1500836 (Migration)

[2015] AATA 3063

1500836 (Migration) [2015] AATA 3063 (7 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr JASWINDER SINGH

CASE NUMBER:  1500836

DIBP REFERENCE(S):  BCC2014/2892431

MEMBER:Sean Baker

DATE OF ORAL DECISION:  7 July 2015

DATE OF WRITTEN STATEMENT:         8 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 08 July 2015 at 5:34pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 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 it appeared that the applicant had not continued to be a person who would satisfy either cl.573.231 or cl.573.223(1A), and therefore was not a person who would satisfy the primary criteria for the grant of the visa and therefore had not complied with condition 8516. 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 Tribunal gave its decision on the review at the conclusion of the hearing held on 7 July 2015. The following are the reasons for that decision.

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 must continue to be a person who would satisfy the criteria for the grant of the visa.

7. At the hearing I asked the applicant if he had held a confirmation of enrolment (CoE) or a letter of offer for a Bachelor’s or Masters course between 10 July 2014, when Deakin University had agreed to release him and therefore would have cancelled his enrolment in his Bachelor of IT, and 15 December 2014 when he gained the CoE for his Bachelor of Business following the Notice of intention to cancel from the Department. He confirmed that he had not held a CoE or a letter of offer for a Bachelor’s or Masters course between these dates. I noted to him that this appeared to indicate that he had not continued to be a person who would satisfy either cl.573.231 or cl.573.223(1A) between these dates, and therefore did not continue to be a person who would satisfy the criteria for the grant of the visa in this period, and therefore may not have complied with condition 8516. He indicated that he understood.

8. On the basis of the evidence from the applicant I find that between approximately 10 July 2014 to 15 December 2014, the applicant did not hold a CoE or a letter of offer for a Bachelor’s or Masters course, that he therefore did not satisfy either cl.573.231 or cl.573.223(1A) between these dates, that he therefore did not continue to be a person who would satisfy the primary criteria for the grant of the visa in this period, and therefore that the applicant did not comply with condition 8516.

9. 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

10. 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’.

11. I explained the consideration of the discretion to the applicant and that he was able to provide any information which he considered was relevant to whether the visa should be cancelled or not. I explained that I would discuss with him factors raised in the Departmental policy but that these were not binding or restrictive, and that he could raise anything else he believed was relevant.

12. The applicant said that he had come to Australia on 17 July 2013. I asked what he had come here to do and he explained that his ELICOS had been delayed because his visa was not granted in time for the course start date. He said that Deakin changed his ELICOS start date and he started his course on 19 August and finished on 20 September and then he started his Diploma. He claimed to have got good marks in his ELICOS and then started his Diploma in Deakin. He said that he was very hard working but did not understand IT and. was unsuccessful in his first semester. He said that his parents told him to try again and so he started his second semester, repeating his subjects, on 3 March 2014. He finished this semester on 6 June 2014 but again he failed. A friend then suggested an agent and the agent told the applicant to change his course and told the applicant to apply for a 572 vocational training visa. The applicant gave all his documents to the agent and the agent got him admission in cookery Certificate III, IV and a Diploma of Hospitality. The applicant said he had applied for the release letter from Deakin and submitted this to immigration and after that studied commercial cookery.

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

13. He said that he had come to Australia to complete his Bachelor here, as he belongs to a middle class family and all the responsibilities are on his shoulders. He said that after he completes his Bachelor he can find a good job in India and make good money. If he returned without a Bachelor his life would be stopped.

14. I asked if this had been his intention why he then had applied for the 572 visa. He said he had applied for the 572 visa as he was misguided by his agent, he did not know anything about this. I noted to him that he had provided a statement of purpose which was excerpted in the delegate’s decision, which stated that he wanted to study at the vocational level. He said that he did not know the difference between 572 and 573. He said his agent misguided him and he took a wrong step. I explained that I may not accept this given that he had applied for the 572 and provided a statement of purpose saying he wished to pursue a vocational study stream. I have also had regard to the applicant’s statement of 30 June 2015 in which he claims his agent explained why he should pursue the 572 stream.

15. Whilst I accept the applicant’s claims, with no evidence to the contrary, that he came to Australia to study, I have real concerns with his claims that he came here to, and wishes to complete a Bachelor or other higher degree study for which he was granted the 573 visa, for reasons set out below.

