1600657 (Migration)

[2016] AATA 4437

1600657 (Migration) [2016] AATA 4437 (12 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms ITSAREE NATTORNPIPAT

CASE NUMBER:  1600657

DIBP REFERENCE(S):  BCC2015/2715985

MEMBER:David McCulloch

DATE:12 September 2016

PLACE OF DECISION:  Sydney

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

Statement made on 12 September 2016 at 5:38pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 January 2016 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 citizen of Thailand born on 7 June 1978. The visa subject to cancellation was granted on 1 December 2014 and was subject to Condition 8516.

3. The applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of the visa on 21 December 2015. The applicant provided no response.

4. On 13 January 2016, the delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with a condition of the visa, namely 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.

5. The applicant appeared before the Tribunal on 8 September 2016 to give evidence and present arguments.

6. The applicant was represented in relation to the review by her registered migration agent, who attended the hearing.

7. 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

8. 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?

9. 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 visa. Condition 8516 states that: ‘The holder must continue to be a person would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.’

10. The criteria for the grant of the Student visa required to meet, among other criteria, subclauses 573.231 and 573.223(1A), which provide as follows:

    573.231

    If subclause 573.223(1A) does not apply:

    (a)the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and

    (b)the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:

    (i)made under regulation 1.40A; and

    (ii)         in force at the time the application was made.

    573.223(1A)

    If the applicant is, and was, at the time of application, 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.

    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:

    (ia)    an advanced diploma in the higher education sector; or 

    (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

11. The decision of the delegate, a copy of which was provided by the applicant to the Tribunal, indicates that, according to the Provider Registration and International Management Systems (PRISMS), the applicant is no longer enrolled in a Bachelors degree or Masters degree course and the applicant is 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 regulation 1.40A.

12. Based on this information it appeared to the delegate that the applicant has not continued to be a person who would satisfy either subclauses 573.231 or 573.223(1A).  Accordingly, it appeared that the applicant has not continued to be a person who would satisfy the primary criteria of the grant for the visa and has not complied with condition 8516.

13. In the hearing, the Tribunal put to the applicant information it had from systems (PRISMS).  This indicated that the applicant ceased to be enrolled in a requisite higher education sector course from 27 June 2015 until 7 September 2016 . The applicant’s representative had sent to the Tribunal, the day before the hearing, a Confirmation of Enrolment dated 7 September 2016 in a Bachelor of Accounting due to commence on 15 January 2018, which was also recorded on PRISMS.

14. The applicant agreed that she had ceased to be enrolled in a requisite higher education sector course during this period. There is no evidence or suggestion that the applicant is an eligible high degree sector student.

15. The Tribunal is satisfied on the evidence that the applicant has not continued to be a person who would satisfy either subclauses 573.231 or 573.223(1A).  Thus, the applicant has not met condition 8516 as she has failed to continue to satisfy criteria for the grant of the visa.

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 this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose - whether there are extenuating circumstances beyond the visa holder’s control; the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (ie. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulment obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non refoulement obligations; and any other relevant matters.

18. In addressing these discretionary factors, the Tribunal draws from written submissions provided by the applicant and her representative, oral evidence given by the applicant in the Tribunal hearing, and oral submissions by the applicant’s representative in the Tribunal hearing.

19. The applicant indicated in the hearing that she came to Australia with the intention of studying.  The Tribunal accepts, on the evidence, that the applicant completed a course, English for Academic Purposes from 12 January 2015 until 29 May 2015. The Bachelor of Accounting that the applicant had been enrolled in, due to commence on 13 July 2015, was cancelled on 27 June 2015, due to the applicant changing to a course in a different sector.

20. The courses in a different sector that the applicant enrolled in and studied were a Certificate IV in Business from 13 July 2015 until 11 December 2015, which the Tribunal accepts, on the evidence, that the applicant successfully completed. The applicant was then enrolled in an Advanced Diploma of Leadership and Management commencing on 18 January 2016, due to conclude on 8 December 2017. The Tribunal accepts, on the evidence, that the applicant is making satisfactory progress on this course.

