply here.  He said this decision will destroy his future; his records will show he was a regular student.  The Tribunal asked whether he would need any of the qualifications he was seeking to complete in Australia to enter the US and the applicant said no; it was nothing to do with that.  Asked why he could not undertake this study in the US the applicant said he didn’t have a US visa, but if he was granted one he could possibly transfer his course because the same course is available there.

3. The evidence before the Tribunal does not indicate that the remaining matters identified in the Departmental guidelines (whether there would be consequential cancellations under s.140, whether any international obligations would be breached as a result of the cancellation and the impact on any victims of family violence) are applicable to the applicant’s circumstances and the applicant has not made any claims in relation to these matters.  The Tribunal finds these are not relevant considerations and has not considered these matters further.

4. The Tribunal explained to the applicant that it considered the significant issues in his case were the fact that he was granted the 573 visa under the SVP, which required a less stringent assessment than the one he would have had to satisfy for a 572 visa and the fact that notwithstanding his studies in the vocational education sector, he had not commenced his higher education course, had not been enrolled in such a course since July 2013 and had no intention of enrolling in such a course now.  The applicant responded that he needs a 572 visa; he was misled and he just wants a chance to get one.  The Tribunal noted that if he is not a genuine student in the higher education sector there would be no basis on which to re-instate his 573 visa simply in order to enable him to apply for a 572 visa and said the appropriate course of action would be for him to leave Australia and apply for a 572 visa offshore. 

5. In balancing the various considerations the Tribunal has given some weight to the fact the applicant appears to have withdrawn from his higher education course on his parents’ instructions, that he was a genuine student in the higher education sector on arrival and that he has successfully completed two vocational education courses in Australia and was studying in that sector at the time his visa was cancelled.  The Tribunal has also given some weight to the fact the applicant may not have been well or responsibly assisted by some or all of the agents with whom he dealt. 

6. Against this, however, the Tribunal has given greater weight to the applicant’s failure to take any personal responsibility for the circumstances that led to the cancellation of his visa.  The Tribunal has also given significant weight to the fact the applicant’s circumstances indicate neither he nor any other person would suffer any hardship if his visa remained cancelled.  Finally, the Tribunal has given significant weight to the duration of the applicant’s breach of condition 8516 and the fact that he does not intend and has not at any time intended to re-enrol in a higher education course, but wishes the visa not be cancelled to allow him to apply for a subclass 572 visa while he remains in Australia.  In the context of the applicant having been granted the visa under the SVP the Tribunal is not satisfied this constitutes a reason why the visa should not be cancelled.

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

   DECISION

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

   Hilary Lovibond
   Member