1604722 (Migration)

[2016] AATA 4800

1604722 (Migration) [2016] AATA 4800 (11 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Kanokchon Wuttikhajohnchok
Mr Wikorn Wuttikhajohnchok

CASE NUMBER:  1604722

DIBP REFERENCE(S):  BCC2015/3492534

MEMBER:David McCulloch

DATE:11 December 2016

PLACE OF DECISION:  Sydney

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 11 December 2016 at 12:10pm

CATCHWORDS

Migration – Cancellation – Higher Education Sector visa – Subclass 573 – Condition 8516 – Enrolment – Cancellation of course for non-commencement  – Changed to vocational course

LEGISLATION

Migration Act 1958, ss 116, 140, 348

Migration Regulations 1994, r 1.04, r 1.40A, r 2.43

CASES

Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400

Tien & Ors v MIMA (1998) 89 FCR 80 at 96

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 April 2016 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 applicant is a citizen of Thailand born on 1 April 1984. The visa subject to cancellation was granted on 22 April 2014, for a stay period until 21 September 2017. The visa was subject to condition 8516.

3. The Department sent to the applicant on 2 March 2016 a Notice of Intention to Consider Cancellation of the visa (NOICC).  Three separate responses were received to the NOICC.

4. 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. 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.

6. The applicants appeared before the Tribunal on 2 December 2016 to give evidence and present arguments. They were represented in relation to the review by their registered migration agent.

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(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. In respect to the applicant’s visa she was required to meet, amongst other criteria, subclauses 573.231 or 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.

    Regulation 1.04A

    The relevant instrument made under regulation 1.04A provides the following courses as the types of courses for subclass 573 Student visas:

    Diploma (Higher Education)
    Advanced Diploma (Higher Education)
    Bachelor Degree
    Graduate Certificate (Higher Education)
    Graduate Diploma (Higher Education)
    Associate Degree
    Masters by Coursework

    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 indicates that, according to the Provider Registration and International Student Management Systems (PRISMS), it appears that the applicant was 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 had not continued to be a person who would satisfy either subclauses 573.231 or 573.223(1A).  Accordingly, it appeared that the applicant had not continued to be a person who would satisfy the primary criteria for the grant of the visa and had not complied with condition 8516.

13. In the Tribunal hearing, the applicant acknowledged that she had not satisfied subclauses 573.231 or 573.223(1A) since the Bachelor of Accounting she was enrolled in was cancelled for non-commencement of studies on 18 August 2014.

14. For these reasons, the Tribunal finds that the applicant did not satisfy subclasses 573.231 or cl.573.223 (1A) and thus did not satisfy condition 8516 of her visa. That means that the applicant has breached condition 8516 of her visa and that the ground for cancellation in s.116(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

15. There are no matters specified in the Act or Migration Regulations 1994 (‘the 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.

16. The applicant provided the following response to the NOICC.  She indicated that before commencing the accounting course in which she was enrolled, she undertook an English course in Canberra to improve her English skills. During this course, the applicant met others who planned to study cookery and hospitality. They caused the applicant to decide that this is what she wanted to do for her future career. After deciding that she wanted to study cookery and hospitality, the applicant consulted her visa agent. However, the agent did not advise her to notify the Department about changing her course. The applicant, therefore, did not realise that she needed to notify the Department of this.

17. The applicant indicates that she made the right decision to change her course. She asks for the opportunity to obtain the correct visa subclass to continue her study in Australia.

18. The applicant’s representative provided a submission to the Department dated 23 March 2016 together with supporting documents in response to the NOICC.  The submission indicates that the applicant has a current Confirmation of Enrolment in a Diploma of Hospitality at JP International in Canberra which includes a Certificate III (Commercial Cookery). Documents were subsequently provided by the applicant which indicate enrolment in and completion of these courses.

19. Documents from the education provider given to the Tribunal indicate that the applicant was enrolled and studying in these courses from 1 July 2014 until 23 September 2016. The Tribunal notes that this is at odds with PRISMS records which indicate significant gaps in enrolment in these courses. The Tribunal contacted the education provider seeking to clarify this and they indicated that this was due to system errors, and the applicant was in fact enrolled and  studying for the period indicated.

20. Reference is made in the representative’s submission to the applicant having previously studied a Certificate I and Certificate III in English and complied with all conditions of her course and visa conditions.

21. Submissions are made with respect to extenuating circumstances beyond the applicant’s control. The applicant, following her arrival in Australia on a Visitor visa, approached a migration agent with a presence both in Thailand and Australia. The applicant had indicated an intention to study a Bachelor of Accounting and, as a result, the agent applied for a Student subclass 573 visa on her behalf which was granted in 2014.

