1501591 (Migration) [2015] AATA 3779 (25 November 2015)

Last Updated: 15 December 2015

1501591 (Migration) [2015] AATA 3779 (25 November 2015)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Miss Amandeep Kaur

CASE NUMBER: 1501591

DIBP REFERENCE(S): BCC2014/3049891

MEMBER: Christine Kannis

DATE: 25 November 2015

PLACE OF DECISION: Perth

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

Statement made on 25 November 2015 at 10:05am

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of the decision dated 28 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 issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.
3. On 19 November 2015 the applicant’s registered migration agent provided a written submission to the Tribunal.
4. The applicant appeared before the Tribunal on 23 November 2015 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Punjabi language.
5. The applicant’s agent did not attend the hearing.
6. 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

7. 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. Relevant to this case is 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?

8. On 26 October 2013 the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8516 attached. Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In this case it was a criterion for the grant of the applicant’s visa that she was enrolled in, or the subject of a current offer or enrolment in a principal course of a kind specified for that subclass by the Minister in an instrument under r.140A that was in effect at the time of the visa application: cl 573.231.
9. Information from the Provided Registration and International Student Management System (PRISMS) shows the applicant studied English courses from 6 January 2014 until 27 June 2014. Her enrolment in a Diploma of Business course was cancelled on 9 October 2014 and her enrolment in a Bachelor of Business course was cancelled on 14 October 2014.
10. On 21 November 2014 the Department of Immigration and Border Protection (the Department) issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because she was considered to have not complied with condition 8516 of her visa, as she ceased to be enrolled in a higher education sector course. The applicant provided a written response dated 28 November 2014 to the NOICC (her response).
11. The Tribunal finds that when the applicant ceased to be enrolled, or to be the subject of an offer of enrolment, in a higher education course, she ceased to be a person who would satisfy the primary criteria for the grant of the visa. As such, the Tribunal finds that the applicant breached condition 8516 of her visa.
12. 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

13. 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’.
14. The purpose of the student visa is to enable the visa holder to undertake study in Australia. The purpose of the higher education student visa is to enable the student to undertake study at a higher education level. The applicant ceased to be enrolled in a higher education course and has not undertaken any higher education study since she entered Australia.
15. In her response the applicant said that after completing the English courses she then commenced her higher education course (a Diploma of Business) in June 2014. She said she attended all her classes, submitted assignments and sat exams. In her response she said she ceased this study because of several factors including that she had significant difficulty adjusting to her life in Australia and referred to being lonely, stressed and unwell. In addition she stated that she was concerned about her tuition fees as they were too high. She also said that she failed two units.
16. The applicant told the Tribunal that she ceased her study because she “was not liking” her time in Australia and in particular her only friend at that time had not been loyal. She said she was unwell (suffering from headaches and depression) and was confused and did not intentionally breach her visa conditions.
17. The applicant said that she told Murdoch Institute of Technology (Murdoch) that she wanted to cease her studies and she decided to return to India. She did not discuss her decision with anyone at all prior to ceasing her studies.
18. The applicant explained that she subsequently discussed her return with her parents and they told her to stay in Australia and study. Her father in particular had a wish that she complete her studies in Australia.
19. The applicant said she then approached Murdoch about re-enrolling however she was not able to do so. She decided to enrol in studies at the Technical College of Western Australia. The Tribunal noted a Confirmation of Enrolment dated 1 December 2014 in a Diploma of Business commencing 17 November 2014. The applicant said that she studied in this course for three or four months until her visa was cancelled. The Tribunal noted that her visa was cancelled on 28 January 2015.
20. In response to the Tribunal asking the applicant what she has been doing since her visa was cancelled she said that she has been continuing her studies on an informal basis “online”. She said she was not enrolled in any course because she had no rights however because she had books she did assignments and researched material for her own interest.
21. The applicant said she has no current offer of enrolment however she has “checked” with the Technical College of Western Australia and she can resume her studies there and study business management if her visa is reinstated. She did not provide any documentation to verify that she had been so advised.
22. The Tribunal asked the applicant about the reason for her initial decision to study the Diploma of and Bachelor of Business courses. She said she had studied commerce in high school and hoped to return to India and start her own business. After some clarification she said that the nature of that business would be share trading.
23. Throughout the hearing the applicant made reference to her father’s wish that she study in Australia. She said that her father will suffer emotional hardship if she has to leave Australia before she completes her studies. He is a heart patient and he is not taking her circumstances well. She said that she would also be emotionally distressed if she let her father down in this way. The applicant did not say that her future career prospects would be adversely affected and her father’s reaction appeared to be her main concern.
24. The Tribunal noted in her response the applicant referred to financial difficulties as a factor which contributed to her failure to continue her studies. However she told the Tribunal that her problems during that time were not so much financial as personal but said her decision to cease those studies did mean that her parents have lost about $15,000.
25. The applicant said she wanted to emphasise to the Tribunal that the breach of her visa condition was unintentional.
26. The Tribunal noted that the written submission from the applicant’s agent was consistent with her oral evidence to the Tribunal.
27. The Tribunal has considered the circumstances in which the ground of cancellation arose, the reason and extent of the breach.
28. Based on the evidence, the Tribunal finds the applicant’s breach of condition 8516 to be significant because she is not engaging in higher education study for which her visa was granted and is not fulfilling the purpose of her travel to and stay in Australia.
29. The Tribunal has accepted that the applicant’s evidence that she lonely and unwell but the Tribunal does not accept that justifies her decision to abandon the higher education study for which her visa was granted. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control.
30. Regarding the applicant’s evidence that the breach was unintentional the Tribunal considers that it was her responsibility to familiar with the requirements of the visa conditions if she had a genuine intention of complying with them. The Tribunal is not satisfied that the applicant had made adequate effort to familiarise herself with the conditions of her visa or that she took adequate steps to ensure that she was compliant with her visa conditions.
31. With respect to the degree of hardship, the applicant referred to her father’s and her own emotional distress. Nevertheless, the Tribunal is prepared to accept that emotional hardship may be caused by the cancellation because the applicant will not be able to pursue study in Australia.
32. Nothing adverse is known about the applicant’s past and present conduct towards the Department. The cancellation will not affect any other person’s visa and will not result in a breach of Australia’s international obligations. Family violence is not an issue. The Tribunal is prepared to accept that hardship may be caused by the cancellation. The Tribunal is not satisfied that the applicant has a genuine intention of pursuing higher education study in the future.
33. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

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

Christine Kannis
Member