1513294 (Migration)

[2015] AATA 3948

1513294 (Migration) [2015] AATA 3948 (23 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Brijendra Huda

CASE NUMBER:  1513294

DIBP REFERENCE(S):  BCC2014/3227746

MEMBER:Kira Raif

DATE:23 December 2015

PLACE OF DECISION:  Sydney

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

Statement made on 23 December 2015 at 1:30pm

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 6 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 applicant is a national of India, born in August 1988. His Higher Education Sector Student visa in subclass 573 was granted in February 2014. On 1 December 2014 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8516 of his visa, as he ceased to be enrolled in a higher education sector course. The applicant provided his response to the NOICC.

3. On 6 February 2015 the delegate decided to cancel the visa held by the applicant under s. 116(1)(b) on the basis that the applicant breached condition 8516 of his visa. The applicant seeks review of the delegate’s decision.

4.    On 6 May 2015 the Tribunal made the decision to affirm the delegate’s decision. The applicant sought judicial review in relation the Tribunal’s decision and the matter was remitted for reconsideration as it was found that the applicant was not given adequate notice of the hearing. The matter is now before the Tribunal pursuant to the order of the Court.

5.    The applicant appeared before the Tribunal on 23 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

Relevant law

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(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.

7.    Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

8.    Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa 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.

Does the ground for cancellation exist?

1. When making the application for review, the applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted a visa in subclass 573 Higher Education Sector on the basis of his enrolment in a Masters in Public Health. The primary decision indicates that the applicant’s enrolment in that course ceased on 10 July 2014 and the applicant enrolled in a Certificate in Bricklaying.

2. The delegate found that the applicant breached condition 8516 of the visa because he no longer satisfied the primary criteria as he ceased to be enrolled in a higher education course, that is, a course of study that was the principal course required by cl. 573.231.

3. The Tribunal finds that courses specified for Subclass 573 visas are, relevantly, higher education sector courses. The Tribunal finds that the applicant ceased to be a person who satisfied the primary criteria because he ceased to be enrolled in, or to be the subject of an offer of enrolment in, an eligible course. There is no evidence before the Tribunal to indicate that the applicant satisfied the secondary criteria for the grant of the visa.

4. The Tribunal acknowledges that in response to the NOICC the applicant provided evidence of having obtained an offer of enrolment in a Bachelor of Business at Group Colleges Australia. However, in the Tribunal’s view, a breach is established once the applicant ceased to be enrolled in the relevant course, despite the subsequent re-enrolment (which appears to have expired at the time of this decision).

5. Condition 8516 requires that the visa holder must ‘continue to be a person who would satisfy the primary or secondary criteria … for the grant of the visa’. The relevant criteria to be considered in relation to compliance with condition 8516 are the criteria applicable to the Subclass 573 visa at the time it was granted. Clause 573.231 is relevant.

6. Condition 8516 contains a temporal requirement in the words ‘continue to be’. Although there has been no judicial consideration of condition 8516 and the meaning of this wording, in the context of a visa condition which applies at all times while the visa is held, the Tribunal is of the view that this condition must be met at all times. The use of the term ‘would satisfy’ the criteria, suggests that it applies as if the criteria were being assessed at the time compliance with the condition is required, that is, at any time during the period of the visa. Therefore, if the applicant ceases to be enrolled in a principal course of a kind specified for the particular subclass, in this case, a higher education course, the applicant breaches condition 8516 of the visa.

7. As the applicant ceased to be enrolled in a higher education course, the Tribunal finds that the applicant breached condition 8516 of his visa. 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

8. 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’.

9. The purpose of the Student visa is to enable the visa holder to undertake study in Australia. The purpose of the higher education Student visa is to enable the student to undertake study at a higher education level. The applicant ceased to be enrolled in a higher education course and has not engaged in any higher education study since then. The Tribunal finds that the applicant is not fulfilling the purpose of his travel to and stay in Australia because he is not undertaking study at the level for which his visa was granted.

10. The Tribunal is also concerned that the applicant had completed very little study since entering Australia. He informed the Tribunal that he did six months towards the Masters and six months towards the Certificate in Bricklaying. The applicant stated that he could not study further because his visa did not allow him to study. However, the applicant said he never approached the Department to waive that condition. There is no certainty on whether that condition could have been waived but in the Tribunal’s view, if the applicant was a genuine student and had a genuine intention to study, he could have taken steps to approach the Department to seek the waiver of the study limitation. The Tribunal is of the view that the applicant’s failure to do that, and the very limited study he has completed since entering Australia, suggest he is not a genuine student and that he has little interest in studying in Australia. In the Tribunal’s view, that weighs in favour of cancellation.

