1501609 (Migration)

[2016] AATA 3273

1501609 (Migration) [2016] AATA 3273 (17 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr GURPREET SINGH SIDHU

CASE NUMBER:  1501609

DIBP REFERENCE(S):  BCC2014/2688593

MEMBER:Sean Baker

DATE:17 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 17 February 2016 at 5:10pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 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 17 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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 October 2014. The Departmental decision sets out that on 28 January 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. I discussed this with the applicant at hearing. He stated that on 9 September 2014 he withdrew from his course for a Diploma of IT at Victoria University and his enrolment in this and his Bachelor of IT also at Victoria University were cancelled on this day.  He said that after this he had gotten the NOICC from the Department on 17 October 2014 and after this he enrolled in a Diploma at the Australian College of Trade (ACOT) and a Bachelor of Business at Holmes Institute because the NOICC, he said, advised him he needed to be enrolled in a Bachelor. The applicant agreed that there had been a breach of condition.

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 in his Bachelor course at VU was cancelled on 9 September 2014 until after the date of the NOICC, 17 October 2014, when he obtained a Confirmation of enrolment (CoE) for a Bachelor of Business at Holmes Institute. 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 a submission to the Department, in which he said that he had matriculated in India, and done a diploma in computer engineering from Abnoor College in India in 2012. He did not want to study computer science but his parents pressured him to do so. He then applied to study in Australia and he got a visa to study information technology diploma leading to degree at Victoria University (VU).  He only chose this as his parents wanted him to. Still he went to college all the time and attended all the classes. He found it hard for him. He went to VU and told them that he wanted to change from IT to commercial cookery as this was his hobby since birth, he loves cooking and his friends love his food when he cooks. VU said that they did not have commercial cookery so he went to Ozford and Kent colleges and they said he should get a release letter from VU. He asked VU for a release letter but they said he could not have one but could change his visa from a 573 to a 572. He applied for this visa but it got rejected. Now he had to get admission into a Certificate III and IV in commercial cookery leading to a bachelor of business as he is in the 573 subclass. He has a lot of interest in doing this course and wants to complete it to become a professional cook in the future. He wants to show his parents that he is not always wrong. He always sees Sanjeev Kapoor on TV when he cooks and he wants to become like him. He asks to be given a chance to complete his study and become a cook. Once he completes his study he will go back to India and will become a good cook. The applicant provided to the department a letter from ACOT offering him a place in a certificate III and IV in commercial cookery, dated 22 October 2014, and a CoE for a bachelor of Business from Holmes Institute, created 23 October 2014.

12. The applicant provided a submission with attachments to the Tribunal. In his submission he said he had given his best in his one semester at VU but had been unable to clear his exams. After talking to the university counsellors and registered migration agents he decided to change to a course more suited to his abilities. He said he decided to undertake a diploma of hospitality from VIT and applied for a 572 visa as guided by his migration agent. The visa was refused and VU cancelled his diploma and bachelor enrolments. He asked vu if he could continue his course but they said he could not, based on his past progress. He was not left with much choice and took admission with ACOT in October 2014. He received the NOICC. When he tried to do the right thing by applying for a 572 visa, the same was refused, VU or any other SVP provider did not give him admission and he was not left with any choice but he really wanted to study. He was totally dedicated and serious about his study with his new college and provided a letter from ACOT that his fees were paid and he has completed 70% of study until the time his CoEs were cancelled because ACOT got a letter from the Department that he was not allowed to study. He has spent thousands of dollars and wasted a year of his life. Attached was a letter from ACOT which noted his previous enrolments, and that he had completed 70% of his Certificate III and the college would have no objections to him completing his course if he was allowed to be enrolled. Also provided were CoEs for the certificate III and IV in commercial cookery at ACOT, created 27 October 2014.

13. At hearing I asked the applicant to tell me about his study history. The applicant said that he had come to Australia on 9 February 2014. He said that he had started his Diploma leading to a degree in IT at VU and had studied for one semester, but then he had his enrolment cancelled. He said that he had attended all the classes at the start but had not performed well. I asked if he had a copy of his results at VU and he said he did not. I asked if he done a full semester and he said that he did go to classes but he did not sit exams, as he was not able to understand a lot and that is why he wanted to change. He said that at that time he was getting advice from different lawyers and agents that he did not understand. He said that he just wanted to say that he was misguided at that stage and that is why he had his visa cancelled. He said he would also like to advise that he applied for another visa, 572, in commercial cookery. I asked why he had done this and he said that he was advised by one of those agents that you cannot change courses, you have to talk to the university and see if you can change your visa. He did that and they would not allow him. After that they gave him some advice, they said that there is one option, that he could apply for another visa, the 572, but for that visa they did not advise him that he had to have his CoE cancelled. He applied for the visa; he was under the impression that if he did not obtain the new visa, he would still have the old visa. They advised him that to get a CoE to another college he would need to cancel the VU CoE. After that he cancelled the VU CoE and applied for another visa but that was refused. I asked why the 572 visa had been refused. He said that they advised him that he was here for a degree only, and that he is already studying and cannot change. He said that he had made a mistake in cancelling his VU CoE and that was why the condition was breached, but after that, whenever the Department emailed or called him he did what they advised him to do as he wanted to study. Then they mailed him and said he had to have a CoE for a degree, and that is why he went back to VU and asked them whether he could come back as he could not return to India as his parents would ask him what he had done, as his parents had spent a lot of money on him and if he went back the money would be wasted. He said that he then enrolled in the Diploma of Hospitality at ACOT and the Bachelor of Business at Holmes institute.

14. I asked the applicant to explain to me why he had enrolled at the Victorian Institute of Technology (VIT) on 17 September 2014 but then cancelled this enrolment on 21 October 2014. He said that this was because the NOICC on 17 October 2014 told him he had to be enrolled in a Bachelor, and he could not progress to a Bachelor at VIT and VIT advised if he wanted to do a Bachelor he needed to go somewhere else, and so he enrolled at ACOT and Holmes. He said the reason he cancelled his enrolment at VIT was because he wanted to abide by the conditions of his visa, that is why he had the cancellation of his enrolment at VIT, if he stayed there he was worried his visa would be cancelled. He noted that he had also enrolled in a certificate III and IV at ACOT, and had been studying his certificate III until the visa was cancelled. He said he did all of this so his visa would not be cancelled and because he wanted to abide by the conditions of his visa.

15. I asked the applicant what his purpose had been in coming to Australia. He said he came here to do higher education, and to then either go back or make a future for himself. I asked what he had come here to study and he said in IT because his parents wished him to. I noted that I was not asking what his parents’ purpose had been, but his on coming to Australia. He said that he came here to study. I asked what and he said IT. Despite some concerns that the applicant abandoned his IT studies at VU before he had completed a semester, I am willing to give him the benefit of the doubt and accept that his purpose in coming to Australia was to study and complete his Diploma and Bachelor of IT. I give this some weight.

16. I asked the applicant about his compliance with conditions. The applicant said he had complied with all other conditions on his higher education visa. I noted that he had had his 572 visa refused and noted that this may lead me to have concerns about his compliance with other immigration requirements, such as the conditions on this visa if it were reinstated. He said he would comply with conditions, and noted that in an attempt to comply with conditions he had gone to another college to get a higher education enrolment, that was why he had cancelled at VIT and went to ACOT. Again, despite some concerns, I am willing to give the applicant the benefit of the doubt and accept on the evidence before me, and with no evidence to the contrary, that the applicant has sought to maintain compliance with conditions on his visa and give this some weight.

