Kalsi (Migration) [2019] AATA 5759 (29 August 2019)

Last Updated: 13 January 2020

Kalsi (Migration) [2019] AATA 5759 (29 August 2019)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Ms Simran Kalsi

CASE NUMBER: 1709209

HOME AFFAIRS REFERENCE(S): BCC2017/133431

MEMBER: Mr S Norman

DATE: 29 August 2019

PLACE OF DECISION: Sydney

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



Statement made on 29 August 2019 at 12:10pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Bachelor of Commerce – not enrolled in higher education course – study difficulties – financial difficulties – family dispute – issues with migrant agent – completed vocational courses – no genuine intent to study at Bachelor level in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 1.40A, Schedule 2, cls 573.223, 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 20 April 2017 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). The Department delegate’s decision was lodged with the Tribunal.
2. The delegate cancelled the visa under s.116(1)(b) on the basis the applicant was found to have breached condition 8516. 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 26 August 2019 to give evidence and present arguments. The applicant was (initially) represented in relation to the review by her registered migration agent.
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)(b) of the Act. 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)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa. That 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 was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 6 July 2015. As materially set out in the delegate’s decision, by Notice of Intention to Consider Cancellation (NOICC) of that visa dated 7 April 2017,^[1] the applicant was advised that according to the Provider Registration and International Student Management System (PRISMS) it appeared she was no longer enrolled in a Bachelors or Masters degree course of study that is a principal course of a type specified for the Subclass 573 visa by the Minister in an instrument made under r.1.40A.
8. It therefore appeared the applicant had not continued to be a person who would satisfy either cl.573.231 or cl.573.223(1A); and as such it appeared she had not continued to be a person who would satisfy the primary criteria for the grant of the Student visa and had therefore breached condition 8516. Further, it appeared that her Student visa may be cancelled under s.116(1)(b) of the Act. The applicant had provided a written response to the NOICC dated 18 April 2017. She did not agree that grounds to cancel existed.
9. At hearing, the Tribunal noted the NOICC was issued on 7 April 2017, and the applicant’s Bachelor of Commerce was cancelled on 10 March 2016^[2] (being some 13 months prior to the NOICC being issued – and no further enrolment in a appropriate level course was obtained until after the NOICC was issued). The Tribunal said that based on the evidence, it may appear there were grounds to cancel the applicant’s Student visa. When asked, the applicant did not wish to comment.
10. For the reasons set out above, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act, 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

11. 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 applicant also lodged a range of material with the Tribunal (particularly on the day of the hearing). However, only that information considered material has been referred to herein.
12. Regarding the purpose of the applicant’s travel to and stay in Australia, that was said to be to study in Australia, a Bachelors or Masters degree that is a principal course of a type specified for the Subclass 573 visa by the Minister in an instrument made under r.1.40A. However, since arriving in Australia (at hearing she said she arrived on 9 July 2015), she had completed only two courses in Australia (a Certificate III & IV course in Commercial Cookery – and she said she had been employed as a Chef since November 2017). As noted below, the applicant had said she was unable to get enrolled in a Business degree (for 13 months after her enrolment in the Bachelor of Commerce was cancelled on 10 March 2016); however, she was then able to obtain an enrolment in a degree course (Bachelor of Business), said to commence on 8 May 2017.
13. When discussed at hearing, the applicant conceded that she had not commenced the abovementioned Bachelor of Business on 8 May 2017; that she had only completed two (relatively short) courses in Australia; that she was not presently enrolled in a Bachelors or Masters degree course of study that is a principal course of a type specified for the Subclass 573 visa; and that she would now like to ‘at least’ be allowed to complete her Diploma of Nursing in Australia; which she said she could finish in 2020, and not 2021 – as all the written evidence lodged had indicated. When discussed at hearing, she said the early finish date was due to her ‘nursing group’ being ‘fast tracked. Though asked, she said it had nothing to do with her prior nursing studies – commenced in mid-2018 (which were said to focus on theoretical issues only).
14. However, after then considering all the evidence and findings herein, the Tribunal is not satisfied the applicant’s intention is to reside in Australia, for the purpose of studying a course at the level required by the Student visa granted to her.
15. Regarding the extent of compliance with visa conditions, as noted herein the applicant did not comply with condition 8516 of her Student visa when her enrolment for her Bachelor of Commerce was cancelled on 10 March 2016^[3] (she had commenced in July 2015^[4]). This was some 13 months prior to the NOICC being issued to her. At hearing, she said she had suffered a financial crisis after arriving in Australia (discussed below). She also said she had visited more than one agent in Australia, and most if not all had provided her with poor (if not false) advice. That being said, and notwithstanding her claims to have been misled, the Tribunal believes the applicant’s breach to have been significant. The Tribunal also notes the applicant said she is still not (at the time of the Tribunal hearing) enrolled in a course of study appropriate to the Student visa she had been granted. The Tribunal is satisfied this does not support the applicant’s claim to wish to continue to study in Australia at an appropriate level as determined by the Student visa she had been granted.
16. Regarding the degree of hardship that may be suffered by the applicant or her family if her visa is cancelled, the applicant had said she wished to obtain an internationally recognised qualification and obtain a “good career in India after completing her studies”.^[5] She said her father wished her to have a good education.
17. At hearing, the Tribunal noted the applicant had commenced a Bachelor of Commerce (subsequently cancelled on 10 March 2016), that she had then sought enrolment in a Bachelor of Business (only after her NOICC was issued – and even though this was not in an area she professed to be interested in); that she had studied cookery (vocational level), and that she now was studying a Diploma of Nursing (all since arriving in Australia in July 2015). The Tribunal then said that while it was not uncommon for students to change their course direction after arriving in Australia, the applicant had gone from Commerce/Business, to Cookery to Nursing. It therefore may not appear she had any real idea as to what she wished to do for a career.
18. In reply, the applicant referred to her being subject to a ‘financial crisis’ after arriving in Australia, and to having a ‘falling out’ with her uncles in Australia. She also said she had commenced her Diploma of Nursing in June 2018 at the Australian Health and Management Institute (AHMI - but that course only focussed on ‘theoretical work’). The applicant then commenced studying a Diploma of Nursing at the Institute of Health and Nursing Australia (IHNA) in April 2019. She asked the Tribunal to allow her to finish her Diploma of Nursing at IHNA – which she said would be completed in April 2020 (though the written evidence did not corroborate this). She said she then ‘intended’ to apply for a Bachelor of Nursing degree (though as noted above, the applicant did not hold a current enrolment for a Bachelor degree). The applicant also said she would not seek an extension of her Student visa after completing her Diploma of Nursing at IHNA. However, irrespective of the Diploma of Nursing course end date, and as noted at hearing, the Tribunal may consider (and now finds), that this is evidence the applicant does not genuinely wish to complete a Bachelor degree in Australia.
19. The Tribunal notes the applicant had maintained study in Australia but not at the level of study expected of a holder of a subclass 573 Higher Education Student visa. If the applicant wished to continue studying at the Diploma level, she would need to apply for a new Student visa relevant to that level of study.
20. At hearing the Tribunal then noted that country information it had considered indicated that India has one of the fastest growing large economies in the world.^[6] Also, that regarding education the country information stated:

India’s higher education system stands third in size in the world after the US and China with nearly 26 million students in over 45,000 institutions in the country. In the last decade the country has witnessed a particularly high growth rate in student enrolment at a CAGR of 10.8% and institutions at 9%. ...
Indian higher education has been progressing at a fast pace adding over 20,000 colleges and about 8 million students between the ten year period 2001 - 2011. As of 2011, Indian higher education system is spread over 42 central universities, 275 state universities, 130 deemed universities and 90 private universities. ... ^[7]

21. After putting the gist of this to the applicant at hearing, the Tribunal said it may find she could obtain education and or work commensurate with her skills in India.
22. The applicant believed she could seek better work in India after completing a Diploma in Australia. She also advised that her husband (married in Australia on 24 October 2016), was an Indian citizen (formerly residing in Haryana State), and he had travelled to Australia on a (independently obtained) Student visa in 2014. However, his Student visa was subsequently cancelled (the applicant advised that her husband did not attend classes), and both the applicant and her husband were presently residing in Australia on Bridging visas (the husband had not yet been provided a date to attend a Tribunal hearing). At hearing (and by way of s.359AA), the Tribunal then advised the applicant inter alia that it had information that her marriage was for the purposes of allowing her to obtain permanent residence in Australia; and that she was said to be (words to the effect) ‘dishonest’. She explained that her husband did not have permanent residence in Australia, and the Tribunal accepts this to be correct. Be that as it may, the Tribunal does not understand the applicant would be separated from her husband (more than temporarily), if her Student visa was cancelled – and would therefore not suffer more than limited hardship. With respect to the claim the applicant is dishonest (in the dob-in report) the Tribunal has not considered this further.
23. That being said, and after considering all the accepted evidence herein, the Tribunal is not satisfied there exists a compelling need for the applicant to travel to or remain in Australia.
24. When discussed, the applicant also said it was not safe for young women to work as cooks or chefs in India. Be that as it may, and after considering all the accepted evidence, and the country information, the Tribunal is satisfied the applicant could study or otherwise obtain work commensurate with her skills in India (even if not as a Chef). For instance, in the year prior to travelling to Australia, the applicant had been employed in a secretarial / administrative clerk position with an accountant in New Delhi (where her mother and brother now reside).
25. Next, the applicant also said she had been ‘sponsored’ to travel to Australia by two of her mother’s brothers in Australia (with respect to accommodation and food expenses). However, and after arriving in Australia in July 2015, the applicant departed their residence/s around August 2016, by which time the applicant’s relationship with her uncles (and their wives) in Australia, had deteriorated. The Tribunal accepts this to be correct.
26. Next, at the end of the hearing the applicant said that one of the Australian agents who had provided her advice, had charged her AUD30,000. That money had been paid for from the personal savings of her husband’s parents, and though no genuine service had been provided, none of the monies had been recovered (this had related to employment and other issues which appeared related to a work visa in Australia). When asked, the applicant had not reported this agent to anyone (other than the Tribunal). The Tribunal did not explore this evidence further. However, I have taken it into account prior to finalising this decision. That being said, and after considering all the accepted evidence, the Tribunal will accept the applicant or her mother, would be disappointed if her Student visa was cancelled.
27. Regarding the circumstances giving rise to the ground cancellation, same arose when the applicant failed to maintain enrolment in a registered course of study, being a course of study of a type specified for Subclass 573 visa holders. As the Tribunal is satisfied the applicant breached same, she was not a person who would satisfy cl.573.231 or cl.573.2223(1A).
