1500782 (Migration)

[2015] AATA 3479

1500782 (Migration) [2015] AATA 3479 (9 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vasu Babu Chundru

CASE NUMBER:  1500782

DIBP REFERENCE(S):  BCC2014/2807396

MEMBER:George Haddad

DATE:9 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 09 October 2015 at 5:33pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 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 the Subclass 573 – Higher Education Sector visa by ceasing his enrolment in a master degree course for which the visa was granted. 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 8 October 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Telegu (Indian) and English languages.

4. The applicant was represented in relation to the review by his 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(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?

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 17 June 2013valid until 24 May 2016 on the basis of enrolment in a Master of Information Systems.

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 issued a s119 Notice, (also known as ‘Notice of Intention to Consider Cancellation’ of ‘NOICC’) dated 31 October 2014 which set out this information indicating that the applicant has breached Condition 8516 of his visa and invited the applicant to provide comments as to why his visa should not be cancelled.

10. The applicant responded in writing which may be summarised as follows:

    He was sponsored by his brother in India to study the Master degree program in Australia; his parents have passed away. In India he had completed his secondary schooling and, while studying a bachelor of technology engineering course, he took a part-time job in the hospitality industry. He did well in this industry and was promoted to the role of cook. Even though he had a degree in electronics, he was unable to find work in India in this field. His brother and friends encouraged to go abroad for settlement.

    He engaged consultants to take advice on where to study abroad and which course to study. He concluded that studying a master degree course in information systems in Australia would give him opportunities on returning to India and find work in the information technology field. His plan was to qualify with a master degree and start a career in a multinational company.

    He was offered a place at Federation University but was required to undertake an English language course of around 6 months duration before starting the master degree program.

    He completed the English language course and commenced the master degree program in March 2014. He found it difficult to understand the diction and accent of teachers and fellow students, so it was difficult to understand the concepts being taught.

    This caused him to re-consider whether he would be able to cope with higher education in Australia. But returning to India without qualifications would be humiliating and disappoint his brother. He decided to study a different program to become more familiar with the English language spoken in Australia. He requested to be released from his information systems program but the college declined to grant release.

    He enrolled in Certificate III and Certificate IV in Commercial Cookery and Diploma of Hospitality. He thought this would give him two future career options. The cookery and hospitality course is more practical than theoretical which would give him the opportunity to become familiar with teaching methods in Australia and prepare him to to pursue higher education at a later time. If he were to fail in coping with the English spoken in Australia and decides to not pursue higher education, he would return to India and proudly show his brother his qualification from an Australian institution. In addition, with his previous experience as a cook in India, studying cookery and hospitality in Australia would qualify him to open a family restaurant as the hospitality industry is rapidly developing and growing in India.

    When he received the NOICC from the delegate, he became aware of the consequences of discontinuing his enrolment in a course in the higher education sector; he tried unsuccessfully with a number of universities, both SVP and non-SVP, to secure enrolment or offer of a place in a master degree program.

    He is also content to continue with his current studies for a Diploma of Hospitality and return to India. He has applied for the appropriate visa Subclass 572 but if he succeeds in getting a place in a master degree program, he would return to his original plan and would withdraw his application for the Subclass 572 visa.

11. The applicant’s reference to “SVP” relates to the Stream lined processing arrangement introduced by the Minister and required a significantly less rigorous assessment and evidentiary requirement. At the time the applicant was granted his Subclass 573 visa SVP was not available for Subclass 572 visa applications.

12. The applicant first attended a hearing of the Tribunal, differently constituted, on 28 April 2015. The presiding member then agreed to the applicant’s request for an extension of time to 15 May 2015 to provide further submissions, specifically evidence of enrolment or an offer letter for a place in a Master of Business Administration. It appears that the applicant did not provide any further material. The previous member’s term expired on 30 June 2015. He did not continue as member of the Migration Review Tribunal as it then was and had not made a decision on the review.

13. The case was constituted to the present member and after considering all of the material before me and listening to the audio file of the previous hearing, I was unable to make a favourable decision. Accordingly I invited the applicant to appear at a hearing before me on 8 October 2015 which he did.

14. Prior to the hearing, the applicant submitted a few documents including PTE Academic test results from December 2014; IELTS test results from April 2012; copies of applications the applicant has made for enrolment in an MBA at Holmes Institute and Master of Networking at MIT, Sydney. He also provided copies of emails authored by his representative to the institutes enquiring about progress of the applications.

15. At the hearing of 8 October 2015, the applicant conceded that he has breached Condition 8516 on the basis of ceasing enrolment in a higher education sector course for which purpose he was granted the visa. The Tribunal also verified independently that the applicant ceased his enrolment in the master degree course on 4 August 2014.

16. 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

17. 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’.

18. At the hearing of 8 October 2015, the applicant re-iterated part of his written response to the NOICC and stated that in March 2014 he had attempted the first semester of the Master degree course but found it difficult and failed all four unites he had taken during that semester. He ceased attending the course in July 2014and decided to undertake the commercial cookery courses at certificate III and certificate IV levels followed by diploma of hospitality.