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

16. I noted to the applicant that, as he had agreed, he appeared to have been in breach of Condition 8516 for almost six months, which I considered a long time to be in breach of his visa condition. He said that he did not know that he needed to be enrolled. I pointed out that it was his responsibility to be aware of his visa conditions and I may not consider this an adequate explanation. I read to him from the release letter from Deakin dated 10 June 2014, which informed him that he might no longer meet the criteria for which his student visa was cancelled and may be considered for cancellation. I asked if he had sought to clarify this and make sure that he was not in breach. He said that he had not gone to immigration but his agent had told him as he was applying for his 572 everything was fine. I noted that the letter from Deakin in June I considered put him on notice that he may be in breach and asked if he had taken any steps to find out if he was in breach of his visa conditions. He said that he was continuously studying in Aveta college.

    degree of hardship that may be caused

17. I asked the applicant what hardship would be suffered by him or others if the visa was cancelled. He said that if he goes back without his Bachelor this will be a big problem, but if he is given one more chance he can complete his Bachelor here and go to India and get a good job and take responsibilities for his family as he has wasted a lot of money and time here and in 2 years he does not have any academic progress. He said that he is sharing a house with his brother who is married but does not have any children. He said his brother is a citizen. I have taken account of the claimed hardship, and accept that there will be some financial and personal difficulties for the applicant and his family if the visa is cancelled. I give this factor some weight.

    circumstances in which ground of cancellation arose

18. I asked the applicant about the circumstances in which the ground for cancellation arose. He said he had completed his ELICOS but had trouble with his Diploma. I noted that he had completed his ELICOS but his attendance was listed as unsatisfactory, and asked why. He said that he was sick and his grandmother expired and he had submitted his health certificate to Deakin, and that is why his attendance was short. I explained to him that I may have concerns on the basis of his poor attendance during his ELICOS course that he had also had poor attendance in his Diploma of computing and that this may be part of the reason why he had not done well, rather than him trying very hard but not succeeding. He said he had had health issues in his ELICOS but during his Diploma he was continuously studying.

19. I asked if he had accessed any of the assistance available to students at MIBT and Deakin when he had not done well in his Diploma. He said that after he failed his first semester staff had asked him to try again. He had told them that he had wasted his money and time and asked them then to give him a release letter so he could study another course, but they did not give him a release letter at that time. I asked him what course he wished to study instead and he said he wanted admission to a Bachelor of business in management. I clarified that he had asked for a release letter after his first semester and he said he had. I asked if he had not asked his provider if he could change from his Bachelor of IT to a Bachelor of Business with Deakin rather than seeking release and going to another provider. He said he did not have any knowledge and they just said to do study in the second semester and suggested he work hard. I asked if he had accessed study groups, tutors, the international student office and counsellors at MIBT/Deakin. He said no, he had just discussed it with his teachers and staff.

    past and present conduct of the visa holder towards the department

20. There is no information before me to indicate any concerns in the applicant’s behaviour towards the Department. I give this factor little weight.

    if breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

21. This factor is not relevant.

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

22. Whilst the visa remaining cancelled will mean the applicant has no substantive visa to remain in Australia, this is an intended consequence of the cancellation regime. I give this factor little weight.

    whether there would be consequential cancellations under s.140

23. This factor is not relevant.

    whether any international obligations would be breached as a result of the cancellation

24. I asked the applicant if he was afraid to return to India for any reason. He said he was not. I give this factor little weight.

    the impact on any victims of family violence

25. This factor is not relevant.

    any other relevant matters raised by the visa holder.

26. I asked the applicant if there was anything else relevant. He said that he had worked in a restaurant before the cancellation. He asked that he be given one more chance so he can continue his study. He said that his father will retire soon and he needs to take his responsibilities of his parents, without study he cannot do that. If he is here he can complete his Bachelor and find a good job in India.

27. I have had regard to the applicant’s response to the Department, to his statement dated 30 June 2015 and the attached documents, and to his claims at hearing.

28. I find that the applicant has breached condition 8516 of his visa for a considerable period. I have real concerns that the applicant’s breach was for a significant period. I do not accept that this was solely or largely because he was misled or had bad advice from his agent, because I consider that the applicant’s intention was not to study at the higher degree level but at the vocational level. The applicant was made aware in the letter from Deakin that he may have been in breach and could have approached the Department to check but did not take such steps. I give this factor some weight.

29. I do not accept that the applicant tried hard at his Diploma of computing, but was unable to study despite his best efforts. The applicant claimed he sought a release letter after his first semester, but did not explore transferring to another higher education course with his then providers. He did not access any of the support services available, but claims he spoke to his teachers who just told him to try harder. He then, after failing his second semester, applied for and was given a release letter and then sough enrolment and studied at the vocational level and applied for a 572 visa. I have considered his explanations for this behaviour but I do not accept them.  I do not accept that the applicant’s agent misguided him. in his evidence at the hearing and in his submission to the Tribunal dated 30 June 2015 it is clear that he chose to seek enrolment to vocational level courses, and I give some weight to his statement of purpose applying for the 572 where he has stated that he wishes to pursue this stream. As I explained to him at hearing, given his behaviour, I had real doubts about his claims that he wishes to pursue higher education as claimed. I find that the applicant chose to cancel his enrolment at the higher education level and study at the vocational level and did not, and does not, have the intention to study at the higher education level on the evidence before me. I have considered the factors above and the claims of the applicant. on weighing the evidence before me and my findings above and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Sean Baker
    Member