1501376 (Migration)

[2016] AATA 3182

1501376 (Migration) [2016] AATA 3182 (2 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Raminderjit Kaur
Mr Parminder Singh

CASE NUMBER:  1501376

DIBP REFERENCE(S):  BCC2014/2893630

MEMBER:George Haddad

DATE:2 February 2016

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 second named applicant.

Statement made on 02 February 2016 at 6:01pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 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)(b)) on the basis that the first named applicant breached condition 8516 of her Subclass 573 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.

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 second named applicant’s visa was 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 the second named applicant’s visa 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 the second named applicant.

4. The applicants appeared before the Tribunal on 14 December 2015 to give evidence and present arguments. The second named applicant is the applicant’s husband and did not wish to give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

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)(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?

8. 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 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.

9. The applicant was granted a student Subclass 573 – Higher Education Sector visa on 29 November 2013 valid until 30 August 2017 on the basis of enrolment in a Bachelor of Science as the principal course at Murdoch University, Perth, Western Australia.

10. A delegate of the Minister’s had information which indicated that the applicant had ceased enrolment in a master degree or bachelor degree course and in a s119 Notice, (also known as ‘Notice of Intention to Consider Cancellation’ or ‘NOICC’) dated 7 November 2014 set out this information indicating that the applicant has breached Condition 8516 of her visa and invited the applicant to provide comments as to why his visa should not be cancelled.

11. The applicant replied in writing dated 12 November 2014. A summary of her response to the NOICC follows:

    She arrived in Australia soon after completing high school in Punjab, India.

    On arriving in Perth to commence her studies, she suffered homesickness and cultural difference. With no family in Perth and some relatives in Melbourne, she moved to Melbourne.

    On advice from her relatives in Melbourne, she decided to not proceed with preparatory and English language courses prior to commencing an enabling diploma course for the purposes of the bachelor degree course. She felt it was unnecessary and a waste of time and money.

    On arriving to Melbourne, she discovered there were no intakes available in SVP eligible provider courses (Streamline Visa Processing – see cl.573.223(1A)).

    She consulted an agent and accepted advice that to continue to comply with her visa criteria, she should enrol in Certificate III, Certificate IV and Diploma of cookery/hospitality at South Pacific Institute. She came to know that this was wrong advice and she had made breached her visa condition; it was a mistake without her knowledge.

    She has taken steps to correct the mistake and has applied for enrolment with an SVP eligible provider. She understands that she came to study information technology and has applied to undertake studies in this area not only to comply with the visa criteria but to acquire the knowledge for a career in her home country.

    She adds that she is not a bad student as she has completed 13 units of the cookery course. She made an irrational decision to cancel her original higher education sector course on wrong advice from an agent.

    The review

12. The applicant applied for review of the delegate’s decision to cancel her visa, appointed a registered migration agent as her representative and provided a copy of the primary decision record and copy of a letter of offer in a bachelor of business course at Cambridge International College dated 13 November 2014.

13. The applicant provided a written statement dated 7 December 2015, prior to the hearing held on 14 December 2015. In her written statement she reiterates part of her statement in response to the NOICC and adds (in summary):

    [on advice from the migration agent CECA] she took admission in course in horticulture believing the agent would arrange enrolment in a bachelor degree.

    She has so far incurred expenses at Murdoch University ($13,000), South Pacific Institute ($2,500), CECA ($1,200); and living and travel expenses ($48,000). If she were to return without completing her education, it would result in significant hardship and goals not met.

    She points out that she has complied with other visa conditions such as maintaining health insurance; did not exceed the 40 hour per fortnight work condition; always reported change of address; maintained enrolment and course progress.

    The Tribunal hearing

14. The applicant conceded at the commencement of the hearing that she has breached Condition 8516 and for a period of time while she held the Subclass 573 visa, she did not satisfy the criteria of cl.573.223(1A) or cl.573.231.

15. As set out in the primary decision, the applicant was granted the Subclass 573 visa on the basis of enrolment in a course of study in the higher education sector. The visa was subject to condition 8516. Cl.573.223(1A) applies if the applicant is an eligible higher degree student as defined in cl.573.111 (attached at the end of this decision) and has provided evidence of confirmation of enrolment in all the course of study for which the applicant is an eligible higher degree student. It was also a requirement of that visa that if cl.573.223(1A) does not apply, the applicant is enrolled in or is the subject of a current offer of enrolment in a principal course of a kind specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application: cl.573.231.

