1416663 (Migration)

1416663 (Migration) [2015] AATA 3940 (22 December 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Prabhjot Singh
CASE NUMBER:  1416663
DIBP REFERENCE(S):  BCC2014/2183454
MEMBER:Tim Connellan
DATE:22 December 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 22 December 2015 at 1:03pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 7 October 2014 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).
The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had breached condition 8516 by failing to remain an eligible higher degree student and therefore in breach of 573.231 and 573.223. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 20 January 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
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
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?
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 attached to Mr Singh’s visa.
This condition relevantly states:
The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of a visa.
On 27 September 2013, prior to coming to Australia, Mr Singh was granted a subclass 573 Higher Education Sector visa on the basis of his intention to study a hospitality course leading to a Bachelor of Hotel Management at Charles Sturt University which is an education provider that is eligible under the Streamlined Student Visa Processing (SVP) programme.
Under the SVP arrangements applicants, seeking to study at a Higher Education Sector level with a registered provider are required to meet less evidentiary requirements on the basis that they are a lower immigration risk.
In this case Mr Singh was granted a subclass 573 visa under the Streamlined Visa Processing programme on the basis of his enrolment in an Advanced Diploma of Hospitality and the Bachelor of Hotel Management scheduled to run between 30 September 2013 and 30 June 2016.
Mr Singh arrived in Australia on 3 October 2013.
On 5 September 2014 Mr Singh was sent a Notice of Intention to Consider Cancellation (NOICC) of his visa under section 116 of the Migration Act on the basis that evidence indicated he had not complied with condition 8516 of his visa.
The NOICC stated:
It appears that you have breached condition 8516 which is attached to your TU-573 Higher Education Sector visa . .... According to the Provider Registration and International Student Management Systems (PRSIMS) it appears that you are no longer enrolled in a bachelor’s degree or masters degree course and you are not enrolled 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 regulation 1.40A.
Based on this information it appears that you have not continued to be a person who would satisfy either subclauses 573.231 or 573.223(1)(A) as such, it appears that you have not continued to be a person who would satisfy the primary criteria for the grant of the visa and have not complied with condition 8516.
573.231 relevantly states:
If subclause 573.223(1A) does not apply:
(a) the applicant is enrolled in, or is the subject of a current offer of enrolment
in, a course of study that is a principal course; and
(b) the principal course is of a type that was specified for Subclass 573 visas by
the Minister in an instrument:
(i) made under regulation 1.40A; and
(ii) in force at the time the application was made.
eligible education provider means an education provider specified as an eligible
education provider in an instrument made under clause 573.112.
eligible higher degree student means an applicant for a Subclass 573 visa in relation to
whom the following apply:
(a) the applicant is enrolled in a principal course of study for the award of:
(ia) an advanced diploma in the higher education sector; or
(i) a bachelor’s degree; or
(ii) a masters degree by cours the ework;
(b) the principal course of study is provided by an eligible education provider;
(c) if the applicant proposes to undertake another course of study before, and for
the purposes of, the principal course of study:
(i) the applicant is also enrolled in that course; and
(ii) that course is provided by the eligible education provider or an
educational business partner of the eligible education provider.
573.223(1A) relevantly states:
If the applicant is, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:
(a) the applicant gives the Minister evidence that the applicant has:
(i) a level of English language proficiency that satisfies the applicant’s eligible education provider; and
(ii) educational qualifications required by the eligible education provider; and
(b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:
(i) the costs and expenses required to support the applicant during the proposed stay in Australia; and
(ii) the costs and expenses required to support each member (if any) of the applicant’s family unit.
On 5 September 2014 Mr Singh was invited to comment on the grounds for cancellation identified and to provide reasons why his visa should not be cancelled.
On 11 September 2014, he provided a response in which he did not dispute there were grounds for cancellation but provided reasons why he believed the visa should not be cancelled.
He said he had come to Australia to study an Advanced Diploma of Hospitality and a Bachelor of Hotel Management but having studied the Advanced Diploma for one and a half semesters it was becoming tough. He decided to apply for Certificates III and IV in Commercial Cookery and a Diploma in Hospitality which he felt he could comfortably study. He said he then had a discussion with friends and discovered he should lodge a 572 visa application, however it was refused. He stated he was a genuine student and requested he be permitted to continue his studies in Australia.
In addition to his enrolments to study VET sector courses, he provided the Department with a ‘Letter of Offer’ to study a Bachelor of Business in a course commencing in March 2017.
The delegate was satisfied that on the evidence available, Mr Singh had breached condition 8516 attached to his subclass 573 higher education sector visa and that was grounds for cancelling Mr Singh’s subclass 573 visa. Having considered all the available evidence he was satisfied the grounds for cancelling the visa outweighed the grounds for non-cancellation and consequently on 7 October 2014 a decision was made to cancel the applicant’s visa.
On the same day, 7 October 2014, Mr Singh applied to the Migration Review Tribunal for review of that decision. That application was made with the assistance of a migration agent.
