1501503 (Migration)

[2015] AATA 3905

1501503 (Migration) [2015] AATA 3905 (14 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr BALSHARANBIR SINGH BALSHARANBIR SINGH

CASE NUMBER:  1501503

DIBP REFERENCE(S):  BCC2014/3008351

MEMBER:Christopher Smolicz

DATE:14 December 2015

PLACE OF DECISION:  Adelaide

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

Statement made on 14 December 2015 at 11:05am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 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, having ceased to be enrolled in a bachelor’s degree, a master’s degree by coursework or a course of study that is a principal course of a type specified for Subclass 573 visas, the applicant had not continued to be a person who would satisfy the primary criteria for the grant of a Subclass 573 visa and was thus in breach of Condition 8516 of his visa.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 13 November 2015 to give evidence and present arguments. 

5. 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

1. 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?

1. 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 his visa.

2. In this instance, one of the conditions attached to the applicant’s visa was Condition 8516 (cl.573.611 of Schedule 2 to the Regulations).  Relevantly to the applicant’s situation, this condition requires that he must continue to be a person who would satisfy the primary criteria for the grant of the visa.

3. The applicant’s subclass 573 Higher Education Sector Visa was granted on 27 November 2013. The visa was granted on the basis of the applicant’s enrolment in a Bachelor of Information Technology at Edith Cowan University.

10.  The applicant was enrolled in a package course and the Bachelor degree was conditional on the applicant completing a Diploma of Science (Computing/IT) at the Perth Institute of Business and Technology.

11.  The visa was granted under the Streamline Visa Processing Arrangements which has lower evidentiary requirements for eligibility for the grant of a visa. For example, applicants who satisfy the definition of “eligible higher degree student” under subclause 573.223(1A) for subclass 573 do not have to meet the Schedule 5A evidentiary requirements with respect to English language abilities and financial capacity requirements.

12.  When subclause 573.223(1A) does not apply, cl.573.231 requires that the applicant is enrolled in, or 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. The application was made on 10 April 2014. The instrument that was in force at the time of application was IMMI 12/037.

13.  The applicant’s enrolment in the Bachelor of Information Technology was cancelled on 16 June 2014.

14.  The Department became aware of the cancellation and on 17 November 2014 a delegate of the Minister sent the applicant a s.119 Notice (also known as a “Notice of Intention to Consider Cancellation” or “NOICC”) informing him that they had information which indicated that he had ceased enrolment in a master’s degree or bachelor’s degree course and set out the information indicating that the applicant had breached condition 8516 of his visa and invited the applicant to provide comments as to why his visa should not be cancelled.

15.  The applicant responded to the notice on 24 November 2014. The applicant submitted that he enrolled in the field of Information Technology believing it would provide him with the best employment opportunities in India. When he arrived in Australia and commenced the Diploma course he realised Information Technology was not his chosen field. The applicant said he failed three units in the first trimester and was depressed because he wasted his parent’s money and withdrew from the Diploma course.

16.  At the hearing, the applicant acknowledged his enrolment in the Bachelor of Information Technology was cancelled on 16 June 2014.

17.  The Tribunal has had regard to department records and is satisfied that the applicant’s enrolment in the Bachelor of Information Technology was cancelled on 16 June 2014. It follows that the applicant did not continue to be a person who would satisfy the primary criteria for the grant of the visa from this date and was in breach of 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’.

The purpose of the applicant’s travel and stay in Australia

20.  The applicant is a 20 year old Indian national. He arrived in Australia in January 2014. Prior to arriving in Australia he completed high school to year 12 level.

21.  At the hearing the applicant said that he was never interested in studying a Bachelor of Information Technology and his migration agent suggested the course to his parents. The applicant claims he was pressured to enrol in the Bachelor of Information Technology at Edith Cowan University on the advice of the agent and his parents. He was told if he did not like the course he could change once he arrived in Australia.

22.  The Tribunal finds the applicant’s evidence at the hearing inconsistent with the information he provided to the Department in response to NOICC. Specifically, in response to the NOICC, the applicant stated that he arrived in Australia to advance his career in the field of Information Technology. The applicant stated “Since the Information Technology service industry in India was booming I felt a career planned in the field will definitely bring me a stable and successful life in the future…..[B]eing offered a course in this field was an achievement of a life time. As soon as I received the offer letter, I accepted it and commenced my preparation to fly down to Australia.”

23.  The Tribunal raised the inconsistent information with the applicant at the hearing.  The applicant maintained he was only following his parent’s wishes. He now claims he wants to work in the hospitality industry for one of the major hotels in India.

24.  The applicant said he has subsequently found a new passion for cooking but still plans to study a Bachelor of Business. He now believes that his new study plan fulfils the 573 visa criteria.

25.  The applicant said that in July 2014 he enrolled at Kingston International College (KIC) and completed a Certificate III in Commercial Cookery. He is currently enrolled in Certificate IV which he is due to finish in December 2015 and has a current certificate of enrolment for a Diploma of Hospitality.

26.  The applicant provided the Tribunal with correspondence from his course provider supporting his evidence. The applicant said that once he has completed the Diploma of Hospitality he plans to study a Bachelor of Business at the Universal International Colleges (UIC).

27.  The applicant said that on 10 November 2014 he obtained an offer of enrolment for a Bachelor of Business at Group Colleges Australia (trading as the Universal International Colleges ‘UIC’) and was issued with a Certificate of Enrolment on 20 November 2015. The applicant said that once his visa was cancelled, UIC cancelled his enrolment and he was told that he would have to wait until his MRD review was finalised until he could be re enrolled in the Bachelor of Business degree.

28.  The Tribunal told the applicant that he currently is not enrolled in a Bachelor degree and UIC was not an eligible education provider. The agent conceded that the course was not being offered by an eligible course provider but submitted that his client was young and did not know which education providers qualified under the streamline visa processing arrangements.

29.  In post hearing submissions the applicant provided the Tribunal with his original UIC letter of enrolment offer dated 10 November 2014 and a new offer of enrolment letter issued by UIC dated 13 October 2015. The applicant also provided a tax invoice confirming the payment of a deposit of $1,406 towards the course fees. The correspondence confirms that the Bachelor of Business degree commences on 14 November 2016 in Sydney.

30.  The Tribunal questioned the applicant about how the Bachelor of Business was relevant to his desire to work in the field of hospitality.

The extent of compliance with visa conditions

31.  The applicant claims that it was not his intention to breach his visa condition and he attempted to complete the first semester of the Diploma of Science and failed three subjects. He spoke to his teacher who told him not to waste his father’s money and change course.

32.  It was submitted that he is now back on track with his studies and intends to complete the Bachelor of Business course after he finishes the Diploma of Hospitality in August 2016.

Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

33.  The applicant said that his parents paid about $12,000 in course fees for him to study the Bachelor of Information Technology and the funds were not refunded after his enrolment was cancelled. He claims he was depressed because he wasted his father’s money and failed his exams. He made arrangements to return to India but his parents and teachers told him to re-enroll in another course. The Tribunal questioned the applicant if he had sought medical assistance. The applicant said he did not see a doctor and did not have any medical reports.

Circumstances in which ground of cancellation arose.

34.  As stated above the applicant claims that cancellation arose because he was given the wrong advice by his migration agent in India. It was submitted he was young and had limited experience and wanted to please his parents and did not make proper enquiries about the Bachelor course and his visa conditions.

35.  He claims his agent told him he could change courses once he arrived in Australia. He was not aware of visa condition 8516. He was also not aware what courses were approved under the streamlined visa approval system. 

Past and present conduct of the visa holder towards the department

36.  The Tribunal is not aware of any adverse conduct on the part of the applicant towards the Department.

Whether there would be consequential cancellations under s.140

37.  There is no evidence to suggest that any other person’s visa would be cancelled under s.140 if the applicant’s visa were to be cancelled.

Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation.

38.  The applicant currently holds a Bridging visa.  If his visa is cancelled, he can remain lawfully in Australia until that visa expires.  Should the applicant remain in Australia after the expiry of that visa, without any other visa being granted, he would become unlawful and subject to detention. There is nothing to suggest that any detention in such a situation would be indefinite.

Other factors

39.  Other factors commonly considered are whether the cancellation would result in indefinite detention, any consequential cancellations or a breach of any international obligations.  The applicant is the holder of a bridging visa. There is nothing before the Tribunal to suggest the cancellation would result in indefinite detention, other cancellations or a breach of international obligations. There is no evidence or submissions that the cancellation will impact on victims or family violence; or that it will lead to Australia breaching any of its international obligations.

Conclusion

40.  The applicant has claimed that, he is doing well in his current studies and will re-enrol in the Bachelor of Business. As stated above, the applicant does not have a current CoE for the Bachelor of Business degree and UIC is not a prescribed education provider.

41.  The applicant was granted the subclass 573 visa under the Streamlined Visa Processing Arrangements (SVPA). The extent of the breach of condition 8516 is therefore very significant. The requirements for people who meet cl.573.223(1A) are less onerous than those for other applicants for a subclass 573 visa or a subclass 572 visa which allows for the study of an Vocational Education and Training Diploma. 

42.  The Tribunal finds the applicant provided inconsistent evidence about his purpose of traveling to Australia and his reasons for withdrawing from the course.

43.  Since withdrawing from the Bachelor of Science, he enrolled in a Commercial Cookery at KIC, he subsequently obtained a letter of offer for Bachelor of Business but did not enrol in the course.

44.  The applicant is currently enrolled in the vocational education training sector. The applicant has not returned to the Higher Education Sector course and has significantly changed education pathways which indicates that he does not have a genuine intention to study at the higher education sector level.

45.  The Tribunal notes the personal circumstances of the applicant and that it will cause his parents some financial hardship if the visa is cancelled. On the other hand, the Tribunal has considered the seriousness of the breach of condition and finds that compliance with visa conditions is important for maintaining the integrity of the student visa program.

46.  The Tribunal finds that it is not acceptable to obtain a visa on a specific basis under the SVPA and subsequently after arriving in Australia abandon this basis and still seek to retain a student visa.

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

DECISION

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

Christopher Smolicz
Member