1501348 (Migration)

[2016] AATA 3181

1501348 (Migration) [2016] AATA 3181 (2 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Navdeep Singh

CASE NUMBER:  1501348

DIBP REFERENCE(S):  BCC2014/2807523

MEMBER:Sean Baker

DATE:2 February 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 02 February 2016 at 5:50pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 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.

3. The applicant appeared before the Tribunal on 1 February 2016 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. 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.

6. 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 6 May 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.

7. According to the delegate’s decision, the departmental systems indicated that the applicant’s enrolment in a Higher Education Sector course was cancelled, and that according to the Departmental systems, at the time of the NOICC he was no longer enrolled in a bachelor or master degree course and was therefore 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. I discussed this with the applicant at hearing. He stated that his Confirmation of Enrolment (CoE) for his Bachelor of Business at La Trobe University was cancelled on 11 September 2013. He said that he asked that his enrolment be deactivated. He agreed that after this he had not held a CoE for a Bachelor or Masters level course until he enrolled in a Bachelor of Business course from Holmes on 5 November 2014. I noted that he had received a letter of offer from Stott’s College on 24 September 2013. I explained the implications of this to the applicant.

8. On the basis of the evidence before it the Tribunal finds that the applicant was not enrolled in a bachelor or master degree course after 11 September 2013 until at least 24 September 2013 when he got the letter of offer, which he did not then take up, but did take up an offer with Holmes institute and a Coe for a Bachelor of business there was created on 5 November 2014. So for the period from at least 11 September 2013 until 24 September 2013, and for this period of time he was not an eligible higher degree student, nor was he enrolled in, or the subject of a current offer of enrolment 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. The Tribunal finds that 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 for this time. The Tribunal finds that the applicant therefore breached condition 8516.

9. 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

10. 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’.

11. The applicant did not provide a submission to the Department. He did however provide a submission to the Tribunal prior to the hearing, in which he set out the basis on which the delegate made the decision, said that he had attended classes at La Trobe University but had not got as much help from staff as he expected and due to cultural differences he was not performing as he had hoped. His father sent him to Australia so that he can study and set up a restaurant, which has always been his father’s dream. On arriving in Australia the applicant realised that his lack of career counselling had put him in a big dilemma and he needed to design his career path on his own and decided to study commercial cookery and then go on with studying business as it would give him a wider skill set to run a restaurant. When he had made up his mind he went to CECA and they got him enrolment in a certificate III, IV and Diploma of hospitality from Australian College of Trade. They suggested a letter of offer for a bachelor of business from Stott’s which they got him would be sufficient to maintain his 573 visa conditions and that he could get the CoE for this course after he finished his Diploma. He did well in his certificate III and loved what he was studying, and had almost settled into life in Australia after 5 months. On 31 October 2014 he received a call from the Department asking for his contact details. After this call he became a bit cautious and went to another representative and was told that he may be breaching one of the most important conditions of his visa. He decided to apply for a bachelor of business at Holmes and got the CoE on 5 November 2014. He had already completed his certificate III and had begun his certificate IV. He then received the cancellation decision on 19 January 2015, which indicated that he was not enrolled on the date the NOICC was issued. he claims that he never received the NOICC from the Department. He also claims that the decision is incorrect in stating that he only applied for a Bachelor CoE after he received the NOICC, as he had never received the NOICC. He also states that he has not applied for a subclass 572 visa as stated in the Department’s decision. The applicant attached a number of relevant documents, including his passport, CoEs for his Diploma and Bachelor of Business at La Trobe University, and for his certificate III, IV (commercial cookery) and Diploma in hospitality at Australian College of Trades, his earlier offer letter for the bachelor of Business at Stott’s college, transcripts of his certificates III and IV in hospitality commercial cookery, a reference letter from Australian College of Trades, the offer letter and CoE for his Bachelor of Business at Holmes, the decision record, and an email trail between the applicant and the Department after the decision.

12. The applicant said that he had come Australia on 24 May 2013. He said that he started his Diploma on 19 June. He said that on 11 September 2013 La Trobe deactivated his CoE for his Diploma and Bachelor of Business at La Trobe University. He said that he told them to deactivate as he was not coping with the stress of study and due to culture difference, he was not able to concentrate.

13. I asked if he had enrolled in a different masters or bachelor course. He said that after the deactivation, he took admission at Australian College of Trades. As above I noted his letter of offer from Stott’s college for a Bachelor of Business dated 24 September 2013. I asked why he had not accepted this offer and gotten a CoE for this course at that time. He said that he went to an agent and they suggested that just the offer letter was enough to keep his visa validity, and he could get the CoE after finishing his diploma. I spent some time explaining that I was not so much concerned with his technical compliance, which we had discussed above, but with what this action may demonstrate of his intention or otherwise to study at the higher education level. He said that he just took the advice of the agent. I asked why he would take this advice and he said he was naïve. I noted that he had gotten an offer letter from Stott’s but had not taken up this offer letter, instead taking up a much later offer from Holmes. I asked why this was. He said that he wanted to do business, like a Bachelors. I noted that they were both offers for Bachelors of Business, and I was wondering why he had enrolled at Holmes rather than Stotts. He said he just decided to enrol at Holmes not at Stott’s and said he had gone to another consultant. I again noted to the applicant that I did not understand why he had not enrolled in a higher education course at the time he had left La Trobe and changed study streams. He said that actually the agent said just finish your diploma and then you can enrol.