28. The applicant had said that her father passed away in 2012; her mother ran a small business in India and supported the family; but she (the applicant) did not have any interest in Commerce but only entered that stream due to family pressure; she said she was an obedient daughter; that education in Australia is different to that in India; she was having difficulty coping with subject matter; she started failing subjects; she became extremely worried about her future (though no claim was made that she sought any assistance for this); she changed courses; she decided to engage in studies that may assist her in a small business; she needed business skills and cookery skills; she has subsequently been regularly attending classes; she wished to obtain a Diploma of Hospitality then attempt to get enrolled in a Business degree. As noted, the applicant said she eventually wished to establish a business in India so therefore decided to study cookery.^[8] However, and for the reasons set out herein, the Tribunal is not satisfied the applicant has any serious idea as to what she should study in Australia (for the purpose of her career); and also no genuine intent to study at a level appropriate to the Student visa she had been granted.
29. The Tribunal accepts the applicant found it difficult to study at a Bachelor’s level in Australia, and that education in Australia is different to that in India. After considering all the evidence, the Tribunal believes this is a significant reason the applicant is not presently enrolled in a Bachelor level course in Australia, and why she now is (particularly) interested in completing a course at the Diploma level (the Diploma in Nursing at IHNA).
30. Though the applicant claimed to have suffered a financial crisis in Australia, and notwithstanding her belief that she had been provided with incorrect advice from more than one agent, and notwithstanding her ‘falling out’ with her uncles in Australia, the applicant’s lack of progress in all but vocational level courses in Australia, has satisfied the Tribunal that her ‘circumstances’ have not been responsible for her failing to maintain enrolment (for lengthy periods of time) in a course appropriate to the Student visa she was granted.
31. Next, the Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.
32. Next, if the applicant’s Student visa is cancelled she would become an unlawful non-citizen and liable to be detained under s.189 and removed under s.198 of the Act. However, there is no evidence before the Tribunal that has satisfied me the applicant would be subject to indefinite detention. Further, after considering the evidence the Tribunal is satisfied the applicant could temporarily retain her Bridging visa in order to remain in the community to organise her affairs prior to departing Australia.
33. The Tribunal also notes that if the applicant’s visa is cancelled she would be subject to s.48 of the Act, and would have limited options to apply for further visas in Australia. She would also be subject to PIC 4013; meaning she might not be granted a temporary visa for three years from the date of cancellation (being three years from 20 April 2017).
34. After the hearing, the applicant telephoned the Tribunal and asked to be given a further opportunity to answer questions. The Tribunal declined to offer a further hearing but said it would take the applicant’s post hearing email into account, along with any other evidence and submissions lodged with it prior to its decision being made. That said, in her post hearing email dated 26 August 2019, the applicant said she was surprised to hear she had been mistreated by her husband and denied this had taken place. This related to information on the Department file^[9] (and put to the applicant at hearing) that referred to persons with a different name, and between whom domestic violence had arisen. The Tribunal notes that it may put information to an applicant, even as in this case, that information may likely not relate to the applicant, to ensure this is not something it needs to take account of. In that way the issue may be dismissed promptly (presuming as in this case, the applicant denied all knowledge). Put very briefly, along with lodging documentary evidence, the applicant went on to explain that though she was in an inter-caste marriage, she was very happy. The Tribunal accepts this to be correct.
35. Be that as it may, after then considering all the accepted evidence herein, the Tribunal is not satisfied the applicant genuinely intends to study at a level in Australia, that is appropriate to the Student visa she had been granted.
36. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

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

Mr S Norman
Member

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^[1] Tribunal – from folio 15.
^[2] Department – folio 32 (COE).
^[3] Department – folio 32 (COE).
^[4] Department – folio 30.
^[5] Department – from folio 30.
^[6] See DFAT COUNTRY INFORMATION REPORT INDIA, 17 October 2018, ‘Economic Overview’, p.8.
^[7] ‘HIGHER EDUCATION IN INDIA - Access, Equity, Quality’, Obadya Ray Shaguri - EAN World Congress Scholar 2013, http://www.ean-edu.org/assets/highereducationindiashaguri.pdf, accessed 27 February 2019.
^[8] Department – from folio 28 (COEs).
^[9] Department – folio 1.