16. Evidence before the Tribunal indicates, and the applicant provides in her written statements and oral evidence, that for a period in 2014, the applicant was not enrolled in, nor was 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 and therefore did not meet cl.573.223(1A) or cl.573.231.

17. Condition 8516 requires that the applicant continue to be a person who would satisfy the primary or secondary criteria as the case requires, for the grant of the visa. Given that the applicant was not enrolled in a bachelor degree or master’s degree by coursework in the way prescribed in cl.573.223(1A), she ceased to be an eligible higher degree student; and as the applicant was not enrolled in or was the subject of a current offer of enrolment in a principal course of study that was specified by the Minister for Subclass 573 visas; she did not continue to satisfy the primary criteria of cl. 573.231; and there is no evidence before the Tribunal nor submissions that the applicant satisfies the secondary criteria, therefore she breached condition 8516.

18. 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

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’.

20. In considering the exercise of the discretion in a student visa cancellation decision, it is my view that the purpose of the student visa scheme is relevant.

21. In her oral evidence, and in her response to the NOICC, the applicant states that she came to Australia to study a bachelor of science and to obtain qualification and knowledge in the information technology field with the aim of a career as IT technician.

22. She stated in oral evidence that after arriving in Australia in December 2013, she commenced her English language course (ELICOS) in February 2014. The applicant claims that after attending 2-3 days of this course she became stressed because she did not have any relatives in Perth and discussed with her brother-in-law (her husband’s brother; her husband was with her also granted the student visa as her dependent). They consulted Rahul Singh of CECA. They told her to move to Melbourne to continue her studies. She moved to Melbourne after 9 – 10 days of arriving in Perth.

23. The applicant repeated parts of her earlier written statements that after arriving in Melbourne, she was told there were no intakes available with an SVP provider. She enrolled in cookery and hospitality courses at certificate and diploma levels.

24. The applicant added in oral evidence that she was advised that after 2-3 months she could obtain release for South Pacific Institute, the provider of the cookery and hospitality courses, and enrol with an SVP provider.

25. The applicant stated that she knew that her visa was a Subclass 573 granted under the streamlined visa processing arrangement which required her to be enrolled in a bachelor degree with an SVP eligible provider.

26. She said that she commenced the Certificate III in Cookery course in April 2014 and the certificate IV was starting in May 2015.

27. I asked the applicant what career path she had envisaged on changing from IT to cookery and hospitality. She replied that she sought to study regularly and not allow gaps in her studies. I considered her response and its relevance but repeated the question about the apparent change in career path. She replied that she was misguided by the agent.

28. I referred to the letter of offer she submitted for enrolment in a bachelor of business and noted that its date would suggest that at the time of the hearing, it does not appear to be current. I further asked if she had made any recent enquiries about resuming to her studies should her review application be successful, she replied that she has no study rights; and she was ‘misadvised’. She said ‘give me another chance’.

29. I asked the applicant about the purpose for choosing a course in bachelor of business as it again suggests a change in career path. She replied: “Because my visa has a condition that I have to do a bachelor”.

30. I asked the applicant what she has been doing since her visa was cancelled in January 2015, nearly a year ago. She replied that she has no study rights and she has been waiting for the hearing of the Tribunal.

31. I acknowledge the comments in her written statements relating to hardship but I also asked the applicant during the hearing what hardship she or her family would suffer if the visa were to remain cancelled. She replied that her parents have given her the chance (to study in Australia); “my whole career is spoilt” and “my life is finished”.

32. I asked the applicant if there were any other matters she wished to put to the Tribunal. She repeated her plea for another chance.

33. The applicants’ representative requested to speak with the applicant as he submitted that the applicant has not given complete answers to questions I had put to her. Of course he was given the opportunity. Following a brief conference with her agent, the applicant added:

    I came here to achieve higher studies. So give me a chance. I can complete and achieve a bachelor.

34. I have considered the applicant’s evidence. I have difficulty accepting that having arrived in Perth with her husband, the applicant would become so stressed and homesick within 2-3 days that she would cease attending the first course in which she was enrolled, the English language preparatory course and within 10 days of arriving she would move to Melbourne.

35. I understand the benefit of being close to relatives and she preferred to be, as her husband might have preferred to be, close to her husband’s brother in Melbourne. What is puzzling is that Melbourne was not considered as the destination in the first instance when the applicant applied to study in Australia; and the speed with which the decision was made to abandon the courses for which the applicant was granted the Subclass 573 – Higher Education Sector visa granted under the SVP arrangement which requires a lower standard of assessment and evidence.

36. I have considered the applicant’s written statement in response to the NOICC issued by the delegate and to her additional comments in the statement to the Tribunal referred to above. The applicant indicated that she was aware of the type of visa she was granted and that it was granted on the basis that she was an eligible higher degree student. This required her to maintain enrolment in a registered course of study specified for the Subclass 573 visa. For this reason I do not accept her argument that she accepted the advice from an agent to enrol in courses not specified for the visa she held. She seeks to attribute the blame or fault to the agent and claims that she breached the Condition without her knowledge.

37. Again I do not accept that after giving evidence of enrolment in a bachelor of science preceded by preparatory course which led to the grant of her visa, she would agree to the ‘wrong advice’ from an agent unquestioningly and enrol in courses not specified for the visa she held on the basis that as the visa holder she is responsible to maintain compliance with the criteria and conditions of her visa; and she indicates in her written statements and in oral evidence that she was aware of the requirement of her visa relating to the higher education sector.

38. I have considered her argument that she took steps to return to the higher education sector by obtaining a letter of offer in a bachelor of business. But I note also that she obtained the offer after receiving the NOICC from the delegate.

39. In any event I sought to understand from the applicant the purpose of changing course and how the changes related to a career path. She was unable to give coherent answers in relation to the change to cookery and hospitality or to the bachelor of business courses. Her answers appeared to indicate that she was concerned more with meeting the visa requirement than to provide a purpose for the courses she undertook or proposed. The course changes lacked connection with the original career path she had indicated following the original principal course for which she was granted the visa and did not identify a changed career path.

40. I also had concerns about the applicant’s genuine intention to study in Australia, the purpose for the grant of her visa and stay in Australia. She did not give me a coherent answer to the question about what she has been doing for most of 2015. I understand that she did not have study rights and therefore was not permitted to study. But she also has not made any effort to enquire about the prospect of returning to studies given the review was progressing to a hearing and conclusion, other than providing a copy of the offer letter from November 2014. I do not accept in December 2015 this to be a current offer and it does not represent a recent enquiry. She was also unable to tell me why she wanted to undertake this course other than ‘her visa condition requires her to do a bachelor’.

41. After two years of remaining in Australia as an international student on a higher education sector visa, the applicant has part-completed a certificate III in cookery. While I acknowledge this achievement as I acknowledge her statement that she has complied with other conditions of her visa, she has not demonstrated to my satisfaction a genuine intention to study a course in the higher education sector for which the visa was granted; only a genuine commitment to retain the visa and stay in Australia. These in my view are not reasons sufficient to outweigh the reasons for cancelling her visa.

42. I have also considered the hardship that she and her parents would suffer as a result of the cancellation. It appears to be a significant sum of money. I am sympathetic to the applicant in this regard but I do not accept in light of my findings in relation to the evidence and the purpose of the student visa scheme that this is a sufficient reason to outweigh the cancellation of the visa. I do not understand the applicant’s comment toward the conclusion of the hearing that ‘her whole career is spoilt’ I was unable to extract a coherent response to questions about a career path. Despite additional advice from her agent she did not provide a satisfactory answer to this question.

43. There is no evidence or submissions that the cancellation of this visa would lead to the applicant becoming unlawful and held in detention or that indefinite detention is a possible consequence of the cancellation. The applicant holds a valid bridging visa.

44. There is no evidence or submissions that the cancellation would impact on any victims of family violence or breach Australia’s international obligations.

45. As noted earlier, the second named applicant’s visa was a consequential cancellation under s.140(1) of the Act and therefore the Tribunal does not have jurisdiction in relation to the cancellation of his visa. I accept that the cancellation would cause some hardship to the second named applicant but I do not find that it is sufficient to not cancel the first named applicant’s visa.  

46. Considering the circumstances and evidence as a whole, I find that the reasons to not cancel the visa do not outweigh the reason to cancel it. The Tribunal concludes that the visa should be cancelled.

    DECISION

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

48. The Tribunal has no jurisdiction with respect to the second named applicant.

    George Haddad
    Senior Member