On 13 October 2014 the Tribunal received a change of contact details in which Mr Singh replaced his migration agent with himself as the contact person for his case and agreeing to communication by email.
Unable to make a favourable decision on the information available, on 17 December 2014 the Tribunal emailed Mr Singh an invitation to appear before the Tribunal at a hearing scheduled for 20 January 2015.
Mr Singh appeared before the Tribunal on 13 January 2015 to give evidence and present arguments relating to the issues arising in his case.
The Hearing
The Tribunal questioned Mr Singh about his study history in Australia. He said he had commenced the Advanced Diploma of Hospitality at Holmsglen College but having completed one semester and commencing the 2^nd semester he found the study tough.
He said he had approached a migration agent and asked them to enrol him in any 573 course, but they misguided him and forced him to apply for a subclass 572 visa.
The Tribunal told the applicant it found his claim that they forced him against his will to enrol in a 572 visa implausible and noted his claim he had requested to be enrolled in any 573 course indicated he understood the requirements of his 573 visa.
The Tribunal noted that Mr Singh had told the Department a different story, claiming that he chose to enrol in the VET sector courses and decided to apply for a 572 visa on the advice of friends.
Mr Singh told the Tribunal he had not done any study since leaving Holmesglen in June 2014.
Mr Singh said he wanted another chance so he could study in the same field. When asked what he meant by the same field, he said he wanted to study commercial cookery. He said that post cookery he believed he could do a one year course at Charles Sturt University. He was unable to name such a course.
The Tribunal discussed the requirements of condition 8516 on his higher education sector visa and advised him that the study of commercial cookery would not satisfy that visa condition.
He then said he was prepared to go on and study a Bachelor of Business or Business Management. The Tribunal told the applicant it did not believe he had a legitimate study programme but appeared to be prepared to do whatever studies were required to satisfy his visa.
The Tribunal observed that the applicant had been enrolled in 11 separate courses and all the enrolments had been cancelled. He said those enrolments had all been arranged by his migration agent.
The Tribunal then told the applicant it was going to provide him with evidence pursuant to section 359AA. It explained that the information was important because subject to any response he might make, it may lead the Tribunal to find he was an unreliable witness and not a genuine student and if it made such a finding it would be a reason or part of the reason for affirming the decision under review. The Tribunal told the applicant that having given him the information, it would provide him the opportunity to adjourn the hearing to consider his response if he wished.
The Tribunal then read from the PRISM notes regarding his study at Holmesglen Institute where it noted his last day of study as 30 June 2014. It stated:
Student is changing provider before completing 6 months of the principle course of study. Holmesglen is of the opinion that the student has misused the streamlined visa processing (SVP) arrangements and as such, has breached his student visa conditions. The student however, advises Holmesglen that he intends to commence his studies at Australian Career’s Education. A letter of offer has been sighted and placed on file. Student advises Holmesglen that he is changing the visa subclass 573 to 572. The document was created on 18 August 2014.
The applicant said he did not wish to adjourn the hearing but to respond immediately. He responded not by addressing the issue, but by saying he paid another College $500 for enrolment in a Certificate III in Commercial Cookery which had been arranged by his migration agent.
He said he had paid his migration agent $2,500 and did not know why he was not present at the hearing.
He said he had nothing further to add.
The Tribunal told Mr Singh that on the evidence available, the Tribunal was satisfied he had breached condition 8516 of his subclass 573 higher education sector visa, however if circumstances warranted, there was discretion not to cancel a visa. The Tribunal asked whether he believed there were circumstances that might warrant discretion.
Mr Singh responded that he had made a mistake, he was just a child and he wanted another chance to continue his studies in Australia.
During the hearing Mr Singh claimed that his problems had been caused by the actions of his migration agent. He made the implausible claim that they had forced him to apply for a subclass 572 visa against his wishes and stated he did not know why they did not attend the hearing.
As Mr Singh had changed the contact details for his case from his migration agent to himself in October 2014, it is reasonable to assume the agent was unaware of the hearing.
Despite his statement that he wished to study hospitality, the applicant had no clear study plan. Realising the requirement to study at a higher education sector level, he suggested he could study a bachelors course in business or business management.
The Tribunal was not satisfied the applicant was a reliable witness.
For the reasons discussed above, the Tribunal is satisfied that the ground for cancellation in s.116(1)(a) 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
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’.
Mr Singh told the Tribunal he came to Australia to study which is a requirement for student visa holders. He ceased studying in June 2014, after less than 6 months study and PRISMS records indicate he has not return to any study since. I am satisfied that Mr Singh stated intention at the point of application is not constitute a reason not to cancel his visa.
While Mr Singh claimed his parents would be disappointed should he return without successful study, he did not raise or address any matters of hardship that may be caused as a result of cancellation of his visa. As such, I’m unable to place any weight on this factor.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Tim Connellan
Member

[2015] AATA 3940

22 December 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice