Singh (Migration)

[2019] AATA 1355

Singh (Migration) [2019] AATA 1355 (23 April 2019)

\DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manpreet Singh

CASE NUMBER:  1711855

HOME AFFAIRS REFERENCE(S):           BCC2014/2407005

MEMBER:Brendan Darcy

DATE:23 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 23 April 2019 at 10:04am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Federal Circuit Court remittal – ground for cancellation – continue satisfaction of primary criteria – maintain enrolment in a bachelor or master degree course – consideration of discretion – not a genuine student interested in completing higher education coursework – breach of condition shortly after arriving in Australia – homesick – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2, cls 573.223(1A) and 573.231; Schedule 8, Condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 November 2014 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(1)(b) on the basis that the applicant had breached condition 8516 and that the grounds for cancellation outweighed the grounds for not cancelling. 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. On 13 April 2015, the Tribunal affirmed the delegate to cancel the decision. The applicant sought for the decision to be judicially reviews. A court order dated 25 May 2017 stated the Tribunal was in jurisdictional error by enlivening section 116(1)(a) which did not fall within the scope of section 116(1)(b) which had been the basis for the delegate’s cancellation.

4. Following this court remittal, the applicant, a national of the Republic of India, appeared before the Tribunal on 21 September 2018 to give evidence and present arguments.

5. 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

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(1)(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?

7. Condition 8516, as it applies in this case, is set out in the attachment of this decision. Relevantly it requires the visa holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. This condition is typically imposed on student visas when student visa applications are assessed under a streamlined visa processing arrangements with participating education providers. As a beneficiary of these arrangements, student visas are granted based on the bases of the visa holders having met lower thresholds of proof regarding their education history, English language ability and financial capacity.  If the visa holders change coursework to lower diploma-level coursework while enrolled in degree level coursework or enrol into non-streamlined education providers, the visa holders may be at a breach of condition 8516.

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course that would satisfy 573.223(1A) and 573.231. These clauses require the applicant to be enrolled in a bachelor or master degree course or enrolled in or the subject of a current offer of enrolment 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 r.1.40A.

9. At 2 June 2014, the applicant was granted a subclass 573 Higher Education visa with the condition of 8516 attached.  According to the Provider Registration and International Student Management Systems (PRISMS) as reflected in the decision record notification, it appears the applicant was no longer enrolled in a bachelor’s degree or a master’s degree courses which was required under subclauses 573.223(1A) or 573.231.  He had been enrolled in an English course before a Master of Information Technology which required an IELTS score of 5.5 which he already had.

10. The Department validly issued Notice of Intention to Consider Cancellation (NOICC) on 26 September 2014.

11. The applicant responded to the NOICC invitation in an email dated 11 November 2014. The response does not appear to state that the applicant disputed the grounds for cancellation.

12. The Department proceeded to cancel the visa on 11 November 2014. The applicant applied for the cancelation decision to be review on 25 November 2014 with the decision record notification attached.

13. The applicant’s representative claimed in a legal submission (dated 27 February 2015 prior to the earlier scheduled hearing) that the applicant had been caught up in a situation whereby his subclass 573 visa was fairly easy to obtain without releasing the courses entailed very high prices and rigorous instruction for degree level studies. The submission did not dispute that condition 8516 had been breached.

14. He initially appeared before the Tribunal on 3 March 2015 to provide evidence and present arguments as to the reasons his student visa should not be cancelled.

15. On the Tribunal’s 1419254 file is also a letter of offer from Federation University to undertake a Master of Technology (Software Engineering) but there was no accompanying Confirmation of Enrolment. The letter of offer is dated 11 March 2015.

16. During the subsequent scheduled hearing on 21 September 2018 (following a successful judicial appeal), the applicant explained that he had graduated in Panjab University in Chandigarh in 2013 with a Bachelor in Computer Application. He applied for a streamlined package of coursework as part of this Subclass 573 visa under view because his EILTS had been 5.5. The applicant stated that he enrolled in a Masters in Informational Technology as at Queensland University of Technology (QUT) in Brisbane, well as English Language coursework.

17. He further explained that the applicant did not dispute with the Tribunal that he had breached condition 8516 after he cancelled his enrolment at QUT on 14 July 2014 when he asked for a refund. The applicant later enrolled in coursework in General English at Kent Institute when he moved to Melbourne, which he completed between October 2014 and January 2015.

18. He further claimed that he attempted to enrol in vocational education coursework in Certificate III in Light Vehicle Mechanical Technology, a Diploma in Business and a Master of Business Administration at Holmes Institute as part of his Subclass 572 visa application which he later withdrew after his visa was cancelled.  

