1500983 (Migration)

[2015] AATA 3778

1500983 (Migration) [2015] AATA 3778 (24 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amar Pal

CASE NUMBER:  1500983

DIBP REFERENCE(S):  BCC2014/2818783

MEMBER:Sean Baker

DATE:24 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 24 November 2015 at 5:43pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 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 21 October 2015 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

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 5 July 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 9 September 2013 and he was from that date until he obtained a CoE dated 7 November 2014 for a Bachelor of Business at Stott College commencing 16 November 2015, not an eligible higher degree student and 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. At the hearing, after some discussion, the applicant conceded that this was the case.

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 9 September 2013 until 7 November 2014. The Tribunal finds that between these dates 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. I discussed with the applicant the purpose of his travel to and stay in Australia and his previous studies and work. He said that he had studied to the equivalent of year 12 in India and had then taken a job as a supervisor in a hotel, which was the motivation for him seeking to do his Diploma of Business and Bachelor of Business in international hospitality management in Australia. He said he had worked in the hotel in India for one year, and was made supervisor straight out of year 12. He said that he had come from a farming family – his father and brother were farmers and his sister is married. He said that he had been given advice to pursue education overseas, as there was not a good management college in Haryana. There were colleges in Chennai but overseas was better.

13. I discussed with the applicant the extent of his compliance with visa conditions. The applicant said that he had complied with all other conditions on his visa and had had satisfactory attendance and course progress. He said that he had not had any other visas cancelled or refused.

14. I discussed with the applicant the circumstances in which the ground of cancellation arose. I asked him to explain what had happened with his study of his Diploma of Business and Bachelor of Business. He said that he arrived in July 2013 and was studying his Diploma of Business (Enterprise) at Victoria University. After that he thought that he should get some experience of a kitchen in the business as it would help him, so he did cookery and commercial cookery.

15. I asked if he had intended to do his Bachelors. He said he had always intended to do his bachelors, but he thought that just before bachelors if he got some experience of the kitchen then he can do the bachelors. He thought about this just after he started the diploma. He said he realised after 15-20 days. I asked why he had not applied to do hospitality from India. He said that at that time he only thought about management, he did not think about the kitchen and all the men and women in the hotel. He said that if he became a supervisor of a kitchen he should have a knowledge of the test of food. He said that he could get knowledge of food as well. I asked if this was the only reason he had changed his courses and he said it was. I asked if there was any other reason and he said there was not. I then read to him from the statement he had supplied to the Department, in which he had said that he applied for release from Victoria University as he ‘was finding the coursework very extensive and was not able to cope with the academic framework.’ In response he said that he did not understand about these things. Later in the hearing he said that the agent did this letter to the department, not him. I noted I may not accept this as the letter was written in the first person and included information about his courses and intention.

16. I then turned to the letter from Victoria University that the applicant supplied the day before the hearing. I noted that in this letter the applicant was put on notice by the University that his change of course may have an impact on his visa, and if he was in an SVP stream this may also have an impact. I asked the applicant if he had contacted the Department after receiving this letter, as it appeared to strongly suggest he do, and he said he had not.

17. I then noted that this letter from Victoria University dated 9 September 2013 indicated that the university had no objections to releasing him to do a package of management courses including a Bachelor of Business (Management) course. I asked if he had undertaken these courses and he confirmed that he had not. He said that this was all organised through his agent and that after some days the applicant asked why he did not have a CoE for a Bachelor and they said that ‘after you attend your diploma we will get you a CoE for the Bachelor.’ I expressed concern that the applicant appeared to have sought release from Victoria University on the basis that he was studying and held CoEs for a package including a Bachelor at another institution and he then did not undertake this package but a different package of Hospitality courses not including a Bachelor. He said he did not get a CoE for a Bachelor as his agent told him not to. I noted that this led me to have concerns that it was not his intention, then or now, to study at the Bachelor level. In response the applicant said that as soon as he was aware that he needed a CoE for a Bachelor, after he got the NOICC, then he was aware of the condition and got the CoE for the Bachelor. I noted that I may take the view that he only got this CoE for a Bachelor of Business (International Hospitality Management) for the purposes of attempting to comply with the visa conditions rather than because he wanted to or had an intention to study at that level, as this CoE was only obtained on 7 November 2014, after the NOICC was sent to him.

18. In response the applicant said that bank loans in his country were provided on the basis that they are giving funds for a Bachelors, and that this established his intention and that of his sponsors. I asked if this did not indicate that there was then more reason for him to get and continue to hold a Bachelor CoE if it was tied to his funding. He said it had been his intention.  

19. I discussed with the applicant the degree of hardship that may be caused if the visa remains cancelled. He reiterated that his father and brother are farming, and if he returned he would have to do this as well. He said that there was a gap in his education of one year so it would be hard to get admission to another course there. I noted that he could return and be a supervisor at the hotel. He said that his wage there was not enough for India, as things there are very expensive. He said that he had no family or relationship in Australia. He said that there would be hardship to his family as all the things are in the bank, they had to give the bank loan. He said that if he returned he would not have any future, they will not give him admission in management in India at the moment.

20. I asked the applicant if there was any reason he could not return to India. He said that if he had a good Bachelor degree and after that he could get a very good job in India. If he returned now he had no future and did not have anything to show. It would be very hard to get admission in India as there was an almost 2 year gap in study. I pointed out that he had given me a certificate III which showed an issue date of October 2015. He said that he would not get admission at a good level. He confirmed that he had worked in Australia in hospitality, as an assistant chef in Thomastown. I noted that this was experience that he could take back to his supervisory or other job in India. He said that it was not too much experience as the hospitality industry level in India is very high. I noted that he had got a supervisor job straight out of year 12. He said that the hotel was very small and that was why he did not have enough salary. He said that 9,000 rupees salary was not enough for a single man.

21. I noted to the applicant that after discussing these issues with the applicant I held concerns that he was a genuine student, and a genuine student for study at the higher degree level, which I considered was a significant factor in weighing the discretion to cancel as we were discussing the reinstatement of a higher education subclass visa, for study at the higher education level. He said that if he stopped higher study then the bank can charge him. I asked him again why this had not pushed him to get and maintain a CoE for a bachelor, if this was the case. He said he had tried but his provider at the time, TIV, said they were not affiliated with a higher education provider, and he had also asked some other universities who said that they needed his results first.

22. The representative then made a submission. He noted that they accepted there was a ground for cancellation. He then went on to argue that the demeanour of the applicant, how he presents and answers questions indicates he has attempted to answer questions truthfully.

23. The representative then asked the Tribunal to accept certain propositions; That the applicant genuinely wished to obtain experience in a commercial cookery setting, as knowledge of a kitchen environment would enhance his career opportunities – quality control and enhancement of taste. He decides to do this 20 or so days after starting his original course. He goes to an agent, the student gets erroneous advice for ulterior reasons. The agent then, according to the applicant’s evidence knows that in order to get release from an SVP provider he must have letters of offer from an SVP provider, which is why letters of offer were presented to Victoria University. The agent handled everything, organised release application, told him to take to Victoria University, was confident that he would get release, told him you can get a diploma. The applicant said he spoke to his former agent and said where is the CoE from the Bachelors, and was told he won’t get from this institution, and won’t get from another institution. The representative was obliged to tell the applicant his visa was going to get cancelled. The agent did not tell him that. Going to his intentions, the representative said, if he was only studying commercial cookery, he would have applied for a 572, and he did not make another application for a 573 with a non-SVP provider. The representative said that if the applicant had known the consequences why would he have done what he did, unless the answer was that he didn’t know and relied on the advice of his agent. The representative said that on any objective analysis the only conclusion was that he did not do it consciously on advice of agent. The representative said that the applicant’s written response to the NOICC had been signed by the applicant without the applicant having read it, it was prepared by his agent and the applicant said he should have read it but did not. He said it was nonsense to suggest he was finding his course difficult. The representative said that the choice of words was not entirely his, it was drafted with a view not to cancel his visa. The representative said that the motivations of the agent were different to those of the applicant. The agent was always going to get a commission without due regard to the consequences for the applicant. For the agent, obtaining a CoE for him in a Bachelor course was not a relevant consideration as was not interested as no commission from universities.

24. The representative argued that if he is not a genuine student then he will be back in India behind a plough and he has nowhere to go other than to complete the course he is now enrolled in. When I questioned whether the applicant was currently enrolled the representative said that they could provide a valid Bachelor CoE immediately. I noted this may be difficult as the applicant’s visa was cancelled. He asked for time to provide a letter of offer.

25. After the hearing the representative provided a letter from Stott’s College confirming that the applicant was actually enrolled as a student in a Bachelor of Business, and a CoE issued 21 October 2015 for a Bachelor of Business course, and noted that the applicant had already paid $7, 000 towards the $45,000 cost of his course.

26. I have had regard to the applicant’s evidence, his statement to the Department, his statement in the submission prior to the hearing, the submissions made pre and post hearing and the submissions of the representative. I continue to hold concerns that the evidence indicates the applicant does not genuinely intend to study at the higher degree level. I have had regard to his claims that he left Victoria University because after 15-20 days he decided that he needed to have experience in cookery so that he could supervise this area of hospitality businesses. He also states in his most recent statement that he had a background in hospitality and this is why he wanted to study hospitality and changed education providers. I do not find these explanations convincing at all. The applicant has advanced no credible reason why it took him until arrival in Australia to decide that he needed to change his study path to hospitality, saying only that in India all he thought about was management. He has not explained why he then took the significant step of changing course and provider, for such a poorly explained reason so soon after arriving in Australia. Even if I accept his claim that his statement to the Department was authorised by his then agent and he had no responsibility for this despite signing it, which I do not, I find that the applicant has not given a plausible or credible explanation for his change of study so soon after his arrival in Australia. I have further concerns, expressed to the applicant, with the fact that he presented a completely different package of courses, including a Bachelor, to get release from Victoria University, but then proceeded to do a separate package of unrelated courses, without a Bachelor. Further, he has not adequately explained why he did not act on the strongly worded advice of the letter from Victoria University to confirm with the Department that his change of study had not affected his visa. I do not accept that the applicant can shift all blame for these actions to his former agent. I do not accept the current representative’s thesis that this whole process was engineered by that former agent to get commissions – there is no documentary evidence to support this thesis. I do not accept that the then agent would have engineered such a process if it was against the applicant’s wishes, his financial arrangements with his bank and his intention as he and his representative have claimed. The findings and difficulties I have with the central proposition of the applicant and his representative’s argument – that the applicant decided to obtain experience in a commercial cookery setting only 15-20 days after arriving in Australia to study a different package course, means that I do not accept the reasoning that flows from this. I do not accept that the applicant has been the victim of circumstance and an agent who has acted against the applicant’s wishes and intentions. I do not accept that the applicant was unaware of his obligations to maintain enrolment in a higher degree course until issued with the NOICC. I do not consider it necessary to speculate about the reasons the applicant may have chosen to behave in the way he has acted, but I find on the evidence before me and the findings above that his behaviour indicates that he did not have and continues not to have a genuine intention to study at the higher education level. In making this finding I am aware that he holds a current CoE for a Bachelor course, has paid a proportion of the fees. However, he first sought this CoE after being notified of the NOICC, which I find indicates the applicant attempting to comply with conditions on his visa, rather than a genuine intention to study at the higher education level. similarly, his most recent CoE I find is an attempt by the applicant to comply with the visa conditions in order to have his visa reinstated, and does not, I find, indicate his genuine intention to study this course. On the basis of the above I also find that the breach in this case did not arise in circumstances beyond the applicant’s control.

1. 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.

2. I have had regard to his evidence that he has completed two certificate IIIs, and that he is working in this field at the moment. 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 have had regard to his claims that 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. Given my above findings I am not prepared to accept that he travelled here with the intention to study at the higher degree level. I give this little weight. 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