1501353 (Migration)

[2016] AATA 3195

1501353 (Migration) [2016] AATA 3195 (8 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr TARANJEET SINGH

CASE NUMBER:  1501353

DIBP REFERENCE(S):  BCC2014/2892545

MEMBER:Sean Baker

DATE:8 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 08 February 2016 at 2:09pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 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 2 February 2016 to give evidence and present arguments.

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 11 November 2014. The Departmental decision sets out that on 2 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 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.

7. According to the delegate’s decision, the departmental systems indicated that the applicant at the time of the NOICC 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, 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. I discussed this with the applicant at hearing. He stated that he had decided to change before his exams in November 2013, and had then got a release letter from the University in January 2014. He agreed that after this he had not held a CoE or offer letter for a Bachelor or Masters level course until he obtained an offer letter from Holmes dated 13 November 2014 and then got a CoE for a Bachelor of Business at Holmes, created 17 November 2014.

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 he got his release letter from Federation University on 21 January 2014 (Tf. 75) until at least 13 November 2014 when he obtained an offer letter for the Bachelor of Business at Holmes. 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 provided several submissions to the Department, in which he said that he had made a mistake, had applied for a bachelor degree in hospitality management, he didn’t know about this condition and had applied for a release letter and they didn’t tell him it was a mistake and could affect his visa, that he had studied at Academic Australia polytechnic, (University of Ballarat) and he studied first semester with so much efforts and hard work and despite this he failed. He submitted almost all assessments and attempted all the exams and tests, he was embarrassed to fail after so much hard work, was very depressed and sad. He did not want to return to India and could not continue this field of studies as it was too hard for him. His friend suggested he do something he was interested in. He had some interest in cooking and so he chose hospitality. He applied for commercial cookery and a release letter from Federation University (University of Ballarat). He is fond of cooking but this field has less scope in India so he couldn’t do this in India. it is not considered a good career because everyone is doing fashion design, engineering and medical studies, there is not a hospitality institute in his city. He always had an ambition to be a chef and work in this field professionally. He saw scope in Melbourne in this field. He started doing his certificate III in cookery. He was not aware of his visa conditions at this time. his former provider gave him a release letter, and he did not get the help of a consultant. He had never visited overseas and was trying to do everything lawfully and had no intention to breach his conditions. He was doing work in a café for the last ¾ months to get practice. He visited the immigration office because his friend told him he might have affected his visa conditions, and at the immigration office he spoke to someone on the phone and came to know that he had to enrol in a bachelor degree. He went to a consultant and filled in all the forms to get a bachelor degree. The next day he got an email from student integrity VIC about intention to consider cancellation of visa. He provided his CoE for the Bachelor in Business Management on the 17^th.

12. The applicant provided a submission with attachments to the Tribunal. In his submission he reiterated his claims to the Department, and added that one of the reasons he did not pass his course was because of cultural shock. He said there was a lack of support at his campus. His decision to leave his provider was because of his lack of support from his provider and his interest in cookery. He states he applied for his Bachelor in Business Management on 10^th November 2014, before the NOICC was sent. He could not tell his family. Around this time his father had an accident in India and he had to go back on 23 November 2014 to see him, and returned to Australia on 30 November 2014. His parents had spent money and he was worried how his ailing father would take the news of his cancellation so he did not tell them. he stated he is a genuine student and wants to complete his bachelor degree and return to India. He states he is now studying comfortably in the Australian environment.

13. At hearing I asked the applicant what his purpose had been in coming to Australia. He said that his main purpose was to study and learn about a new culture. He said that his father has good property and can help the applicant to start any business or investment, so he started studying and then he had an interest in the cookery field as well. he said that in his town a few people came back from foreign countries and brought food with them, like pasta, and he feels that they can start some kind of restaurant and get a chance to try new food. He said that also his town, Guruksheta, is a tourist town and so he was thinking to go back and do food courts for foreign tourists. He said he wanted to do the things over there and learn about the food. I have considered the applicant’s evidence and written claims. I have some doubts about the applicant’s claims, given my concerns below, but I am willing to accept that the applicant’s intention on coming to Australia was to study, and give this little weight.

