Suchdeva (Migration)

[2016] AATA 4974

Suchdeva (Migration) [2016] AATA 4974 (20 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gourav Suchdeva

CASE NUMBER:  1501943

DIBP REFERENCE(S):  BCC2014/3023811

MEMBER:Stuart Webb

DATE:20 January 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 20 January 2016 at 9:12am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) – change in circumstances – gap in enrolment – applicant no longer enrolled in a higher education course – enrolled and studied in a series of unrelated courses – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2 cls 573.231, 573.223 Schedule 8 condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 February 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant no longer met subclauses 573.231 or 573.223(1A) and had not complied with Condition 8516. The delegate noted that the applicant had been enrolled in a higher degree course to be provided with the 573 visa, but left his course provider and enrolled in vocational courses in hospitality. 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 19 January 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English

4. The applicant was represented in relation to the review by his registered migration agent. The applicant provided a copy of the delegate’s decision to the Tribunal.

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?

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

7. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 is attached to the applicant’s visa. This condition requires:

   The 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.

8. The applicant arrived in Australia in January 2014. The applicant had been initially enrolled in a series of courses, including a Cert III in Information, Digital Media and Technology, a Diploma of Information Technology and a Bachelor of Information Technology course, on a Subclass 573 granted under the SVP process that required less documentation for provision. The applicant did not complete the initial courses, ceasing his studies in IT on 28 May 2014 and his Bachelor Degree enrolment was cancelled on 2 June 2014. The applicant enrolled in a series of courses, firstly a Diploma of Management, then a Cert III and Cert IV in Commercial Cookery, and a Diploma of Hospitality commencing on 4 August 2014. These are vocational courses and are not courses of a type specified for subclass 573 visas. The applicant confirmed this study history.

9. On 18 November 2014 the Department sent a Notice of Intention to Consider Cancellation (NOICC) by mail to the applicant. The applicant provided a response to this notice. He stated he had enrolled in a Diploma of Management and a Bachelor of Business course that was to commence in February 2015. These CoEs were created on 1 December 2014[1]. He had an offer of enrolment in these courses dated 26 November 2014[2]. The delegate considered that the applicant had enrolled in the Bachelor of Business course only to maintain eligibility for his Higher Education Sector visa after being advised of his failure to meet the conditions of his visa, and that he did not have a genuine intention to study in the higher education sector.

   [1] AAT Folios 28-29

   [2] AAT Folio 27

10. The applicant was not enrolled in a higher degree course from 2 June 2014 until 1 December 2014. The Tribunal considers that he had not been enrolled in a principal course of a type specified for Subclass 573 visas for around 6 months. This is in breach of condition 8516 that he continues to satisfy the primary criteria for the grant of a visa. As the applicant was no longer an eligible higher degree student from 2 June 2014 he no longer satisfied the primary criteria set out in subclause 573.223(1A) of Schedule 2 to the Regulations. The applicant was not enrolled in nor had an offer or CoE in a in a principal course specified for 573 visas from 2 June 2014 until 26 November 2014. Cl.573.231 requires that an applicant be in enrolled in, or is the subject of a current offer of enrolment in a principal course specified for 573 courses. The applicant did not meet this criterion for these 6 months.

11. 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 discretion

12. 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’.

13. The applicant provided the following submission to the Department.

    My name is Gourav Suchdeva (DOB: 05/02/1992) and I am writing in response to the invitation to comment on the intention to consider the cancellation of my student visa.

    At the outset, I would like to give some information about my academic background from my home country - India. I had completed my Year 10 and Year 12 in 2012 from National Institute of Open Schooling. I came with high hopes and was looking forward to having wonderful study experience in Australia.

    I came to Australia in Jan 2014 and I got admission in Certificate III in Information, Digital Media and Technology, Diploma of IT, and Bachelor of IT on Brisbane Institute of TAFE — Queensland University of Technology pathway. As a student who had ventured to study abroad for the first time, I was extremely excited and anxious as well as it has been my life- long dream. Even though, it was difficult to get accustomed to the conditions of this country, things were really looking up for me on the study front.