14. I then discussed with the applicant the purpose of the visa holder’s travel and stay in Australia. I asked what he had said in his study plan when he applied from India for his 573. He said that he had wanted to study in business, and to open a restaurant. He said that he had said in his study plan that he wants to go back and do business. He said that his father worked as a cashier. He said that he had completed the equivalent of Year 12 in India and had not worked there. I asked why he wished to open a restaurant and the applicant said that that was his father’s dream, that the family should have a restaurant, and that his father has not been able to achieve that as he has had to bring the applicant up, so he put it all on the applicant to study so he can set up a good restaurant or business. I asked why he had not enrolled in cookery or hospitality when applying from India. He said he had come to Australia and realised that the lack of proper counselling had put him in a big dilemma, that people should think about what they want to do properly. He said that he decided to study in commercial cookery, and he just started working in a kitchen and slowly slowly he learned and loved what he was doing.

15. I asked the applicant whether he had complied with all other conditions on his visa. He said he had.

16. I asked the applicant about the degree of hardship that may be caused if the visa remained cancelled. He said that he is waiting on the decision of the Tribunal, he had spent a long time for this decision, and his career and everything is dependent on this decision. He said he did not want to have to return to India on the mistake of his agent, and he had abided by the rules.

17. I discussed the circumstances in which the ground for cancellation arose with the applicant. I asked him if the circumstances in which the ground for cancellation arose were beyond the visa holder’s control. He said that he thought he had as he had to go to a lawyer and they misadvised him as he did not have knowledge of visa conditions, they gave him the wrong advice. I asked if he believed they had given him the wrong advice and he said he did. I asked if he had paid for this advice and he said he had. I asked if he had made a complaint against them and he said he had not. He said he had gone to his current lawyer and they had given him advice.

18. I discussed the circumstances around his leaving La Trobe. I asked why he had left the University. He said he had attended all his classes but he was not able to cope with the stress of study and did not get what he had expected from the staff. I asked how long he had studied there and he said from 19 June 2013 and then he had had his CoE cancelled on 9 September 2013. I asked why and he said due to culture difference and culture problems he had difficulties. I asked if he had finished the semester and he said he had not. I noted to him that this may indicate that he left not for the reasons he claimed but because he was not a genuine student and wanted to move to a lower cost and lower workload course. He said this was not true, he had settled into Australia when he started commercial cookery and he felt very good to have finished his certificate III. I noted that I may place little weight on his completion of this course because it was significantly below the level of the courses he came here to do.

19. The applicant raised the process the Department had gone through to cancel his visa. He said that he had not got the NOICC, just the cancellation decision. He said he had not applied for a 572 visa, and he had not replied to the NOICC as he had not received it – if he had received it he would have responded as it was very important. He noted that the decision stated he only applied for the bachelor after getting the NOICC, but he had not done this, he was told by his current lawyer he may be breaching his condition and had sought enrolment after this.

20. I noted to the applicant that it was unfortunate that the Departmental decision included some information which did not appear to be the case, including that he had applied for a 572 visa, but I also spent a considerable period of time explaining that these things as far as I could see did not invalidate the departmental decision, and he, now, had an opportunity to say to me anything he might have put to the Department in response to the NOICC, and that I could not see that there was any further concern, at this stage, with the fact that the Department decision may contain some information which was incorrect, as he now had an opportunity to say everything he wished to and I would consider it in making the decision. I noted that I accepted on the information before me that he had not, in fact, applied for a 572 visa.

21. I note that there is no indication that the applicant has been anything but compliant in his past and present conduct with the department.

22. I discussed with the applicant what he would do if the visa remained cancelled to determine whether any mandatory legal consequences may be an issue, or whether any international obligations may be breached as a result of the cancellation. He said that if the visa remained cancelled he would go back to India and try to come back to Australia again, he just wanted to finish his studies and he loved what he was doing. He said that his brother is here, and has come for study this year. He said he was not in a relationship with anyone in Australia.

