1501273 (Migration)

[2015] AATA 3943

1501273 (Migration) [2015] AATA 3943 (18 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Geeta Saini
Mr Rajender Kumar
Master Arnav Saini

CASE NUMBER:  1501273

DIBP REFERENCE(S):  BCC2014/3024204

MEMBER:David Corrigan

DATE:18 December 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 573 Higher Education Sector visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 18 December 2015 at 9:50am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 January 2015 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) 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)(fa)(i) on the basis the applicant is not, or is likely not to be, a genuine student. 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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other applicants’ visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.

4. The applicants appeared before the Tribunal on 2 December 2015,to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

6. 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

7. 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)(fa)(i). 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?

8. A visa may be cancelled under s.116(1)(fa)(i) if the Minister or the Tribunal is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student.

9. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the Minister or Tribunal may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision.

10. As set out in the delegate’s decision (a copy of which was submitted to the Tribunal), on 10 May 2014, the applicant was granted a Student (Temporary) Higher Education Sector (Subclass 573) visa based on enrolment in a Monash English course from 26 May 2014 to 27 June 2014 and a Masters of Education at Monash University from 28 July 2014 to 30 June 2016.  Provider Registration and International Management Systems (PRISMS) records indicate that she completed the Monash English course but did not commence the Masters of Education course and her enrolment was cancelled in August 2014.

11. On 22 July 2014, the applicant applied for a Student (Temporary) Vocational Educational Training Sector (Subclass 572) visa but this was refused by the Department on 30 October 2014.   The applicant had enrolled in Certificates III and IV in Commercial Cookery and a Diploma of Hospitality at AVETA College.  At the hearing, the applicant said she had not.  The Tribunal put this information about her enrolment at AVETA to the applicant under s.424AA and explained the relevance of this information.  The applicant did not comment or respond but was given two weeks to respond in writing (by 16 December 2015).  However, no comment or response has been received and no submissions have been given to the Tribunal and no request made for an extension of time and the Tribunal has decided to proceed to decision.

12. The applicant told the Tribunal that she required an IELTS score of 6.5 to get into the Masters of Education but in June and July she could only get scores of 6.0.  She said she was told by a teacher that she should undertake a seven month ELICOS course but she did not want to do that,  She said she was upset and didn’t know what to do.  She said she contacted the migration agents, CECA and they suggested she change her course.  She said she was upset and tried to change her course to cookery as her family had a canteen in India. 

13. As to why she did not take Monash’s advice and enrol in further ELICOS courses the applicant said she didn’t have anyone to help her.  She said wanted to do the Masters of Education but seven months’ ELICOS was too much for her.  She said she had a three year old child and it was difficult for her to continue with the course and didn’t know where to leave the child.  She said her husband had looked after the child when she studied English.  She said her child could not be without her and he was going to kindergarten now.  The Tribunal does not accept this explanation as the applicant came to Australia on a student visa with the obligation to study and it considers that she must have considered whether she could have studied having a young child.  It does not consider this to be legitimate reason for her not undertaking study particularly given her evidence that her husband looked after the child when she studied Monash English.

14. The Tribunal has taken into account that the applicant did apply for a Subclass 572 visa when she changed courses to the lower Vocational Education Training level, however, it considers her conduct and history indicates that she is not a genuine student or is not likely to be a genuine student.  The applicant told the Tribunal that she had completed a Bachelor of Education in India and worked there for two years.  The applicant said she tried to enrol in a Masters of Education at Adelaide and Victorian universities but they said she had to do seven month’s ELICOS.  The applicant’s agent orally submitted the applicant did not have any family support and she wasn’t aware of the consequences of stopping studying and that she had made a mistake and had not got proper guidance.  The agent submitted she was a good student in India with a degree and her intention was to work at her husband’s family school business.

15. Whilst the Tribunal accepts that her family has a canteen and her husband’s family has a school in India, it finds that her change of courses to a field that was unrelated to her own academic and work history demonstrates that she is not or is not likely to be a genuine student.  The applicant told the Tribunal that she had lacked confidence and it was a mistake but would do it now; however the Tribunal does not accept this explanation.  Given her academic and work history, the Tribunal does not accept that she would not have taken Monash’s advice that she should complete further English studies if she had a genuine interest in undertaking a Masters of Education.  It finds her explanation that seven months in English was too much to not be plausible or credible given her work and academic history and given her initial enrolment in the Masters of Education and her oral evidence to the Tribunal that she now wanted to enrol in such a course.  The applicant told the Tribunal that she achieved IELTS scores of 6.0 which was only just below the Masters of Education requirement of a score of 6.5 and given this small gap it would have been very possible to achieve the 6.5 score.  Whilst it notes that her family was located back in India, she is an educated adult woman with tertiary qualifications made the decision to not study the Masters course herself.  The Tribunal notes that the applicant was granted a Subclass 573 Higher Education Student visa and that it should have been obvious to her of the need to continue to study and to continue studying a course for the subclass of the visa she was granted and it considers she had an obligation to be aware of this.  Whilst her then agents may not have fully advised her, her study and work history (including her agreed change to studies in cookery) does not indicate that she is a genuine student.   The Tribunal has taken into account that the applicant did complete two months’ study in Monash English, but this does outweigh its other concerns about the genuineness of her being a student.

