SHARMA (Migration)

[2017] AATA 59

SHARMA (Migration) [2017] AATA 59 (4 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr BHARAT SHARMA

CASE NUMBER:  1610362

DIBP REFERENCE(S):  BCC2016/1675428

MEMBER:Sean Baker

DATE OF ORAL DECISION:  4 January 2017

DATE OF WRITTEN STATEMENT:         4 January 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 04 January 2017 at 4:32pm

CATCHWORDS

Migration – Cancellation – Higher Education Sector visa – Subclass 573 – Genuine student – Non-payment of fees – Non-enrolment – Change to vocational course

LEGISLATION

Migration Act 1958, s 116, 119

Migration Regulations 1994, r 2.43

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 5 July 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, or was likely not to be, a genuine student, and then proceeded to weight the factors for and against cancellation and decided that the factors for outweighed those against. 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 provided a copy of the Departmental decision with his application for review.

3. The applicant appeared before the Tribunal on 4 January 2017 to give evidence and present arguments. The Tribunal gave its decision on the review at the conclusion of the hearing. The following are the reasons for that decision.

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?

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. The applicant provided a response to the Notice of Intention to Consider Cancellation (NOICC) in which he said that:

   Reasons why i am not capable to continue studying in 573 visa are explained as follows.

   My certificate IV in information technology was cancelled on 12/05/2015 due to non payment of fee. I requested them to change my course because i was unable to pass most of the subjects in consecutive semesters which was due to non existence of co-relation between my new and previous studies subsequently engaging with the same course was not beneficial and moreover they were not allowing me to change my course after which they issued me a cancellation letter and i obtained a new COE of certificate III in commercial cookery with Brighton Educational College on 15/09/2015 since then i have been regular with my college curriculum. I and my family got through very bad financial state on 15/04/2106 due to lack of payment of $2000 they cancelled my COE but later on I enrolled again on 9/06/2016. I am remorseful to my self that what i have done to my student life but i am keen to start new chapter of my study life.

   moreover, I was unaware about the particular way to change the course or college. consequently i have called immigration department few weeks after my enrolment in Brighton college and updated my status. Even at that time they did not make me realise my mistake. They only suggested me to obtain a new COE for the leading to degree course. Ultimately due to lack of awareness I was not able to change the course in a proper way.

   It will be very hard for me to go back and continue my study in INDIA. If it happens it will deteriorate my dreams and leave a devastating effect on my family. I hope you will consider my circumstances.

   I shall be very thankful to you.

10. At hearing I explained the ‘genuine student’ concept to the applicant, as well as my understanding that actions such as ceasing enrolment, enrolling in lower level classes than those originally enrolled in, and failing to achieve educational progress despite a significant period holding the student visa may indicate, or be symptomatic, of, conduct which indicates that an applicant is not, or is likely not to be, a genuine student. I read to the applicant from the decision record, noting that the delegate stated that a student visa holder may be considered a 'non-genuine student' if it appears that their primary intention is not, or is likely not to be, to undertake study, noting that I may also be of the view that this indicated a person was not a genuine student. I noted to him that the decision record indicated that:

    ·He was granted a Student Subclass 573 visa under streamlined visa processing on 4 July 2014, and first arrived in Australia on 7 July 2014;

    ·His original study plan was a Certificate IV and Diploma of Information Technology Networking followed by a Bachelor of Information Technology;

    ·That his enrolment in the Certificate IV in Information Technology Networking was cancelled on 12 May 2015 due to non-payment of fees, and the Diploma and Bachelor cancelled subsequently as he was not enrolled in the certificate IV;

    ·That he had then enrolled in a Certificate III in Commercial Cookery with Brighton Educational Services which was cancelled on 15 April 2016 for non-payment of fees, and that Departmental systems indicated that he had never commenced study in this course;

    ·That on 9 June 2016, shortly before the NOICC was sent, the applicant obtained a new Confirmation of Enrolment (CoE) to study Certificate III and IV in Commercial Cookery at Brighton Education Services;

    ·That prior to this enrolment, he had not been studying for a significant period of time from 12 May 2015 — 8 June 2016;

    ·That for the period he held the student visa he had not completed any studies in Australia;

