1500876 (Migration)

1500876 (Migration) [2015] AATA 3119 (24 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Dipanshu
CASE NUMBER:  1500876
DIBP REFERENCE(S):  BCC2014/2807062
MEMBER:David Corrigan
DATE:24 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 24 July 2015 at 4:16pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The delegate cancelled the visa under s.116(1)(b) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 24 July 2015 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
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
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?
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.
It was a criterion for grant of the applicant’s Subclass 573 visa that if cl.573.223(1A) does not apply that the applicant is enrolled in, or the subject of a current offer of enrolment in a principal course of a kind specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application: cl.573.231.
Clause 573.223(1)(A) relevantly provides:
(1A) If the applicant is an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:
(a) the applicant gives the Minister evidence that the applicant has:
(i) a level of English language proficiency that satisfies the applicant’s eligible education provider; and
(ii) educational qualifications required by the eligible education provider; and
(b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:
(i) the costs and expenses required to support the applicant during the proposed stay in Australia; and
(ii) the costs and expenses required to support each member (if any) of the applicant’s family unit.
Eligible higher degree student is defined as clause 573.311 as follows:
eligible higher degree student means an applicant for a Subclass 573 visa in relation to whom the following apply:
(a) the applicant is enrolled in a principal course of study for the award of:
(i) a bachelor’s degree; or
(ii) a masters degree by coursework;
(b) the principal course of study is provided by an eligible education provider;
(c) if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study:
(i) the applicant is also enrolled in that course; and
(ii) that course is provided by the eligible education provider or an educational business partner of the eligible education provider.
The applicant was granted a Subclass 573 Higher Education Sector visa in April 2013 to undertake a package of courses of a Diploma of Information Technology (IT) at Australian Technical and Management College and a Bachelor of IT at Federation University. His visa was granted on the basis that his intention was to study a higher education provider; that is an education provider that is eligible under the streamlined visa processing arrangements. The applicant gave evidence to the Tribunal that he withdrew from these courses between 4-5 months later and that he enrolled in Certificates III and IV and a Diploma in Commercial Cookery and Hospitality in a Vocational Education and Training Provider, Australian Careers Education (ACE).
In a statutory declaration and evidence to the Tribunal the applicant claimed that he studied the Diploma of IT and that he was going well and performing satisfactorily. He said that 4-5 months after commencing the IT course he went with a friend to the agent Career Education Consultancy Australia (CECA). He claimed that one of their consultants advised him that the course he was doing was of no use and would not lead to permanent residency. He claimed he was given a form for enrolment in hospitality and was told that the change of course would not affect his student visa. He claimed that he was told that this was the last place available with the college and if he delayed he would not get admission. He signed the paperwork and they organised his admission to the ACE and his enrolment in the Diploma of IT and Bachelor of IT was cancelled.
The applicant stated at the hearing that he next was enrolled in a higher education course when another agent from CIES Consultants enrolled him in a Bachelor of Business after he had received the Notice of Intention to Consider Cancellation (NOICC). Information contained in the delegate’s decision (a copy of which was submitted to the Tribunal) was that the NOICC was sent to the applicant 31 October 2014 and the applicant was granted enrolment in a Bachelor of Business on 11 November 2014.
According to evidence in the delegate’s decision the applicant was granted the Subclass 573 visa on the basis of him having met the requirements of subclauses 573.223(1A) or 573.231 with condition 8516 attached. The visa was granted on the basis that his intention was to study at a higher education level course at an education provider that is eligible under the streamlined student visa processing (SVP) arrangements and the applicant was required to provide less evidentiary requirements. On the applicant’s evidence his enrolment in the Bachelor of IT ceased in August/September 2013.
On 31 October 2014, the Department sent the applicant a NOICC as he had not complied with condition 8516 as he was no longer enrolled in a bachelor’s degree or master’s degree course or was the subject of a current offer. Provider Registration and International Student Management System (PRISMS) records referred to in the delegate’s decision indicate that the applicant was no longer enrolled in a bachelor’s degree or master’s degree and he was not enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under r.1.40A.
The evidence before the Tribunal shows that in August/September 2013 the applicant ceased to be enrolled in a bachelor’s degree or master’s degree by coursework or a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A and that he only became the subject of a current offer of enrolment in a Bachelor’s course after the NOICC was issued when he enrolled in a Bachelor of Business on 11 November 2014. The requirement in condition 8516 is for a visa holder to continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. Given the applicant was not enrolled in enrolled in a bachelor’s degree or master’s degree by coursework or a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A and was not the subject of a current enrolment in such a course, he ceased to be an eligible higher degree student and he did not continue to satisfy subclauses 573.231 or 573.223(1A) and he thus failed to comply with condition 8516.
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
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
The Tribunal is satisfied that the applicant travelled to Australia with the intention to study and that this is not a reason to cancel the visa.
If the cancellation is being considered for breach of a visa condition - the reason for, and extent of, the breach. The guidelines state that as a rule, a visa should not be cancelled where the breach of visa condition occurred in circumstances beyond the visa holder’s control
The Tribunal considers that in these circumstances that his lack of enrolment in a bachelor’s degree course or a masters degree by coursework course and his lack of enrolment or lack of having a current offer of enrolment in a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A was something that was within his control.