21. While the applicant has been studying in Australia, she has failed to study any higher education sector course for which the visa was granted.  When the visa was granted, the applicant had indicated an intention to study the Bachelor course approximately seven months after the visa was granted. This enrolment was cancelled prior to commencement. Whilst the applicant has now re-enrolled, on the day before the Tribunal hearing, in a Bachelor of Accounting, this is not due to commence until January 2018.  The last minute enrolment in this course casts doubt as to the genuineness of the applicant’s intention to study the Bachelor of Accounting.  If there were such a genuine intention, it might be expected that the re-enrolment would have occurred at an earlier opportunity. This issue is discussed in the context as to whether there are extenuating circumstances beyond the applicant’s control for the breach.

22. The failure by the applicant to have undertaken, in the 21 months since the visa was granted, any higher education sector course, for which the visa was granted, and the fact that, on current plans, it will be over three years from the grant of the visa until a higher education sector course commences, are matters adverse to the applicant in the exercise of the Tribunal’s discretion.

23. The Tribunal considers the fact that the applicant has passed an English course, a Certificate IV in Business and is progressing satisfactorily in an Advanced Diploma of Leadership and Management are favourable to the applicant in the exercise of its discretion. The Tribunal does acknowledge that the applicant is now enrolled in a Bachelor degree due to commence in 2018.

24. The Tribunal has no evidence that the applicant has failed to abide by other visa conditions.

25. In terms of compelling reasons for the applicant to remain in Australia, or hardship to the applicant or her family if the visa remains cancelled, this was addressed in written submissions. It is submitted that the applicant wishes to pursue a career as a certified practising accountant. Once she completes her bachelor degree and returns to Thailand she will have better opportunities in an accounting career. Her skills will be needed in Thailand. If the visa is cancelled, the applicant will experience many hardships. She will not be able to pursue her career as a certified practising accountant. Her family members will be disappointed because they have supported the applicant financially and hope for a good job life for her.  The applicant has persisted in her studies despite her visa being cancelled. She is well on the way to a bachelor degree. If the visa is cancelled, she will have invested two years with considerable financial investment wasted.

26. Evidence is provided of past employment in Thailand by the applicant as Head of the Human Resource Department of CDC Design Resource Co Ltd.

27. The applicant reiterated these points in the Tribunal hearing. She indicated that she is a very diligent student. It is her intention to progress to the Bachelors degree. She referred to her, and her family’s, money being wasted on her study and the disappointment of her family if the visa remains cancelled.

28. The Tribunal accepts hardship to the applicant and her family if the visa is cancelled, most particularly that it would impact on the applicant’s ability to complete the Advanced Diploma of Leadership and Management, that she is currently studying. It accepts that an inability to complete this course could result in wasted resources and affect career prospects for the applicant.

29. The Tribunal accepts that there may be similar hardship for the applicant in not being able to undertake a Bachelor of Accounting, if that were her genuine intention. The Tribunal has  doubts as to the genuine intention of the applicant to undertake this course given the circumstances surrounding a breach. This issue is addressed further below.

30. The Tribunal addresses the circumstances in which the ground for cancellation arose and whether there are extenuating circumstances, beyond the applicant’s control, for the breach.  The written submission indicates that the applicant changed her intentions because staff at the college said she should postpone the Bachelor degree until March 2018, since her English ability was not ready for that level of study. She was informed that she should undertake a Certificate IV in Business, Diploma of Management and an Advanced Diploma of Management in order to prepare herself for Bachelor degree level study.

31. It is stated that the reason is that the applicant’s Confirmation of Enrolment for the Bachelor of Accounting was cancelled was because the applicant downgraded to a Diploma-level course as advised by her college. It is submitted that the applicant applied, via her education agent, for a subclass 572 visa, to match the vocational course she was undertaking. However, she was advised that the Bachelors degree would be postponed to commence in 2018, rather than being cancelled. Believing that to be the case, she withdrew the subclass 572 application. However, the Confirmation of Enrolment was cancelled without the applicant’s knowledge. Therefore, the applicant ceased to satisfy the subclass 573 requirement even though the applicant intended to study the Bachelor degree after the Diploma course, which she still intends to do.

