1502395 (Migration)

[2016] AATA 3737

1502395 (Migration) [2016] AATA 3737 (20 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Daljeet Kaur
Mr Arminder Singh Dhalla

CASE NUMBER:  1502395

DIBP REFERENCE(S):  BCC2014/3010676

MEMBER:David Corrigan

DATE:20 April 2016

PLACE OF DECISION:  Melbourne

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

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 20 April 2016 at 4:53pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 February 2015 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) 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(s.116(1)(b) on the basis that the applicant had not complied with a condition of her visa (8516). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

4. The applicants appeared before the Tribunal on 20 April 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.  The applicants were represented in relation to the review by their new registered migration agent. The representative attended the Tribunal hearing.

5. By letter dated 12 February 2016, the applicants had been invited to a Tribunal hearing on 22 March 2016.  On 17 March 2016, the applicant’s then migration agent requested a postponement on the basis that he had applied for Freedom of Information (FOI) from the Department and required more time to prepare the matter.  The Tribunal granted this request and invited the applicants to a new hearing on 20 April 2016.   At 2.45pm on 19 April 2016 (the day before the hearing), the former agent emailed the Tribunal and advised that they had not received FOI from the Department and he requested more time to get the information.  At 3.45pm on 19 April 2016, an officer of the Tribunal rang the former agent and advised him that the Member wanted evidence from him that an application for FOI had been made.  The former agent said he had lodged a paper request to the Department.  The Tribunal has declined the request on the basis that it is not satisfied that such a FOI request has been made and that a substantial period of time has elapsed since the applicants had lodged their review application.  The former agent should have been able to provide a copy of such an application if it had been made and he also could have provided an acknowledgement of the application.  The Department’s policy is that after a FOI application is lodged, they will acknowledge it within 14 days.  They are also required to give their decision and their reasons for that decision within 30 days of receipt of the application.  If for any reason they need more than 30 days to complete the request, they will contact an applicant to arrange an extension of time for processing of the request in line with requirements under the FOI Act.[1]  The former agent did not provide to the Tribunal any evidence that the request was made when requested and over 30 days has passed since he first advised that he had made the request.  No evidence was provided that the Department had sought to extend the time to provide the information.  Furthermore, the Tribunal has had the Departmental file in relation to the applicants’ case throughout this period and the Department has not requested it to undertake the FOI processing.  The applicants lodged their review application a long time ago in February 2015 and had been invited to the first hearing on 12 February 2016 and the Tribunal had already allowed one request for postponement.  In all these circumstances, the Tribunal decided not to postpone the matter further and the hearing took place on 20 April 2016.

   [1] Department of Immigration and Border Protection, Freedom of Information,

6. 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

7. 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?

8. 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. The requirement in condition 8516 is for a visa holder to continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

9. It was a criterion for grant of the applicant’s Subclass 573 visa that if cl.573.223(1A) does not apply 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: cl.573.231. 

10. Clause 573.223(1A) relevantly provides:

    (1A) If the applicant is an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

    (a)      the applicant gives the Minister evidence that the applicant has:

    (i)      a level of English language proficiency that satisfies the applicant’s eligible education provider; and

    (ii)      educational qualifications required by the eligible education provider; and

    (b)      the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

    (i)      the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

    (ii)      any other relevant matter; and

    (c)      the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

    (i)      the costs and expenses required to support the applicant during the proposed stay in Australia; and

    (ii)      the costs and expenses required to support each member (if any) of the applicant’s family unit.

11. Eligible higher degree student is defined as clause 573.111 as follows:

    eligible higher degree student means an applicant for a Subclass 573 visa in relation to whom the following apply:

    (a)      the applicant is enrolled in a principal course of study for the award of:

    (i)      a bachelor’s degree; or

    (ii)      a masters degree by coursework;

    (b)      the principal course of study is provided by an eligible education provider;

    (c)      if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study:

    (i)      the applicant is also enrolled in that course; and

    (ii)      that course is provided by the eligible education provider or an educational business partner of the eligible education provider.

12. On 3 January 2014, the applicant was granted a Student (Temporary)(Class TU) Higher Education Sector Subclass 573 visa which had condition 8516 attached to it.  The visa was granted on the basis of her enrolment in English for Academic Purposes (EAP) and a Bachelor of Health Promotion at the University of the Sunshine Coast (USC).  The visa was granted under the streamlined visa processing (SVP) arrangements which had lower evidentiary requirements.  In May 2014, her enrolment in these courses was cancelled by USC.  She then enrolled in a Certificate III and IV in Commercial Cookery and a Diploma of Hospitality at Group Colleges Australia (GCA).

13. The applicant was sent a Notice of Intention to Consider Cancellation (NOICC) on 18 November 2014.  On 15 December 2014 (as per the submitted CoE), she enrolled in a Bachelor of Business at Group Colleges Australia.

14. The evidence before the Tribunal shows that in May 2014 the applicant ceased to be enrolled in a bachelor’s degree or master’s degree by coursework and that she was not later enrolled in a bachelor’s degree course until 15 December 2014.  The evidence shows she was not later enrolled (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 until 15 December 2014. 

15. The requirement in condition 8516 is for a visa holder to continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.  Given, the applicant was not enrolled in a bachelor’s degree or master’s degree by coursework she ceased to be an eligible higher degree student.  The applicant was not enrolled (or the subject of a current offer) in a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A,   Accordingly, she did not continue to satisfy subclauses 573.231 or 573.223(1A) and she thus failed to comply with condition 8516. 

16. 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

17. 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 visa holder’s travel to and stay in Australia

18. The applicant studied an English Language Program when she 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 her favour.

    The extent of compliance with visa conditions

19. The Tribunal has taken into account that the applicant was in breach of condition 8516 for a significant period of time from May 2014 until 15 December 2014, when she obtained enrolment in a Bachelor of Business.  Overall it considers the extent of the breach is a significant factor that points to cancelling the visa.

20. 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 her 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.

21. The applicant told the Tribunal that she studied the EAP for 10 weeks and that when she did local exams she would get 7 out of 10.  She said that however when she studied the final exam she did not get a good mark.  She submitted a copy of her EAP 1 certificate which shows she obtained an overall mark of 53.5 but she said she was told by USC that she needed a score of 70% to proceed to EAP 2.  She said she was told if she could not get up to speed in 10 weeks she could not undertake a higher education course.  She said 10-15 other students were in this position and they were advised to go.  She said that she spoke to a student counsellor called Brett after the exam about the situation but she was not allowed to continue with her studies.  The Tribunal asked her whether she found the course difficult and she said no.  She also said that she had not sought the assistance of the education provider or a student counsellor prior to the exams. The Tribunal pointed out to her that this appeared inconsistent with her response to the NOICC where she had stated that she found the course and level of program very demanding and that due to a lack of academic support and hardship she failed the English program.  She commented that she and others had tried to seek help but they did not do anything.  The Tribunal considered has these matters, but it does not consider they constitute exceptional circumstances beyond her control that led to the ground existing.  The applicant’s oral evidence was contrary to that in her response to the NOICC where she had stated she had not been provided with sufficient academic support and the Tribunal does not accept, on the evidence before it, that she was provided with insufficient academic support.  Her oral evidence also indicated that she did not seek the support of a student counsellor prior to undertaking the exams and the Tribunal is not satisfied that her failure to obtain a mark sufficient to persuade USC to enable her to continue studies leading to a Bachelor’s degree constitute extenuating circumstances beyond her control which led to the ground existing. The Tribunal finds that there is nothing extenuating about an education provider insisting on certain academic standards for students to continue studying with them for the purposes of undertaking a Bachelor’s course.  The applicant has not indicated any other difficulties that would have prevented her from effectively studying at USC during that period.

22. The applicant stated she contacted an education/migration agent in Melbourne and was advised that if USC issued her a release, she could get admittance to a SVP provider otherwise she would have to attend a non-SVP provider.   She said she went to SCI to ask for a release letter and they told her they would only issue a release letter after six months.   The Tribunal accepts that SCI did not give her a release letter but it does not accept that they told her she could not get a release letter as she had not studied for six months.   The Tribunal is of this view because it is contrary to USC’s own Guidelines for Transfer and Letter of Release[2] which were updated on 6 February 2014 and in effect at that time and the USC’s Transfer of Student Visa Students between Registered Providers – Managerial Policy[3] which was effective from 28 June 2013.  These documents make it clear that students prior to completing six months of their program of study could apply to be released from their studies to transfer to another CRICOS registered provider in Australia.  The applicant said when she came to Melbourne she got a letter of offer from an education provider, however her evidence did not indicate that she had obtained a letter of offer from another CRICOS registered provider to be considered for transfer and a letter of release nor that she made a formal application for this which are a necessary part of the USC guidelines.  Neither did her evidence indicate that after being refused, she was issued a letter outlining the reasons for refusal and procedures for review which is also part of the USC guidelines.  On the evidence before it, the Tribunal finds that she did not make an application for a transfer and letter of release from USC and it does not accept that USC refused to give her one.   The Tribunal does not accept that her claims in this regard constitute exceptional circumstances beyond her control which led to the ground existing.

    [2]

    [3]

23. The applicant said she went to an education/migration agent in Melbourne and they told her to get admission to a diploma leading to a non-SVP program and that this agent had misadvised her.  However, the applicant told the Tribunal that she had not made any complaint to the Migration Agents Registration Authority (MARA) and that she did not know about the system.  However, the applicant claims she was misadvised by this agent back in 2014 and there has been a long period of time since her visa was cancelled and the Tribunal taking into account her lack of complaint to MARA is not satisfied that she was misled as she claims.   The applicant did not contact the Department at the time to discuss the effect on his visa status as a result of these significant changes of courses.  It notes the email she submitted from USC notifying her of the cancellation of enrolment stated that they suggested she contact the Department to discuss the validity of her student visa.  The applicant said that among the 15 students who were affected, one rang the Department and he was advised that he should contact his Indian agent.  Even if the Tribunal accept this, it does not indicate that the applicant herself made contact with the Department about the situation in her own case and circumstances.  The applicant claimed she had a phobia about the Department and that they might send them back, but the Tribunal does not consider this to be a valid reason not to contact the Department.   The Tribunal considers it is her responsibility to be aware of the conditions that attach to her visa and she did not seek advice from the Department about her responsibilities, even though she ceased studying on the study pathway which enabled the visa to be granted.   The applicant told the Tribunal that the time period for her to enrol in other courses were short, but the Tribunal, noting that she was able to obtain enrolment in a Bachelor of Business not long after receiving the NOICC, does not accept that this is an adequate reason for her not to have enrolled or obtained an offer of enrolment in a higher education course.  It also notes that she did not enrol in this Bachelor of Business until 15 December 2014 and that she had ample time to enrol in a higher education course prior to this.

24. The applicant was granted the visa to study at the higher education sector level (under the SVP arrangements which require lesser evidentiary requirements) and did not do so and failed to maintain enrolment in a higher education sector course or even have a current offer. 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.

    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

25. The Tribunal has taken into account that it is likely the applicant will have to return home and she will lose the opportunity to study in Australia.  The applicant stated that they had spent a lot of time and money in Australia.  The Tribunal has taken into account, however the applicant also told the Tribunal that in India she had obtained a nursing qualification and worked there as nurse.

1. The Tribunal considers on the evidence before it, the applicant and her family members will not face any significant degree of hardship (financial, psychological or emotional) if her visa is cancelled and has given this factor only limited weight in her 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)

2. The Tribunal has no evidence before it that 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 her favour and it has taken this into account.

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

3. The second named applicant’s visa will be cancelled under s.140 and the Tribunal has given this some weight in favour of not cancelling the visa.

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

4. 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

5. 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.

6. The applicant is currently on a bridging visa and the cancellation of his student visa will not directly lead to her becoming an unlawful citizen.  Whilst the applicants may eventually become unlawful non-citizens and liable for detention and removal, the Tribunal gives this factor only limited weight in her favour and finds it does not outweigh other factors that point to the cancellation of the visa.  The Tribunal is not satisfied, on the evidence before it, that indefinite detention is a possible consequence of the cancellation decision because they cannot be removed from Australia consistently with Australia’s non-refoulement obligations. 

7. There are no provisions of the Act that that prevent the applicants from validly applying for a protection visa without the Minister personally intervening.  Whilst they may be prevented from making a valid application for other visas without the Minister personally intervening, this is only a factor that the Tribunal gives limited weight in her favour to.   

   Any other relevant matters

8. The Tribunal has taken into account that the applicant did undertake studies in EAP and achieved an overall mark of 53.5 and that she later undertook studies in Commercial Cookery.  The Tribunal has also taken into account that she has not been able to study since his visa was cancelled.  However, it does not consider her to have a genuine intention to study at the higher education level and it has only given these matters only limited weight in her favour.   It is of this view given the applicant’s study and work history.  The applicant told the Tribunal that she had obtained a nursing qualification in India and worked as nurse there.  She then came to Australia after being enrolled in a Bachelor of Health Promotion.  Asked why she had enrolled in cookery/hospitality courses, she said that she was not able to study the course she came to Australia to study and that she needed these courses and an IELTS score to seek admission in a nursing-related course.  She said she only had a short period of time (15-20 days) to get admission into the courses and that the cookery/hospitality courses were the only ones available and she did not want to be unlawful.  Asked what she would do if her visa was reinstated, she said she would like to go back to nursing-related courses and the Bachelor of Health Promotion but she would have to attend English courses before.  Asked where she would get admission she said in Melbourne.  Asked where in Melbourne, she said any college related to nursing.

9. The Tribunal has considered the applicant’s comments but it is concerned that despite her academic and work background in nursing and her original enrolment in a Bachelor of Health Promotion, that she was prepared to enrol in totally unrelated lengthy lower level courses in cookery and hospitality (which she did not indicate she was interested in) without enrolling in any higher education sector course.  She then after receiving the NOICC, enrolled in another course unrelated to her academic and work background, a Bachelor of Business, which she now does not wish to undertake.  It is also concerned that she now says she wishes to obtain enrolment in an unspecified education provider in a Bachelor of Health Promotion.  Whilst she may have paid money to obtain enrolment in the Bachelor of Business, it considers her study and work history including her change of courses indicates that she does not have a genuine intention to study at the higher education sector level.  The Tribunal has given substantial weight to these factors which support the cancellation of the visa.

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

    DECISION

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

12. The Tribunal has no jurisdiction with respect to the second named applicant.

    David Corrigan
    Member