19. Based on the evidence before it, the applicant had not been enrolled in any degree-level coursework between 14 July 2014 and the date of cancellation.

20. Based on the available evidence, the applicant had breached condition 8516.

21. 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 visa should be cancelled.

    CONSIDERATION OF DISCRETION

22. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters 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. It is noted that the earlier decision record by the Tribunal stated that the applicant wanted to complete a degree in information technology. During the subsequent hearing, the applicant further stated that he wanted to finish an international Master’s degree in information technology and networks because he had a passion for it and because it would allow him to work anywhere in the world. 

24. However, the applicant also provided testimony that he wanted to apply for a subclass 572 visa for vocational education in mechanics and he also attempted to apply for a Master in Business Admission in 2015 after his visa was cancelled. It also remains the fact that the fact the applicant had only completed a short English language course. This does not indicate the applicant has any aptitude for completing a more demanding Master’s degree to be conducted in the English language. The applicant had argued that he was unable to enrol in an information technology course because it was not open to him, despite trying. It is noted the applicant stated in the earlier hearing that he and his education provider approached many universities but was unable to recall the names of the education providers.  Furthermore, the applicant did not even begin his coursework at QUT and moved from Brisbane to Melbourne only after a short of amount of time after arriving in Australia indicating that he did not genuinely attempt to begin his higher education studies.    

25. When cumulatively considering this evidence, the Tribunal finds the applicant has not satisfactorily demonstrated that he obtained a Subclass 573 visa for the purposes of gaining a higher education degree or that he has been or will be a genuine student capable of upholding conditions places on his 573 visa if it were to be reinstated. 

26. Furthermore, given the applicant already has a Bachelor degree, it can find no compelling need to remain in Australia as a student, even if his actual desire was to pursue vocational educational qualifications.

    the extent of compliance with visa conditions

27. The fact remains the applicant has not been compliant with condition 8516 shortly after arriving in Australia and he did not satisfactorily mitigate this non-compliance after it arose. The Tribunal places a notable amount of weight on this in favour of the visa remaining cancelled.

28. The Tribunal discussed with the applicant that it appeared that he had not been compliant with condition 8202 for a few months. Condition 8202 requires the applicant to be continually enrolled in a registered coursework commensurate with a Subclass 573 visa that is degree level coursework. However the amount of time was not great. The Tribunal places some amount of weight in favour of the visa remaining cancelled.

29. There is no more evidence that applicant has not been compliant with any other conditions imposed on his Subclass 573 student visa. The Tribunal places some weight in the applicant’s favour in having the visa not remain cancelled.

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

30. With regard to the degree of hardship that this cancellation may cause the applicant, the applicant explained that he will return to India with a four year study gap and that it would be difficult to re-enrol in an Indian university. The Tribunal pointed out that given the applicant has a Bachelor degree from India this should not be a significant barrier to ongoing academic advancement. The applicant responded that his parents have spent much money on his education in Australia already; that they will not allow him to continue his studies and that many of his friends and peers have already completed Master degrees. He also stated that it would be difficult to find a well-paying job with just a Bachelor degree. The Tribunal does not accept these explanations. While it accepted there are more well-paying opportunities with a Master’s degree in the labour market, a Bachelor degree remains a valuable qualification in India. It is not significantly relevant to the labour market that his peers have completed Masters earlier than himself. Furthermore the applicant was not been studying long enough in Australia to have incurred significant costs through tuition fees. Should the applicant’s parents not continue to financially support his studies, it is open to the applicant to take out a student loan or make some other funding arrangement.

31. The applicant did not claim to have any mental or physical conditions during this subsequent hearing.

32. Overall, the Tribunal finds there will be a degree of financial, psychological and emotional hardship in having this visa remain cancelled. However the degree of overall hardship is not significant or severe or even notable. The Tribunal only places a small amount of weight on this factor in favour of 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

33. The applicant does not claim any significant relationship breakdown, any specific psychiatric or psychological vulnerabilities or family grievance as extenuating circumstances leading to the grounds for the cancellation of his visa in November 2015.

