MEHRA (Migration)

[2018] AATA 189

MEHRA (Migration) [2018] AATA 189 (31 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr RUPINDER SINGH MEHRA

CASE NUMBER:  1618313

DIBP REFERENCE(S):  BCC2016/2956709

MEMBER:Rachel Westaway

DATE:31 January 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 31 January 2018 at 4:30pm

CATCHWORDS
Migration – Cancellation - Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Requirement to be a genuine student - Studies undertaken significantly different than intended studies – Significant period spent not studying - Repeated reenrolment – Lack of interest in studies

LEGISLATION
Migration Act 1958, ss 116(1)(fa)(i), 116(1A), 119, 189
Migration Regulations 1994, rr 1.40A, 2.43(1C), 2.43(1D)

CASES
MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 October 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 delegate cancelled the visa under s.116 (1)(fa)(i) on the basis that the applicant was not a genuine student. The delegate noted the applicant did not hold a valid certificate of enrolment from 25 August 2015 to 11 October 2016, his last recorded date of study was 3 April 2015. The applicant was granted a subclass 573 student visa for higher education and he has not been enrolled in any higher degree course since 6 January 2015. The delegate noted the applicant had changed to a course which was significantly different to his original level of education. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 20 April 2017 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. 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

5. 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)(i). 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?

   s.116(1)(fa) - not a genuine student

6. 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.

7. 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]).

8. 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.

9. In support of the application for review, the applicant provided to the Tribunal a copy of the delegate’s decision record in which it is noted that on 24 October 2013, the applicant was granted a subclass 573 Higher Education Sector student visa. The applicant’s intended study plan was to undertake the following:

   ·     Certificate IV in Business (Confirmation of Enrolment (CoE) 5E854813) at TAFE Queensland Brisbane – 28 January 2014 to 06 June 2014

   ·     Diploma of Business (CoE 5E855528) at TAFE Queensland Brisbane – 07 July 2014 to 14 November 2014

   ·     Bachelor of Business (CoE 5FAC2375) at University of the Sunshine Coast – 16 February 2015 to 15 December 2016

10. The decision record further indicates that:

    a.Records in the Provider Registration and International Student Management System (PRISMS) indicate on 8 November 2013 the applicant’s enrolment in the Certificate IV in Business (CoE 5E854813) was cancelled citing ‘change to student enrolment’.

    b.On 08 November 2013 he was enrolled in a second Certificate IV in Business (CoE 6039CA15) at TAFE Queensland Brisbane – with study dates from 28 January 2014 to 06 June 2014. On 06 June 2014 RUPINDER SINGH MEHRA completed this Certificate IV in Business.

    c.On 16 July 2014 his enrolment in the Diploma of Business (CoE 5E855528) was cancelled citing ‘non-commencement of studies’. Subsequently on 06 January 2015 his enrolment in the Bachelor of Business (CoE 5FAC2375) was cancelled citing ‘non-commencement of studies’.

    d.On 07 August 2014 he enrolled in another study plan. It included a Certificate IV in Small Business Management (CoE 69459674) at Australian Careers College Pty Ltd – 18 August 2014 to 12 March 2015. Diploma of Management (CoE 6945A528) at Australian Careers College Pty Ltd – 16 March 2015 to 09 October 2015. Advanced Diploma of Management (CoE 6945A936) at Australian Careers College Pty Ltd – 12 October 2015 to 20 May 2016.

    e.On 28 January 2015 his enrolment in the Diploma of Management (CoE 6945A528) and Advanced Diploma of Management (CoE 6945A936) was cancelled citing ‘non-commencement of studies’.

    f.On 02 March 2015 he was enrolled in a second Diploma of Management (CoE 6FF02F42) at Australian Careers College Pty Ltd – study dates 16 March 2015 to 09 October 2015.

    g.On 02 March 2015 he was enrolled in a second Advanced Diploma of Management (CoE 6FF03C57) at Australian Careers College Pty Ltd – study dates 12 October 2015 to 20 May 2016.

    h.On 25 August 2015 his enrolment in the Certificate IV in Small Business Management (CoE 69459674) was cancelled citing ‘student notifies cessation of studies’. His last day of study in this course recorded on PRISMS was 12 March 2015.

    i.On 24 July 2015 his enrolment in the Diploma of Management (CoE 6FF02F42) was cancelled citing ‘student notifies cessation of studies’. His last day of study in this course recorded on PRISMS was 03 April 2015.

    j.On 24 July 2015 his enrolment in the Advanced Diploma of Management (CoE 6FF03C57) was cancelled citing ‘non-commencement of studies’.