23. I asked the applicant if there were any other relevant matters he wished to raise. He said that he continued his studies, after La Trobe, as he did not want any bad effect on his study. I noted that his continued study was at a significantly lower level than what he had said he wanted to come here to do. He said but he got the Bachelor letter of offer. I asked why he had not got a CoE at that time. He said his agent had told him just get the letter, it is sufficient to maintain enrolment. I noted that what I was concerned about was more to do with what I could determine of his intentions, whether he had the intention to study at the higher degree level, and so I was concerned that he got the letter of offer in an attempt to technically comply, but did not get enrolment as he did not have the intention to study this. He said that after he got the call from immigration he realised he was breaching and straight away he went and enrolled. I noted that this may indicate that he had not enrolled in a higher degree course until he was made aware that there was a problem by the Department, it didn’t matter whether this was through a phone call from the Department or the NOICC, what it might indicate is that he had not returned to enrolment in a higher education course of his own accord, which might indicate that he was seeking only to comply with visa conditions, rather than having a genuine intention to study a Bachelor or Master level course.

24. I noted to him that I had concerns with his claim that a consultant mis-advised him, given he had not made a complaint , I was not sure I accepted his reasons for moving from La Trobe because he had left a very short time after commencing, and before the semester ended, and that I was not sure I accepted that he is or was a genuine student or genuine student for study at the higher degree level given the above concerns and because he did not get a CoE straight away, just a letter of offer, and had studied a significantly lower level and lower cost course which might indicate he was just seeking to remain in Australia and his main purpose was not study, and not study at the level his visa was granted for. He said he wanted one last chance and reiterated that he had done his Certificate III and was half way through his certificate IV.

25. I have had regard to the applicant’s evidence and the documents provided. I hold concerns that the evidence indicates the applicant does not genuinely intend to study and does not genuinely intend to study at the higher degree level. I have had regard to his claims that he left La Trobe because due to cultural differences he was not able to cope with the stress of studies and was underperforming according to his expectations, and was not getting as much help from the staff as expected. I do not accept these reasons because he has provided little detail about the help he sought, but most significantly because he left before he had completed one semester, meaning he would not have had an opportunity to gauge his performance, and is such a short period of time I have strong concerns that he ever intended to study this course. I have had regard to his claim that his lawyer mis-advised him and only got him a letter of offer, not a Coe for a Bachelor course. I do not accept this argument. If the applicant had genuinely felt he was mis-advised, and had paid money for mis-advice, I do not understand why he would not have made a complaint against this lawyer. but more significantly, he was focused on what he should have done to maintain eligibility with his visa requirements. Whilst this is important, the applicant did not demonstrate that his thinking at that time was focused on a genuine intention or desire to study at the higher education level. I have had regard to the fact that he has completed his Certificate III and is part-way through his certificate IV. But this is at a significantly lower level than the studies he travelled to Australia to complete, and as I noted to him, I consider it significant that his chosen alternative studies were at an easier level, and are significantly lower cost than his original study path. I do not accept that the applicant was misguided, and that he changed his course and study level for this reason. I find that his actions, in transferring from his Diploma and Bachelor of Business after such a short period of time, to commercial cookery at the certificate III and IV and Diploma level indicates that the applicant is not a genuine student, but has changed courses because study is not his primary or a significant aspect of his desire to enter and remain in Australia. I have considered his past actions but also his claimed desire to now re-start his study and study to the Bachelor of Business level. I do not find his claims in relation to this persuasive, as I have not found his claims about why he ceased his study at this level persuasive. When I consider the applicant’s behaviour, and his claimed desire to re-start, which I do not accept on the evidence before me, I find that the applicant is not a genuine student at the higher education level. I have no confidence that, were the visa to be reinstated, he would in fact study at the higher education level.

1. On the basis of the above concerns and findings I find that the applicant is not a genuine student and is not a genuine student 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 remain cancelled.

2. I have had regard to his evidence about his purpose in travelling to and staying in Australia, but I give this little weight given my concerns above. I find that the breach here did not occur in circumstances beyond the applicant’s control – I do not accept that he was mis-advised, and further I consider that mis-advice and whether a person chooses to take such advice are squarely within the control of that person. I have had regard to his claims that there would be some hardship to him and lack of opportunity if the visa remained cancelled and he returned to India. He has not claimed to be unable to return, and he indicated that he would apply again for a student visa to come to Australia. I accept that there would be some hardship to the applicant but he has not established that such hardships would be significant and I give this little weight. I have considered his past and present conduct towards the Department and his compliance with other visa conditions and immigration requirements more generally. Apart from the breach in this case there is no evidence before me that the applicant has not complied with immigration requirements and has complied with requirements of the Department. However, I give these factors little weight in relation to the concerns above. I have considered his legitimate concerns with some information in the Department decision, but as we discussed at length the review was a further opportunity for him to explain and set out any information as to why the visa should not be cancelled and I do not accept on the evidence that the misinformation in the Department decision, or the fact he may not have received the NOICC, have any bearing on the decision. I have considered the documents provided but these do not assist in considering these or any other factors, establishing his study history, providing reference letter for his study at ACT, but at a significantly lower level than the studies he claimed to wish to come to Australia for.

3. I have weighed the evidence of the applicant, 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