1501284 (Migration) [2015] AATA 3594 (9 November 2015)

Last Updated: 16 November 2015

1501284 (Migration) [2015] AATA 3594 (9 November 2015)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Bikash Poudel Chhetri

CASE NUMBER: 1501284

DIBP REFERENCE(S): BCC2014/3023803

MEMBER: Stuart Webb

DATE: 9 November 2015

PLACE OF DECISION: Melbourne

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

Statement made on 09 November 2015 at 9:48am

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 January 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. On 7 October 2015 the Tribunal wrote to the review applicant at his provided email advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the review applicant to give oral evidence and present arguments at a hearing on 6 November 2015, sending the invitation to the nominated email address provided with the application. No failure notice for this email was received. The review applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on the case without further notice. No response was received and the review applicant and his agent did not appear before the Tribunal on the day and at the scheduled time and place. On 29 October 2015 and 5 November 2015 the applicant was sent SMS reminders of the hearing to the phone number provided by the applicant in the application. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
4. The applicant provided a copy of the delegate’s decision to the Tribunal.

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)(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

6. 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.

7. The applicant arrived in Australia in February 2012. The applicant had been initially enrolled in an Advanced Diploma of Hospitality and Bachelor of Business (Tourism) course, as he had worked in hospitality in Nepal. The applicant’s enrolment in the Advanced Diploma course was cancelled on 23 July 2014 for non-payment of fees, his enrolment in the Bachelor course was cancelled on the same day as the Diploma course was a pre-requisite study course. On 11 August 2014 the applicant enrolled in a Certificate III in Commercial Cookery, where he studied until his visa was cancelled.
8. The applicant did not commence his principal course, the Bachelor of Business (Tourism) course, due to commence in January 2016. His enrolment was cancelled on 23 July 2014 due to non-payment of fees. He had enrolled in Certificate III course in Commercial Cookery. On 18 November 2014 the Department sent a Notice of Intention to Consider Cancellation (NOICC) to the applicant.
9. The applicant was not enrolled in nor had a CoE in a higher degree course from 23 July 2014 until his visa was cancelled in January 2015. The Tribunal considers that he had not been enrolled in a higher degree course 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. 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.
10. 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

11. 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’.
12. The applicant provided the following statement to the Department.

In response to the mail I received this afternoon in regards to Notice of intention to consider cancellation of my student visa, I would like take this opportunity to explain in details with request to consider my situation.
I arrived in Australia on 17th of February 2014 with a lot of hope to make my dream fulfilled by achieving degree that shapes my careers in an outstanding way back to my country Nepal. upon completion of my Year 12 in management; I worked just over 5 years in the capacity of Front Door Officer in a Hotel in Kathmandu and gained invaluable insights and experiences in the field Hospitality. That ultimately led me to realise the significance of Hospitality degree and in English Speaking Country, Therefore I applied to study Advanced Diploma of Hospitality at William Blue College to Bachelor of Business specialising in Tourism and Hospitality at La Trobe University.
Grown up in a completely joint family environment, I was never away from the families and that was the only fear of whether I would feel loneliness after decided to further studies in Australia. The fear turns out to the truth unfortunately. I did not give up until the first trimester and tried to be brave young boy who would make the best use of this great opportunity to be able study in Australia and was so much thankful to my parents. The sense of loneliness, homesickness sometime feel like depressed gradually drove to the frustration, hopeless and a very weak creature. I had two choices in front of me the then time either make way back to my country leaving all those career, plans in vain or to switch the environment which possibly could strength me to overcome this situation. I chose the latter one.
After a long discussion with families and my cousin sister who lives in Melbourne we concluded to move down to Melbourne and stay and study with her until I would be able cope of my own. I therefore applied for release letter to my college after completion of first trimester however it got unsuccessful and I was so ignorant that I even did not know that I would need the offer letter to apply for release letter. I then did not enrol assuming that it would automatically cancelled my enrolment and I must accept that fact that it was my immature thought. As a result, I got email from college advising that my enrolment got cancelled. I can now say the biggest misunderstanding lied at this point of my life. Nevertheless the intention of obtaining degrees in Hospitality went less nor I gave up to cope with the situation.
I moved to Melbourne and the first thing I did was to find the school where I can study Diploma of Hospitality. However I only got the COE for Certificate III in Hospitality and I was advised that I would need to obtain release letter from my Bachelor degree course as well (I have attached the offer letter for Diploma of Hospitality ). I was in the impression that upon completion of Diploma of Hospitality I would be able to continue my Bachelor degree at La Trobe as planned earlier, I got very sad when I found out the consequences of the discontinuation from the packaged course are more complicated.
I have/had never ever any intention to breach my visa conditions in spite of being unaware of few key facts and consequences of changing college. I then started worrying my enrolment. status at La Trobe and approached to William Blue college first requesting to update my status (I have attached the email sent to them). I never got any response from them and sent email to La Trobe itself on 5th of November 2014 and I have attached the copy of the same.
While waiting for the responses, on 26th of November 2014 I received this mail and certainly I got traumatized . Neither and non advised me about the cancellation of my COE at La Trobe University. However I do not want to blame others only and hereby accept my fault of being ignorant for the serious issues like visa conditions and not being able the follow procedures by law. I would therefore offer the sincere apologies for the same. I always stayed in the understanding that my COE with La Trobe University is active and I am therefore maintaining my student visa conditions. All the changes happenings was just for my pathways courses and ultimately worked in the hope of getting them fixed as earliest.
Upon completion of Bachelor of degree from Australia I see myself running up of my own Hotel in Thamel Kathmandu Nepal with my knowledge and skills earned from Australian education and previous experiences. I could see a great career prospects in this industry and can only excel much better upon obtaining qualification from Australia. My genuine intention is and was therefore always to study genuinely to reach to my aim. I have also attached study evidence letter from my current provider, which I am doing well and interested to study further.
I hereby would like to request to excuse and consider this situation as an unintentional act. I would assure you that, it would be my first and last ignorance for any issues related to my student visa conditions and always keep myself up to date to the level of knowledge that I am supposed to hold.
Please kindly advise if you need any further information or evidences you may need further in order to consider this case. Also if possible please kindly advise/assist me with possible options available at this moment, which I need to follow.
Thank you so much in advance for taking time to go through my explanation.

13. The applicant came to Australia with enrolments in an Advanced Diploma of Hospitality and Bachelor of Business (Tourism and Hospitality). However less than 6 months in he had left the Advanced Diploma course because he was lonely and homesick, and moved to Melbourne to be near someone he knew. He enrolled in a Certificate III in Commercial Cookery course^[1], and though he had an offer of enrolment in a Cert IV in Commercial Cookery and Diploma of Hospitality from the same provider^[2] he did not enrol in these courses. The applicant has stated that he was advised he needed to obtain a release letter from his bachelor degree. However the Tribunal notes that despite this the applicant was able to enrol in the Cert III course, and had been offered the Cert IV and Diploma course enrolments without any release letter, which he did not take up.
14. The applicant did not re-enrol in a Higher Degree course after his Bachelor course was cancelled in July 2014.
15. Had the applicant attended the hearing, the Tribunal would have questioned the applicant about his intention to study at the Higher degree level, given that he has not enrolled in a higher degree course, nor any other course other than the Certificate III course he was studying when his visa was cancelled. The Tribunal has significant concerns with this stated intention, given that the applicant was not enrolled in any course that would give him entry into a higher degree course after his initial enrolments were cancelled.
16. It is not clear from the information in the submission as to why the applicant chose to study the cookery course. The applicant had been enrolled in an Advanced Diploma of Hospitality course, yet stopped this study and entered into the commercial cookery course. The applicant had submitted that he had prior experience working in a hotel, and that his career goal was to establish his own hotel. His original enrolments appeared to meet this career goal. The cookery course does not. Had the applicant attended the hearing, the Tribunal would have asked him why he chose this path, and had not enrolled in a Diploma of Hospitality, for example, on moving to Melbourne, which would be more in keeping with his stated aims. The Tribunal has significant concerns about the study pathway the applicant has chosen since leaving his initial enrolments, again raising the concern that he did not intend to study at the higher degree level in Australia.
17. The applicant has claimed that he sees career prospects in hotel management. However his actions in Australia are not consistent with this aim, and the applicant has not attended the hearing to satisfy the concerns of the Tribunal with this aspect of his claims. The Tribunal has questions about the intention of the applicant to work in hotel management.
18. The Tribunal notes that the applicant provided a submission about being confused about his enrolment with La Trobe and his belief that he was still enrolled, however as the delegate’s decision details, the applicant had been enrolled in a pre-requisite course for the La Trobe Bachelor course which he knew had been cancelled. This would demonstrate that the applicant’s confusion, as he has evidenced from emails to William Blue College and La Trobe, was not correct, as the applicant knew he did not meet the requirements of the enrolment in the Bachelor degree by no longer studying in a pre-requisite course. The Tribunal does not accept that the applicant was unaware that the Advanced Diploma course had to be completed to move onto the next course, as the applicant had entered into such an arrangement prior to coming to Australia. the Tribunal places little weight on the applicant’s claim that he was confused about his enrolment and obligations to study certain courses in Australia.
19. The applicant has said he was homesick and ‘sometime feel like depressed’. He has provided no medical documentation about any illness to the Tribunal, despite this failure being highlighted in the delegate’s decision. The Tribunal notes that despite the homesickness, the applicant chose to remain in Australia away from his immediate family. The Tribunal places limited weight on this factor.
20. The applicant has not provided any information about his circumstances in Nepal, aside from his family who reside there who support his studies. It is not clear what hardship would entail from the cancellation given the paucity of information in this regard. The Tribunal places little weight on this factor.
21. The Tribunal notes that there are no age or international obligations that are relevant to the present circumstances, and no other compelling or compassionate factors have been raised by the applicant.
22. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

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

Stuart Webb
Member

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^[1] DIBP Folio 21
^[2] DIBP Folios 22-23