    k.On 11 October 2016 he enrolled in another study plan which was General English (CoE 853F1452) at Apeiron Asia Pty Ltd (Chambers Institute) – 24 October 2016 to 27 November 2016. Certificate III in Commercial Cookery (CoE 8539CF21) at Sher-E-Punjab Pty Ltd (South Pacific Institute) – 12 December 2016 to 10 December 2017 Certificate IV in Commercial Cookery (CoE 853A0353) at Sher-E-Punjab Pty Ltd (South Pacific Institute) – 08 January 2018 to 08 July 2018. Diploma of Hospitality (CoE 853A0E12) at Sher-E-Punjab Pty Ltd (South Pacific Institute) – 13 August 2018 to 10 February 2019. He commenced this package on 24 October 2016.

    l.The delegate noted that on 11 October 2016 he lodged an application for a TU500 Vocational Education sector student visa in relation to this study plan.

    m.Therefore, departmental records suggest he did not hold a valid CoE from 25 August 2015 to 11 October 2016. This indicates he was not enrolled for a cumulative period of over thirteen (13) months. Furthermore, prior to commencing the General English course on 24 October 2016, his last recorded date of study on PRISMS is 03 April 2015. This indicates that he had not studied for a cumulative period of over eighteen (18) months. He was holding a TU573 Higher Education Sector visa (‘student visa’), however since 06 January 2015 he has not been enrolled in a bachelor’s degree or master’s degree course and he has 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.

11. In response to the Notice of Intention to Consider Cancellation letter dated 18 October 2016, the applicant provided the following submissions:

    a.He claims that he informed his agent in India that he wanted to study Commercial cookery and he was told his application was made accordingly however when his visa was granted he noted it was incorrect and was in fact Business he was enrolled in. His agent acknowledged this mistake and said he can change it in Australia.

    b.His College explained that if he did not continue his studies his visa will be cancelled. He felt trapped and he claims his heart was not in it and he was unable to concentrate. Under the influence of a friend he stopped studying and was depressed.

    c.He claims he had an Australian citizen girlfriend whom he prioritised over and above his need to study. He said they wanted to get married but she urged him to complete his studies and they can return to India after that. He then researched his desired course and found the Hospitality courses he really wanted to do.

    d.He stated he wants to own his own restaurant with his father. His intention is to study in Australia and he wants to meet the expectations of his father and have a successful business in his home town.

12. The applicant told the Tribunal that he first came to Australia on 22 November 2013 from Punjab in India. He has two sisters and a brother and he is the eldest son. He has returned to India for ten days in February 2015 in order to attend his sister’s wedding. He explained that one sister lives in Adelaide and is also studying. The applicant’s father owns a convenience shop in India and supports him financially.

13. The applicant explained that he came to Australia because it had a reputation of providing excellent academic qualifications. He completed a diploma in electrical engineering in India and was working as an electrician for one year. He said he is 27 years old and is single but previously had a girlfriend in Australia.

14. He said his agent applied for a package course for Business in spite of the fact that it was not the course and he really wanted to undertake, namely cookery.  His agent said to change the course when he arrives in Australia.

15. The Tribunal asked the applicant about his reasons for wanting to undertake cookery given he had studied electrical engineering and worked as an electrician. He said that his family have a large place in front of his home in India which would be suitable for opening a restaurant and this is why he was interested in cookery. He was asked why he did not apply for a cookery course initially. He said his agent suggested he enrol in Business and he can change when he gets to Australia. He said that he called his agent from Australia to discuss the problem when he was unable to change the course from Australia and the agent said finish the course first and then change.

16. On 8 November 2013 the applicant’s enrolment in a Certificate IV in Business was cancelled citing a change to student enrolment. Records indicate that the applicant re-enrolled in the same course on 28 January 2014 which was to end on 6 June 2014.  He said that when he tried to withdraw from the course his provider would not let him. He said he paid half the fees for second semester and then he asked for a release letter but they would not give it to him and they cancelled his enrolment in both the Diploma and Bachelor degree. The notes attached to the cancellation however list non-commencement of studies. When this was put to the applicant he stated again he really wanted to study cookery and he did not want to break the law. He said that he “withdrew” in second semester in June 2014 and did not go on to commence the Diploma.

17. The applicant said he went to another college to study a Certificate IV in Small Business Management, a Diploma of Management and an Advanced Diploma of Management which was to take him up to May 2016 when he was due to complete his studies. He enrolled in these on 7 August 2014 and said that a friend told him it was a good course to do. On 28 January 2015 this enrolment was cancelled for the same reason; the records list non-commencement of studies.

18. The Tribunal explained to the applicant that in considering if he is a genuine student it will amongst other things consider whether he was enrolled in courses intended by the visa. In the applicant’s case he was not enrolled at this point in courses equivalent to a higher education visa. The Tribunal explained to the applicant it had concerns about the credibility of his claims regarding his interest in cooking because he could have researched and enrolled in a Bachelor of Hospitality however he continued to enrol in business and management courses which he appeared not to have attended and then there were also significant periods of time in which he simply was not enrolled in any course.

19. The applicant was invited to comment on this concern. He said he was told he could not obtain a release letter from his first provider so he continued to enrol in Business courses. The Tribunal explained that this seemed illogical as he was able to change providers. Furthermore, the loss of his fees did not appear to be a deterrent from changing providers or not attending classes. If the applicant was able to obtain enrolment in another business course with another provider, he would have been able to enrol in hospitality and cooking courses as long as they met the requirements of a higher education visa. However, he enrolled in Small Business Management. He said he had limited knowledge and he just did it. The Tribunal explained that he is a mature age student who has previously undertaken studies in India and obtained employment associated with his studies. It is implausible that he did not understand this.

20. He said he took advice from a friend. He never went to a career counsellor, his college or a registered migration agent. He said Brisbane was a new environment. He said he slowly came to understand things.

21. The Tribunal stated that the package courses he enrolled in were commitments of up to two years which he repeatedly re-enrolled in but did not commence or complete. Furthermore, whilst stating he never wanted to do these courses, he never actually enrolled in the course he claims he wanted to do which was cookery.

22. He responded and said that he could not obtain a release letter and he was angry. He said the release letter is important and enables him to change courses. He said it all rests with the release letter. He stated that he completed the Certificate IV in Small Business Management on 12 March 2015 indicating he did undertake study.

23. He said he was alone in Australia and he could not tell his parents and he moved to Shepparton. He was asked what he did from 12 March 2015 until 11 October 2016. He said he was upset and he lived alone in Shepparton and suffered depression and he does not want to cause his family stress. He said he had a friend who was studying to be a migration agent and he helped him apply for the subclass 500 visa. He then moved to Melbourne in 2016. He said that on 11 October 2016 he enrolled in a Certificate III in Commercial Cookery and a Diploma of Hospitality. This would take the applicant through to 10 February 2019 however the subclass 500 visa was refused so he could not study.

24. The applicant has been on a subclass 573 Higher Education visa since November 2013. His initial course was a package course with the objective of obtaining a Bachelor of Business. The Tribunal has considered the evidence before it and accepts that the applicant did not hold a valid CoE from 25 August 2015 to 11 October 2016. The Tribunal accepts that the applicant changed course providers many times with records indicating his enrolment was cancelled due to non-commencement of studies. The Tribunal accepts that the applicant’s last recorded date of study was 03 April 2015 and he therefore did not study for a cumulative period of over eighteen (18) months. The Tribunal accepts that he was not enrolled in a bachelor’s degree or master’s degree course namely a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A. The Tribunal accepts that prior to his visa being cancelled he was not enrolled in any course. The applicant has demonstrated a lack of interest and commitment in the studies he was enrolled in and a disregard for the visa requirements and he has not conducted himself as a genuine student. The Tribunal is therefore satisfied based on the reasons detailed above that the ground for cancellation in s.116(1)(fa)(i)) of the Act exist and find that the applicant is not a genuine student. 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

25. 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’.

    the purpose of the visa holder’s travel and stay in Australia,

26. The applicant came to Australia to study in November 2013. He claims to have come to Australia to further his education stating an Australian qualification is considered highly in India. The applicant has already obtained a Diploma of Engineering in India and was successful in gaining employment there prior to coming to Australia. However there is no evidence before the Tribunal to indicate that the applicant was ever committed to studying and as he has stated he was never interested in studying the course from the beginning. He has not completed any course in which he enrolled. However he continued to enrol and re-enrol in courses that were not what he wanted to do. The applicant had every opportunity to rectify the incorrect visa and course before coming to Australia or when in Australia and he did not. Nor has he provided any evidence to support his claim that he was incorrectly enrolled in the first place.

27. The Tribunal therefore gives no weight to this in favour of the applicant not to cancel the visa because the applicant has not provided any evidence from the time the visa was granted to indicate that he intended to study.

    whether the visa holder has a compelling need to travel to or remain in Australia

28. There is nothing before the Tribunal to indicate that the applicant has a compelling need to travel or remain in Australia. There is nothing preventing the applicant from studying cookery in India and opening his business with his father.

