Rana (Migration)

[2018] AATA 3498

Rana (Migration) [2018] AATA 3498 (6 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jitender Rana

CASE NUMBER:  1621138

HOME AFFAIRS REFERENCE(S):           BCC2016/3382277

MEMBER:Brendan Darcy

DATE:6 August 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Class TU visa.

Statement made on 06 August 2018 at 10:14am

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) – Breach of visa condition – Enrolment in a Higher Education degree course – Misleading advice from migration agent – Immature decision to transfer between education institutions – Genuine interest in mechanics – Completed courses related to career goal – Decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 1.40A Schedule 2 cls 573.111, 573.223, 573.231 Schedule 8 Condition 8516

CASES
Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 December 2016 made by a delegate of the Minister for Immigration and Border Protection 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(b) on the basis that the applicant breached condition 8516 of the Act. 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 3 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(b)). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   s.116(1)(b) - non-compliance with conditions

7. On 26 June 2013, the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8516 attached.

8. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance, condition 8516 was attached to the applicant’s visa and is alleged to have been breached.  

9. Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of a criterion requiring the applicant to be enrolled, it has been held that this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

10. In the present case the applicant was required to meet, among other criteria, subclause 573.231 or 573.223(1A) of Schedule 2 to the Migration Regulations 1994.

11. Essentially, subclause 573.231 provides that, unless a person is an eligible higher degree student as set out in 573.223(1A), that person must be enrolled or the subject of a current offer of enrolment in a principal course of a kind specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application: cl.573.231. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI14/015.

12. The courses specified by the Minister in instrument IMMI12/037 for a subclass 573 visa (granted prior to IMMI12/037) are:

    ·Higher Education Diploma

    ·Higher Education Advanced Diploma

    ·Bachelor Degree

    ·Graduate Certificate

    ·Graduate Diploma

    ·Associate Degree

    ·Masters by Coursework.

13. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a Bachelor degree, Master’s degree by coursework or, for visa applications made on or after 12 November 2012, an advanced diploma in the higher education sector: cl.573.111.

14. As discussed in the hearing, the applicant arrived in Australia on 3 July 2013 and was enrolled in a package of coursework including Certificate IV in tertiary preparation, a Diploma of Engineering at MIBT and a Bachelor of Engineering at Deakin University. The applicant’s visa was set to expire on 30 August 2018.

15. Information from the delegate’s record and the Provider Registration and International Student Management System (PRISMS) shows the applicant’s enrolment in a Bachelor of Engineering (Confirmation of Enrolment 5BBC4C29) was cancelled on 21 March 2018.

16. The applicant was issued a Notice of Intention to Consider Cancellation (NOICC) on 11 November 2016 on the basis of breaching condition 8516 and responded on 27 November 2016.

17. As part of the applicant’s response to the NOICC, he stated that he was not compliant with condition 8516. In summary, the applicant claimed that he arrived he could not find accommodation in Geelong where he was to study. He claimed he travelled to and from Geelong and Melbourne and was advised to move to Burwood campus but not offering a suitable course. The applicant then enrolled at Austwide College in Footscray where he studied and completed Certificate III in automotive technology. However, the applicant claimed the college closed down and so the applicant was required to enrol in Acumen College where he completed a Certificate IV and Diploma in automotive technology. The applicant further claimed he had received advice from an education agent that he could enrol in this new college for advanced diploma and not in a bachelor course as such packages were only possible from India.

18. After receiving the NOICC, the applicant claimed he confronted the agent but she blamed the applicant. He claimed he was going to contact the relevant authorities to complain about the agent and that he will forward the complaint to department. It was further claimed that he was not aware of the conditions on his visa and that as he arrived in Australia after completing year 12, his migration matters were handled by father. The applicant reiterated that he was forced to find new course due to accommodation and that he was misguided by agent about the requirement to be enrolled in a bachelor’s degree. The applicant claimed that he had not breached other conditions on his visa and that he has since cancelled advanced diploma and applied for bachelor level at other educational institution.

19. The applicant claimed that the purpose of his study was work on highly-engineered European cars in India as a well-paid and satisfying career. He claimed there would be degree of hardship arising from the amount of money his family has invested in his studies and a sense of shame in not completing his studies. 

20. A delegate on behalf of the Minister proceeded to cancel the applicant’s student visa on 8 December 2016.

21. During the hearing, the applicant admitted that he had not been enrolled in a bachelor’s degree since 21 March 2014 and that he was not compliant with condition 8516.