16. The applicant submitted an email, dated 1 December 2015, from Diana of Ko-Oz Education to CECA that they were not able to send an application for enrolment in Masters of Education due to the quality of the application.  The application told the Tribunal that this was due to the “no study” condition attached to her bridging visa and the agent submitted that it was due to a gap in her studies.  The Tribunal accepts both as the case, however the Department did not cancel her visa until 28 January 2015 and she did not enrol in a Masters of Education prior to that and it gives little weight to this very recent attempt to seek enrolment in a Masters. 

17. After considering all the evidence, the Tribunal is satisfied that the applicant is not, or is likely not to be, a genuine student

18. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(i) 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

19. 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

20. The Tribunal is satisfied that the applicant travelled to Australia with the original intention to study English and has given this factor some weight in her favour.

    The extent of compliance with visa conditions

21. The Tribunal has no evidence before it that the applicant has not complied with her visa conditions.  It considers this is a consideration that is in her favour and it has taken this into account and given it some weight.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

22. The Tribunal has found that the applicant is not, or is likely not to be, a genuine student.  Having regard to its above findings, it does not accept that the ground for cancellation arose due to extenuating circumstances beyond his control.

23. The Tribunal considers that there are not any extenuating circumstances beyond the applicant’s control that led to the ground existing.  The Tribunal has given considerable weight to these factors which support the cancellation of the visa.

    The degree of hardship that may be caused to the visa holder and any family members: decision-makers should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision

24. The Tribunal has taken into account that the applicants may need to return to India.  The applicant told the Tribunal as they didn’t have work rights, her brother had supported them and her child did not have any support and the Tribunal has taken this into account.   She stated that her confidence would be boosted if she went back with a Masters, however, the applicant has a Bachelor of Education and two years’ teaching experience which she could utilise to support herself and her family.  Whilst the Tribunal accepts that her family will be disappointed given the financial investment in her studies, the Tribunal gives this little weight.

25. The Tribunal considers on the evidence before it, that the applicant and her family members will not suffer any significant degree of hardship (financial, psychological or emotional) if her visa is cancelled and it has given little weight to this factor in considering whether to cancel the visa.

    The visa holder’s past and present behaviour towards the Department (for example, whether a person has been truthful in statements or co-operative in their dealings with the Department)

26. The Tribunal has no evidence before it that the applicant’s past and present behaviour towards the Department has been untruthful or unco-operative.  It considers this is a consideration that is in her favour and it has taken this into account.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140

27. The Tribunal has taken into account that the applicant’s husband’s and child’s visas would, or may, be cancelled under s.140 but gives this only limited weight and finds it does outweigh other factors that support cancelling the visa.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

28. The applicants 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 (including the Convention on the Rights of the Child) and the Tribunal finds this factor is not relevant.

    The impact of cancellation on any victim of family violence, or if family violence is a factor

29. The applicant did not raise any matters that indicated that this was an issue and the Tribunal finds this factor is not relevant.

    Whether there are mandatory legal consequences to a cancellation decision, such as:

    ·     whether indefinite detention is a possible consequence of the cancellation decision , if a person cannot be removed from Australia consistently with Australia’s non-refoulement obligations 

    ·     whether there are provisions in the Act which prevent the person from making a valid application for a visa without the Minister personally intervening (for example, s46A, s46B, s48, s48A, s91E, s91K and s91P of the Act) and

    ·     whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and liable to be detained under s189, and liable for removal under s198.

30. The applicant holds a bridging visa and the cancellation of the visa will not directly cause her or her family members to become unlawful non-citizens and be liable to be detained and removed.  Even if they do become unlawful non-citizens and liable to be detained and removed, the Tribunal does not consider this factor outweighs other factors that point to the cancellation of the visa.

31. There are no provisions of the Act that that prevent the applicants from validly applying for a protection visa without the Minister personally intervening.  Nor is the Tribunal is satisfied, on the evidence before it, that indefinite detention is a possible consequence of the cancellation decision because the applicants cannot be removed from Australia consistently with Australia’s non-refoulement obligations.   It considers these are not factors that support not cancelling the visa. 

    Any other relevant matters

32. The applicant did not raise any other matters.

33. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

35. The Tribunal has no jurisdiction with respect to the other applicants.

    David Corrigan
    Member

    
    

    ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.