1501735 (Migration)

[2016] AATA 3446

1501735 (Migration) [2016] AATA 3446 (9 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SUMIT RANGARA

CASE NUMBER:  1501735

DIBP REFERENCE(S):  BCC2014/3008451

MEMBER:Sean Baker

DATE:9 March 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 09 March 2016 at 4:30pm

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 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 2 March 2016 to give evidence and present arguments.

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 14 November 2014. The Departmental decision sets out that on 11 October 2013 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. (In these reasons I may refer to such courses as ‘higher education’).

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 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 the hearing and he conceded that his Bachelor of Information Technology course at GCIT was cancelled at the end of November 2013. He said that he had received a valid letter of offer from Stott’s College on 6 January 2014 for a Bachelor of Business, and was able to present evidence of this after the hearing, but agreed that he had not been enrolled in a Bachelor or Masters course since his Bachelor of IT was cancelled around the end of November, and that he had not held a letter of offer prior to 6 January 2014. I noted it appeared that he may have been in breach of condition 8516 as I had explained it to him between these dates and he agreed.

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 was cancelled by GCIT around the end of November 2013 until at least he held the letter of offer from Stott’s on 6 January 2014. On the evidence before the Tribunal, for this period of time at least 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 responded to the NOICC. In the letter to the case officer he said that when he came to Australia he decided to change his study path, he was more interested in cooking and so he changed to this. He was enrolled at the Gold Coast Institute of TAFE (GCIT) to study IT. He requested a release as he wanted to change his college and course, but the college said they could only give him a cancellation, not a release. He kept requesting for a release but after a lot of discussion he was provided with a cancellation. He took that to other SVP colleges to get an enrolment but because he had a cancellation no-one would accept him. after many refusals he went back to GCIT and requested that they re-enrol him but they did not. He was not left with any choice. He got advice from relevant agents who told him to enrol at a non-SVP college and get a degree offer letter. He enrolled in a certificate III, IV and Diploma in Hospitality followed by an offer letter from Stott’s college for a Bachelor of Business. He states he has tried to do everything right and is a genuine student as he has completed much of his course and has been paying fees and abiding by rules. His intention has been good at all times, he is studying and not just waiting for an SVP college to take him. he says he is interested in the cooking industry and even has a job offer.

12. The agent also provided some further information with the applicant’s letter in which he claimed that the applicant was subject to some incidents beyond his control and decided to move to Melbourne. He did not know anyone on the Gold Coast, and his friends were situated in Melbourne, he believed it would be a good environment for him and he would have a good support system. After the cancellation the applicant was aware that he had to enrol in a course to maintain his student visa criteria. He enrolled in the above courses and got an offer letter from Stott’s. the applicant is hardworking and has completed a significant part of the course he is enrolled in. it is claimed he wishes to complete his studies as per his intentions when he came to Australia but other factors played a role in him relocating to Melbourne. He has been through hardship due to receiving a cancellation from GCIT.  He has tried to get enrolled in an SVP college but has not had much luck.

13. At hearing the applicant said that he had come to Australia on 17 October 2013. He said that he had started his English course at GCIT on 21 October, which was packaged with a Diploma and Bachelor of IT. He said he did not complete his course, as a lawyer told him that if he wanted to change he had to change right away. He confirmed that he withdrew from his English course on 1 November 2013, after only two weeks. He said he then talked to his cousin in Melbourne who encouraged him to come to Melbourne. I asked why he had withdrawn from his course after only two weeks. He said he did not enjoy the Gold Coast. He said that he had booked a ticket to go back to India, but then his cousin talked to a migration agent who told the applicant that he could migrate to Melbourne. After the hearing the applicant provided an eticket receipt and reservation issued 1 November 2013 for travel from Australia to India for the applicant.

14. I asked what his purpose had been in travelling to and staying in Australia. He said he came here to study. He said he had completed the equivalent of year 12 in India and had not worked there. I accept that the applicant’s purpose in coming to Australia may have been to study and I give this some weight towards the visa not being cancelled.

15. At hearing I discussed his compliance with conditions on his student visa with the applicant. He said that he had not worked in Australia and had gone to all classes. When queried he said he meant all classes for his certificate III in hospitality, where he had completed 2 semesters and was nearly done. On the evidence before me I accept that the applicant has not breached conditions apart from condition 8516. I give this some weight towards the visa not being cancelled.

16. I raised the question of whether there would be any hardship he or others may face if the visa remained cancelled. He said that he would be upset as he would have wasted nearly 3 years, he would have wasted money, would have no certificates and nothing to show parents, and his career would be gone. I accept that there would be some financial and emotional hardship to the applicant and his family if the visa remains cancelled, but the evidence before me  does not indicate that the applicant or his family will suffer serious or significant hardship if the visa remains cancelled. I give this factor little weight towards finding that the visa not be cancelled. 

17. At hearing I discussed with the applicant the circumstances surrounding the breach. I noted that I was concerned that he had left his original packaged course after only 2 weeks. He said that he knew leaving after only two weeks seems very bad. They had told him he could not move. I noted it may indicate he had never had any intention of studying his original course. He said he felt bad there. He said that he spoke to a counsellor at GCIT, Tanya, and she said he could not change to another college and said otherwise you have to return to India. So he made the decision to return to India. Then he talked to his cousin. He said he was told that if he continued studying (at GCIT) then he could change it. I asked if he had considered continuing his studies at GCIT. He said that he was excited to study here and did not like that college. He said that he wanted to come to Melbourne and study here and the consultant said he could change. I asked what the purpose was of his study and he said that he had chosen IT but then when he came here he met with a lot of people and wanted to move from there, and then his cousin said he could choose cookery and so he changed to that. I asked what his future plan was and he said he wanted to open his own restaurant in Haryana. He agreed that the circumstances surrounding the breach were not beyond his control. I noted to the applicant that I was concerned with whether he was a genuine student for study at the higher education level – I noted that after leaving GCIT he had enrolled only in vocational level courses, which I was aware were a lower workload and lower cost course, which may indicate he did not genuinely intend to study at the higher education level. He said of course he wanted to study at the higher education level, he wanted to do study, he told me that. I noted that I was not convinced that he needed a Bachelor degree to open a restaurant in Haryana, which he claimed was his future plan. He said that to open his restaurant a Bachelor was good for him. I asked in what way and he said he had to do his restaurant, and he could also do the share market, he needed to have a degree to do all of these things. He said he could get a job and he would have options. In the future he would have to do something and he would have to make money in the future.

18. I have considered the circumstances in which the ground for cancellation, that is the breach of condition 8516, occurred. I have considered the letter of offer for the Bachelor of Business he obtained from Stott’s on 6 January 2014, which he provided only after the hearing, and which he claimed was still current, but when asked if he had spoken recently with Stott’s about whether the offer was still current said he had not. For the following reasons I do not accept that this indicates it was his genuine intention to enrol and study in this course. I also note, although I did not have the chance to discuss this at hearing with the applicant, that he appears to have signed this offer letter on 7 January 2014 but then not sent it to Stott’s for them to issue a CoE. I do not know why he would have done this and he did not discuss this at hearing. But, relevantly to what was discussed at the hearing, I have no confidence that he has ever intended to study this or any other course at the Bachelor or Masters level. This is because the applicant was unable to clearly explain why he needed to study the Bachelor course. He was unable to clearly explain how it fitted into his future plans. He did not demonstrate that he had taken any steps other than getting the letter of offer after he left GCIT to study or enrol in the higher education level. His responses indicated that he attempted to leave GCIT very early after arriving, I am not convinced this was for the reasons claimed, and the submissions and his responses indicate that he was searching for somewhere to study with, it appears, little regard for what he wanted to gain from those studies, rather that he maintain what he believed was technical compliance with the condition that he be enrolled in a course. I find the circumstances leading to the breach were not beyond his control, and I find that the applicant has not demonstrated a genuine intention to study at the higher education level. On weighing his responses and my concerns, I find that the breach here did not occur solely for the reasons he claims, and that his evidence does not lead me to have confidence that he would not breach this condition by not being enrolled in a higher education course in the future. I find that the applicant is not a genuine student for study at the higher education level. I give this factor significant weight towards finding that the visa be cancelled.

19. I asked the applicant whether there was any reason he could not return to India. He said he could go back but he wanted to have something to show his parents. He said that he had to do study here in cookery and he said that his cousin here owned a restaurant. I asked what he would do if the visa remained cancelled, and he said he would return to India. I find that there is no indication that Australia’s international obligations would be engaged if the visa were cancelled, and further that, whilst the applicant would be subject to mandatory detention and removal if the visa refusal decision is affirmed, he has indicated that he would depart for his home country and so there is unlikely to be a period of detention or the prospect of indefinite detention on the evidence. I find these factors therefore have no weight in the consideration.

20. I asked the applicant if there were any other relevant matters he wished to raise and he said there were not. On the evidence before me, I find that there is no evidence that any of the other factors identified in policy are relevant to the consideration, and the applicant has not identified any other matters.

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

    DECISION

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

    Sean Baker
    Member