19. I asked the applicant whether by changing his course of study from master degree in information technology to certificate and diploma level courses in hospitality he had envisaged a change of career path. He said that he had not changed his career path, he took these “small courses” because he liked cooking and he would think what to do next after completing them. He indicated that he maintained his intention to return to his original course in the future.

20. I put to the applicant that the cookery courses and diploma course would not reasonably be described as “small courses”. In my experience with international student undertaking these courses, it is a program of two years involving intensive practical and management studies in hospitality; and a qualification in Diploma of Hospitality from Australia has often been described as providing good prospect of a career in hospitality starting at middle management levels in international hotels around the world. I indicated that I do not accept that a person with an interest in cooking would undertake these courses without a career in mind in the field. I also referred to the applicant’s response to the NOICC which was contained in the copy of the primary decision record the applicant provided to the Tribunal.

21. I also referred the applicant to his stated reasons for abandoning the higher education course as he found it too difficult and asked why he now thinks he would be able to cope with the course. He said He suffered from stress earlier but now he does not and feels confident he could complete the master degree course successfully.

22. I referred the applicant to the extension of time he requested, and was granted by the previously constituted Tribunal, until 15 May 2015 to provide evidence of enrolment but there is evidence that he did provide any material. He replied that he had tried but could not obtain enrolment or offer of a place. He said more recently he had sought to enrol in a bachelor degree course in information technology.

23. I asked why he has sought to enrol in a master of business administration course as it does not appear to be consistent with some of his statements that he wished to return to his original plan of studying information technology or networking systems. And I also asked why he would seek to enrol in a bachelor degree course given he has stated in his written response to the NOICC (and in his applications to MIT, Sydney and Holmes Institute, Melbourne) that he has obtained a bachelor degree in information technology based course. In reply, the applicant stated that he has sought to enrol in a bachelor degree because his brother has expressed concern about his studies in Australia and he wanted to show him that he is enrolling in a degree level course. In relation to seeking enrolment in an MBA, he said he plan to start a small business or a small company when he returns to India and for this reason he needs and MBA to “get a grip on business”.

24. I considered his responses and put to the applicant that I do not accept as realistic or plausible that one needs an MBA in order to start a small business or company. I also find his response to the bachelor degree in information technology as inconsistent with other statements he has given such as his reasons and indicated interest in an MBA course.

25. I put to the applicant that I consider relevant to the consideration of exercising the discretion to cancel the visa, a core purpose of a student visa – that is the decision maker is satisfied that he is a genuine applicant as a student. I said that having considered his written and oral evidence, I have formed the impression that he utilised the SVP arrangement in order to more easily gain entry to Australia. His conduct commencing soon after he arrived in Australia of abandoning the higher education sector course, enrolling in much lower level qualifications in an unrelated area to his previous academic qualifications; applying unsuccessfully for  a Subclass 572 visa after receiving the NOICC relating to his Subclass 573 visa in order to regularise his visa status to suit the courses he had chosen; and now seeking to enrol in almost any course to salvage his Subclass 573 visa has caused me to form the view that he was not and is not now a genuine student and is using the student visa program to maintain his stay in Australia. I added that in response to the reasons he has given for enrolling in a bachelor degree course in an area where he holds a bachelor degree qualification that the student visa program is not intended to be used for someone to appease a family member.

26. The applicant made further comments that he has made every attempt to re-enrol and return to a higher education sector course but that “all the doors are closed” and what is he to do?  I reiterated my impressions of his efforts being desperate acts in order to maintain a visa rather an indication of a genuine commitment to study. I concluded that I am not satisfied that he is a genuine student on the evidence he has given and arguments he has presented. Critically, he has confirmed inability to secure an offer of a place in a higher education sector course and the purpose of the Subclass 573 visa, if it were to be reinstated, is to study a registered course in that sector, therefore it would not be logical to exercise the discretion to recommend reinstating his visa.

27. As noted above, the purpose of the Subclass 573 student visa which was granted to the applicant is to study in a registered course in the higher education sector; other than this purpose there is no evidence or submissions that the applicant has a compelling need to remain in Australia.

28. The breach of condition in the present case is significant. I formed the strong view on all the evidence and arguments presented that the applicant had no intention of studying in the higher education sector and obtained the visa with the primary intention of gaining entry to Australia.

29. I have considered the applicant’s comments regarding the hardship he would experience as a result of the cancellation. He said that his brother had invested in the applicant travelling to Australia; the applicant would suffer loss of face and humiliation for not achieving any qualifications after spending around three years in Australia. However, given the above discussion, while I am sympathetic to the applicant’s hardship it does not overcome the critical requirement for eligibility for a Subclass 573 visa.

30. There is no evidence or submissions made that the cancellation will lead to consequential cancellations of other visa holders under s.140 of the Act.

31. There is no evidence that the cancellation will lead to the applicant becoming unlawful or that he would be placed in detention as a result of the cancellation as he holds a valid bridging visa. There is no evidence that the cancellation will result in Australia breaching its international obligations or that it would impact victims of family violence.

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

    DECISION

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

    George Haddad
    Senior Member