1501346 (Migration)

[2015] AATA 3547

1501346 (Migration) [2015] AATA 3547 (26 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SARBJEET SINGH

CASE NUMBER:  1501346

DIBP REFERENCE(S):  BCC2014/3049956

MEMBER:Christine Kannis

DATE:26 October 2015

PLACE OF DECISION:  Perth

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

Statement made on 26 October 2015 at 7:41am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 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 applicant is a national of India. He was granted a Student (temporary) (Class TU) Higher Education Sector (Subclass 573) on 27 February 2014.

3. On 24 November 2014 the Department of Immigration and Border Protection (the Department) issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he was considered to have not complied with condition 8516 of his visa, as he ceased to be enrolled in a higher education sector course. The applicant provided a written response to the NOICC (his response).

4. On January 2015 the delegate decided to cancel the visa held by the applicant under s.116 (1) (b) on the basis that he had breached condition 8516 of his visa.

5. The applicant seeks review of the delegate’s decision.

6. The applicant appeared before the Tribunal on 21 October 2015 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Punjabi language.

7. The applicant was represented in relation to the review by his registered migration agent.

8. 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

   Relevant law

9. 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. Relevant to this case is 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.

10. Relevantly, it was a criterion for the grant of the applicant’s Subclass 573 visa that he was enrolled in, or the subject of a current offer or enrolment in a principal course of a kind specified for that subclass by the Minister in an instrument under r.140A that was in effect at the time of the visa application: cl 573.231.

    Does the ground for cancellation exist?

11. In his response the applicant said that he did not dispute the ground for cancellation existed however provided reasons why his visa should not be cancelled. These reasons are discussed later in this decision.

12. The applicant was granted a visa in Subclass 573 Higher Education Sector on the basis of his enrolment in a higher education course. Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

13. The applicant commenced his higher education course on 9 June 2014 and ceased this study on 23 August 2014.

14. Information from the Provided Registration and International Student Management System (PRISMS) shows the applicant’s enrolment was cancelled on 2 September 2014 because he had notified that he had ceased his studies.

15. The Tribunal finds that when the applicant ceased to be enrolled, or to be the subject of an offer of enrolment, in a higher education course, he ceased to be a person who would satisfy the primary criteria for the grant of the visa. As such, the Tribunal finds that the applicant breached condition 8516 of his visa.

16. 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

17. 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’.

18. The purpose of the student visa is to enable the visa holder to undertake study in Australia. The purpose of the higher education student visa is to enable the student to undertake study at a higher education level. The applicant ceased to be enrolled in a higher education course and has not undertaken any higher education study since he entered Australia.

19. The Tribunal has considered the circumstances in which the ground of cancellation arose, the reason and extent of the breach.

20. In his response the applicant stated that he unintentionally breached visa condition 8516. He said that he was unaware of the existence of non-streamline colleges prior to changing his course and said he would have selected a university which complied with his visa condition if he had known. The delegate in her decision pointed out that the change of provider was not the issue in the applicant’s case but rather the cessation of enrolment in a higher education course.

21. The applicant came to Australia to study a Diploma of Information Technology. He said that he had last studied information technology in Year 10 and opted for the field of study in Australia on the advice of his then migration agent. The applicant said he told his agent about different fields of possible study he wanted to pursue including commercial cookery and hospitality. He said he was guided by his agent’s advice that information technology was the appropriate course for the purposes of obtaining his visa. The applicant confirmed that he did have a desire to study information technology but also said that it was the only choice he was given by his agent.

22. The applicant told the Tribunal that when he arrived in Australia he was required to undertake two three-month preparatory courses. He said that initially he coped with the studies however after two and half months he had difficulty understanding the course content and he was also having difficulty with the English language. The associated pressure resulted in him deciding to cease his studies.

23. The Tribunal noted that when asked the reason for ceasing his studies the applicant referred only to the difficulty he had with understanding the course. The Tribunal referred him to his response in which he said that the depression which arose from the breakdown of a relationship caused the difficulty with his study because he had ‘lost the major reason’ for his career pursuits. The applicant confirmed that the end of a long-term relationship also contributed to the decision to cease his studies.

24. The Tribunal asked the applicant whether he discussed the decision to cease his studies with any one prior to doing so. He said that he had no family and no friends in Australia and did not discuss the decision with anyone beforehand. The Tribunal referred him to his response in which he said, ‘thanks to my amazing family and friends I was able to dream into the future and I decided to pursue the field of culinary science’.  The applicant said that the friends he referred to were not close friends and were his classmates. He said that his friends advised him to stay in Australia and said he would gain nothing by returning to India.

25. The Tribunal noted that the applicant had an agent before he left India and that he was also represented at the hearing by his current agent, and asked him whether he had considered discussing the decision to cease his studies with an agent before doing so. The applicant said he did discuss the decision with a previous agent before ceasing his studies. The Tribunal noted the applicant’s initial response to the Tribunal was that he did not discuss the decision with anyone beforehand.