22. After commencing the degree course, the applicant decided that the course was beyond her language skills. She decided that a Diploma of Hospitality would be better suited to her capabilities. The applicant approached her agent who transferred her to a Diploma level course. They were paid a cash commission for enrolling the applicant in this course as well as charging the applicant a fee. 

23. The applicant had specifically sought advice from her agent to ensure that she was not at risk of breaching her visa conditions. The agent and individuals associated with the firm held themselves out as being qualified to provide immigration and visa advice. The agent advised the applicant that she did not need to alter her Student visa. The applicant was unaware that she was receiving incorrect advice. It is submitted that the appropriate course is for the Department to take action against the agent and that the applicant is an innocent victim.

24. As soon as the applicant was made aware that the advice was incorrect, she sought advice from her current agent who have assisted her in ensuring taht she has the appropriate visa for her study and to rectify her visa compliance issues. It is submitted that there are circumstances beyond the applicant’s control for the breach.

25. These claimed extenuating circumstances for the breach were canvassed in the hearing. The Tribunal noted to the applicant that the indication in the written submission that she changed her mind about the Bachelor of Accounting after starting the course did not seem to be correct.  PRISMS indicates that this course was never commenced. The applicant agreed that this was the case.

26. The applicant’s evidence in the hearing as to the process by which she changed her mind in relation to studying the Bachelor of Accounting was not convincing to the Tribunal, and caused the Tribunal to have doubts as to whether the applicant ever intended to study a higher education sector course. The Tribunal explored with the applicant when it was, in relation to the granting of the 573 Student visa on 22 April 2014, that she decided she did not want to study a higher education sector course. The applicant said that this occurred at around the end of the period of her Certificate II in English, which she completed the on 30 May 2014.

27. Given that the applicant had been studying English in Australia since early January 2014, it struck the Tribunal as quite precipitous, following the granting of the 573 visa, that she would, within a matter of weeks, decide to change to a completely new area of study.

28. The applicant’s evidence as to the process by which she changed her mind was confused and inconsistent.  Initially in the hearing, the applicant indicated that she had been trying to contact the education agent who had facilitated the granting of the 573 Student visa on 22 April 2014 as to when the Bachelor of Accounting would commence. At that point she had the intention of continuing with this course. She then indicated that the agent contacted her, and they were the ones who told her about the cookery and hospitality courses. The applicant then changed her mind about the Bachelor of Accounting and decided to enrol in these courses. Part of the reason for this was that the applicant preferred to remain in Canberra rather than travel to Sydney where the Bachelor of Accounting was being taught. The Tribunal expressed surprise that the applicant would so readily change her mind about such a different study direction. The applicant then qualified what she had previously said by indicating that she had been discussing other potential courses with classmates.

29. The Tribunal considered that there was a shifting in the applicant’s evidence as to the circumstances in which she changed her mind about studying the Bachelor of Accounting.  Further, the original written submission provided misleading information that the applicant actually commenced the Bachelor of Accounting before changing her mind, which is not correct. The decision to change to a completely different study area was made very soon after the granting of the 573 Student visa.

30. All of these factors cause the Tribunal to have concerns that the applicant never intended to study a higher education sector course and obtained the 573 Student visa instead of the appropriate 572 Student visa, for the diploma level courses she ended up studying, because of the more lenient eligibility criteria.

31. The Tribunal asked the applicant in the hearing several questions as to inquiries made by her to her education agent in relation to switching to the cookery and hospitality courses. The applicant, initially, made no mention of seeking advice in relation to the impact on her visa obligations. It was only after several questions, and the second named applicant interrupting an answer with a comment, that the applicant told the Tribunal that she did seek assurance from the agent that there was no issue with her visa obligations.

32. The Tribunal asked if there was any written evidence of advice from her agent, and the applicant said that all discussions were on the telephone only. The Tribunal asked the applicant if she made enquiries of anyone else, and she said that she did not. The Tribunal noted to the applicant that a simple Google search using the terms ‘Department of Immigration’ and ‘changing course’, would have provided clear information to the applicant that she needed to obtain a new visa[1]. The Tribunal pointed out to the applicant that it was ultimately her obligation to ensure that she met her visa obligations even if there was incorrect advice by others. The Tribunal also noted to the applicant that she had been in breach of visa condition 8516 for a period of about 19 months until the sending of the NOICC, which was a significant period.

