1501124 (Migration)

[2015] AATA 3634

1501124 (Migration) [2015] AATA 3634 (13 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sohan Lal

CASE NUMBER:  1501124

DIBP REFERENCE(S):  BCC2014/2893240

MEMBER:Stuart Webb

DATE:13 November 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 13 November 2015 at 10:01am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 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 no longer met subclauses 573.231 or 573.223(1A) and had not complied with Condition 8516. The delegate noted that the applicant had been enrolled in a higher degree course to be provided with the 573 visa, but left his course provider and enrolled in vocational courses in hospitality. 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 5 November 2015 to give evidence and present arguments. The applicant was assisted in the hearing with a Hindi interpreter. The applicant was represented in relation to the review by his registered migration agent. The applicant provided the Tribunal with the delegate’s decision.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   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?

   s.116(1)(b) - non-compliance with conditions

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 is 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.

7. The applicant arrived in Australia in January 2014. The applicant had been initially enrolled in a Certificate IV in Business, then a Diploma of Management leading to a Bachelor of Business course. Within 2 months of his arrival in Australia the applicant withdrew from these courses and enrolled in a Certificate III course in Commercial Cookery, a Cert IV in Commercial Cookery and a Diploma of Hospitality. On 19 March 2014 the applicant’s enrolment in the Higher degree course was cancelled due to his non-commencement of studies.

8. On 7 November 2014 the Department sent a Notice of Intention to Consider Cancellation (NOICC) to the applicant. On 11 November 2014 the applicant created a CoE in a Bachelor of Business course at Stott’s Colleges.

9. The applicant confirmed that he had not been enrolled in a higher degree course for a period of time. The Tribunal stated that it appeared that the ground for the cancellation was made out. The applicant was not enrolled in nor had a CoE in a higher degree course for around 8 months. This is in breach of condition 8516 that he continues to satisfy the primary criteria for the grant of a visa. 573.231 requires that an applicant be in enrolled in, or is the subject of a current offer of enrolment in a principal course specified for 573 courses. The applicant did not meet this criterion for these 8 months.

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 wrote to the Department in response to the NOICC with information that he was a full time student at the Australian College of Reade (ACOT) from 7 April 2014 onwards. He had found studying on the Gold Coast isolating and the extensive theoretical studies difficult. He has previously studied Hotel Management and wanted to establish his own business. he was more comfortable with certificate courses, but always intended to return to the higher degree studies. He did not intend to breach his visa conditions. He assumed the changes were not an issue due to recent advice that the DIBP had sent out in January 2014.

13. The Delegate noted that the applicant had only enrolled in the higher degree course after the NOICC was issues. The delegate also notes that the Department campaign of January 2014 was regarding SVP education providers, but noted that the applicant cancelled his enrolment in March 2014, well after this campaign.

14. The applicant’s agent provided a submission and materials to the Tribunal.  The submission stated that the applicant changed his enrolment due to ‘the extensive commute from his education provider Gold Coast Institute to his home in Brisbane, a trip that took over three hours and the Review Applicant found extremely taxing’. He enrolled in the course in Melbourne on 26 March 2014. It was submitted that units completed in his Business courses were repeating units of previously studied in his Higher Diploma in Hotel Management. ‘He decided it would be more beneficial at this time to undertake some foundational studies in hospitality rather than repeating the foundational level studies in business that he had already covered’. The submission stated that the applicant had discussed his enrolment status with an agent (CECA). It was submitted he was told ‘if he was ever contacted by DIBP then he may need to obtain an enrolment in a Bachelor level course at that point but for now his enrolment status was fine and he did not need to change subclass unless he wished to do so.’ He relied on the advice of his agent to remain appropriately enrolled in a course to meet his visa requirements. It was submitted that the enrolment in Stott’s Colleges still did not enrol the applicant in an SVP provider. The submission states that the submission written to the Department purportedly by the applicant ‘contains reference to a DIBP press release that we have noted CECA reference in many responses to DIBP enquiries’ but ‘otherwise reflects accurately the Review Applicant’s position.’

15. It was submitted ‘that delegate notes that the Review Applicant’s enrolment in the Bachelor of Business was obtained after he received the NOICC and accordingly finds that the Review Applicant simply enrolled to attempt to maintain eligibility for the visa rather than demonstrating any genuine intention to study in the higher degree sector. We note that the Review Applicant arrived in Australia with an enrolment in a similar course at the higher education level and this indicates an ongoing intention to enrol in a higher degree course, even if he did not hold such an enrolment for the whole period. Furthermore we note that while it is a requirement that an applicant maintains enrolment in a higher education course, there is no requirement he continually intend to maintain such enrolment, however an intention may mitigate a failure to do so’.