11. The Tribunal has considered the circumstances in which the ground for cancellation arose, the reason and extent of the breach.

12. In his written response to the NOICC the applicant stated that he arrived in Australia to pursue Master of Public Health. He came from a small district in Rajasthan where there is limited information access about education. In accordance with his education background, his education agent suggested for him to study Master in Public Health. He always had passion for building and construction. After arriving in Australia, he resumed his study as intended but realised that a study of Master of Public Health would not help him attain job satisfaction or achieve his career goals. His current course is different from what he anticipated and he wanted to ensure he utilised his parents’ money and time wisely. He inquired about courses available in construction and decided to pursue the Certificate III in Bricklaying. He completed one semester of the principal course. The applicant noted that he had organised a CoE for a Bachelor of Business from Group Colleges Australia to meet condition 8516 and stated that he is a genuine student. The applicant enclosed with his submission a letter of offer dated 10 December 2014 for a Bachelor of Business from Group Colleges Australia, due to commence in July 2016.

13. The Tribunal has considerable concerns about the applicant’s evidence. The applicant claims he had insufficient information in his home country. Presumably, the applicant would have explored his study options and opportunities before deciding to spend a considerable sum of money on enrolling in a Master of Public Health. The Tribunal is not convinced that only after commencing that course, the applicant decided it would not advance his career and future employment. If the applicant had such a belief, the Tribunal is not convinced that he only discovered that after he entered Australia and that he had not given thought to these matters when seeking the Student visa. The Tribunal is also not satisfied that the applicant only developed the ‘passion for building’ after he entered Australia.

14. The Tribunal is concerned that when applying for the Student visa, the applicant made an undertaking to pursue a Master in Public Health. He informed the Tribunal that he completed a Bachelor of Nursing in India, which has relevance to the area of Public Health but has little relevance to bricklaying. The applicant’s educational background, stated career plans and future aspirations would have been assessed in determining that the applicant was a genuine student and a genuine temporary entrant. Otherwise, he would not have been granted the Student visa. Yet shortly after the applicant entered Australia, he claims to have decided that there was no future in public health and that it would be better for him to do bricklaying instead. The speed with which the applicant abandoned the course which he undertook to do when seeking the Student visa suggests that he never had a genuine intention of undertaking the Masters course. The Tribunal is not satisfied that the applicant was entirely truthful in his dealings with the Department when seeking the Student visa.

15. Further, even if the applicant decided to abandon the Master of Public Health course, there is no reason for him to have pursued a trade course as a holder of a higher education sector visa. Conversely, if the applicant wanted to do a bricklaying course, it was incumbent upon him to seek an appropriate visa for that course. It was not open to the applicant to hold a subclass 573 visa while undertaking a Certificate III in Bricklaying.

16. The applicant’s oral evidence to the Tribunal was somewhat different. The applicant informed the Tribunal that he came from a ‘backward’ area in India. He completed a Bachelor of Nursing and tried to find a job in India but could not, so he decided to study overseas. A study consultant suggested for him to do the Master of Public Health. The applicant said he completed one semester but then realised the education system in Australia was different to the system in India. He found it hard to complete his assignments and did not pass any subjects.

17. The Tribunal notes that in his initial evidence the applicant claimed he decided there was no future in public health administration while in his evidence to the Tribunal he claims the course was too difficult. However, even if the Tribunal were to accept that the applicant genuinely found the course difficult (he has not provided his academic transcript or other probative evidence to the Tribunal concerning his inability to do the Masters course), the Tribunal does not consider such matters justify his transfer to a Certificate level course. The applicant held the visa that required him to maintain enrolment in a higher education course. In the Tribunal’s view, if the applicant no longer wished to do a higher education course, he had the option of either transferring to a different course that was suitable for his visa (including a packaged course which would have allowed him to study at a lower level and later in a higher education course) or to change the Student visa to the one that was more suitable to the course which he wanted to do.