17. I asked the applicant about any hardship that cancellation of the visa may cause. He said that there would definitely be hardship. He said that if he had to go back to India and get admission to college there, there has been quite a study gap. He said that he had been here for 2 years, and had wasted a lot of his parents’ money and their hopes. I asked if he could not get a job with his current qualification, his diploma of computer science. He said it would be very difficult. He asked why he would have come here to do higher education if there were jobs there. I noted that people make choices about their education and careers, and that does not demonstrate that there are not opportunities in India. I asked if he had worked in Australia or India and he said he had not worked here or there. I have considered the evidence of the applicant. I accept that he, and his parents, would suffer some emotional and financial hardship if the visa remained cancelled and he had to return to India. However, he has a vocational qualification, and I do not accept his arguments, which I consider are not grounded in clear reasons or evidence, that he could not either get a job with this qualification, or seek to do higher studies in India. I accept that the study gap may cause difficulties but I do not accept that it would make further education impossible. I consider that the evidence of the applicant indicates that there would be some hardships, but he has not established that there would be significant or lasting hardships. I therefore give this factor little weight.

18. I then discussed with the applicant the circumstances relating to the breach and whether he considered these beyond his control. He said that he had come here and it was a completely different environment, and he was misguided by the agents, who advised him that he could change his study, that was just the one mistake he made. He said that he was also depressed. I asked if he had any evidence of his depression and he said he did not, he was just under a lot of stress, he saw agents and lawyers and took their advice. I asked what the misguiding was specifically. He said that they advised him to cancel his CoE, this was the misguiding. I asked if he had wanted to apply for the vocational education and training study visa, the 572. He said he had. I noted that if he wished to apply for this subclass of visa, he would not have been eligible to be granted this subclass if he had been enrolled in higher education. The applicant agreed. I noted then that it would appear that this was not misguidance, if he had wished to apply for the 572. I noted that his applying for the 572 might indicate to me that he wished to study only at the vocational level, not the higher education level. He said no, he wanted to study at the higher education level, that’s why he got a Bachelor CoE. I noted that he had claimed he was not able to study his Diploma level course at VU, he had then enrolled in courses at a lower level, to study a certificate III, cancelled his Diploma and Bachelor CoE at VU, applied for a 572 visa to study at the vocational level, and then only returned to the Bachelor level and got a CoE at Holmes when he received the NOICC from the Department. I noted that this caused me to have concerns that he was a genuine student for study at the higher education level. He said that he had just wanted to study at the Diploma level and then go up to the Bachelor level. He said that the agent had advised him to start the diploma, and after that he could go into higher education. I clarified that I was concerned that he only obtained the Holmes CoE as he was afraid his visa would be cancelled and wanted to comply with visa conditions. He said he did want to abide by conditions, he did want to study, but he did not have the knowledge that he had to be enrolled in all of these things at once. I noted to him that what I was raising with him at this point was not about whether he had complied with conditions, but whether he had the intention to study at the higher education level, and I noted that I might take the view that after he left the diploma at VU he stopped having an intention to study at higher education level. He said that he came here to do higher education; he could have done a Diploma in India as well. He said he was under a lot of stress and depression at the time and he dropped to a lower level; that is the certificate III, as that was in a different stream of cookery from IT that is why he had to start at a lower level.

19. I asked the applicant what was his future plan. He said that he wanted to complete higher education and then go into business for himself or go into a job. I asked what kind of job and he said he could become a very good chef or open his own restaurant. I asked why he needed a Bachelor of business to do those things. He said that if he needed to open his own business he needed a knowledge of business. I noted that I understood a Bachelor of Business to be a level of education that people gained in order to work for large companies, such as multinational companies. The applicant agreed and said that if he goes to work for a multinational company he would need this. I noted that he had not told me before that his plan was to work for a multinational company. He said that he wanted to say that if he could not get work in a big company or multinational company, then he could become a good chef or open his own restaurant. I noted that he had told me earlier that his future plan was to go into business or go into a job and when asked what job he had said he could become a very good chef or open his own restaurant, so how did working for a multinational company fit into this. He said that he had forgot to mention that if he could get into a multinational company then at least he would have some options to go back to India. I asked what kind of multinational company. The applicant said he had no idea. The applicant said that it is very difficult for him, everything is stopped at the moment for him, and he would like to request maybe to be given another option so he can make a future.