The applicant has claimed that he was misadvised by CECA as to the consequences of his change of courses however the Tribunal does not consider that he is a credible witness in relation to these matters. The applicant has made serious claims of being misadvised by CECA but his claims are completely inconsistent with the response he gave to the NOICC (in his name) where he made no mention of such bad advice. Rather the response stated that he found it difficult to understand the IT concept and that he failed in the first semester of study and that he did not want to study something in which he did not have any interest. He stated that he had a part time job in a restaurant as an assistant kitchen hand which inspired him to go for hospitality. He stated that he loved cooking and he then decided to change his institute and study cookery. This written response was inconsistent with his oral evidence that he was not working at a restaurant and changed courses only at the prompting of CECA regarding his ability to obtain permanent residence.
When the Tribunal put the concerns regarding the response to the NOICC, he claimed that he had went to another agent at CIES Consultants and that he gave their agent his email address and password and that this agent provided the false response using his email. Again, the applicant has made very serious accusations against a migration agent. However, there is no supporting evidence before the Tribunal that any these matters regarding these agents have transpired and the Tribunal is not satisfied that they did. The Tribunal does not accept that the applicant having allegedly been subject to such bad advice from a migration agent would not have taken steps to ensure that the contents of the response prepared by his next migration agent were accurate. Nor does it accept that the applicant would have given access to his email address and password to another person to provide a response on his behalf rather than ensuring that his agent responded directly on his behalf. When questioned, the applicant was unable to give any reason as to why the agent would have requested his email address and password and used the applicant’s email address to send an untrue response in the applicant’s name.
Importantly, the decision of the delegate was made in January 2015 and it is now July 2015. The applicant told the Tribunal that he had not made any complaint against these migration agents and their conduct to the Office of the Migration Agents Registration Authority but that he intended to but had wanted to come to the Tribunal first. The Tribunal particularly in the light of the long period of time between the negative departmental decision and the hearing does not accept that the applicant would have failed to make such complaints if the agents had acted the way he claims. His lack of complaint to this body is a further reason that undermines his credibility.
It considers that the applicant has responsibility to be aware of the condition and the Tribunal is not satisfied that he was misadvised by his agent in relation to this and his obligations. In making this and other findings, the Tribunal has taken into account the applicant’s age (born 17 October 1994 according to his review application) and that he was relatively new to Australia but it notes that he has been an adult during the period he has been in Australia and it accords these factors little weight in considering whether to cancel his visa.
On the evidence before it, the Tribunal is not satisfied that the applicant was misled and it does not consider his claims in this regard were the reason or a reason for his breach or that they led to the breach occurring in circumstances beyond his control.
The applicant was in breach of condition 8516 for a very substantial period of time. The applicant only sought to be enrolled in a bachelor’s course after receiving the NOICC. The Tribunal has taken into account that he did, but it notes that he only did so after receiving the NOICC. It has also taken into account that the applicant has received an offer from Asia Pacific International College for a Bachelor of Business Information Systems but it notes that this offer was made on 17 July 2015 which is well after he received the NOICC.
In his statutory declaration, the applicant claimed the cancellation of his visa affected his health and at the hearing he said that he had been in depression for 2-3 months and had gained weight and sat at home. He said he had talked to his parents but they did not want him to see a doctor and they said he should pray and do medication. The Tribunal has considered whether this could have affected the breach and whether it would constitute extenuating and compassionate circumstances. On his evidence, the applicant did not seek any medical help or counselling for this claimed depression and the Tribunal is not satisfied on the very limited evidence before it that he has suffered this or currently suffers it. It does not consider the applicant to be a credible witness and it has not given this claimed factor any weight in considering whether to cancel his visa.
The degree of hardship that may be caused to the visa holder and any family members
At the hearing the applicant claimed that he would be a “black sheep” if he returned and that people would hate him and he would not be able to get married. He claimed that people would not want their children to talk to him because he had wasted his parent’s money. The Tribunal considers the applicant’s claims in this regard to be highly speculative and lacking in evidential support. It considers it far-fetched that returning to India would cause him a significant degree of hardship on these bases. There is no evidence before the Tribunal to indicate that any family members will suffer any hardship due to the cancellation of the visa. It accepts that the cancellation of his visa may lead him to having to return to India, however it does not consider that this will cause him a substantial degree of hardship that would outweigh the grounds for cancelling the visa.
The circumstances in which the ground for cancellation arose (for example, whether extenuating or compassionate circumstances outweigh the grounds for cancelling the visa)
Considering all the circumstances of the case including the discussion set out above in paragraphs 19-26, the Tribunal finds that there are not extenuating or compassionate circumstances that would outweigh the grounds for cancelling the visa.
The visa holder’s past and present behaviour towards the Department (for example, whether a person has been truthful in statements or applications made to the Department or have previously complied with visa conditions)
The Tribunal has no evidence before it that the applicant’s past and present behaviour towards the Department has been untruthful or he has not complied with previous visa conditions. It considers this is a consideration that is in his favour and it has taken this into account.
Whether there are persons in Australia whose visas would, or may, be cancelled under s.140
This is not relevant.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, such as children in Australia whose interests could be affected by the cancellation or removal would result in a breach of Australia’s non-refoulement obligations
The applicant did not raise any matters that indicated that this was an issue and the Tribunal finds there would not be any breach of any obligations under relevant international agreements.
The impact of cancellation on any victim of family violence, or if family violence is a factor
The applicant did not raise any matters that indicated that this was an issue and the Tribunal finds this factor is not relevant.
Any other matters raised by the visa holder
The applicant did not raise any other matters.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
David Corrigan
Member

[2015] AATA 3119

24 July 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Breach

Intention