JASNEET SINGH (Migration)

JASNEET SINGH (Migration) [2016] AATA 1404 (6 January 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr JASNEET SINGH
CASE NUMBER:  1501272
DIBP REFERENCE(S):  BCC2014/2688656
MEMBER:Sean Baker
DATE:6 January 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Statement made on 06 January 2016 at 3:31pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Whether the applicant is a genuine student – Where applicant has received extremely low marks – Where applicant has not been enrolled for a significant amount of time – Applicant does not genuinely intend to study – Whether the applicant’s visa should be cancelled – Reasons for cancellation not beyond the applicant’s control – No matters significantly weighing against cancellation – Decision affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 116(1)(fa)(i)
Migration Regulations 1994 (Cth), r 2.43, Schedule 2
CASES
MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 19 January 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).
The delegate cancelled the visa under s.116(1)(fa) on the basis that he did not study for a period of time, his marks in his Bachelor course indicated he did not attend and engage in most of his course, he was not enrolled in a registered Bachelor course when issued a Notice of Intention to Consider Cancellation (NOICC), would not complete a higher education course within the time on his visa, and it appeared from his application for a 572 visa on 1 September 2014 that his intention is not to study a Higher Education level course in Australia as required by his current student visa, all of which led the delegate to conclude he was not, or was likely to not be, a genuine student. The delegate went on to consider whether the visa should be cancelled and concluded that the factors against cancellation did not outweigh those for and cancelled the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 21 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(fa). 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?
A visa may be cancelled under s.116(1)(fa)(i) if the Minister or the Tribunal is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.
In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).
For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the Minister or Tribunal may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision.
In this case there is no indication that any of the matters specified in r.2.43(1C) and (1D) exist.
The applicant provided a statement to the department:
I got a letter from your side in which you asked me to provide reasons that why my student visa should not be cancelled. I am very shocked and depressed when i saw that email. I came to Australia and want to finish my course. But i find my studies very hard at Victoria university as culture, studies are very different over here. Teaching methods are also very different from my country. Here i have to do all my work including cooking, cleaning, washing, part time work and all other works. I was finding my course very tough. i did attend my first semester but could not pass and got really stressed. As i was new in australia i didn't know so many people . So i was missguided by somebody that i have an another option of 572 visa subclass and i can start from diploma leading to degree, That way i will not find study very hard. So i made up my mind to use that option. But my 572 visa has been refused. In doing the whole thing my three months got wasted. But i was still enrolled in victoria university. I went back to victoria uni but they cancelled my coe. I tried few SVP colleges and they did not take me. I tried for almost 3 months, In the end i had not choice but to take admission in non-svp. Victoria university cancelled my coe on 10 november 2014. So now i am going to study my certificate 3 & 4 in hospitality, diploma of hospitality leading to bachelor of management from Stotts college. I have attached my coe with email.
In the end i just want to say that i didn't knew that my this mistake create a problem for my visa. I am sorry and i promise i will finish my studies here and will not change in future. Please give me one chance
The applicant also provided CoEs for certificates III and IV in commercial cookery, a diploma of hospitality and a Bachelor of Business from Stott’s College. The delegate considered this material and refused the application.
The applicant applied for review. He has provided a copy of the delegate’s decision and a statement to the Tribunal. The statement is as follows:
I am born and brought up in small town of Ferozepur. I have done my year 12 from C.B.S. E. Board and have received good marks in Year 12. After that I completed my Diploma of Mechanical Engineering from Abbnoorpur Polytechnic College, Faridkot and achieved more than 60% marks. I have always been a studious student and have always been keen to do something in life.
As I had completed my Diploma of Mechanical Enginnering I wanted to polish my studies and opted to do Bachelor of Engineering (Mechanical Engineering) from Victoria University. I got my visa approval in February 2014 and I arrived in the same month in Australia as my studies were going to start on 24th of February.
I am from a very small village in Punjab. I have not gone out of my place in my life. I did my Secondary and my Diploma from Colleges very near to my house. At my place, it is my mother who only wash clothes and do all other sort of daily routine works for me and all the other family members and guide us to only concentrate on - my studies. This is the reason I was never able to learn anything in my life i.e washing, and working to support myself, looking after the house and all other routine works.