11. The applicant confirmed this information was correct.

12. I noted that this may lead me to have concerns that he did not have a genuine intention to study given his lack of completing courses, the more than year period he did not study at all, his change of courses from a pathway leading to a higher degree to one which was only at the vocational, lower workload, lower cost level, and my concerns that his past behaviour may indicate he was not a genuine student

13. The applicant said he had attended his original course for six months and then he went to India to attend his cousin’s wedding. He was not interested in IT networking and he asked Holmesglen whether he could change to a Certificate III and IV, and they advised him that if he wishes to he could cancel his CoEs and do this. He said he had then seen an email to his old college and they had cancelled his old CoE. He talked to a friend and went to a migration agent/education agent to change his college and he paid fees to Brighton for his commercial cookery course and had regularly called the Department of Immigration as he did not have a Degree CoE. He said at Brighton he had paid fees but they did not give receipts.

14. I asked if we could deal sequentially with what had happened and asked him to tell me about what had happened at Holmesglen – where his Coe had been cancelled due to non-payment of fees. He said this was because he went to India to attend the marriage. I asked what this had to do with non-payment of fees. He said he had had money in his pocket to pay to Holmesglen but they had told him they could not accept 50% of the fees, and he had asked for 10 or 15 days to be able to pay but they did not agree. I explained to him that my view was that the Higher Education visa had been granted to him on the basis that he had the financial capacity to pay his course fees, and I considered this to be his responsibility. He said that he had been able to pay he just needed a bit more time.

15. I asked why he had changed his study path, noting that he had come on a streamlined visa with an IT networking study pathway and had then changed to a different field, commercial cookery. He said IT had been difficult, he had attended the class regularly, but he could not understand and it was very difficult. Then he changed his mind and decided he wanted to be a chef, and if he could complete his certificate III and IV in commercial cookery he could go back to India and work there. I noted that I had concerns that he appeared to have ceased his courses leading to the higher degree and instead enrolled in low cost courses as a vehicle to remain in Australia, rather than as a primary purpose of studying. In response he said that at Brighton they told him he did not need to attend the classes.

16. I noted to him that his CoE with Brighton was also cancelled for non-payment of fees. He said that he had been to pay his fees but the person was sick and they said he could pay the fees later and he had said he could pay 100% on Friday. He said whenever they sent him an invoice he paid the fees. Then the woman went on holiday for 3 months and they cancelled his CoE and he didn’t know why. I noted that it appeared there was a pattern of non-payment of fees in his previous behaviour. He said he did not have much money, he didn’t know exactly as he was not home in India but maybe there were some problems. Then his father had said he was sending money and after 10 – 15 days the applicant had the money in his account but his CoE was already cancelled and they said if he didn’t pay his full fees they couldn’t help him.

17. I asked the applicant why he had not studied from 12 May 2015 until 8 June 2016. He responded that he was looking for an agent, he was paying money to good agents. I explained my concern to him, noting that he appeared not to have studied at all for quite a significant period of time, and I wondered why this was, noting that this may lead me to doubt he was a genuine student. The applicant said he had had lots of letters, they told him that sessions started in this month or that month. He felt that no one could help him. Then he enrolled and went to class in Brighton even though they told him he did not need to attend. I noted that the information in the Departmental decision was that Departmental systems indicated that he had not commenced his studies at Brighton and I might give this greater weight. He said he was all the time at home and he couldn’t see any other student attending the classes at Brighton institute. He said this college was an Indian-run college and they just took money from people and should be investigated. I noted that this was relevant but of more relevance was what we had been discussing – his behaviour, and whether it indicated he was a genuine student.

18. The applicant claimed that he called the Department of Immigration hotline and they told him it was ok that he undertake his Certificates III and IV and when he was close to completion to then get a Bachelor level CoE. I explained that, holding a 573, he needed to hold a Bachelor or Masters level CoE, and I did not think that the Department would have told him otherwise. I noted that there were a number of concerns about his behaviour, which seemed to me the more relevant issue.