32. It is submitted that the applicant has demonstrated an intention to study through the successful completion of courses which she expects to complete in December 2017. Reference is made to her good grades. It is submitted that, after completion of the Advanced Diploma, the applicant will be able to commence her Bachelor in Accounting in 2018. The applicant has re-enrolled into a Bachelor of Accounting course at Central College.

33. These issues were explored in the Tribunal hearing. The applicant indicated that the education provider originally told her that she needed to apply for a 572 visa when they gave her advice to change courses. She went to her education agent who said that this was not necessary as her enrolment in the Bachelor of Accounting had been deferred, not cancelled. The applicant referred to getting advice from students at the college that she did not need a new visa. The Tribunal asked if, after being advised by her education agent that she did not need to apply for the 572 visa, she sought to confirm this with her education provider. She said that she did. She said she spoke to someone at the counter who said that the initial advice that she needed to obtain a 572 visa was wrong.

34. The Tribunal explored with the applicant why, if that were true, the breach was not rectified at the time that she received the NOICC in December 2015.  The applicant indicated that she consulted her education agent who sought advice from a lawyer. The applicant was vague as to what, if any, advice she received. When asked why there was no response to the NOICC, the applicant indicated that there was not enough time. The Tribunal queried with the applicant why it would take a long period of time to indicate to the Department the misleading advice she had previously obtained about not needing to apply for the 572 visa. The applicant then said she had left it to her education agent to respond, and was not clear whether this had been done. The Tribunal indicated it had difficulty accepting the applicant would not have made sure of a response to the NOICC.

35. In advance of the hearing, the Tribunal had asked the applicant to provide any documentary evidence, such as correspondence, in relation to communication with the education agent and the education provider confirming advice to the effect that it was, and then was not, necessary to obtain a new 572 visa.  In the hearing, the applicant indicated all advice was verbal.  The applicant’s representative indicated that requests had been made to obtain information from both the education agent and the education provider but they declined to provide information. The education provider had said that it was not its practice to provide visa advice to students.

36. The representative submitted that they were engaged by the applicant in around July 2016. At that time, he says the applicant genuinely believe that she was still enrolled in the Bachelor of Accounting. He also submitted that, in his experience, it is not implausible that education agents would provide incorrect advice.

37. The Tribunal put to the applicant in the hearing that the conclusion might be drawn that she did not have a genuine intention to undertake the Bachelor of Accounting, that she only had the inclination or ability to undertake the diploma level courses. The applicant indicated that this was not the case, and that she had been advised by the education provider that it would be better to obtain foundation skills in the lower level courses before proceeding to the Bachelor degree.

38. The Tribunal assesses the evidence on this issue. The Tribunal is not satisfied, considering all the circumstances of the breach, that there are extenuating circumstances, beyond the applicant’s control for the breach. It is plausible, and consistent with the fact that the Bachelor of Accounting had been cancelled, that the education provider would have said that the applicant should investigate obtaining a 572 visa, when the Bachelor of Accounting was cancelled on 27 June 2015.  In the absence of any documentary evidence from either the education provider or the applicant’s education agent, the Tribunal does not accept that the applicant was subsequently given incorrect advice by both her education agent and the education provider that it was not necessary to apply for the 572 visa, when it clearly was.

39. The Tribunal’s inability to be satisfied in this respect is buttressed by the failure of the applicant to ameliorate the breach by enrolling in a higher education sector course when she was notified of the breach in December 2015. The Tribunal does not accept that, if her education provider had consulted a lawyer, that the applicant would not have explained the prior misunderstanding to the Department in response to the NOICC, and quickly enrolled in a high education sector course, if she had a genuine desire to abide by her visa obligations as well as to proceed on a pathway to the Bachelor of Accounting, as claimed.