When I arrived in Australia I was only 22 years of age with no experience at all. When I arrived in Australia I was shocked to see the culture difference between Australia and India. Over here everyone is self sufficient and there is a lot of total personality development which lacks at my place in India. This was also the first time when I was away from my parents and in the beginning was feeling very home sick. I have my sister but she lives in Brisbane and was not a big help to me.
I enrolled in my course in February and was fully motivated to complete my education and make my parents proud. But from the very beginning everything was too difficult for .me„ As I explained earlier I started sharing my accommodation with other friends. In sharing it was decided to share house hold works as well. My mind had diverted in all sort of directions. My other house mates started working part time and I was also allowed to work 20 hrs in a week, I started working as well as monthly expenses were more than $1500 which I had to contribute something as well.
With all that my semester started on 24th February and I had a load of 4 subjects. Education system is also very different over here and in the very first month I lagged behind. Semester in Australia is only for approximately 4 months. My 1-2 months were wasted on understand how we have to make assignment and submit them and understand the education system. Also a lot of times teacher's accent was also very different which made my life harder. I was finding everything very hard and kept on talking to my sister and parents back home. They kept on motivating me and I was also keeping my self motivated and tried to study very hard. I kept on submitting my assignments. Most of time I as late and lag behind, but I was not loosing heart. We had exams but after looking at the results my heart broke. I did vey poorly and did not pass any subject. I could not achieve double figures and was feeling too low. What I did in my Diploma was no where near what I was doing now.
I chose this course in India thinking that my previous studies would help me completing my Bachelors but I came to know that I had to start from a lower level in order to achieve my goal otherwise 1 would just be wasting time and money and not achieve anything in life, I went to few education agents in Melbourne and with my parents and agent's guidance I decided to start my engineering but from a lower level i,e. Diploma of Automotive at CAC College. To do that, I was guided that I need to change my visa from subclass 573 to 572. Nobody guided me that I could achieve that without changing my visa subclass.
I did not want to change my visa subclass and go to a lower subclass if I ever knew that I could have opted for Diploma leading to Bachelors of Engineering. Nobody guided me. I went to the agent who guided me to change my subclass, and he lodged my visa application for subclass 572 with the course of Diploma of Automotive in September 2014. I waited for my visa for almost a month and it came as refusal. I was shocked and I went to the agent who lodged the file. He told me that you have not been granted visa and you have to go back to your old University and start your course again. In this process I went to university few times as my enrolment was still valid.
I went to Victoria University and told them the whole story. They said they are going to cancel my COE which was not cancelled till 10th November 2014, I expressed my concern to study and try one more time but they did not listen and cancelled my COE in spite of my numerous requests. Then I went to lot of other universities and colleges and asked them to enrol me as I never wanted to breach my visa condition. No SVP College enrolled me at that time. I tried at University of Canberra, Holmes Colleges and other colleges, but no one accepted me. I had no other option but I wanted to study as that was my only goal and wanted to make my parents proud, I had to take admission in Non-SVP College. I was so upset and tired of the system and running here and there for admission that I decided to take a course easily available and easily done. As I could not get admission in 573 subclass for Engineering, I decided to get into Hospitality field, which was always my second option in life as I have always been fond of cooking. In Australia also, I worked for some time in a restaurant as well, It had been more than 4 months that I have been running here and there so at last I decided to study at Stott's colleges and they agreed to enrol me and I took admission in STOTT’s colleges for 573 subclass.
In November I received an email from DIBP(Mr Peter Glendinning) that they intend to cancel my student visa and provide them with a reason why it should not be cancelled. I sent them an email explaining them the situation but almost after two months they cancelled my visa stating that I am not a genuine student.
Please believe me and trust me what I am writing is true and I am a genuine student and just wants to finish my studies as my parents have a lot of expectations from me. If I go empty hand it will bring a lot of shame to me and my parents who proudly tell everyone that their son has gone to Australia for future studies.
