1501506 (Migration)

[2015] AATA 3701

1501506 (Migration) [2015] AATA 3701 (18 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr ROHIT THARDAK

CASE NUMBER:  1501506

DIBP REFERENCE(S):  BCC2014/2893460

MEMBER:Kate Millar

DATE:18 November 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 18 November 2015 at 10:18am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mr Thardak came to Australia from India in November 2013 to study a Masters of Business Administration.  He did not have the level of English required for entry to the course, and studied an academic English course on his arrival in Australia.  After completing this course he was still unable to obtain the results required for entry into the Masters of Business Administration his enrolment in the Masters of Business Administration was cancelled in approximately July 2014.  Mr Thardak decided to study a Certificate III and IV in Commercial Cookery followed a Diploma of Hospitality.  He also enrolled in a Bachelor of Business with the Australian School of Management.  

2. The visa Mr Thardak was granted to come to Australia was a Subclass 573 Higher Education Sector visa. It is a condition of this visa that he continue to satisfy the requirements for the grant of the visa. It is a requirement of the visa he was on that he continues to be enrolled in a higher education course, or a package of courses leading to a higher education qualification. As he did not continue to be enrolled in a higher education course, a delegate of the Minister found he had breached a condition of his visa and on 28 January 2015 cancelled his visa under section 116(1)(b) of the Migration Act 1958 (the Act). 

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. Mr Thardak appeared before the Tribunal on 17 November 2015 to give evidence and present arguments, and was represented by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to Mr Thardak’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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. The grounds include at s.116(1)(b) that the Minister or the Tribunal is satisfied that the holder did not comply with a condition of the visa. In this case condition 8516 attached to the visa, which requires Mr Thardak to continue to be a person who satisfies the primary criteria for the grant of the visa.

7. 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. In this case, Mr Thardak is said to have failed to comply with the condition of his visa that requires him to continue to be a person who satisfies the criteria for the grant of the visa.

9. The criteria for the grant of a subclass 573 visa include that the person is either an eligible higher degree student or enrolled in a specified type of course.  Mr Thardak was granted the visa on the basis that he was an eligible higher degree student, and this required him to remain enrolled in a package of courses leading to the award of a bachelor’s degree or a masters degree by coursework.   The courses leading to the award of the bachelor degree or masters degree must be provided by en eligible education provider or an educational business partner of the eligible education provider.

10. On ceasing to be enrolled in the package of courses with Edith Cowan University and educational business partners of Edith Cowan University, Mr Thardak ceased to meet that requirement.

11. As Mr Thardak ceased to be enrolled in the package of courses in July 2014, he breached a condition of his visa, and the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), I have proceeded to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

12. 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’.

13. The purpose of Mr Thardak’s travel and stay in Australia was to study a higher education course.  He said he has a Bachelor of Commerce from India and was working in India, but this was not good enough for him, and he wanted to create more opportunities for himself by studying in Australia.   

14. On failing to achieve the required result in the direct entry program English course that would allow him to enter the masters course, he said he spoke to the course counsellor who said he had to go home to get another visa, or do the International English Language Test System (IELTS) test.  He did not think he could achieve the required IELTS score.  He could not obtain admission to another university, and consulted a migration agent who said he could apply for admission at another university and apply for a subclass 572 visa, so he enrolled at Kingston College and applied for a subclass 572 visa.  This was refused on the basis that he was not a genuine student.  He said he did not apply for a review of that decision because his intention was to undertake higher education.   

15. Mr Thardak talked to his family about his future.   He said as his father had a friend with a restaurant who would employ him, he enrolled in commercial cookery.  Mr Thardak has completed a Certificate III in Commercial Cookery and commenced a Certificate IV.  He is enrolled in a Diploma of Hospitality.  He said he plans to open a restaurant on returning to India.  I asked why he needed a degree or a masters qualification in order to run a restaurant, and he said that in India it was more theoretical whereas in Australia it is more practical.  I do not accept that he would require a Bachelor of Business or a Master of Business Administration to run a restaurant in India, particularly as he states he has a Bachelor of Commerce he completed in India. 

16. Mr Thardak provided an offer for enrolment in a Bachelor of Business at the Australian School of Management dated 28 October 2014, and requiring acceptance by 27 November 2014.  He is due to start this course in February 2017.  He argued that as a result he was in breach of the conditions of his visa for a short period.  This overlooks the requirement in cl.573.223 as it was at the time of his application that in order to be an eligible higher degree student, he must be engaged in a principal course of study with an eligible education provider.  The term “eligible education provider” is defined in cl.573.111 as being those education providers specified in an instrument under cl.573.112.  The Australian School of Management is not, and was not, an eligible education provider.   If Mr Thardak is not an eligible higher degree student, he is required to provide evidence in accordance with the requirements in Schedule 5A for the highest assessment level for the applicant (cl.573.223(2)).  There is nothing before me to show he has done so, and he does not meet this criterion.  As a result, I do not accept that he again complied with the requirements for the visa, and find he was in breach of the conditions of his visa from July 2014 until the current date.

17. Mr Thardak submits he has done the right thing and has done nothing wrong.  He says he was told by immigration that he could apply for the 572 visa onshore and so he did not do anything wrong.  This overlooks his failure to complete the requirements for the entry to a course which was necessary to retain his visa.  He chose not to return to India after not successfully completing the prerequisites for this course.

18. Mr Thardak says that on commencing a Diploma course he applied for a Subclass 572 visa, which would allow the level of study he was undertaking, however his visa application was refused as it was not accepted that he was a genuine student.  He says that given he applied for a subclass 572 visa and also applied for enrolment in a Bachelor course this shows he was doing everything he could to comply with his visa condition.  He says it is relevant that he applied for this course before he received a notice of intention to cancel his visa from the Department.  As I have noted, this enrolment does not result in him meeting the requirements for the visa.

19. In regard to the hardship it would cause him if his visa were cancelled, Mr Thardak says it has cost him a lot of money to come to Australia.  His submissions say the course fees were $20,800.  At hearing Mr Thardak initially said it cost him $35,000 to $40,000 to come to Australia, but later said this amount is $40,000 to $50,000.  He says it will affect his life if he cannot complete tertiary studies in Australia. 

20. Mr Thardak said there is no reason he would not be able to return to India.

21. I consider it relevant that the purpose of the streamlined visa processing as en eligible higher degree student is for the person to meet the requirements for the grant of the visa without having to establish all criteria that would otherwise be required by cl.573.223, in particular the requirements in Schedule 5A.  If the course is not provided by an eligible education provider, Mr Thardak must meet the criteria in schedule 5A, and there is nothing before me to show that he would do so.  If the decision to cancel his visa is substituted with a decision not to cancel, he will avoid meeting criteria he would otherwise have had to meet.  I do not consider the circumstances as a whole support this result. 

22. Mr Thardak was not able to obtain entry to the course for which he was granted the visa and has been refused a visa for the appropriate level of course.   He has since successfully competed a Certificate III in Commercial Cookery.  Other than that at a qualification at a vocational level of study, there is nothing else that would convince me he has the necessary level of English to undertake tertiary study.  He does not appear to recognise that merely undertaking some form of study is not sufficient to be granted the visa. Despite his submissions to the contrary he remains in breach of the conditions of his visa. 

23. Having considered the circumstances as a whole, I find the visa should be cancelled and affirm the decision under review.

    DECISION

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

    Kate Millar
    Member