1502716 (Migration)

[2016] AATA 3795

1502716 (Migration) [2016] AATA 3795 (26 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr AMRITPAL SINGH

CASE NUMBER:  1502716

DIBP REFERENCE(S):  BCC2015/432665

MEMBER:Christopher Smolicz

DATE:26 April 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 26 April 2016 at 12:57pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 February 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)(fa)(i) because they were not satisfied the applicant was a genuine student.

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. The applicant appeared before the Tribunal on 16 March 2016 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The applicant provided the Tribunal with a copy of the delegate’s decision.

5. 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

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. Relevantly, to this case, these include the ground set out in s.116(1)(fa)(i). 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?

7. A visa may be cancelled under s.116(1)(fa)(i) if the Minister or the Tribunal is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

8. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]). For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the Minister or Tribunal may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision.

9. The applicant is a citizen of India. He was granted a Subclass 573 visa on 20 September 2013 and arrived in Australia on 22 September 2013. His visa was due to expire on 15 March 2017.

10. The applicant was granted the subclass 573 visa to study a Bachelor of Information Technology at the Gold Coast Institute of TAFE. As part of the course the applicant was to complete a Diploma of Information Technology followed by the Bachelor degree.

11. In January 2014 the applicant contacted his course provided and requested a transfer to a TAFE college in Perth. He was told that he had to complete his English Language Program for International Students before he could transfer.

12. The applicant completed English Language Program in the periods 23 September 2013 to 29 November 2013 and 17 February 2014 to 25 April 2014.  In May 2014 he requested that his Certificate of Enrolment (CoE) be cancelled and his fees refunded because he was returning to India.

13. He did not commence the Diploma of Information Technology and the CoE was cancelled on 28 January 2014 and the CoE for the Bachelor of Information Technology was cancelled on 12 May 2015.

14. The applicant subsequently moved to Perth and was enrolled in a Diploma of Business course at the Technical College of Western Australia (TCWA) for the period 30 June 2014 to 28 June 2015.

15. On 8 October 2014 TCWA sent the applicant a warning letter regarding his course progress. The letter advised the applicant that it was a condition of his visa to maintain enrolment in a registered course, attend classes and achieve satisfactory academic results. The letter advised the applicant that he was at risk of breaching the condition of his student visa.

16. On 22 October 2014 the applicant sought leave from his studies at TCWA to attend his sister’s wedding in India.

17. On 12 November 2014 TCWA approved an application for deferral of the applicant’s study from 14 November 2014 to 7 December 2014. The applicant departed Australia on 14 November 2014 and returned on 11 February 2015.

18. On 2 December 2014 TCWA advised the Department that for the course Diploma of Business the applicant’s attendance for Term 1 was 31% and his attendance for Term 2 was 21%.

19. On 9 February 2015 the applicant was notified by the Department of its intention to cancel his visa. The delegate had regard to the Provider Registration and International Students Management System (PRISMS) and noted that the applicant did not study in the period 30 November 2013 to 16 February 2014 and 26 April 2014 to 29 June 2014.

20. The applicant responded to the notice and claimed he was suffering from stress and homesickness. He claimed his mother was unwell. He claimed he was taking medication from Australia and India. The applicant said “I realise it was my mistake. In the future it will not happen again.” The department was provided with an Indian medical certificate for the applicant’s mother dated 10 October 2014 and a CoE for Diploma of Business for the period 16 February 2015 to 27 September 2015. After considering the applicant’s submissions the Department cancelled his visa on 19 February 2015.

21. At the hearing the Tribunal questioned the applicant about his enrolment history since he arrived in Australia. The applicant said that since he arrived in Australia he had not completed any course of study. The applicant said his mother became ill in September 2014 and was depressed and did not attend his Diploma of Business at TCWA. The Tribunal noted that he told TCWA that he was traveling back to India for his sister’s wedding and did not mention his mother’s illness at the time. The applicant said he was also travelled back to Indian for his sister’s wedding. The applicant conceded that he did not maintain his enrolment at TCWA and his CoE was cancelled. The applicant said he was homesick and depressed because his mother was unwell. He now wants to study Diploma of hospitality.

22. The Tribunal finds that the applicant was granted a student visa to study a Bachelor of Information Technology in Australia but now wished to study hospitality.

23. The Tribunal finds apart from the English Language Program, the applicant has not completed any course of study since arriving in Australia in September 2013.

24. The Tribunal has had regard to the delegate’s decision and notes that since the applicant moved to Perth and enrolled in a Diploma of Business his attendance for Term 1 was 31% and his attendance for Term 2 was 21%.

25. For these reasons the Tribunal finds that the applicant is not a genuine student. The Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(i) 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

26. 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’.

27. The applicant is a single male with no dependants. The Tribunal notes that the purpose of the applicant’s travel to Australia was to study a Bachelor of Information Technology he now claims to want to study hospitality. Despite his claims to want to study in Australia he has not completed any course of study apart from an English language course which was a prerequisite to his Bachelor degree.

28. The Tribunal accepts that the applicant was supported financially in Australia by his father in India. The Tribunal accepts that if the applicant’s visa is cancelled the applicant’s family will experience a degree of financial hardship having invested money in the applicant’s education in Australia. The Tribunal has given this some weight.

29. The Tribunal notes that other than the visa cancellation the applicant has complied with his visa conditions since arriving in Australia.

30. The Tribunal has had regard to the applicant’s evidence that his mother was unwell and he felt depressed, homesick and alone in Australia. The Tribunal found the applicant’s evidence vague and lacking in detail and has given it limited weight. For example, the applicant did not seek counselling or advise TCWA that his mother was unwell. He did not provide a medical certificate in support of his depression in Australia. When questioned about his mother’s illness at the hearing he said she had a “cold fever” and was at home and could not provide further information. According to the Indian medical certificate issued on 10 October 2014 his mother was suffering from Jaundice and fever from 25 September 2014 to 10 October 2014. The Tribunal notes that despite the illness having ceased in October 2014 the applicant did not complete his studies in Australia.  

31. The Tribunal has considered applicant’s submissions and finds that there is no reason the applicant cannot return to India, and if required to do so, would do so. Therefore, the Tribunal finds that there is no likelihood that the cancellation would result in him being detained or indefinitely detained or that any international obligations would be breached if the visa remains cancelled.

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

    DECISION

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

    Christopher Smolicz
    Member

    
    

    ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.