Since my visa has been cancelled in January I am not able to do anything. I had not rights to study, work or do anything.
I have not studied since January and have not even worked as well. I am in depression and not able to do anything. It has almost been one whole year. I am just getting money from my parents and spending, it as I have no other income source. They do not even know my situation over here. They are thinking I am only studying and doing nothing else. 1 have no courage to tell them.
This is a sincere request that I have already suffered a lot because of my mistake and I promise if I am given one more chance I will prove myself. I will finish my studies and go back to my country to show my parents of my achievements. This was a mistake which I should not have done but due to being illiterate in visa conditions I have done and had suffered.
In the end I just want to say that I didn't knew that my mistake create a problem for my visa. I am sorry and I promise I will finish my studies here and will not change in future. Please give me one chance.
I discussed with the applicant the basis for the cancellation and explained the cancellation process.
I discussed with the applicant his study history. He said that he had completed a Diploma of Mechanical Engineering in India and had achieved over 60%. He came here in February 2014 and was enrolled to do a Bachelor of Mechanical Engineering at Victoria University. He said that when he arrived he was new to the country and not able to understand the way things were done. He was also homesick and was not able to understand his teachers. He also had to do his own cooking and cleaning, which his mum had done for him in India. He said that most assignments he did not understand. It took him 2-3 months to understand the system. Soon the semester was over and exams approached. His marks were very low and he got very upset and thought he would go back to India. However, a friend told him to switch to another course that would be easier for him. To change his course his agent said he had to lodge a 572 visa, but he still went into the same area, diploma of automotive. I asked if he had pursued these courses and he said he had started but after a month he got an email that his 572 visa was cancelled. His agent told him he had to go back to Victoria University to keep his 573 visa so he went back to Victoria University but then they said no, we will cancel your CoE and will not enrol you again. So he asked his agent what to do and then the applicant went to many colleges but they did not give him admission. Then he took admission in Stott’s college in cookery. He then got an email telling him that his visa may be cancelled. He said he just did what his agent told him. He responded to the NOICC but his visa was cancelled two months later.
I asked if he had sought help from Victoria University with his studies. I noted that the international student office provided guidance and counsellors. He said that once he had spoken to a counsellor who changed his assignment dates for him. I asked if he had accessed any study groups or tutoring through the University. He said that since he was new here he did not know that there were such things. I noted that I may not accept this as my understanding was that international students were made aware of the considerable resources including all of these things that were available to help them through difficulties such as those he was claiming to have encountered. He said he did not know about it.
I asked why he had not studied for a second semester at Victoria University. He said that when he got the results he had failed 4 subjects and he did not know what to do. I asked what his four subjects were. He said it was maths, physics and two more. I asked if he could recall the other two subjects. He said he forgot them. I asked if he had gone to classes and he said he had. I asked what his four courses were about. He said that one was maths, one was physics, and then there was a practical, where they went to see how the water plant cleaning at Werribee operated. I noted that he claimed to have tried to study hard but not succeeded, but he could tell me very little about his courses, what they were or what they were about. He said it was a long time ago. I noted it was semester 1, 2014, and if he had gone to these classes as claimed I would expect him to be able to recall something about the four subjects he had been enrolled in. He said he tried his best to succeed but he could not.
I asked what marks he had achieved for the four subjects. He said he had got 14% for maths, 7 or 8% for physics, and the other two subjects almost the same. I asked if he had submitted all of his assignments and gone to exams. He said he did not submit all assignments as he found them hard, one or two he did not submit, he just went to his exams without assignments. I noted that his very low results and his responses may indicate to me that he had not attended some or most of his classes, had not submitted assignments or sat his exams. He said he had done studies, but everything was new here and he was not able to understand what was going on. I asked if he was saying he had studied hard and he said he was. I asked if he had worked during this semester. He said not initially, but then he had. I asked, if he was findings his studies hard, why did he choose to work when he could have devoted that time to study. He said that there were expenses. I noted that he would have been granted a student visa on the basis that he had financial capacity to meet study and living costs in Australia. He said the expenses had been higher than expected.