29. The Tribunal is not satisfied that the applicant has a compelling need to travel to or remain in Australia which would mean his visa should not be cancelled.

    circumstances in which ground of cancellation arose

30. The applicant claimed his agent in India had enrolled him in the wrong course and subsequently the wrong visa.  He was granted a subclass 573 visa based on his enrolment in a package course to study Business when in fact he wanted to study cookery. He confirmed he found out before he left India but his agent said to come to Australia and sort it out there. He said his course provider would not give him a release form so he had to study business. He said he was given confusing and incorrect advice from his original agent in India. However he changed courses and institutions numerous times but never to a cookery course.  He claims he and his father want to open a restaurant on the land near his house and he wanted to study cookery from the beginning. However the applicant has provided no evidence to support his claimed ongoing interest in hospitality. For example he could have provided correspondence between his agent in India and himself about the type of course he wanted to enrol in when coming to Australia. 

1. The applicant’s explanation that he could not obtain a release form is given no weight by the Tribunal as this did not prevent him from enrolling with other providers as he was able to demonstrate. The applicant had every opportunity to seek a higher degree course in hospitality or return to India and he did not and he allowed the situation to continue for an extensive period of time.

2. The Tribunal gives no weight in favour of the applicant not to cancel a visa because whilst it is plausible that he received incorrect advice, the responsibility sits with the applicant to ensure he meets the requirements of the visa and given he knew this before he left India he could have delayed his departure until the correct course and visa were in place. The applicant continued to compound the issue by re-enrolling in the same courses and then finding his enrolment was cancelled because he either did not commence the course. The Tribunal does not consider the circumstances in which the ground for cancellation arose to be beyond the applicant’s control.

   the extent of compliance with visa conditions

3. The applicant was granted a student visa in order to study in Australia. As such his intention must be to study, maintain enrolment, attendance and course progress, in a higher education CRICOS registered course. He was not enrolled in a CRICOS registered course from 25 August 2015 to 11 October 2016 which is a period of more than thirteen months whilst he has remained in Australia on a visa which is for the purpose of study. He was not studying for a significant period of time. His last recorded date of study was 3 April 2015 and has therefore not studied for a period of more than eighteen months.

4. The applicant has had a significant period of non-compliance with conditions on his student visa and as such the Tribunal gives this no weight in not cancelling he visa.

   the degree of hardship that may be caused (financial, psychological, emotional or other hardship)

5. The applicant gave evidence that he has obtained a diploma in India and obtained employment before he came to Australia. He stated his father owns a small business and he and his father would like to open a restaurant. There is nothing preventing the applicant from obtaining employment should he return to India and he has maintained he has the financial support of his father. He stated that he did not tell his parents about the cancellation because it would worry them. The applicant stated that his mother has diabetes and high blood pressure and he wants to take care of her and undertake proper studies.

6. The Tribunal acknowledges that the cancellation of the applicant’s visa would be disappointing to the applicant and his family and that there are financial and emotional consequences.  However, the Tribunal is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

7. Overall, looking at the circumstances cumulatively, the Tribunal is not satisfied that in this case there is a degree of hardship that means that the applicant’s visa should not be cancelled.

   past and present conduct of the visa holder towards the department

8. The applicant responded to the notice of intention to consider cancellation and the Tribunal has given this aspect some favourable weight.

   if breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder are there mitigating, compassionate and compelling factors

9. This is not a breach of the holder of a subclass 457 visa.

   whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

10. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice pertaining to his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion.

11. However, the applicant’s approach to his studies has demonstrated a disregard for the visa and its requirements over the most part of his time in Australia and not just for an isolated period. Accordingly, the Tribunal is not satisfied that there are consequences of the cancellation which mean that the visa should not be cancelled.

    whether there would be consequential cancellations under s.140

12. There is no evidence that there would be consequential cancellations in this case.

    whether any international obligations would be breached as a result of the cancellation

13. There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation.

    any other relevant matters.

14. The applicant provided a certificate of enrolment for commercial cookery and hospitality commencing 22 January 2018 and ending 15 November 2019. It is for a package course including a Certificate IV and Diploma.

15. However this suggests to the Tribunal that the applicant had only enrolled in the course in an attempt to obtain a favourable outcome in relation to the cancellation, rather than, out of genuine interest, intention or desire to undertake the course. If he did have such a desire, he would have enrolled in a course prior to now.

16. The applicant stated that he suffered depression during the time he was in in Shepparton. The Tribunal asked the applicant if he obtained medical support or took any medication or had any evidence of treatment for his claimed depression. The applicant said he had not and he does not have any knowledge about these types of things. The Tribunal is of the view that if the applicant had an illness which was debilitating he would have sought some form of treatment and be able to provide the Tribunal of evidence of such.  

17. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

18. The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

19. For those reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(i) exists as the Tribunal is satisfied that the applicant is not, or is likely not to be, a genuine student.

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

    DECISION

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

    Rachel Westaway
    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.