1506056 (Migration)

[2015] AATA 3425

1506056 (Migration) [2015] AATA 3425 (17 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jatin Jatin

CASE NUMBER:  1506056

DIBP REFERENCE(S):  BCC2014/1331354

MEMBER:Sean Baker

DATE:17 August 2015

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 August 2015 at 4:58pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 July 2014 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 it appeared that the applicant had not continued to be a person who would satisfy cl.573.231, and as such it appeared that he has not continued to be a person who would satisfy the primary criteria for the grant of the visa, and therefore has not complied with condition 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. The matter was remitted by consent by the Federal Circuit Court on the basis that the Tribunal, differently constituted, failed to consider the matters put forward by the applicant as to why the discretion under s.116 should be exercised in his favour.

4. The applicant appeared before the Tribunal on 6 August 2015 to give evidence and present arguments. The applicant had his friend there but the friend and the applicant confirmed that he did not wish to give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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)(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?

7. 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 requires that the holder must continue to be a person who would satisfy the criteria for the grant of the visa.

8. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that he met, among other criteria the requirements of cl.573.223(2) and cl.573.231 of Schedule 2 to the Regulations, unless he was an ‘eligible higher degree student’ in certain circumstances.  If he was an ‘eligible higher degree student’ who had a confirmation of enrolment in each course of study for which he was an eligible higher degree student, he would have had to satisfy the requirements of cl.573.223(1A). The definition of eligible higher degree student relevantly requires the applicant to be enrolled in a principal course of study for the award of a bachelor’s degree or a master’s degree by coursework. In this case the applicant satisfied either cl.573.223(1A) or cl.573.231 at the time of his visa grant on 14 September 2012. The question therefore is: has the applicant failed to continue to be enrolled in a course which means that he has not continued to be a person who would satisfy either cl.573.223(1A) or cl.573.231.

9. At the hearing the applicant said that he had been granted the visa on 14 September 2012. He said that he did not believe that the visa was granted under the Streamlined Visa Processing Arrangements. He said that he had come to study and to complete his Diploma of Business leading to a Bachelor of Business at Edith Cowan University. He said that towards the end of December 2012 he had been misguided to cease his studies in the Diploma leading to a Bachelor and to enrol in a Certificate IV in Business at Kingdom College instead. He confirmed that he took a release letter from Edith Cowan University at this time. I asked if he had been enrolled or had a current letter of offer for a Higher Degree course after this. He said he had not had one until 9 January 2015, when he got a letter of offer to study a Bachelor of Business (Management) at Cambridge International College. He said that he had been told by the previous Tribunal that this was a non-SVP institution so he had not followed this up.

10. I explained to the applicant the requirements of condition 8516. I explained that his visa had been granted on the basis of enrolment in a higher degree course and that this meant that if he did not maintain enrolment in a higher degree course, that he may be in breach of condition 8516. The applicant conceded that he was not enrolled after December 2012 and had only gained the letter of offer from Cambridge on 9 January 2015.

11. The evidence before the Tribunal shows that the applicant was not enrolled in a higher education course from December 2012 and that the applicant only received the offer of enrolment in a Bachelor’s course on 9 January 2015.  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 higher education course and was not the subject of a current enrolment in such a course; he has not continued to satisfy cl.573.231 as he was no longer an eligible higher degree student, nor had a requisite confirmation of enrolment nor was enrolled in a principal course specified for Subclass 573 visas. The Tribunal finds that he therefore failed to comply with condition 8516. 

12. 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

13. 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’.

14. I explained to the applicant that he could provide any claims or evidence he wished to and I would consider these and would in turn explain to him any concerns I had with the evidence before me.

15. In the hearing I explored with the applicant his prior study history. He explained that after the visa was granted on 14 September 2012 he came to Australia on 30 September 2012 for the orientation into his Diploma of Business in October 2012. He said that he had been enrolled in Perth Institute of Business Technologies (PIBT), and that this Diploma of Business would lead to a Bachelor of Business at Edith Cowan University. I asked him why he had chosen a Bachelor of Business. He said that his father ran a hotel and he wanted to do studies so that he could go back and help his father and help the business grow. I asked if he needed a Bachelor level qualification to do this and he said that he considered that more education helps you to do more in business. I asked why he had chosen Edith Cowan and he said that this was one of the best Universities, and that was why he chose to study there. He said that he was thinking of pursuing his Bachelor of Business in the marketing stream. I asked why he had chosen Perth and he said that it was a good place, really quiet compared to Brisbane or Melbourne.

16. The applicant said he had studied at PIBT for four months. I asked if he had had any troubles with his studies and he said he had not – he had enjoyed his studies at PIBT. I asked why he had stopped studying there and he said that he met a lawyer who told the applicant that if he wanted to change studies he could transfer to another college and told him he did not need to change visas or courses. I asked why the applicant would want to do this and the applicant said that the lawyer had misadvised him. I asked him again why he wanted to do this and he said that the lawyer told him that he would pay less fees. I asked if the applicant was having trouble paying his fees and he said he was not, but everyone wants to save money. He said he then got an offer letter for a Certificate IV in Business from Kingdom College in Perth and got release letters from PIBT and Edith Cowan. He said this was at the end of December 2013. I noted that I continued to have difficulty understanding why he had changed to Kingdom college if he was having no difficulties at PIBT and his fees were not an issue. He reiterated that everyone wants to save money.

17. I asked how he had withdrawn and got the release letter from PIBT. He said that his lawyer told him not to tell them the truth and so he just told PIBT that he was shifting to Melbourne. I asked if that was true and he said it was not, he shifted to Melbourne in July.

18. I asked again why he had chosen this course of actions, when he had told me quite reasonably why he had decided to study towards a Bachelor of Business at Edith Cowan University. He reiterated that the lawyer had misguided him and because he was a lawyer he trusted him. I noted that he had not identified why he had chosen to follow this advice and take this course of action if he was not unhappy with his course at PIBT and was not in financial or any other difficulties. He again reiterated that he had been misguided and that his lawyer told him he could save money, which everyone wants to do. I asked if he had read the release letter from Edith Cowan. He said he had. I asked if this had advised him to contact the Department to confirm his visa status. He said he asked his lawyer about this, who had told him he did not need to contact Immigration.

19. I asked what he did at Kingdom College. He said that he had studied there for 2 ½ months but he had a dispute about fees. He claimed that he had paid them $2,000 and they told him he had not paid them anything and did not make a student card for him. I asked him what he did after this 2 ½ months which would have been around March 2013. He said he did not study after that as he was very stressed about the money he had paid Kingdom and he did not study again until he came to Melbourne. He said he left Perth and came to Melbourne as he had difficulties with his housemates and his brother was in Melbourne. He said he came to Melbourne and studied after that, he said he enrolled in Technical Institute of Victoria (TIV) in August 2013.

20. I asked if he was aware that he, generally speaking, was required to continue studying whilst holding a student visa. He indicated he was but reiterated that he was in a lot of stress in Perth.

21. I asked if he was telling me he did not study at all for these approximately four months. He confirmed this. I asked what he studied at TIV and he said he studied hospitality. I asked if he had completed his studies and he said he did not, as he went to India in January 2014 and returned in March 2014. I noted that his visa was then cancelled on 2 July 2014. He agreed, and said that he had not received the Notice of Intention to Consider Cancellation sent in June 2104. I noted to him that this had been sent to the same email address as prior correspondence he had responded to, he agreed and said he had got the decision emailed to him in July, but not the NOICC sent in June. The copy of the delegate’s decision record provided by the applicant to the Tribunal indicates that the applicant did not respond to the NOICC dated 4 June 2014.

22. I noted to the applicant that he had spent a considerable period in breach of condition 8516, that is, not enrolled in a higher education course, and this caused me concern that he was a genuine student for study at the higher education level. He said that his lawyer misguided him and just told him he had transferred him to the same course.

23. I asked why he had chosen to change study pathways to study hospitality when he had come to Melbourne. He said that his father had told him at that time that it would be good for him to study hospitality as his father was planning to get another hotel in India. I asked why the applicant had chosen to change his study pathway and he said that after all the misguiding and his father telling him he just chose to do that.

24. I asked if the applicant had completed courses in Australia since arriving in September 2012 until his visa was cancelled in July 2014, almost two years. He said he had not. I noted that transferring from high cost courses to lower cost courses and a low completion rate for the period he had held a student visa may indicate to me that he was not a genuine student. He reiterated that his lawyer had misguided him. I noted that when I considered this with his evidence that he had not studied for four months between Kingdom College and TIV, this caused me real concerns about his claims to be a genuine student and his claimed wish to remain in Australia to study. I noted that for these four months he appeared not to have been enrolled in a course, and may therefore have been in breach of other visa conditions to maintain enrolment and to meet course progress and attendance standards. The applicant said that he did wish to study.

25. I asked whether he did, in fact, intend to study if the visa was reinstated. He said that he did have an intention to study in Australia and he had offer letters and intended to study more now. I asked if, going forward, would he study and he said he would. I noted that I would consider this but that the things he had told me today caused me real concerns.

26. I discussed the applicant’s current letter of offer with him. I asked the applicant why he had chosen Stott’s college. He said that it was a good place to study, and then said that he had tried a few places, Imperial College was full and Holmesglen had not gotten back to him yet. He said that after hospitality he was going to study business. He said that he had made many mistakes but his intention now was to study genuinely.

27. I discussed his contention in his email of 12 January 2015 attaching an email sent from the Department to students indicating that if they changed from an SVP higher education course to a non-SVP higher education course prior to 14 January 2014, they would not be considered for cancellation. I pointed out that this did not apply to him as he had not changed to a higher education course. He indicated that he understood.