I asked what he had done after his first semester and he said he had decided to study his Diploma of Automotive. I asked if he had applied for the 572 visa and he said he had, his agent had suggested to him. His agent had told him that if he wanted to change his course, he would have to file a 572. I asked if he had consulted the Department of Immigration about the effect applying for a 572 would have on his 573 visa. He said he had not consulted Immigration as his agent had told him he did not need to. I noted that I was not sure I accepted that the applicant just uncritically accepted everything his agent told him, and that I might expect someone who is on a visa to inquire with the Department about the effect something such as applying for another visa might have on their current visa. He said again that the agent did not tell him he had to go and speak to the Department. I asked if he had explored deferring his Bachelors at Victoria University instead of just leaving his education provider and studying somewhere else. He said he did not ask but he had asked about his release letter and they had told him it had been almost 6 months and he could apply to another provider. I noted that I had concerns that his application for the 572 visa may indicate that he was not a genuine student and a genuine student for study at the higher education level because it may indicate an intention to study only at the vocational level and that study, especially of his higher education course, was not his main focus. He said that he had done what his agent told him to do.

I noted that he had then changed courses again. He said he had been refused his 572 and had got an email that said he should take admission to an SVP college. I asked why he had not continued his auto engineering courses at CAC and he said it was not an SVP College and so he had to go to another college to get SVP admission. He said that then his only option was just to get enrolment in commercial cookery. I noted that this may indicate to me that he was not interested in study, just in maintaining his visa conditions. He said that he knew that if he went back to his home country and applied again you cannot get admission; because people say once the visa is cancelled you cannot get a visa again. I noted that what I was suggesting that he may have been able to return to India before the cancellation and apply for the appropriate visa. He did not respond. I asked if he had completed any courses in his time in Australia and he said he had not.
Later in the hearing I asked the applicant what he would do if were to hold a student visa. He said he would start studies related to engineering. I asked where he would do this. He said wherever he could obtain admission. I asked if he had made any inquiries about this and he said he had. I asked if Victoria University had a Diploma of Engineering and he said it did. I asked why he had not attempted to transfer to that course rather than going to CDC. He said he did not know about it at the time. I noted I had concerns that he did not go to Victoria University and inquire whether he could transfer to another course, such as the Diploma he had now found out that Victoria University had.
I have considered the responses of the applicant. He claims to have studied hard in his Bachelor course for one semester, but despite studying hard to have not been able to succeed, due to differences in living arrangements, teaching practices and study requirements compared to India. I do not accept these claims. Most significantly, the evidence does not indicate that the applicant studied hard. This is firstly because the applicant was not able to tell me what two of his four subjects were, and was only able to describe the content of his studies in one word or one sentence answers. This leads me to conclude that he did not attend these subjects. Further reinforcing this view is his statement in his submission that he did not achieve double digits in his subjects, and at the hearing that he achieved some 14% in one subject, 7-8% in another and comparable in the other two. When I consider this together it leads me to find that the applicant did not attend his courses regularly, and perhaps at all, did not submit most or many of his assignments and may not have attended exams. This leads me to conclude that his claim that he studied hard, that he put effort into the study of his Bachelor but was unsuccessful due to the above factors is a fabrication. The applicant did not seek more than some counselling, he did not speak with Victoria University and learn that they had a Diploma of Engineering that he may have been able to transfer to. He did not seek to suspend his Bachelor studies. For all of these reasons I find that the applicant was not at that time a genuine student for study at the higher degree level. He then sought vocational level studies at CDC and a 572 visa. Given I do not accept, above, his claims that he studied hard but did poorly, I do not accept that this was the reason for him leaving Victoria University and seeking to do studies at a lower level. On being refused a 572 visa he then moved studies again to another field and enrolled in Stott’s. I find that this action was, as he himself set out in his statement to a course in hospitality which was easily available and easily done. I find that his actions indicate that the applicant was seeking to maintain visa eligibility. I do not accept that he uncritically accepted the advice of an agent who misadvised him. He could have consulted the Department and sought advice at this time but did not do so. I do not accept that the applicant’s actions can be explained away by having been misguided by an agent or friends. I find that the applicant has engaged in the actions he has in an attempt to maintain visa eligibility and to enrol in and transfer to lower cost and lower workload courses because his primary goal is not to study. For all of these reasons I find that he is not a genuine student and is not a genuine student for study at the higher degree level. Given his responses above I have no confidence that, were the visa to be reinstated, he would study at the higher degree level.