19. I have considered the responses of the applicant, both to the Department and to me, to the concerns raised but I do not find his responses convincing. I do not accept that the applicant left his course in It Networking and study path primarily because he was struggling with the course and decided he wished to be a Chef, but consider this demonstrates the applicant wished to change course to an easier and cheaper course to maintain enrolment but for reasons other than primarily to study. I do not accept that he enrolled in and attended his certificate III course at Brighton – I prefer the information in the departmental decision indicating the applicant did not commence this course. I do not accept that he was told by Brighton that he could just pay and not attend classes – this is not supported by other evidence and given my concerns with his other behaviour and evidence I place little weight on his claims about this. I consider that the cancellation of his enrolment at Holmesglen and then at Brighton for non-payment of fees indicates a pattern of behaviour inconsistent with a genuine intention to study, either because he has misrepresented his ability to fund his studies at the higher education level as required by his visa subclass, or because he has used his financial resources for purposes other than paying his course fees, both possibility leading me to doubt his intention is primarily to study, but rather to remain in Australia, and I do not accept the claims made that his family were in financial difficulties at any stage, the applicant has not presented any evidence to demonstrate this. I raised his change from a higher degree pathway, required to meet the Streamlined Visa Processing arrangements, to vocational courses and he claimed that this was a change of interest after his IT course was too hard for him and that he had spoken with the Department of Immigration helpline who had told him he only needed to enrol in a degree course closer to the completion of his Certificate IV. I do not accept these claims and consider that his behaviour is indicative of abuse of the streamlined visa processing pathway in order to remain in Australia. The applicant has not provided any detail about why he found his course too difficult or any evidence to establish this, and given that it is a requirement of the subclass 573 visa that he continue to be enrolled in a higher education course, I do not accept, without more, that he would have been given incorrect advice by the Immigration Department helpline. I consider that the applicant’s behaviour whilst holding the student visa – that is, his lack of completing courses, the more than year period he did not study at all, and his change of courses from a pathway leading to a higher degree to one which was only at the vocational, lower workload, lower cost level lead me to find that the applicant did not hold a genuine intention to study.

20. For all of these reasons I find that the applicant was not, at the time he held the student visa, a genuine student for study. I find that his actions indicate that the applicant was seeking to maintain visa eligibility. 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. Given his past behaviour and his responses I have no confidence that, were the visa to be reinstated, he would genuinely study.

21. 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

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

23. The applicant claimed that he was doing the Certificate III and IV for hospitality and then he would go back to India as his father has a five star restaurant in India. I noted to him that his past behaviour led me to have doubts that his purpose was to study, and to have doubts about his intention to do this.

24. 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 towards the visa being cancelled.

    the extent of compliance with visa conditions

25. 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 claim given my above concerns but with no clear evidence to the contrary I will accept this statement, and give this some little weight towards the visa not being cancelled.

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

26. I note the claim in the response to the NOICC that the applicant would suffer some hardships if the visa were cancelled. I discussed this with the applicant. He said that if I decided the visa were cancelled he would get a bridging visa and go back to India. I noted his response to the NOICC. He said that despite this being sent from his personal email address this was in fact from his agent and I should not rely on this. I have some doubts about this claim. I accept that the applicant and his family might suffer some financial and other hardships from the visa remaining cancelled, but the applicant has not claimed or demonstrated that there would be significant hardship and I give this only little weight towards the visa not being cancelled.

    circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

27. 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 above 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 towards the visa being cancelled.

    past and present conduct of the visa holder towards the department

1. There is no evidence before me that the applicant has not been compliant in his conduct towards the Department, and I give this some little weight towards the visa not being cancelled.

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

2. Not relevant.

   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

3. I discussed with the applicant what he would do if the visa were to remain cancelled. He indicated that he would return to India, but said he would complain about his college. 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. I give this factor some little weight towards the visa being cancelled.

   whether there would be consequential cancellations under s.140

4. Not relevant.

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

5. I asked if there were any reason he could not return to India and he said there was no reason. I find therefore, that there is no evidence that international obligations would be breached if the visa remains cancelled and I give this some little weight towards the visa being cancelled. 

   any other relevant matters.

6. I asked whether, given his responses, he wished to regain a student visa. He said he just needed two years and he could demonstrate he was a genuine student by attending classes. I noted that he had a considerable period of time whilst holding the student visa to demonstrate this and did not appear to have done so. He said this was because he had changed his mind to be a chef and then he went to Brighton and could pay his fees but they cancelled his CoE. I do not consider that this adds anything to the consideration and give it no weight.

7. I have had regard to the factors above. The factors here which indicate the visa should be cancelled outweigh those against cancellation, in particular the circumstances which led to the breach. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

8. 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.