1. Even if the Tribunal were to give the applicant the benefit of the doubt in relation to the circumstances in the middle of 2015 when the Bachelor of Accounting was cancelled, it is not prepared to do so after the was put on notice regarding the breach in December 2015.

2. The Tribunal considers that the facts demonstrate that the applicant has not taken proper regard for her visa obligations.  The Tribunal is not satisfied, in the circumstances, that the applicant was not aware that the Bachelor of Accounting had been cancelled until she consulted her current representative in around July 2016, as the representative submitted in the hearing. The Tribunal considers that the applicant has not acted in a way consistent with an intention to progress on a pathway to the Bachelor of Accounting, or to meet her visa obligations.

3. The Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control for the failure to enrol in a higher education sector course for a period of 14 months. This is a significant breach.

4. The Tribunal has no evidence that the applicant has acted in any way towards the Department that would lead the Tribunal to draw an adverse inference.

5. The applicant indicated in the hearing that there are no persons whose visas would, or may be, cancelled consequentially upon the cancellation of the applicant’s visa.

6. The Tribunal acknowledges that, if the visa remains cancelled, the applicant would be an unlawful noncitizen, and subject to immigration detention. However, the applicant currently holds a Bridging visa and the Tribunal considers that the applicant would be likely to continue to be able to hold a Bridging visa while she makes arrangements to leave the country or explores appeals or other visa options.

7. The Tribunal accepts that, if the visa remains cancelled, it would impose restrictions on the ability of the applicant to obtain other visas onshore and that is a potential hardship for the applicant.

8. The applicant indicated that there are no children in Australia whose interests would be affected by the cancellation. The applicant indicated that she does not fear persecution or significant harm on return to Thailand.

9. The Tribunal balances discretionary factors.

10. The applicant is now enrolled in a Bachelors degree and therefore would not be in breach if the visa were to be reinstated.

11. In the applicant’s favour, the Tribunal accepts that she has studied continuously while she has been in Australia, and has completed two courses and is making satisfactory progress currently in the Advanced Diploma of Management.  

12. Nevertheless, these courses are not higher education sector courses which the applicant is required to be enrolled in pursuant her visa. The applicant did not proceed to undertake the Bachelor of Accounting course in July 2015, which was the basis on which the 573 visa had been granted, and the enrolment in which was cancelled. The recent re-enrolment in the course, on the day before the Tribunal hearing, and not to commence until January 2018, constitutes a 14 month breach of the requirement to be enrolled in a higher education sector course. This is a significant breach. There will also be a three year delay from the granting of the visa before the applicant is due to commence the higher education sector course.  

13. For the reasons indicated, the Tribunal is not satisfied that there are extenuating circumstances, beyond the applicant’s control, that explain the breach.

14. The Tribunal considers that the delay by the applicant in re-enrolling in a higher education sector course demonstrates a lack of commitment to proceeding to study such a course and a disregard for her visa obligations. These are all factors adverse to the applicant in the exercise of the Tribunal’s discretion.

15. The Tribunal does accept that there will be hardship to the applicant and her family if the visa remains cancelled, in terms of the applicant being unable to continue and complete her studies in Australia. However, the applicant’s current studies are not of the level of study ultimately required by her visa. As indicated, the Tribunal does not consider that the applicant has demonstrated an intention to progress towards a higher education sector course. To that extent, the Tribunal considers that the detriment for the applicant in not undertaking the Bachelor of Accounting is limited.

16. Notwithstanding the hardship, the successful completion of courses by the applicant, and that she is making satisfactory progress in her current course, these factors do not outweigh,  the significant nature of the breach, the fact that there are no extenuating circumstances beyond the applicant’s control for the breach, and the fact that the Tribunal does not consider that the applicant has demonstrated a genuine intention to proceed to study a higher education sector course as required by her visa and to abide by her visa obligations.

17. Considering all relevant discretionary factors in the applicant’s favour and adverse to the applicant, the Tribunal is of the view that it should exercise its discretion to cancel the visa.

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

    David McCulloch
    Member