22. On the basis of the information before it, the Tribunal is satisfied that when the applicant’s enrolment in a Bachelor of Engineering was cancelled on 21 March 2014 he did not continue to satisfy cl.573.231 or cl.573.223(1A) and therefore did not continue to be a person who would satisfy the primary criteria for the grant of the visa. There was no evidence before the Tribunal to indicate that the applicant satisfied the secondary criteria for the grant of the visa. The Tribunal finds therefore that he breached condition 8516 of his student visa.

23. 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 THE DISCRETION TO CANCEL THE VISA

24. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

25. 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).

26. According to the decision record, departmental records confirmed that the applicant was not meeting condition 8516 attached to his student visa as he was not enrolled in a registered course relevant to a subclass 573 visa right up to the decision to cancel the student visa.

27. The Tribunal discussed the applicant’s circumstances with him during the scheduled hearing on 6 January 2016 with his representative present. Below is a summary of some of that oral evidence provided:

28. Consistent with his NOICC response, the applicant argued that although he had not been enrolled in a Bachelor of Engineering at Deakin University from March 2014, he had maintained enrolled and completed his studies relating to automotive industry. The applicant claimed that he planned to complete a bachelor’s degree which will lead him to be a specialised mechanic in hybrid and Formula racing cars. The applicant consistently blamed his ignorance regarding visa conditions, although he claimed he had received and read the relevant paperwork. He claimed his former migration agent for not upholding the condition on his visa when he was compelled to enrol in another educational institution due to the commute times between Geelong and eastern Melbourne. The applicant claimed later that an educational agent told him he did not need to enrol in a bachelor’s degree, although he objected at the time.  He also claimed that while he had work rights on his student visa he worked in a car spare parts business and a mechanics’ workshop.

29. Other elements of the applicant’s critical claims as to the reasons his visa should not be cancelled are outlined below.

30. No post hearing submission was required at the end of the scheduled hearing.  No further evidence or submissions have been provided to the Tribunal regarding the cancellation of the applicant’s student visa up to and including at the time of writing his decision.

31. The Tribunal, however, makes the observation that the applicant had been largely credible at the hearing and that his demeanour during the hearing appeared to be consistent with a relatively immature person who baulks at being assertive or has allowed himself to passively accept advice from family and/or third parties. 

    Discretionary Evaluation of Favourable and Unfavourable Factors

32. According to PRISMS, the applicant has completed a Certificate III in automotive mechanical technology; a Certificate IV in automotive mechanical diagnosis and a Diploma of automotive technology since he has arrived in Australia. However he did not commence an advanced diploma or a bachelor’s degree in which he had been enrolled. The Tribunal accepts this to be the case and that such completed course work indicated a genuine interest in mechanics and engineering.

33. During the hearing, he claimed that he wanted to work on ‘Formula’ racing cars, hybrid and other sophisticated or highly-engineered vehicles and that he need to complete his bachelor’s degree to achieve his career goal. However, the applicant was unable to recall the written reasons he provided to the Tribunal as the purpose of his studies, namely to work on sophisticated cars on his return to India. Although he originally stated he would not find any work in India, the applicant later admitted that while he would be able to find work, completing a bachelor’s degree in engineering would open up more opportunities to him both in Australia and India. He also added that he had been working in a retail outlet for car parts and in a mechanics’ shop while he enjoyed work rights on his student visa, which the Tribunal accepts and accepts to be relevant to his claimed career goals.  

34. Noting that the applicant’s completed coursework and work experience, it is accepted by the Tribunal the applicant has a genuine desire to build a career as a mechanic in the high-end vehicle market. While he provided some inconsistent details for enrolling an engineering degree, the Tribunal accepts there is a discernible thread of plausible evidence whereby such a degree would be advance his employment options and he is genuinely interested in sophisticated highly engineered vehicles. Based on this assessment, there is sufficient evidence to suggest that the applicant’s original and ongoing intention for his travel to and stay in Australia was for the purpose of study.

35. Taking all this relevant information into cumulative consideration regarding about the applicant’s purpose to travel to and stay in Australia, the Tribunal accepts the applicant is a genuine student and gives this some weight in favour of the visa not being cancelled.

36. With regards to the degree of hardships – financial, emotional and otherwise -  to face by the applicant, the Tribunal was only able to discernible a negligible degree of overall hardship given the applicant’s admission he would be able to return to India with the emotional and material support of his family and find work related to being a mechanic. The Tribunal gives these hardship considerations little weight towards the visa not being cancelled.