26. The applicant said that the agent had ‘misguided’ him and advised him that he could enrol in a commercial cookery course without any adverse consequences. He enrolled in Certificates III and IV in Commercial Cookery and a Diploma of Hospitality

27. Prior to the hearing the applicant’s current agent provided a lengthy and detailed written submission to the Tribunal (the submission). The submission stated that after the applicant commenced his Certificate III in Commercial Cookery course on 27 October 2014, he started ‘applying for his Bachelor Degree’ to maintain his Subclass 573 condition and avoid breaching it. The submission said the agent the applicant used after ceasing his studies in August 2014 took the applicant’s enrolment ‘lightly’. The submission refers to amounts of money requested by the previous agent for enrolment and other reasons which delayed the applicant’s enrolment in a higher education course.  

28. The problem for the applicant is that by the time the previous agent arranged his application for enrolment in a higher education course, for whatever reason, he had already breached condition 8516 because he had ceased to be enrolled, or to be the subject of an offer of enrolment, in a higher education course. He did not seek to obtain another offer of enrolment in a higher education course until after he had ceased his enrolment.

29. The delegate referred to an Offer and Acceptance for a Bachelor of Business dated 26 November 2014 (the Offer and Acceptance) and signed by the applicant on 27 November 2014. The Tribunal noted that it was dated two days after the applicant was issued with the NOICC. The submission stated that the applicant had applied to enrol in a Bachelor of Business Degree prior to receiving the NOICC. The application was lodged on 3 December 2014 and there is no documentary evidence to indicate that an earlier application was made.

30. The Tribunal considered the applicant’s evidence that he relied on his previous agent’s advice and noted the submission attributed the delay in lodging an application for a higher education course to that agent. However the applicant’s response to the NOICC and his oral evidence during the hearing focussed primarily on his interest in pursuing a career in hospitality. In his response he referred to cooking as ‘my new passion’.

31. The applicant said he did was ‘misguided’ by his agent in India when applying for his visa and also said that he relied on an agent when making the decision to cease his studies in Australia. 

32. In the Tribunal’s view, the applicant should have been familiar with the requirements of the visa conditions if he had a genuine intention of complying with these. The Tribunal is not satisfied that the applicant had made adequate effort to familiarise himself with the conditions of his visa. Further, although nothing turns on whether the applicant discussed the cessation of his studies before or after he ceased studying, based on the evidence the Tribunal is not satisfied that the applicant took adequate steps to ensure that he was compliant with his visa conditions

33. The applicant told the Tribunal that his family in India depend on him. He explained that they rely on agriculture to earn a living and that they believe that if he receives an education he will be able to support them financially. The applicant said that without any qualification he will not be able to support his family and will feel ‘worthless’.

34. The Tribunal questioned the applicant about his future plans. He said that he wants to combine his interest in business and hospitality by starting his own business in India. He said he wants to start a ‘hotel’, which the Tribunal understands includes accommodation and food facilities. His response referred to the ‘vast employment opportunities available’ in India in the information technology field as the reason for his choice of studies in Australia. The response concluded by stating that he is ‘looking forward to pursuing a career in the culinary arts’.

35. The applicant said he had difficulty understanding the information technology course and ceased these studies. He has since undertaken cookery courses and has applied to study in business related studies.

36. Whilst the fields of information technology and hospitality are not necessarily mutually exclusive, the changes from business to hospitality and again to business causes the Tribunal concern that the applicant never had a genuine intention of pursuing the course for which his visa was granted. The Tribunal noted that the applicant left the higher education study having done only two and half months of study and changed to a vocational course. The Tribunal is not satisfied that the applicant has a genuine intention of pursuing higher educating study in Australia.

37. The Tribunal noted that the Offer and Acceptance was issued on 26 November 2014, two days after the applicant was issued with the NOICC. The Tribunal is concerned that the applicant only obtained the Offer and Acceptance for the purpose of his visa application and not because he had a genuine intention of pursing that course.

38. Based on the evidence, the Tribunal finds that the applicant breached condition 8516 of his visa. The Tribunal considers the breach to be significant because the applicant is not engaging in higher education study for which his visa was granted and is not fulfilling the purpose of his travel to and stay in Australia. The Tribunal has accepted that the applicant found the course difficult and wanted to do something else but the Tribunal does not accept that justifies his decision to abandon the higher education study for which his visa was granted. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control.

39. With respect to the degree of hardship, the applicant stated that his family were depending on him to make a successful career when he returned to India to assist them financially. The Tribunal accepts that the applicant’s family have made financial sacrifices for his study in Australia, however, the applicant has completed a Certificate III in Commercial Cookery   and a Certificate IV in Commercial cookery and these qualifications may be of some assistance to him in his home country. Nevertheless, the Tribunal is prepared to accept that hardship may be caused by the cancellation because he applicant will not be able to pursue study in Australia.

40. Nothing adverse is known about the applicant’s past and present conduct towards the Department. The cancellation will not affect any other person’s visa and will not result in a breach of Australia’s international obligations. Family violence is not an issue. The Tribunal is prepared to accept that hardship may be caused by the cancellation. The Tribunal is not satisfied that the applicant has a genuine intention of pursuing higher education study in the future.

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

    DECISION

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

    Christine Kannis
    Member