28. I found the applicant’s evidence to be inconsistent in relation to his claimed intention to study at the higher degree level. The applicant has not clearly explained why he chose to withdraw from his course at PIBT and Edith Cowan. I do not accept that the applicant was misled by his agent. As I noted to him, I do not accept that a person with his background, who has articulated a clear reason why he chose to study his Diploma of Business and Bachelor of Business in Perth at PIBT and Edith Cowan, who apparently had no problems with his course at PIBT, nor any difficulties with the fees, would accept uncritically advice from an agent to do another course at another institution part way through a semester for the vague reason that ‘everyone wants to save money’. I have had regard to his evidence that he had trouble with his housemates in Perth and his brother was in Melbourne, but he has not provided these as reasons why he stopped studying at PIBT and enrolled in Kingdom, and in fact said that he had misled PIBT by telling them that he was travelling to Melbourne, which he gave evidence he then did later. Rather, his housemate difficulties and brother in Melbourne were given as reasons why he relocated from Perth to Melbourne after his difficulties with Kingdom. That said, I do not find these reasons convincing for his relocation and lack of study for some four months either, relocation because he had negative experiences with housemates seems extreme, rather than, for example, seeking another house in Perth. Given my concerns expressed in this decision, I am not prepared to accept that his brother being in Melbourne is the reason why he relocated, or explains why he did not study for four months in this period.

29. The applicant did not hold enrolment in a higher degree course for the majority of his time holding his 573 higher education degree visa. I consider the breach of condition here to be significant.  I do not accept on the evidence he has presented that this is due to the misadvice or misleading of his agent or agents. The applicant articulated a clear plan for his studies to progress from the Diploma to Bachelor of Business, and indicated that he believed that he needed this level of education to benefit his career and the success of the family business. He was unable to explain why he had decided to gain a letter of release from his packaged course – lying, he says, to his education provider in the process – and enrol in lower level vocational courses. When, he claims, he had a dispute with Kingdom college, he did not study and appears from his statements not to have been enrolled in studies for some four months, a considerable period. On traveling to Melbourne he failed to get enrolled in a higher degree course, and only sought letters of offer for higher degree courses when his visa had been cancelled. Whilst I have taken into account that he has a current letter of offer for a higher degree course from Stott’s College, and gained one from Cambridge on 9 January 2015, these appear to me to have been gained only as an attempt to address the cancellation of his visa, not from a genuine desire to study at the higher degree level, given he cancelled his higher degree enrolment four months after arriving in Australia.

30. The applicant has consistently, and solely, argued that his behaviour in the past is attributable to his reliance on an agent or agents. I do not accept this argument because the applicant has been unable to demonstrate why he has decided to follow this misadvise.

31. The applicant claims that he is aware of his mistakes but now has a genuine intention to study. I do not accept that this is true, because the applicant’s past behaviour, which I do not accept is attributable to misadvice of agents or anything other than his own choices, indicates to me that he has no interest, and had no intent to study at the higher education level, the reason for which his student visa was granted.

32. The applicant, as I noted to him, changed within a short space of time from a higher cost higher degree study package to lower cost vocational training. He has not gained any qualifications despite holding his student visa for almost two years – I do not accept that this is due to him being misadvised by his agents or anyone at his educational provider in Melbourne who told him he could go to India for 3 months without any penalties. These facts, and those and my findings above, lead me to find that the applicant is not a genuine student for study at the higher degree level, a significant part of the basis on which he was granted the student visa in the first place. I give significant weight to this factor.

33. I have considered all of the submissions made by the applicant, his current and former offer letters from Cambridge and Stott’s and his oral evidence and arguments. There is no clear indication that the applicant did not intend to come to Australia to study as claimed. I have considered that the applicant would suffer some loss of fees and monies he has already expended, and that he and his family would be disappointed if he returned to India without a certificate. He has not provided any further claims of hardship, other than that his future will go in dark, which I do not accept is self-evident. I do not accept the claim in his email to the previous tribunal that it will affect him mentally as he is already under a lot of stress. He did not discuss this at hearing and on the evidence before me I do not accept that there will be any significant effect on the applicant’s mental state. I have considered that he has a current letter of offer for a higher degree course and is seeking a further one from Holmesglen. Given my concerns above about his intentions to study at this level I give this factor less weight. I accept that the applicant may wish to remain in Australia, but I have found above that this is not with the intention of studying at the higher education level. I accept that the cancellation will result in the applicant only having a short period in which to conclude his affairs in Australia and return to India. I do not accept that there is any reason he would become unlawful or be subjected to a period of detention – he did not indicate there was any reason he could not return to India, and gave evidence that his plan was to return and assist his father with the family hotel business. There is nothing before me to indicate that international obligations would be breached as a result of the cancellation. I have weighed these factors but find that they do not outweigh the reason to cancel his visa.

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

   DECISION

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

   Sean Baker
   Member