I find therefore that the applicant is not, or is likely not to be, a genuine student, as set out in s.116(1)(fa)(i) and for these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa) 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
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’.
I discussed with the applicant the purpose of his travel to and stay in Australia. After explaining the discretion and that I would consider anything he had to tell me that was relevant to the discretion, I asked the applicant what his purpose was in travelling to and staying in Australia. He said that his purpose was to study here. He said he tried a lot, a lot.
I have considered the response of the applicant, however, given my findings above, I do not accept that the applicant’s intention at that time, or now, in travelling to and staying in Australia, is primarily or even significantly to study. I find on the evidence before me that this is not his purpose in travelling to and staying in Australia, and with my concerns above, I give this some weight.
I discussed with the applicant the extent of his compliance with visa conditions. The applicant stated he had complied with conditions on his visa. I have some concerns with this but with no clear evidence to the contrary I will accept this statement, and give this some weight.
I discussed with the applicant the degree of hardship that may be caused. The applicant said that it would be a hard time for him, his parents did not know about the cancellation and as he did not have any visa he could not work. He said it would affect him and his family members in every respect.
I also asked the applicant about his claim in his statement that he was depressed. I asked if he had seen a medical practitioner about this. He said he had and the practitioner had told him that it was normal and he would be ok with him. I asked if this meant he had not been diagnosed with depression and he said he had not, not like a diagnosis, he had got upset and mentally stressed up. On the basis of the evidence I do not accept that the applicant has previously or currently suffers from depression.
I accept that the applicant and his family may suffer some hardship from the visa remaining cancelled. I give this some weight.
I discussed with the applicant, as above, the circumstances in which the ground of cancellation arose. On my findings above I find that the circumstances were not beyond his control. I find that the applicant has fabricated his claims to have studied hard in his Bachelor but not been successful for a variety of reasons, and this and other reasons have led to my findings that he is not a genuine student. This is a significant factor and the circumstances surrounding the ground of cancellation, here his genuineness as a student, go to the very heart of the purpose for which the visa was granted - to allow the applicant to study. I give this factor significant weight.
There is no evidence before me that the applicant has not been compliant in his conduct towards the Department, and I give this some weight.
I discussed with the applicant what he would do if the visa were to remain cancelled. He indicated that if he was required to, he would return to India. I asked if there were any reasons he could not return to India and he did not indicate there were any reasons, but said that it would be tough for him, as they are an agricultural people and it would be hard for him to have to start from zero.
I consider that the evidence before me indicates that there is no reason the applicant cannot return to India, and if required to do so, would do so. Therefore, I find that there is no likelihood that the cancellation would result in him being detained or indefinitely detained, nor, given his responses, that and international obligations would be breached if the visa remains cancelled. I give these factors little weight.
I asked the applicant if there were any other relevant matters the applicant wished to raise. He said that he wanted to do studies and complete his course. He asked for a chance to complete his studies. He said, as above, that if the visa were reinstated he would start studies related to engineering.
Given the applicant’s responses and evidence at hearing, as above I have no confidence that, were the visa to be reinstated, he would study at the higher education level. as above, I have found that he is not a genuine student, so I do not accept or find persuasive his claims that he wishes to study and complete his course. I give this factor no weight.
I have had regard to the above factors which tend to the visa not being cancelled. However, in my consideration, the factors here which indicate the visa should be cancelled outweigh these, in particular the circumstances which led to the breach and my findings that the applicant is not a genuine student and is not a genuine student for study at the higher degree level. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Sean Baker
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.

[2016] AATA 1404

6 January 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies