1501608 (Migration)

[2016] AATA 3339

1501608 (Migration) [2016] AATA 3339 (18 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Haridass

CASE NUMBER:  1501608

DIBP REFERENCE(S):  BCC2014/3024454

MEMBER:Sean Baker

DATE:18 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 18 February 2016 at 10:16am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 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. On 18 January 2016 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 17 February 2016. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. Despite sending in a response indicating he would attend, the applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. The two hearing reminder SMSes sent prior to the hearing to the mobile telephone number he had provided failed. On 17 February 2016 at the time of the hearing the Tribunal attempted to contact the applicant but the mobile telephone number he had provided was disconnected. Nor has he since contacted the Tribunal to provide any reasons or evidence to explain the non-attendance.  In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

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.

   Does the ground for cancellation exist?

6. The Departmental decision identified that the Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 17 November 2014. The Departmental decision sets out that on 26 February 2014 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. According to the delegate’s decision, he ceased studying his Diploma of IT on 18 June, and his enrolment in the Bachelor of IT at Griffith was then cancelled on 5 August 2014 as he had withdrawn from the prerequisite course. According to the delegate’s decision, he obtained enrolment in a Bachelor of business at Holmes Institute on 1 December 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 his enrolment at Griffith in the bachelor of IT was cancelled on 5 August 2014 until he obtained enrolment in a Bachelor of business at Holmes Institute on 1 December 2014. On the evidence before the Tribunal, 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 period. 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 a submission to the Department, in which he said that he had come to Australia with the dream to study ELICOS and a Diploma of IT followed by a Bachelor of IT. Whilst studying at GCIT, he used to travel from his home place to the college, and found it difficult to reach on time. He performed well in his ELICOS and passed with good scores. He had no friends at GCIT which made him feel bad but he was trying to be strong and study. Loneliness and lack of friends affected him badly and he started stressing out. He talked to his parents and his cousin in Melbourne. His cousin insisted the applicant come to Melbourne and stay with him to help the applicant study and perform well in his course.  He wanted to visit his parents but they told him to change location to make himself happier and do well in his study. He tried his best to adjust to GCIT and perform well but lack of support and loneliness and new arrival and new environment affected his study and his health. He decided to change his institute and requested GCIT provide him with a release letter so that he could come to Melbourne. He took admission in South Pacific Institute in a certificate III and IV in hospitality and also got a job in a restaurant as a cook. Then he took admission in a diploma of hospitality followed by a bachelor of business at Holmes institute. He says that his visa was granted on 26 February 2014, the visa duration is close to 12 months and he believes it is Department policy that cancellation should not be pursued in circumstances where the streamlined student enrols in the same education sector for which the visa was granted. He states he has always complied with visa conditions, he has always been a good student. He provides CoEs for the Diploma and bachelor. He believes the grounds for cancellation do not exist due to compassionate reasons beyond his control.

    The purpose of the visa holder’s travel to and stay in Australia

12. The applicant studied his ELICOS course when he first came to Australia and the Tribunal is satisfied that the applicant travelled to Australia with the intention to study and has given this factor some weight in his favour.

    The extent of compliance with visa conditions

13. The Tribunal has taken into account that the applicant the period of time the applicant was in breach, a not insignificant period from 5 August 2014 until 1 December 2014.  Whilst he enrolled in a Bachelor’s course at Holmes, this was only after receiving the NOICC.  Overall it considers the extent of the breach is a significant factor that points to cancelling the visa.

14. The Tribunal has no evidence before it that the applicant has not complied with other visa conditions.  It considers this is a consideration that is in his favour and it has taken this into account and given it some weight.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

15. The applicant did not attend the Tribunal hearing. He has provided brief reasons in relation to the circumstances in which the ground arose in his submission to the Department. He claims that he found it difficult to reach his provider, GCIT, had no friends at GCIT and loneliness and lack of friends stressed him out. He then spoke with his parents and cousin and his cousin insisted he come to Melbourne. He tried his best to adjust to GCIT but loneliness and his new arrival and environment affected his study and his health. He then decided to change his institute and requested a release letter.

16. The Tribunal is sympathetic to the barriers to study which international students face, including new environment, lack of friends, and loneliness. However, these are faced by most international students, who can make use of a variety of support services offered by providers such as GCIT. I do not accept, based only on his scant claims, that the applicant suffered a lack of support from GCIT, nor that he was stressed or his health affected. On the scant information before me I accept that the applicant may have had some difficulties settling in to study in a new environment where he did not know many people, but he would have had considerable resources at his provider to draw upon, which he has not demonstrated he has done. Given this, I do not accept, on the evidence,  that these were the reasons, or the main reasons for his change in study and his relocation to Melbourne, nor that the ground for cancellation does not exist due to compassionate reasons beyond his control – the applicant has not, in the scant information provided, demonstrated this.

17. I have had regard to the fact that on coming to Melbourne he took admission in South Pacific Institute in a certificate III and IV in hospitality and also got a job in a restaurant as a cook. However, I give this very little weight because his studies were at a significantly lower level than that for which he was granted the visa. I accept that the applicant enrolled in a Diploma and Bachelor course, but this Bachelor enrolment was only after the applicant received the NOICC, which I find indicates, was only done in an attempt to technically comply with conditions. The applicant was granted the visa to study at the higher education level (under the SVP arrangements which require lesser evidentiary requirements) and did not do so and failed to maintain enrolment in a higher education course.  The Tribunal considers, on the evidence before it, that there are not any extenuating circumstances beyond the applicant’s control that led to the breach of the condition.  The Tribunal has given considerable weight to these factors which support the cancellation of the visa.

18. The applicant claims he has always been a good student. He has not provided any results or other evidence to substantiate this claims and I do not accept it on the scant information before me. The applicant claims that he had held the visa for close to 12 months at the time of cancellation,  and believes that it is Department policy that cancellation should not be pursued in circumstances where the streamlined student enrols in the same education sector for which the visa was granted. The applicant did not enrol in a Bachelor or Masters level course but spent a considerable period without enrolment at this level. He appears to have only enrolled in a Bachelor level course after receiving the NOICC. I do not accept that his circumstances are analogous to the Departmental policy and give these concerns greater weight.

    The degree of hardship that may be caused to the visa holder and any family members: decision-makers should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision

19. The applicant did not attend the hearing and has not advanced any evidence or arguments in relation to any potential hardship to himself or family members. The Tribunal considers on the evidence before it, the applicant and his family members will not face any significant degree of hardship (financial, psychological or emotional) if his visa is cancelled and has given this factor very little weight in his favour.

    The visa holder’s past and present behaviour towards the Department (for example, whether a person has been truthful in statements or co-operative in their dealings with the Department)

20. The applicant claimed in his submission that he has always complied with visa conditions. The Tribunal has no evidence before it that otherwise indicates the applicant’s past and present behaviour towards the Department has been untruthful or unco-operative.  It considers this is a consideration that is in his favour and it has taken this into account.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140

21. There are no persons in Australia, whose visas would, or may, be cancelled under s.140 and the Tribunal finds this factor is not relevant.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

22. The applicant did not raise any matters that indicated that this was an issue and the Tribunal finds there would not be any breach of any obligations under relevant international agreements and the Tribunal finds this factor is not relevant.

    The impact of cancellation on any victim of family violence, or if family violence is a factor

23. The applicant did not raise any matters that indicated that this was an issue and the Tribunal finds this factor is not relevant.

    Whether there are mandatory legal consequences to a cancellation decision, such as:

    ·     whether indefinite detention is a possible consequence of the cancellation decision , if a person cannot be removed from Australia consistently with Australia’s non-refoulement obligations 

    ·     whether there are provisions in the Act which prevent the person from making a valid application for a visa without the Minister personally intervening (for example, s46A, s46B, s48, s48A, s91E, s91K and s91P of the Act) and

    ·     whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and liable to be detained under s189, and liable for removal under s198.

24. Whilst the applicant may become an unlawful non-citizen and liable for detention and removal, the Tribunal gives this factor only limited weight in his favour and finds it does not outweigh other factors that point to the cancelation of his visa.    

25. There are no provisions of the Act that that prevent the applicant from validly applying for a protection visa without the Minister personally intervening.  Nor is the Tribunal is satisfied, on the evidence before it, that indefinite detention is a possible consequence of the cancellation decision because he cannot be removed from Australia consistently with Australia’s non-refoulement obligations.  It considers these are not factors that support not cancelling the visa. 

    Any other relevant matters

26. There are no other relevant matters.

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

    DECISION

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

    Sean Baker
    Member