1500955 (Migration)

[2015] AATA 3661

1500955 (Migration) [2015] AATA 3661 (17 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ravin Mayurkumar Parekh

CASE NUMBER:  1500955

DIBP REFERENCE(S):  BCC2014/2806049

MEMBER:Sean Baker

DATE:17 November 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 17 November 2015 at 3:17pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 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 delegate found the applicant had breached condition 8516 which was attached to the applicant’s 573 Higher education sector visa, and found that the factors against cancellation did not outweigh those in favour of cancellation and cancelled the visa. 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 provided a copy of the delegate’s decision with his application for review. The applicant provided a copy of the delegate’s decision with his application for review.

3. The applicant appeared before the Tribunal on 5 October 2015 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent, who did not attend the hearing.

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

7. The Departmental decision identified that the Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 31 October 2014. The Departmental decision sets out that on 18 February 2013 the applicant satisfied the primary criteria for the grant of the 573 visa and met cl.573.231 or cl.573.223(1A) to be granted the visa. These clauses require the applicant to be enrolled in a bachelor or master degree course, or 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.

8. According to the delegate’s decision, the departmental systems indicated that the applicant’s enrolment in a Higher Education Sector course was cancelled on 12 September 2013 and he was from that date no longer an eligible higher degree student and was no longer 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. At the hearing, the applicant was asked to confirm this and he agreed that there had been a breach.

9. On the basis of the evidence before it the Tribunal finds that the applicant was no longer enrolled in a bachelor or master degree course, and therefore no longer an eligible higher degree student, nor was he 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 from 12 September 2013. The Tribunal finds that from this date the applicant therefore did not continue to satisfy cl.573.231 or cl.573.223(1A), and therefore did not continue to be a person who would satisfy the criteria for the grant of the visa. The Tribunal finds that the applicant therefore breached condition 8516.

10. 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

11. 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’.

12. The applicant responded to the delegate’s NOICC. In his response he stated that:

    Thank you for me giving the opportunity to comment and submit reasons as to why my visa should not be cancelled as per the notice given.

    I arrived in Australia in March 2013 to study a Bachelor's Degree in IT at the Latrobe University, I did not find this course to my liking as the contents of the modules were hard for me to understand as they were far in advance to the diploma course of IT I did in India. After the first semester I sat for the first semester examination. I did not get good results and in fact I had failed in all modules.

    In the meanwhile I started to work in a restaurant — Transport Hotel at Federation Square Melbourne as a part time kitchen helper to support myself. The exposure I received at the Transport Hotel gave me the idea of pursuing a career in hospitality as I really liked working in the kitchen dealing with western cuisine. I spoke to my parents in India and got their blessings to change my course to a course of my liking which is hospitality. Before changing the course I also spoke to few course advisors, people in the hospitality industry as well as people in the IT industry to weigh the pros and cons of the two industries. Finally having decided that pursuing a career of hospitality would be the better choice for my future success, I enrolled into the course of certificate III in Hospitality at Australian College of Trade in October 2013,

    I have already successfully completed the Certificate III in Hospitality and currently I am doing the Certificate IV in Hospitality since 15 Oct 2014. I have already received a COE to do the Diploma of Hospitality from 13.04.2015 to 11,10.2015 at the same institute of Australian College of Trade. I have also received a COE from Stott's College to do a Bachelor of Business from 16.11.2015 to 30.06.2017. (Please see attached herewith)

    My objective is to learn all areas of Hospitality and to obtain a degree in Business to enter into the Indian job market with better qualifications. India has a booming economy and there is a big potential in the industry of tourism. There are already good number of multinational 5 star hotels in India and many more to come. They are looking for internationally qualified professionals and with my bachelor degree qualification in Business coupled with Hospitality I am sure I would be able to secure a good position when I return to India after the completion of my Bachelor Degree.

    Attachments:

    COE Bachelor of Business — Scott's College

    Letter of Experience — Transport Hotel

13. At hearing I asked the applicant what studies he had completed in India. He said that he had completed a Diploma of IT at college AACIC in Baroda. I asked if he had obtained any course credits for this study at La Trobe. He said he did not want to apply for credits as the subjects are a bit different, so he didn’t apply for any exemptions.

14. He said that he had started his studies in his Bachelor of IT at La Trobe in March 2013. I asked how those had gone and he said that he did not pass a single module. He said that he had his transcript for the single semester, but not at the hearing. I asked if the transcript showed attendance and marks and he said just marks but his attendance was not below the average. I asked him about his study and he said he was ok in the practicals, but in the theory he was not that good. I asked if he had accessed any of the assistance offered by La Trobe. He said he did not join any study groups but he had met 3-4 Indian guys and used to go to their place to get some help from them. They were doing masters.

15. I asked if he was working at this stage. He said he did not work for the first three to four months, but after that he had worked for 15 hours a week.

16. I asked him what he had done after failing his first semester at La Trobe. He said that in the last 3 months of his studies at La Trobe he had started working in his first job in Australia, in hospitality. He had spoken to his parents and they had asked him to try again, but the way he had gone through the whole semester, he did not think he could do it again. He then spoke to a few people from hospitality, as he was thinking to change his course to hospitality, and then he did change it at the end of September. I asked why he had not attempted another semester of his Bachelor. He said that it was all going over his head. I asked if he had considered transferring to a different course at La Trobe and he said he had not. I asked if he had spoken to anyone at La Trobe about the consequences of changing provider. He said he had gone to the reception part of the international student office, and they had told him that to change courses he needed a release letter from La Trobe and to get that he needed a CoE from another college or university. He gave this to them and they gave him a release letter. I noted that this was the process when he had made up his mind to change providers and course, but I wanted to know whether he had spoken to anyone or got advice from anyone at La Trobe before that. He said that before he left La Trobe they sent him a notice that he was not doing that well and asked him to speak to a few staff. He said he had spoken to them and they told him what he should do, and he did try for one and a half months. He said that that was after the mid-term exams. I asked him what mid-term exams he meant and he said that the final exam was the end of August and the tests were around 2-3 months after he started the course.

17. I noted that he had made the decision to change course. I asked if he had spoken to the Department of Immigration about this. He said he had not. I noted that he was on a higher education visa, and yet wanted to study vocational courses, which it might appear would require a different subclass of visa. He said that he went to an immigration agent and they told him that they would get him the CoE that he wanted to do in hospitality. He said he was pretty new, and until his visa got cancelled he didn’t know that he needed to change visas, his agent did not tell him anything, that he should change his visa or get his bachelor CoE, so he did not know anything about it at that time. I asked who this agent was and he said Yogi Education Group, and the agent was Ronak, he didn’t remember his surname.

18. He said he had got his release letter on the basis of his CoEs in certificates III, IV in commercial cookery and a Diploma of hospitality. I asked if he had the release letter and he said he did not. He said that the letter said they would report him to Immigration and tell them that he was not enrolled with them anymore. I asked if he had contacted the Department then, and he said he had not, as at that time he was with this agent, and his agent said it was fine and he had a CoE and he could just start his studies. He said he did not take it seriously.

19. I noted that his enrolment had been in vocational level courses. He agreed and said when he got the NOICC, then he went to see another agent and he asked the applicant to get a higher education CoE just in case his visa was not cancelled. He said that in a way he was supposed to do that course anyway.

20. I asked why he chose hospitality. He said it was because he had been working here at Transport bar as a cook, and being a qualified chef it is good, but if you have management as well, that is good, that’s what he wants to do. I asked if he intended to study at the higher education level. He said that his first preference is to do his studies, he wants to do that, this is the time he can do it, he wants to finish it right now. I asked again if he intends to study at the higher education level. He said that what he has seen is that being a qualified chef, is not enough, if you want to do something a bit bigger, you need a management degree to help a lot.

21. I noted that when he had left La Trobe he had not enrolled in a bachelor or masters degree at that time. He said that this was because his certificates and diploma were for 2 years. If he had enrolled in a degree he would have to pay the whole amount of fees for the first semester, and at that time he did not want to invest all his money. I noted that he had come to Australia on the basis that he had demonstrated he had finances for his higher education studies, so I was not sure I accepted this explanation. He said that he did not know that he had to get a CoE for a Bachelor to comply with his conditions. I noted that this may not be that relevant, because we were talking about his intention now and over time. I noted that he only obtained the CoE for a Bachelor of Business from Stott’s college after he received the NOICC, and this caused me to have concerns that he had only got the CoE in an attempt to comply with conditions, rather than this being his intention to study at the higher education level. He said he had got it after the NOICC but it was an expression of his intention. I noted that he had had to pay $7,000 to enrol in the Bachelor of Business, which seemed to go against his earlier explanation that he did not want to invest all his money for something a few years in the future. He said that he paid $7, 000 as he knew then that it was necessary.

    the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

22. The applicant said that his intention when he had come to Australia was to complete his IT degree and get a good job there or here.

    the extent of compliance with visa conditions

23. I asked the applicant if he had complied with all other conditions and he said he had. I asked if he was still working at the Transport hotel and he said he was. I asked if he had work rights on his BVE and he said he did, right now he did.

    degree of hardship that may be caused (financial, psychological, emotional or other hardship)

24. The applicant said that his parents would be affected, as they were saving for his studies. He said that if he went back now it would affect him as he had found something he is interested in, if he had to go back, he didn’t know what he would do, he would be broken mentally. He said that his father has spent half of his savings just to pay his fees.

    circumstances in which ground of cancellation arose. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

25. The circumstances have been discussed above.

    past and present conduct of the visa holder towards the department

26. There is no evidence to indicate that the applicant has been non-compliant.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention. whether any international obligations would be breached as a result of the cancellation

27. I asked what he would do it the visa remained cancelled. He said that he would do what he had to do, he would try to do the next step. I asked if there was any reason he could not return to India and he said there was no reason he could not, but he didn’t want to and his parents didn’t want him to. He said he is about to turn 25 and he didn’t really want to return.

    any other relevant matters.

28. The applicant said that he was a genuine student because after his visa was cancelled, he got study rights on his BVE and had completed his Certificate IV, and after that he got work rights. I noted that I would take this into account but these were studies at the vocational level and may not convince me that he would study at the higher education level. He said that as he had already told me he did not really want to block his money for a CoE for two years, that is why he did not have a CoE at that time. he said he still wanted to do study. I asked why he had chosen to transfer from IT, which he had pursued in India and Australia for a number of years, to hospitality. He said that his parents always wanted him to do a white collar job, but he wanted to do hospitality. He said he enjoyed his work as a cook. I asked if his aim was to work in a management position. He said yes but he wanted to work in the kitchen and then as a manager. I asked what part the Bachelor of business played in this plan and he said it would give him exposure to management. I asked if it was a Bachelor of Business in Management and he said it was not but he had not studied anything related to business and he wanted to study that here as he is working here.

29. I noted that he had studied only at the vocational level for a significant period of time, almost a year, without being enrolled or indicating any intention to study at the higher education level. He said that no one had told him.

30. The applicant said that he could provide a group certificate showing how many hours he worked, and the transcript from La Trobe. I gave the applicant further time after the hearing to provide these. The applicant provided a transcript from La Trobe.

31. I have had regard to the applicant’s evidence, his statement to the Department and the transcript from La Trobe University. I am concerned that the evidence indicates that the applicant does not genuinely intend to study at the higher degree level. I have had regard to his claims that he left La Trobe after one semester because he had not done well. the applicant did not indicate that he had taken many steps, other than, he said, studying with a group of people, to improve, nor did he attempt a second semester with more support, the more curious because his past qualification was in IT. I have concerns that the applicant has represented his studies at La Trobe accurately, that is, that he tried but was unable to pass his subjects. I note his transcript, provided after the hearing, has very low marks of unmarked, 0, 5, 11 and 20 % for his subjects. The applicant does not appear to have significantly engaged with support services at the University. The applicant then claims that he was not told by his then agent who did not explain the difference between the 572 and 573 visa streams or tell him that he need a Bachelor CoE. On further questioning he said that he had not gotten a CoE for a Bachelor as he did not want to block his money for a course he would do in two years. I have significant concerns with the applicant’s evidence in relation to the process he has gone through in being enrolled for a semester at La Trobe and then enrolling in vocational classes only. I find that these actions of the applicant indicate to me that he may not have a genuine intention to study at the higher degree level.

32. The applicant continued to study at the vocational level for some time. He only sought a CoE for a Bachelor or Masters course after he received the NOICC setting out his breach of conditions. He claims this is because this was the first time he became aware of the distinction between vocational and higher education, and that his visa required him to be enrolled at the higher degree level, and reiterates that he did not wish to block his money in a course he was not going to do for two years. I do not find these explanations convincing at all. The applicant was granted a higher education visa and it is his responsibility to be aware of the conditions on that visa. I do not accept that, having come to Australia on the basis of doing a higher education course, with the attendant higher costs, that his claim that he did not wish to block his money in this course is plausible. On the basis of the above concerns and findings I find that the applicant does not intend to study at the higher education level. Given this finding I do not accept on the evidence before me that, if the visa were reinstated, that the applicant would study at the higher degree level, and I give this significant weight in considering whether the visa should be cancelled.

1. I have had regard to his evidence that he was enrolled in hospitality courses, that this is the work he wishes to do and that he is working in this field at the moment, that he wishes to progress from working in the kitchen to management and that a Bachelor of Business will assist this, that he sought study rights on his bridging visa to study these courses, that he has completed his certificates III and IV. I have had regard to his claim that his then agent did not tell him he needed a Bachelor CoE. I give these factors little weight given the above findings and discussion, in considering whether the applicant’s higher education subclass visa should be reinstated. I accept that he has completed studies, but these are at the vocational level and do not indicate that he will or has any intention of studying at the higher education level. I do not accept on his evidence his claim that a Bachelor of Business is necessary for his somewhat vague plans of his future career directions. I give these factors little weight.

2. The applicant claimed there would be some hardship to him and his family if the visa remained cancelled, and I accept this. However, I give this little weight against the concerns raised above. I have considered the applicant’s claimed purpose for travel and stay in Australia. I am prepared to accept that he travelled here with the intention to study at the higher degree level, but as above, I do not accept that he has that intention now. I have considered the circumstances in which the ground for cancellation arose, his past and present conduct towards the Department, and whether any international agreement would be breached as a result of the cancellation. I have had regard to the evidence addressing these factors, but I give them little weight when considered against my findings above.

3. I have weighed the evidence of the applicant, the submissions, the supporting documents and the factors set out in PAMS. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   Sean Baker
   Member