34. Instead the applicant claimed that he arrived in Brisbane in June 2014 where he was homesick with no one able to assist him.  He claimed that he had lived his whole life in a village and was overwhelmed and had no place to go other than a local Sikh temple. The applicant then moved to Melbourne to live with his supportive cousin. All the time, he argued, he was depressed. The Tribunal does not accept this. The applicant is a graduate of a Bachelor degree at Punjab University in Chandigarh indicating the applicant had sufficient maturity and education to appreciate the expectations arising from higher education participation and the rights and responsibilities arising his migration status. It is not plausible that he and his parents did not make arrangements for his costs of living and accommodation prior to arriving in Australia. Neither is it plausible that he did not access student services if he had such difficulties in orientating to Australian student life. When asked if he access student services at all, the applicant claimed that he did not, indicating that the circumstances were not beyond his control.  Asked to the reason he chose to study in Brisbane if there was no family support, the applicant responded that it was the only higher education course he could gain as Melbourne providers did not allow a lower IELTS result.

35. The Tribunal also notes the applicant has provided no medical or psychological reports from a qualified third party professional to support his claims that he was so homesick that he was depressed or suffered from another significant psychological condition that would lead him to be non-compliant with condition 8516.  

36. Overall, the Tribunal finds that the applicant has significantly embellished his emotional state which led to the grounds for cancellation and that he was determined to move to Melbourne once he arrived with little regard to condition 8516. Accordingly it does not accept the applicant experience extenuating circumstances that were beyond his control at the time of non-compliance and it places no weight in favour of these circumstances in favour of the applicant. 

37. past and present behaviour of the visa holder towards the Department

38. There is no evidence before either the Department or the Tribunal that the applicant has any other adverse past or present behaviour to consider. Accordingly it places some weight on this favour in the visa not being cancelled.

39. There appears to be a genuine attempt to mitigate the applicant’s non-compliance by applying for a Subclass 572 visa and enrolled in vocational studies largely unrelated to information technology.  He did this after arriving in Melbourne where he would live with his cousin, which the Tribunal accepts. As the applicant did seek more suitable coursework and visa subclass based on educational and/or migration advice, the Tribunal places some weight in favour of the applicant’s visa not being cancelled.  (Although this finding consolidates the Tribunal’s earlier finding in paragraph 25 that the applicant was not a genuine student for the purposes for which this visa under review was granted).

    whether there would be consequential cancellations under s.140

40. The applicant does not have any dependants and is not in a spousal relationship. The Tribunal places no weight on this factor.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

41. The applicant said that if he returned to India he did not want to go anywhere else and wished to settle down in his home country. The Tribunal accepts that the applicant will be affected by the mandatory legal consequences, including having limited migration option, the risk of being detained and forcibly removed if he becomes an unlawful non-citizen and being barred from re-entering Australia for up to three (3) years. As the applicant did not express any consternation about returning to India, it places only on a small amount of weight in favour of this visa under review not being cancelled.

    whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

42. The applicant did not advance any of Australia’s international obligations that would be breached as a result of this cancellation beyond a general fear of not having achieving any studies while being in Australia for four or more years. The Tribunal places no weight on this factor in favour of the visa being reinstated.

    any other relevant matters

43. During the most recent hearing, the Tribunal expressed some concerns during the hearing that the applicant struggled to articulate his past and present circumstances in English and this may indicated that he would not have the capacity to undertake a Master’s degree conducted in the English language. It went so far to enquire whether the bachelor degree from India was genuine. Nevertheless the Tribunal accepts that the applicant has more recently achieved a 6.5 in an IELTS result indicating his English is improving and that his discipline in information technology did not necessarily require the strongest English capacity. With no evidence to the contrary, the Tribunal accepts the applicant’s degree from India is genuine and there is no evidence that he is not a person with adverse credibility or character concerns. Accordingly, the Tribunal places some weight on the applicant being a somewhat credible person of good character in favour of the visa not being cancelled.

    Conclusion

44. Non-compliance with any of the conditions imposed on a student visa, pursuant to s.116(1)(b), remains a serious matter. The fact remains the applicant was non-compliant with condition 8516 which allowed him to study a Master’s degree in Australia despite not having strong English language capacity. This non-compliance occurred very soon after his arrival.

45. The applicant has not satisfactorily demonstrated that he is a genuine student who should have the visa reinstated for the purposes that he is a genuine student interested in completing higher education coursework. Neither has he demonstrated any notable or significant hardship arising from the cancellation of the visa. Nor has provided oral, written or documentary evidence to support that the applicant had experienced extenuating circumstances that were beyond his control leading to the cancellation of his student visa.

1. In considering all the available evidence provided in this decision, the Tribunal has placed more weight on those factors in favour of the visa remaining cancelled over those countervailing factors in favour of not being cancelling the visa.

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

   DECISION

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

   Brendan Darcy
   Member