16. It was submitted and conceded that:

    In the decision record the delegate stated that the Review Applicant was granted the Subclass 573 visa on the basis of satisfying either subclause 573.231 or subclause 573.223(1A). Subclause 573.223(1A) applies to a Student who is, or was at the time of application, an “eligible higher degree student”. The definition of ‘eligible higher degree student’ is outlined in subclause 573.111. We note that the Review Applicant was issued a CoE for a Higher Education Sector courses in the past (the Bachelor of Business) and therefore satisfied subclause 573.231 at times over the period of holding his visa, however we acknowledge that at a number of points while holding the visa, the Review Applicant did not satisfy either of the abovementioned provisions.[1]

    [1] Applicant’s Submission 1 November 2015, para 24,

17. With respect to the discretionary aspect of the consideration of cancelling the visa, it was submitted that the reasons against cancellation outweigh the reasons for cancellation. It was submitted that the applicant obtained the CoE in the degree course after the NOICC had been issued ‘on the instructions of his representative and registered migration agents CECA, accordingly he believed this course of action must be appropriate. Further, we note that the Review Applicant has always intended to pursue further studies in a higher degree course while in Australia as this is the very purpose of his visit’. It is not uncommon for students to change study pathways, the applicant had always intended pursuing a hospitality and business direction.

18. It was submitted:

    The Review Applicant’s continued study and now determined career plans evidence that he is a genuine student and the intention of his travel to Australia was and remains to be to pursue his further education. This is evident in that he continued studying up until his visa was cancelled and complied with all other conditions of his Student Visa as far as he was aware.

19. With respect to hardship, the applicant would have a pecuniary loss should he return without any qualification. He will have wasted time in Australia for no qualification. His options would be limited and it will be difficult for him to start a career. His parents will be angry and disappointed in him. His parents are unaware of his present visa situation. Their constant pressure has caused the Review Applicant to persist with study in Australia, when perhaps he would have considered returning home. He would be precluded from returning to Australia to study further for 3 years.

20. It was submitted that extenuating circumstances exist. He has had poor advice from migration agents, he acknowledges that he should have been more involved in his visa situation but relied on his agent. It was submitted that the agents target vulnerable students. The applicant has lodged an official complaint to the Office of Migration Agents Registration Authority against his Migration / Education Agents given that their advice was incorrect. It was submitted that the applicant ‘is the victim of continually reckless and poor advice over an extensive timeframe and we submit this sets him apart from the usual caseload. This was not but one instance of poor advice; rather this was multiple occasions of poor advice and poor representation that objectively could not have been foreseen.’

21. It was submitted that the applicant was always truthful and cooperative in his activities. He has only changed course once. He has been a fulltime student, he always intended on studying the higher degree course.

22. After the hearing the applicant provided a further statement, addressing some issues that arose at the hearing. This stated:

    The following is the explanation for my reasoning of doing bachelors of business.

    I want to do bachelors of business because it will help in the further progression of my career as I mentioned in the hearing. The course offers a very attractive field of education as it will allow me to further again understanding of the Australian and global business environments. The course allows further development of practical skills and attributes that are highly valued by employers in a range of discipline including finance, accounting and economics. My lifelong ambition is to succeed as an individual and I truly believe that this course offers the essential tools to fulfil my dreams. I am aware of the subjects that are taught in the course bachelor of business. Units such as commercial law, accounting and economics will provide fundamental yet in-depth knowledge of how the Australian business sector operates and how I will be able to make further contribution. I want to gain, further knowledge of the global and domestic economies and how demand and supply play a vital role in determining the global market for trade,

    However, I have been struggling with balance in life and have been going through a lot of stress due to financial problems. I haven't been in touch with the course for almost 2 years which I intended to do. This made it extremely difficult for me to recall the subjects in the hearing because I was under a lot of pressure. As of now I have already wasted 2 years of my life and still I'm waiting for the result on my visa. I have not told my parents about this and now if my visa is refused and I have to go back. My parents have supported me with all their life savings and they would be devastated if I were to go back.

    I know in the hearing I wasn't really able to express myself because I have been through a lot of stress and depression during this period. 'understand that this is a last chance desperation attempt for me as if my visa is refused the time and money that have been consumed in my journey over here will be worth nothing.