37. There is no evidence before the Department to indicate the applicant did not comply with other conditions. Neither is evidence before the Tribunal that he breached other conditions of his student visa prior to the cancellation. The Tribunal gives these factors some weight in favour of the applicant.

38. According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department. The Tribunal gives this some weight in his favour.

39. In this matter, the applicant did not have any extenuating circumstances beyond his control. He argued that he was did not move closer to his studies based in Geelong, including the western side of Melbourne because it was more convenient to reside with his cousins in Clayton in eastern metropolitan Melbourne and the extensive commute to and from Geelong was two-hours long. The Tribunal finds this reasoning to be weak and unpersuasive as it was open for the applicant to seek accommodation and it does not accept the applicant wholeheartedly sought out more suitable alternative accommodation for study purposes.  He also argued that he was unaware of the conditions on his visa as his father arranged the paperwork. However, the applicant also claimed he did receive the paperwork regarding the grant of his visa, and, under the Tribunal’s robust questioning, admitted this was not a strong or compelling reason for his non-compliance.  As the applicant had access to the written explanations regarding the conditions imposed on his student visa and because he is an adult, it does not accept his ignorance of the condition 8516 or his reliance on his father to be extenuating circumstances. Neither does the Tribunal accept that he relied on the poor advice of migration or education agents leading to his breach of condition 8516 as an extenuating circumstance beyond his control, given he claimed to insist to them he wanted to complete a bachelor’s degree in engineering for career purposes. Overall, these claims about extenuating circumstances were vague and weak attempts to augment his otherwise poor decision-making arising from his lack of maturity and a lack of self-assertion. Accordingly, the Tribunal places notable weight on the lack of extenuating circumstances in favour of the visa remaining cancelled.

40. During the scheduled hearing, the Tribunal discussed with the applicant that he would have very limited migration options and that he may have to depart or be detained. It was also discussed that he may be barred for as much as three years from re-entering Australia, which the applicant feared would negatively impact on his completion of a bachelor’s degree. As discussed in the hearing, it was open to the applicant to complete his studies in India or another country.  Accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

41. It was discussed during the hearing that the applicant did not have any children or spouses here is no evidence before the Tribunal that this is relevant. Neither did the applicant advance that any international obligations would be breached as it was safe for him to return to India.  The Tribunal gives these factors no weight in favour of the visa not being cancelled.

42. The Tribunal also accepts the representative’s oral submission that the applicant has garnered a letter of offer for a bachelor degree in business, but not in engineering, to assist with him regularizing his migration status and was unable to find an offer of enrolled relating to engineering or mechanics. The Tribunal notes that gaining a letter of offer or re-enrolling into a preferred bachelor degree can be stymied by when student visa holders have not completed at least six months of study in the principal course and had their student visa’s cancelled. Based on this, the Tribunal places no weight in favour of the applicant’s visa remaining cancelled.

    Conclusion

43. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

44. The fact remains the most significant and serious factor in cancelling the applicant’s subclass 573 student visa is his breach of condition 8516 at the time of his visa cancelled. This is admitted by the applicant and it remains of serious concern to the Tribunal.

45. While the Tribunal accepts there are no extenuating circumstances beyond the applicant’s control arising from the grounds in which the cancellation has arisen, it finds the applicant behaved in a muddle-headed and immature manner when he transferred his enrolment between educational institutions. His non-compliance with condition 8516 was entirely avoidable had the applicant been more assertive or critical or conscientious. Nevertheless, on this occasion, the Tribunal does not believe these past behaviours arising from a visa holder in Australia in his early twenties should be too heavily relied upon when assessing its discretionary powers to have the visa remained cancelled.

46. For these reasons outlined above and in the context of the applicant has been pro-active in completing relevant studies to his originally enrolled bachelor’s degree, the Tribunal finds that he is a genuine student committed to a higher education relevant to his bachelor’s degree for an attainable career goal. The Tribunal accepts that the applicant's purpose in travelling to Australia and remaining here is to study and that he does not consider Australia his home. The Tribunal, accordingly, considers this a significant factor indicating that he is a genuine student for entry and stay temporarily and that he will uphold the conditions imposed on this visa being reinstated or any further student visa.

47. Considering the circumstances of the applciant as a whole, the Tribunal concludes that the visa should not be cancelled.

48. The applicant should be aware that the Tribunal only reached this decision only marginally in his favour.

    DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Class TU visa.

   Brendan Darcy
   Member