14. I asked the applicant about his compliance with conditions. He said he had complied with all conditions and had not applied for a 572 visa. I have no evidence to the contrary and I accept his evidence and give this some weight.

15. I asked the applicant about any hardship that cancellation of the visa may cause. He said that he had lost his work rights, and as he is not doing anything, and his main purpose in coming to Australia was to study and do a job, and as he is not doing study or a job he cannot get any skills and cannot make his future bright, he said that is the main problem. He said that a person gets stressed if a person has to stay home and do nothing and he got stressed about his future. He discussed his father’s accident and that he had returned to India to see his father. I note the applicant has a cousin in Australia but no closer relatives or relationship. I have also had regard to the fact that in his written claims he says that his parents have spent considerable money on his education and that he does not want to tell his ailing father about the cancellation. I accept that the applicant feels that he is wasting his time, I accept that he may be frustrated, stressed and depressed, although I do not accept on the evidence that he suffers from depression. I accept that he and his family may suffer some financial and emotional hardship if the visa remains cancelled. I give this some weight.

16. I then discussed with the applicant the circumstances relating to the breach and whether he considered these beyond his control. He said he was thinking so as he had believed that he was ok as he was still studying. I find that this does not indicate circumstances beyond the applicant’s control. As I discussed with him, he could have approached the Department of Immigration much earlier to inquire about his visa conditions. I also noted to him that the release letter from Federation University very clearly indicated to him that his CoE would be cancelled, and that he must contact the Department to seek advice as to whether a new student visa is required. He said that he thought as he was studying it was ok. I note that he also complains in his written statement that he was not told when he sought his letter of release that this may affect his visa conditions. I find that this is simply untrue, as the release letter clearly indicates to the applicant that he must contact the Department. I note he also complained that he did not have support at Academies Australia Polytechnic. However, his evidence on his time at Polytechnic was varied, stating at one stage that he had decided before failing his subjects that he wished to change courses, and so did not try very hard in his exams. On the evidence before me I do not accept that there was a lack of resources or assistance to him, and I consider that the evidence of the applicant indicates that he decided to stop pursuing his course at Polytechnic before he failed his subjects, and that this decision may have been a considerable factor in him not trying in his exams and failing his subjects. Given all of the above, I do not accept that the breach was beyond his control. Given that he was prompted in the release letter to consult the Department, but chose not to, I consider that the breach here is significant, and was for a significant period. I give this factor significant weight. I note that his father suffered an accident, but this occurred a considerable time after the breach occurred, and therefore I do not accept it has any bearing on the breach, either when it occurred or as it continued.

17. I note that there is no indication that the applicant has not been compliant with the Department, I give this little weight.

18. I asked the applicant what he would do if the visa remained cancelled, and whether there was any reason he could not return to India. He said that then he would have no option but to return to India and apply there for another student visa. He said if he returned now he would have spent 2 years here, and had not got any better skills or education, so he could not do something better over there. I pointed out that he claimed to have worked in a café here so he had some work experience. He said he had but that would not be much good in India, a barista here could make good money but a tea stall in India was not that profitable. He said if he wanted to work in hospitality he needed certificates and education. I have considered his evidence and written submissions. I consider that there is no evidence that Australia’s international obligations would be engaged if the visa remained cancelled, nor that the applicant would necessarily suffer a period of detention if the visa remained cancelled, but on his evidence would return to India and apply for a further student visa to Australia. I do not accept that the applicant’s lack of qualifications necessarily leads to hardship for him or his family, he has work experience in Australia which he may be able to apply in India, and gave evidence that his father owned two convenience stores and agricultural land and makes good money. I give this some weight.

19. I discussed with the applicant other relevant matters. I discussed his change of career from management to commercial cookery. He claimed that he had always liked cooking. He claimed that his father had told him there was not a good career in hospitality, but he had seen that in Australia it could be. He said he had studied to Year 12 in India, and had studied in the commerce stream as he was thinking to do business management. He said he left his commercial cookery interest in India until he came here. I noted to him my concern that his evidence may lead to the view that he was a genuine student, but at the vocational education and training level, given his most recent enrolments, study path and what he had told me of his future plans. I noted that, given the visa he had held, I considered it significant that he be able to demonstrate that he was a genuine student, and a genuine student for study at the higher education level, and noted that his evidence may indicate that he was a genuine student, but for study at the lower vocational education level. In response he said that he had been told that he could do an advanced diploma of cookery at Holmesglen, and he was thinking that if he studied this at Holmesglen, maybe he could do that under a 573. He said that he had not been able to get them to issue him an offer letter.

20. I noted to him that to meet the requirements for the subclass of visa he was seeking to have reinstated, he needed to be enrolled in, or in some cases have a letter of offer for, a Bachelor or Masters degree course, and an advanced Diploma was not sufficient. I noted that he had left his Bachelor of Management and enrolled only in a Certificate III. He said that this was why he had enrolled at Holmes institute, as he was thinking that he needed to get enrolled and get a chance to come back to this country. He said that he would have completed his degree now if he were doing the same things. He said that he was a person who sticks at things. He said that some people try to tell him that if he does cookery he has to work in the kitchen and get dirty, whereas if you do business management you can sit in an office with nice clean clothes, but he did not think like this. He said that if he got the visa back, he would go there and attend all the classes. He said that if necessary he could prove himself by attending all the classes and at the end of the semester he could come back to the Tribunal and show the results. I noted that I considered it important for me to be satisfied he was a genuine student for study at the higher education level before the visa was reinstated. I asked why he needed a bachelor degree to open a restaurant or food court. He said that he would try to find a provider where he could do the same study under a 573, but if he didn’t get there he had to do the higher education, he had to get some backup for his future. He said that if he did not do one thing he would like to do other things, he would like to get a job in a good company. In India they have a lot of multinational companies, after doing a Bachelor he could go and do jobs over there, he had many options in North India and lived near the Capital. I noted that I was not sure that his responses convinced me of the reason why he needed to do a bachelor of business. He responded that it was because he didn’t have any other option, if he didn’t do this he would have to go back to India. He said that he was a good student and could do much better and there was not anything bad about doing the bachelor of management. I noted that I was concerned that he was saying he would do bachelor study only as a way of maintaining eligibility, but did not have the intention to study at this level as what he had outlined was a study and career path only at the vocational level.

21. I asked if the applicant had any other relevant matters to raise and he said that he needed another chance and would do his Bachelors. He said he would have done his degree and be trying to do his masters now.

22. 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 at the higher degree level. he left his Bachelor of Management and enrolled only in a certificate III. He expressed a desire to study an advanced diploma, but only when I pointed out that this was not sufficient to be granted or hold a 573 visa did he say that he wished to study a bachelor. I have had regard to the letter of offer and CoE provided from Holmes in November 2014, but I find that the applicant only sought this enrolment after he was told by an officer of the Department that he needed to be enrolled in a bachelor course to maintain eligibility, and I do not accept that this indicates that the applicant genuinely wishes, or intends to study this course, or any other at the bachelor or masters level. I accept that he may wish to study cookery at the vocational level and follow this as a vocation, but I do not accept that anything in his conduct or evidence indicates a genuine intention at this point to study at the higher education level. I find he has been focused on what he believes he should do or should have done to maintain eligibility with his visa requirements. Whilst this is important, the applicant did not demonstrate that his thinking at the time he ceased enrolment in his Bachelor of management at Polytechnic or at any time after that was focused on a genuine intention or desire to study at the higher education level. I have considered his past actions but also his claimed desire to now study to the Bachelor level. I do not find his claims in relation to this 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, and I give this significant weight in considering whether the visa should remain cancelled.

1. I have had regard to his evidence about his change of career, his desire to pursue cookery, and his reasoning behind seeking to enrol at the higher education level. It may be that the applicant does genuinely wish to study cookery and pursue this as a career, but if so, as above, I do not accept that this is a reason for reinstating his higher education visa. I have had regard to the other factors above, amongst others to his purpose in travel here, 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 the documents provided but these do not assist in furthering a claim that the visa not be cancelled, and as far as relevant have been discussed above.

2. 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

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

   Sean Baker
   Member