18. The applicant informed the Tribunal that he did not know anything about immigration laws and thought that he could study on his visa. He said that if he knew he needed another visa, he would have applied for one. The Tribunal is of the view that it was the applicant’s responsibility, as the holder of the Student visa, to make the necessary inquiries. Even a quick search of the Immigration Department website, a phone call to the Department or to any migration agent would have enabled the applicant to acquire the relevant information. The Tribunal is not satisfied that the applicant took adequate steps to ensure he was familiar with visa conditions and requirements.

19. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The Tribunal finds there are no extenuating or compassionate circumstances in this case.

20. With respect to hardship, the applicant informed the Tribunal that his parents are poor and he comes from the poor area of India. His father is a farmer and they sold the land to send him to Australia. His family paid a lot of money to send him to Australia and he cannot face his father as he has not completed the course. The applicant suggested his future would be ruined. The Tribunal accepts that hardship may be caused to the applicant by the cancellation.

21. The applicant also stated that he supports a big family and said that his future would be ruined. The Tribunal is mindful that the purpose of the applicant’s Student visa is to enable him to study, rather than work and financially support his family. The applicant said that wanted to do a course that would enable him to find a good job and support his family but the Tribunal notes that he already holds a Bachelor of Nursing and although he claims he could not find a job in India, and there is high unemployment in the field of nursing, the applicant presented no documentary evidence to satisfy the Tribunal that he could not get a job in his own profession. As for the applicant’s claim that he could have better opportunities as a bricklayer but if the applicant’s intention is to continue with the bricklaying course in the future, that would lead to the same breach of condition 8516 that resulted in the cancellation of his visa.

22. Nothing adverse is known about the applicant’s past and present conduct towards the Department. There are no persons who would be affected by consequential cancellation under s. 140. With respect to Australia’s protection obligations, the applicant stated that his family no longer have land and he will not be able to find a job and support his family. The Tribunal is not satisfied on the limited evidence before it that the applicant will be unemployable with his Bachelor of nursing and the limited study he had done in Australia. The Tribunal is not satisfied that severe financial hardship will be caused to the applicant or his family as a result of the cancellation of his visa, as the applicant claims. The Tribunal finds that Australia’s protection obligations are not engaged. The Tribunal also notes that the applicant’s children are not in Australia. The applicant does not claim that family violence is an issue.

23. The applicant informed the Tribunal that he was not presently enrolled in any course. He stated that he had an offer of enrolment for a Certificate III in Business which he sent to Immigration. There is no evidence that the applicant presently has an offer of enrolment. He does not appear to have taken any steps to ensure he could resume his studies and he does not appear to have approached any education providers to return to higher education studies. The Tribunal is not convinced that the applicant has a genuine intention to pursue further study. Significantly, the Tribunal is not satisfied that the applicant has any intention of engaging in higher education study in the future. That is, if his visa is reinstated, the applicant would continue to be in breach of condition 8516. The applicant explained to the Tribunal that he did not know how long the review process would take, so he did not arrange enrolment because he did not want to waste money. In the Tribunal’s view, if the applicant had a genuine intention to study, he could have made at least some effort either to study or to make arrangements for future study. He certainly could have taken steps to arrange an offer of enrolment in recent weeks since he received the Tribunal’s invitation to the hearing and would have known the process was nearing the end. The applicant’s failure to engage with any education provider, his failure to arrange enrolment or an offer of enrolment, coupled with the very limited study he has done since entering Australia, support the Tribunal’s view that the applicant is not a genuine student and that he will not engage in future higher education level study in Australia. In the Tribunal’s view, such matters weigh heavily against setting aside the cancellation.

24. The Tribunal has considered the applicant’s circumstances. The Tribunal has found that the applicant breached condition 8516 of his visa. The Tribunal has formed the view that the breach is significant because it affects the applicant’s ability to fulfil the purpose of his travel to and stay in Australia as he ceased to be enrolled in a type of a course for which his visa had been granted. The Tribunal is not satisfied there are compassionate or extenuating circumstances in this case. The Tribunal accepts that hardship will be caused to the applicant and his family by the cancellation. The Tribunal has formed the view that the applicant has little interest in future studies and the Tribunal is not satisfied that he will engage in higher education study if his visa was reinstated. The Tribunal places weight on the fact that if the cancelation is set aside, the applicant would continue to be in breach of condition 8516. The cancellation would not result in breach of Australia’s international obligations.

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

    DECISION

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

    Kira Raif
    Senior Member