    I started the Cert 4 in Business course with great confidence. I started facing certain difficulties at Holmesglen Institute during my first semester of studies. As an international student who had newly arrived in Australia to study, I got lost in the crowd of students studying the same course. I had not developed a very good understanding of English spoken in Australia at that point of time; it was difficult for me to follow the lectures. I tried hard to catch up with my study by availing for extra tutorials and getting help of other fellow students. But, I was unable to pass the Certificate III in Information, Digital Media and Technology course which is a pre-requisite entry requirement to be eligible for the next course and also for the Bachelor of IT qualification. During this time, I was extremely stressed and I was completely uncertain about my future. I was uncertain whether I will meet the entry requirement for my Bachelor course and but I was still shelling out more money for my study expenses in the form of trimester fees etc. I felt that I had disappointed my parents and I went into extreme depression to my failing.

    By June 2014, I had completed six months stay in Australia, but I had not been successful in completing my Certificate III in Information, Digital Media and Technology course. Around the same time, I had consulted an agent and had explained them about my difficulties in completing my course. They suggested that I can change my course if I find it difficult and if I can get Release Letter from my course providers. Upon their guidance, I had got my Release from both education providers and taken admission in Diploma of Management started in June 2014 but then people suggested me to go for CERT III, CERT IV Commercial cookery and Diploma of Hospitality started in August 2014. The main reason behind this is that many people suggested that my visa is longer while I have taken admission in a twelve months course. They suggested me to enrol in hospitality package which is a longer course to fit my visa and I succumbed to peer-pressure. I now realise that I have been given wrong advices time after time that has lead me to breach the student visa condition. Taking an admission in a Vocational course is a big mistake, but under the uncertain stressful circumstance, I had taken committed a breach without my knowledge.

    I therefore have applied for higher education — Diploma of Management leading to Bachelor of Business (Management) course in Cambridge International College. I am in the process of securing a place and I have already received the offer letter. (I have attached evidence of the same). I have taken this course not only to comply with my visa conditions under subclass 573, but also to gain essential knowledge comprehensive foundation in the breadth of business disciplines including organisation structure and planning, measuring and evaluating staff performance, budgeting and planning etc. Studying these aspects is extremely important in managing your business in today's changing times. I wish to bring to your notice that my home country India has over 200,000 graduates graduating from colleges in my state alone. In such a competitive environment, it is wise to be armed with technical skills of you chosen profession as theoretical knowledge about running and managing a business or workplace does not guarantee career success. Gaining a qualification in Management and a higher education bachelor degree in the business field will open new doors for me as I will have both the theoretical and technical prowess to run my own business successfully.

    I would like to point out that I am not a bad student. However, I do think I am not the right student to study IT. If my student visa is cancelled, not only me but my family will suffer a huge setback as they have spent much money on sending me to Australia for my studies. Hence, I sincerely request you to not cancel my student visa through this letter. I took an irrational decision to cancel by higher education course due to an agent's misguidance and I assure you such a mistake will never happen again. I have already taken adequate steps in securing a place in Bachelor of Business course and I have attached the offer letter and COE for the course along with this letter. I also hope you can take my circumstances under consideration and the extreme hardship my family will face if my visa is cancelled under consideration. I sincerely request you to give me an opportunity to study in Australia.

14. At the hearing the applicant presented evidence that the submission to the Department in response to the NOICC was not prepared or sent to the Department by him. It contained incorrect information that did not relate to him, such as stating that he started a Cert IV in Business at Holmesglen Institute. The applicant provided evidence to show he was hospitalised on 26 November 2014 with tendon damage to his wrist, that he was incapable of writing at that time. The applicant stated that his then agent contacted him for his email address and password, and drafted the response on his behalf and sent it. The Tribunal notes that much of the information in the statement is very similar to that as provided in the statement to the Tribunal below, which would indicate that the applicant provided some information to his then agent to prepare the statement. However, given the submission by the applicant at the hearing about the provenance of this statement and that he does not want to rely upon it, the Tribunal places no weight upon the statement made to the Department. 

15. The Tribunal noted that the letter of offer from Cambridge International College (CIC) was dated 26 November 2014, which meant he had sought the enrolment prior to that date. The applicant agreed with this.

16. The applicant’s agent provided a further submission to the Tribunal. This stated:

    This is in reference to my application for review of the Department's decision to cancel my student visa. You are requested to kindly consider my following submission:

    I was granted student visa S/C 573 and came to Australia in Jan 2014. I was enrolled in Certificate III in Information, Digital and Media Technology, Diploma of IT (at BNIT TAFE Brisbane) Bachelor of IT (at Queensland University of Technology).

    I chose to study in Australia as I wanted to gain IT qualifications from Australia that would lead to building a professional career in future. Australian education system is regarded highly in my home country India.

    When I arrived in Australia, I shared an accommodation with a friend in Brisbane. As I was of just 21 years of age, it took me some time to adjust to the new environment in a new country far away from family. Leaving Brisbane was not in my mind till I arrived here because I thought I will manage myself in any conditions but reality was different. I had no family in Brisbane and I had never lived away from my family. Initially, the idea of moving to Brisbane was exciting at first as it seems to be more independent more free and out of the shadow of parents but I did not realize other factors like homesickness and cultural shock

    Due to the above reasons, I struggled with Certificate III in IT. On 19/May/2014 Brisbane North Institute of TAFE amalgamated with Southbank Institute of Technology and Metropolitan South Institute of TAFE to become TAFE Queensland Brisbane under the new statutory body called TAFE Queensland.

    During this time, I consulted with education/migration consultant Saurabh Agarwal for an advice in relation to further education and career options. Saurabh Agarwal persuaded me to vary my enrolment to the course to Hospitality as according to their advice there were better career opportunities in this course followed by enrolment in a degree course. He assured me that he will arrange enrolment at degree as well. He showed on his computer screen about regulations effective which enable a student to change course. I was totally persuaded and brainwashed by Saurabh Agarwal in believing that it was okay to change the course and it all happened so fast before I even realised the repercussions. Due to his false assertions and wrong advice, I ended up taking the course of Hospitality believing that they would arrange my enrolment in Bachelor degree as well. As he was registered education agents, it was reasonable for me to rely on their advice, unknowingly trusted them. Additionally, Saurabh Agarwal have victimised many students like me and many have filed complaints to MARA about their misconduct.

    However, when I realised that I was not enrolled in a degree course, I immediately took action and got enrolled in the degree course of Bachelor of Business with Cambridge Institute (please refer to the attached COE). I undertook this course not just to maintain my enrolment at degree level, but also as my ultimate aim is to complete Bachelor degree and utilise this qualification for a decent position in a corporate business in India.

    Request for remit Department's decision to cancel the visa

    I have always complied with other visa condition as well such as:

    ·I have always maintained my health insurance

    ·I have always complied with the work conditions of maximum 40 hours per fortnight

    ·I have always reported change of contact details to the education provider

    ·I have always maintained my enrolment and ensured that my course progresses well.

    I the event of having to leave Australia without completing the studies, my parents and I will have to face severe financial hardships. Till date, I have spent $22000 on tuition fee. In addition to this, I had spent more than $25,000 on living expenses and travel expenses in the last 2 years (since 2014 till present).

    I would lose all the money spent so far and would have to leave Australia without any education for which I came to Australia. My father is a tractor mechanic and has a lot of hopes on me and my future. He will be totally devastated to learn about my fate of not able to complete my education. I had a lot of hopes on the Australia's education system, and study was my primary goal. I wish to achieve this goal to fulfil my and my parents' dreams. Due to mental stress owing to this situation, I even met with an accident. On 26th November 2014, I felt dizzy and I hit my head a glass door. I was severely injured by broken glass and had stayed 2 days in hospital, underwent physio therapy for 6 weeks. The injuries sustained are still visible on my hands and I have lost partial sensation on my right hand.

    I assure you that I am committed to my obligations to comply with my student visa conditions and ensure that I will always be compliant to this obligation in future.

    You are therefore requested to kindly not take any adverse action against me or cancel my visa as I have taken necessary steps to comply with my student visa conditions and ensure that I will always be compliant to this obligation in future.

17. The Tribunal discussed the applicant’s study in Australia. The applicant stated he had completed a Diploma of Computer Studies in India prior to coming to Australia. He then commenced a business course, but did not complete this as he came to Australia to study. He enrolled in IT related courses as this was what interested him. However after completing 4 months of study in the initial Cert III course his TAFE College in Brisbane and his course was not offered. He was given the option to continue in a similar or different course in Brisbane, or leave. As friends of his decided to leave, and it was not easy being on a big campus alone, the applicant requested a release letter. The Tribunal expressed its concern with his choice to leave his enrolment at that time, given it was the series of courses he had come to Australia to study and the limited reason to leave that series of courses. The applicant stated he spoke to an agent who arranged for him to enrol in a different course in Melbourne.

18. The applicant came to Melbourne and enrolled at Imperial College. He did one month in a Management course then switched to the series of course enrolments in commercial cookery and hospitality. He commenced the Cert III in Commercial Cookery. The Tribunal asked the applicant about this career change. The applicant stated that his father had an interest in an Italian restaurant business in India. The Tribunal noted that the applicant’s new statement said his father was a tractor mechanic. The applicant stated that this was true, but that his father had the interest in the restaurant. The applicant stated that he worked at the restaurant in India on occasion. He also had worked in an Italian restaurant in Australia. The Tribunal questioned the enrolment in the Bachelor of Business (Management) course if he was going to work in the family business, given this was an expensive course in the circumstances. The applicant stated it was not his plan to work full-time in this business.

1. The Tribunal put to the applicant that it appeared that he had enrolled to study in the bachelor of business course so that he could meet the visa conditions. The applicant blamed the decision to enrol in this package of courses without a higher degree enrolment on the bad advice from his agent.

2. The Tribunal asked the applicant about the enrolment in the Diploma of Management and Bachelor of Business (Management) course at CIC. The applicant stated that it would give him an opportunity to get a good job and an attractive salary in India.

3. The applicant was given the opportunity to discuss the matter with his agent privately, and returned to provide some further comments. He stated that he came to Australia and changed his study plans because he realised there were too many people doing IT. He now wanted to get a degree in Management so he could get a good job leading teams in growth areas, such as international call centres, banks, companies with various sales strategies. The applicant stated that he had studied this independently while awaiting the review, at home or in libraries, as he did not have study rights after his visa was cancelled.

4. The Tribunal noted that the applicant had enrolled and studied in a series of unrelated courses. His stated career path had changed significantly, having come to Australia under the SVP program to study IT, moving to cookery and was now claiming to be interested in studying management courses so he could be a team leader in a business. The Tribunal noted the significant changes in the applicant’s study and future employment plans in the short period of time in Australia.

5. The Tribunal asked about his family circumstances. The applicant stated his family had borrowed money from an uncle and he would have to pay him back. It would be hard to do so if he did not have a good job. The applicant stated that you need good qualifications to get a good job in India.

6. The Tribunal has considered the applicant’s circumstances. The Tribunal is concerned about the changes in the applicant’s courses in Australia, which he has not explained to the satisfaction of the Tribunal. Changing career plans and study is not unreasonable, the Tribunal accepts that this occurs. However the applicant’s study history and stated future employment prospects, which have altered significantly a number of times in a short period of time, present a situation which the Tribunal is concerned with, in particular, that the applicant is not a genuine student at the higher degree level. The applicant has changed from the IT courses, which was his study background in India and the reason he came to Australia, and the basis for the provision of a 573 visa under the Streamlined Visa Processing (SVP), then when given the opportunity, chose to leave the IT course pathway and started vocational courses, initially in management and then in cookery. Only when notified of his breach of visa condition did the applicant return to a management stream of studies. The Tribunal was not satisfied with the applicant’s explanation for such changes, including relevantly the return to the management course in late November 2014.

7. The series of enrolments in these disparate courses, and vague and limited responses to the Tribunal’s queries about his study history and future plans do not support the applicant’s contention that he is a genuine student at the higher degree level. His responses as to why he left the IT courses after 4 months were very vague. While the Tribunal accepts that the change to his initial Cert III in Information, Digital Media and Technology was caused by the amalgamation of course providers, the decision of the applicant to leave this whole study pathway because of this is not explained. The Tribunal does not accept that the factors such as living away from his family and the movement of friends would lead to the applicant choosing to leave such familiar studies. The Tribunal does not accept that seeing the competitive industry of IT would lead to the applicant to leave this area which he had studied previously and had paid money to study in Australia.

8. Leaving the IT pathway, the applicant first enrolled in a Diploma of Management at Imperial College. However he left that course within one month to commence a cookery course. The applicant’s explanation for why he chose to study cookery was vague and limited. He mentioned a family restaurant interest in India, but later stated he did not want to work there.

9. The applicant’s actions in enrolling in the management course then leaving that for the cookery course is also contradictory his statement about his being misadvised and misled by the agent Saurabh Agarwal. It would appear that Agarwal did not arrange a hospitality enrolment for the applicant initially, but that the applicant changed to this study area shortly after coming to Melbourne after completing only a short period in the first management course. The evidence of the applicant in this respect is contradictory. The Tribunal asked if the applicant had made an official complaint about this agent, as noted in the submission. The applicant had not done so. The Tribunal noted that the applicant was responsible for meeting his visa conditions. The Tribunal considers that the applicant’s non-enrolment in the higher education sector at this time in breach of the visa conditions was the responsibility of the applicant.

10. The Tribunal discussed the applicant’s belated enrolment in the CIC courses, which he never commenced due to the visa cancellation. The applicant returned to enrol in a Management course, abandoning the cookery courses, when he was advised by the Department that he was in breach of his visa condition.  The Tribunal considers that this enrolment was conducted for the purpose of meeting the conditions of the visa, and not for any genuine intention to study that course. The applicant was asked about this at the hearing, and responded at first hesitantly, and then after a short break, in a manner that appeared rehearsed and non-genuine. It was submitted that the applicant was nervous. However this was not evident in his earlier statements to the Tribunal. The applicant detailed his interest in studying management courses so he could get a good job in a company in various growth industries in India. However this does not explain why he chose to leave a management course for cookery in the first instance, if he was so enamoured with such employment opportunities. His choice of studying cookery over management, until confronted with the visa breach issue, is in contradiction with his statements to the Tribunal. The Tribunal considers that the applicant’s evidence with respect to his future employment opportunities in ‘management’ to not be the applicant’s genuine interest, and that the applicant has enrolled in this course solely to meet the visa condition.

11. The Tribunal has considered the applicant’s personal and family circumstances, and his opportunities on return to India. The applicant stated that he will face some financial difficulties, given the investment in his studies and living in Australia. The Tribunal noted that it was the applicant’s choice to leave the IT and cookery courses and to lose money doing so. The Tribunal asked about the opportunity to get a refund from his initial courses, given the ending of the initial Cert III due to amalgamation. The applicant stated he had not got money back from that. The Tribunal questioned this, given that the applicant had not been able to complete the course due to factors outside of his control. The applicant stated that he had not got his money back. The Tribunal considers that this failure to seek a refund for courses arises out his own choice.

12. With respect to other enrolments, the Tribunal noted condition 2.4.1 of the CIC offer which specified that the applicant would not receive a refund if his visa was cancelled due to non-compliance with visa regulations[3]. The applicant stated he had not received his $3300 deposit back. As the Tribunal considers that the applicant only lodged the deposit because he wanted the enrolment for visa purposes, the Tribunal places little weight on the financial aspects of the applicant’s circumstances.

    [3] AAT Folio 21

13. The applicant has chosen to remain in Australia to have his matter heard. The applicant is absolutely entitled to do so. However the Tribunal does not accept that the money paid to keep him in Australia during this period waiting for the review, or the money spent on his living expenses while living in Australia and studying the disparate courses he has chosen, provides a significant reason not to cancel the visa. The Tribunal places limited weight on this issue.

14. The applicant stated that it will be hard to pay back his uncle as he will not be able to get a good job. The Tribunal notes that the applicant has a qualification from India prior to coming to Australia which will give him some opportunity to get employment. Similarly he has a family interest in a restaurant business that was for some time a reason for the applicant to study cookery. These are employment opportunities. While the Tribunal accepts that the employment opportunities will not be as lucrative as those available with qualifications, the Tribunal does not accept that the applicant will be unable to find work, to pay his uncle money owed in due course, and establish himself in India. The decision not to pursue the qualification that he initially came to Australia to compete is the decision of the applicant. The Tribunal places limited weight on this issue.

15. The applicant has not provided any other compelling or other reason why his visa should not be cancelled. The medical issues that have affected the applicant for a period in late 2014 have been resolved with treatment and the applicant has not claimed that this injury will stop him from gaining future employment. There are no international treaty issues relevant in these circumstances. There are no other concerns regarding the applicant and the department that have been alleged.

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

    DECISION

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

    Stuart Webb
    Member