    [1] >

    Considering all of the evidence, the Tribunal is not persuaded that the breach was due to extenuating circumstances beyond the applicant’s control. The Tribunal is prepared to accept, for the purpose of this decision, that full and proper advice was not provided by her education agent. However, the applicant herself has the obligation to ensure compliance with visa conditions. The breach is for a considerable period. The applicant would have been provided with notification of conditions attached to her visa when it was granted. The name of the visa, ‘Higher Education Sector’ visa, should have signalled concerns to her that substantially changing the level of the course studies was likely to impact on visa conditions.  The Tribunal has difficulty accepting that if the applicant had had proper regard to her visa status, that questions would not have been raised in her mind at some point during the many months in which she was in breach, even if initial advice from her education agent had been incorrect.  The applicant would have had the opportunity of talking with fellow international students in similar situations, or by referencing the visa conditions she would have been notified of, or by easy searches on the Departmental website to have discovered that she was in breach of her visa obligation.

33. The doubts that the Tribunal has formed as to whether the applicant ever intended to study a higher education sector course reinforces the Tribunal’s conclusion that the breach was not due to extenuating circumstances beyond the applicant’s control.

34. The Tribunal turns to other discretionary factors. The clear intention of the applicant in being in Australia has been to study, since the Student visa was granted. The applicant has studied a range of English courses and then successfully completed a Certificate III in Commercial Cookery and a Diploma of Hospitality. The applicant has indicated to the Tribunal an intention to enrol in an Advanced Diploma of Hospitality Management commencing in January 2017, and has provided a Letter of Offer for this course. The Tribunal acknowledges the applicant’s past study and accepts that she has an intention to continue with her hospitality studies. Nevertheless, from 18 August 2014 until the cancellation of the visa, the applicant has not been enrolled in a course of study as required by her visa subclass.

1. The Tribunal has no information that the applicant has failed to abide by other visa conditions.

2. In terms of hardship to the applicant if the visa remains cancelled, and compelling reasons for the applicant to remain in Australia, both applicants referred to the applicant wishing to continue with her studies and wanting to obtain further hospitality qualifications in order to obtain a good job and to be able to take care of her family. The second named applicant indicated that he wishes to study in Australia which will be negatively impacted if the visa remains cancelled. Written submissions indicate that the applicant and her family have worked hard for her to be able to study in Australia and there would be wasted money if the applicant has to return to Thailand.  

3. As the applicant has been studying in Australia for almost three years and has completed five courses, the Tribunal does not consider that there has been a waste of resources in the applicant coming to study in Australia. The Tribunal does accept some degree of hardship if the applicant is unable to study the Advanced Diploma of Hospitality. The Tribunal accepts that there may be some hardship to the second named applicant in not being able to study in Australia as he would like, on the basis that he would return to Thailand with his partner if the visa remains cancelled.

4. The Tribunal has no evidence that the applicant has acted in any way towards the Department that may be considered adverse towards her.

5. The Tribunal acknowledges that if the visa remains cancelled, there would be restrictions on the applicant in applying for certain other visas onshore and that this is a detriment to her. The Tribunal acknowledges that, if the visa remains cancelled, the applicant could be an unlawful noncitizen. However the Tribunal considers that the applicant would likely be eligible to retain a Bridging visa to regularise her status.

6. The applicant indicated there are no children in Australia whose interests are affected by the cancellation. The applicant indicated that she does not fear persecution or significant harm on return to Thailand, and therefore Australia’s non-refoulment obligations are not enlivened.

7. In summary, the applicant has breached condition 8516 for a period of 19 months, which is a significant breach. Whilst acknowledging that the applicant may not have been given correct information by her education agent, the Tribunal is not persuaded that the applicant did enough herself to ensure compliance with the obligation to be enrolled in the appropriate course given direct notification that would have been provided to her of the requirement and the easy ability for her to find out for herself that she needed a new visa. The Tribunal also has doubts that the applicant ever intended to study a higher education sector course.

8. Weighing in the applicant’s favour is the fact that she has been studying continuously, with successful completion of courses, albeit not ones required by her visa, has breached no other visa conditions, and has acted appropriately towards the Department. The Tribunal acknowledges some hardship to the applicants including in terms of the applicant’s inability to continue studying in Australia and the inability of the second named applicant to study in Australia, as he intends. The Tribunal acknowledges hardship in terms of restrictions on other visas.

9. The Tribunal is not satisfied that factors which weigh against exercising the discretion to cancel the visa overcome the breach and its circumstances, and the fact that the Tribunal does not consider that there are extenuating circumstances out of the applicant’s control for the breach.

10. Considering the circumstances as a whole, the Tribunal has determined to exercise its discretion to cancel the visa.

    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 McCulloch
    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.