1. I have had regard to the applicant’s evidence in relation to the breach. I do not accept that the breach was beyond his control – even if I accept his claims about the difficulties he had in studying, the applicant had choices which would not have involved breach of his conditions, such as studying in an area where he could gain enrolment at the Bachelor or Masters level. I accept that he may have been stressed, but I do not accept that he was depressed on the evidence before me, and I do not accept that stress in this circumstance has contributed to the breach – many international students arrive in Australia and may have difficulties with study and pressures from parents, but not all chose to leave their studies and cancel their enrolment. I do not accept that the applicant was misadvised or misguided by lawyers or migration agents or anyone else – he gave evidence that he wished to apply for the 572, and in order to do this he would have needed to demonstrate enrolment only in the vocational education level. He chose to apply for a 572 visa and cancel his enrolment at VU – I find that these actions, and the subsequent breach, were not beyond his control.

2. As I explained and explored with the applicant at hearing, in considering the circumstances around the breach, I considered it relevant to his application to have the cancellation set aside to consider whether he was a genuine student for study at the higher education level. I hold concerns that the evidence indicates the applicant does not genuinely intend to study at the higher degree level. He left his Diploma leading to a Bachelor of IT and enrolled only in vocational level courses. He has expressed a desire to study cookery, and to open his own restaurant or get a job as a chef, and when I explored why he needed a Bachelor of Business he was unable to explain why he needed this level of education for his claimed future career plans. I have had regard to the CoE provided from Holmes, but I find that the applicant only sought this enrolment after he received the NOICC, 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. The applicant’s evidence on this point focused on what he had done to maintain eligibility with his visa, rather than explaining how his actions indicated an intention to study at the higher education level. His application for a vocational education, 572 visa, also indicates that he does not wish to pursue higher education. I do not accept that he was told or believed that he could enrol in a pursue higher education later – as I explained to him at hearing, all of the actions the applicant has taken after deciding his Diploma at VU was too hard and he wished to pursue a different course of study are indicative that he wished to pursue vocational education in cookery. I accept that he may wish to study cookery at the vocational level and follow this as a vocation, and pursue a career in this like Sanjeev Kapoor, but I do not accept that anything in his conduct or evidence indicates a genuine intention from the point that he left his Diploma leading to a degree at VU onwards 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 the Diploma leading to a Bachelor at VU 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 – he was unable to clearly articulate why he needed to study the Bachelor of Business to pursue his future claimed career. When I consider the applicant’s behaviour, and his claimed desire to do the Bachelor of Business, 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.

3. I note that there is no indication that the applicant has not been compliant with the Department. I give this some weight.

4. 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 it would depend on what I decided, if he was told he had to go back to India, he will have to go, if he did not get the visa his whole future will be a waste. He has been here for 2 years, there has been quite a big gap in his studies, his parents have spent a lot of money on him, a lot of money has been wasted. He said he was scared of what will happen as he has not told his parents that he is not studying. He did not want to give them any shocks or wreck his future. I find that the applicant would act within the law if the visa remained cancelled and that it is likely he would depart, and that therefore he would not remain in detention for a significant period. He has not claimed to be unable to return to India and I so find. I give this some weight.

5. I discussed with the applicant other relevant matters. He said that he did not have any other matters to add.

6. I have weighed the evidence of the applicant, the submissions made to the Department and the Tribunal and the supporting documents and the factors set out in PAMS. Ultimately, my concerns about his genuineness as a student at the higher education level remain, and are significant, and I give this factor, and what I can determine of the circumstances surrounding the breach, greater weight than the factors which might indicate the visa should not be cancelled. On weighing these matters, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   Sean Baker
   Member