    I never really thought going from one to city to other would be so big an issue that it would ruin my future. If I had known the consequences I would have never consulted CECA or swapped cities, It was also due to the advice of CECA that I enrolled in studies at a lower level as I was informed that can only take admission in this course. I thought that el could finish the lower level courses and then later do my bachelor degree which I always intended to do

23. The Tribunal discussed with the applicant his circumstances of coming to Australia and his move to Melbourne from the Gold Coast within a few months of arrival. The Tribunal noted that the applicant had previously resided overseas to study in Cyprus, indicated that the applicant was not inexperienced when coming to live in a new city. The applicant stated that he was given the wrong advice by friends and the agent who advised him to reside in Brisbane when studying on the Gold Coast. This travel had caused him some difficulty. This led to his difficulty with the studies and an interest in looking for other opportunities. This led him to the unfortunate relationship with CECA, whom the applicant stated significantly misled him.

24. The applicant detailed the misinformation and incorrect advice that he received from CECA. The applicant stated that he is presently pursuing a complaint against CECA arising out of the misinformation and incorrect advice. The Tribunal accepts that the applicant was poorly advised by CECA and that this certainly is one reason as to why the applicant has been in breach of his visa requirements. However the Tribunal also notes that it is the applicant’s responsibility to ensure that he remains cognisant of and compliant with the regulations that permit him to reside in Australia. While the actions of the agent certainly contributed to the applicant’s breach, the Tribunal considers that the applicant is also responsible for his own circumstances and predicament.

25. Tribunal has considered the applicant’s study history. The Tribunal questioned why the applicant had enrolled in the series of vocational courses at ACOT. The Tribunal noted that the Diploma of Hospitality enrolment would appear to be consistent with his previous studies and stated future aim of working in the hotel industry. However the Tribunal questioned the applicant arising out of his enrolments in the cookery courses, given that it appeared that the applicant had no interest in working in that aspect of the hospitality industry. The applicant stated that he was advised by CECA to enrolment in a series of courses, leading to the diploma course. The applicant now believes that this is because of a financial relationship between CECA and the course provider to establish this series of enrolments. The applicant stated that he had no real interest in the cookery courses but he did but he was told to do.

26. The applicant stated that he spoke to the agent regarding enrolment in a higher degree course. The applicant stated that he was told that he could enrol in the course at a later time. The applicant stated that arising out of the advice he did not enrolled in a course until notified by the Department of his failure to maintain his visa requirements. The applicant stated he returned to CECA who assisted him in getting him enrolled with Stott’s Colleges, the applicant paying the enrolment fee for this course. The applicant has claimed that he no longer wishes to study at Stott’s Colleges, as he was concerned as to the quality of the studies that he would enter into. The applicant was also concerned that it was attached to CECA. The applicant stated that he had sought information about a separate Bachelor of Business course provided by Acumen, which he stated was more related to the work he wishes to do on return to India. At the hearing the applicant did not demonstrate much knowledge as to what this course entailed. However subsequently the applicant has provided an explanation as to outcome he would achieve from the course.

27. The Tribunal has considered all the circumstances of the applicant, and in the present circumstances, as determined that it is appropriate the applicant’s visa should not be cancelled. The Tribunal has noted the applicant’s reliance on the advice of his agent CECA, and has provided evidence of CECA actively soliciting for people to change their enrolments on visa subclass 572. No differentiation for those studying on 573 visas as provided. The Tribunal considers that it is not unreasonable to surmise the reliance of individuals like the applicant on the incorrect advice on of agents such as CECA, and to accordingly be led to a situation of being in breach of their visa requirements. The Tribunal notes that the applicant is not in this situation and that the actions of agents such as CECA have contributed to a number of similar breaches. The applicant should be commended for making a complaint to OMARA with the assistance of his present agent with respect to the advice and assistance of his previous agent.

28. The applicant has demonstrated that he is a person willing to study abroad. The applicant completed a course that was relevant and part of his future employment plans In Cyprus. In Australia his study did not proceed as planned, the applicant made some poor decisions with respect to his enrolments. However the Tribunal does accept that the applicant is a genuine student with a clear plan as to how his studies will assist him in the future.

29. The Tribunal accepts that there have been factors that have led to his failing to meet the conditions of his visa, in particular the requirement to maintain an enrolment in a higher degree course. The breach of this condition was not for an extended period of time and the applicant himself sought to rectify the issue.

30. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

31. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Stuart Webb
    Member