1417173 (Migration)

[2015] AATA 3061

1417173 (Migration) [2015] AATA 3061 (6 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rohit Kumar

MRT CASE NUMBER:  1417173

DIBP REFERENCE(S):  BCC2014/2193472

TRIBUNAL MEMBER:  Bruce MacCarthy

DATE:6 July 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 06 July 2015 at 9:47am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 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).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with Condition 8516 of his visa. 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 12 March 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi (Indian/Pakistani) and English languages.  The applicant was represented in relation to the review by his registered migration agent.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE THE

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?

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 his visa. In this instance, one of the conditions attached to the applicant’s visa was Condition 8516 (cl.573.611 of Schedule 2 to the Regulations). Relevantly to the applicant’s situation, this condition requires that he must continue to be a person who would satisfy the primary criteria for the grant of the visa.

7. According to the decision under review, a copy of which the applicant provided to the Tribunal, his visa was granted on 24 March 2014.  This means that, on that date he was found to satisfy the primary criteria for a Subclass 573 visa.  To do so, he would have had to meet, among other criteria, the requirements of cl.573.223(1A) of Schedule 2 to the Regulations if he was an “eligible higher degree student” who had a confirmation of enrolment in each course of study for which he was an eligible higher degree student.  If cl.573.223(1A) did not apply, he would have had to satisfy the requirements of cl.573.223(2) and those of cl.573.231.  The provisions of cl.573.223(1A) and cl.573.231 are set out in the decision under review. 

8. The evidentiary requirements of cl.573.223(1A) are less onerous than those of cl.573.223(2), which apply to an applicant who is not an eligible higher degree student, or does not have a confirmation of enrolment in each course of study for which that applicant is an eligible higher degree student. 

9. The definition of “eligible higher degree student” is also set out in the decision under review.  To be an eligible higher degree student, a person has to be enrolled in a principal course of study for the award of either a bachelor’s degree or a masters degree by coursework, and the principal course of study has to be provided by an “eligible education provider.”  If the applicant proposes to take another course of study before, and for the purposes of the principal course of study the applicant must be also enrolled in that course in that course must be provided by the eligible education provider or an “educational business partner” of that eligible education provider. 

10. If cl.573.223(1A) does not apply, cl.573.231 requires that the applicant is enrolled in, or the subject of a current offer of enrolment in, a principal course of a kind specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application.  The relevant instrument in effect at the time of the visa application was IMMI 12/037.  In that instrument, the following course were specified for Subclass 573:

    ·Higher Education Diploma;

    ·Higher Education Advanced Diploma;

    ·Bachelor Degree;

    ·Graduate Certificate;

    ·Graduate Diploma;

    ·Associate Degree; and

    ·Masters by Coursework.

11. When he applied to the Tribunal, the applicant enclosed a copy of the delegate’s decision.  Neither he nor his agent commented on the decision.  While at one point of the decision record, the delegate states that the applicant would have satisfied either clause 573.231 or subclause 573.223(1A), the Tribunal infers from other comments in the decision that the applicant had been enrolled in accordance with the streamlined visa processing arrangements and that, in those circumstances he would have been regarded as an eligible higher degree student, and therefore satisfied the latter of these provisions. 

12. Departmental records relating to the grant of the visa confirm that this is the case.  At the time the visa was granted, the applicant was enrolled in a Bachelor of Information Technology degree at Queensland University of Technology (QUT), a Certificate III Information, Digital Media and Technology course at Brisbane North Institute of TAFE, and a Diploma of Information Technology (Networking) course, also at Brisbane North Institute of TAFE.  The relevant certificates of enrolment (CoEs) indicate that the first of these enrolments was conditional upon successful completion of the second course, and the second enrolment was conditional upon successful completion of the first course. 

13. At the time of application for the visa, QUT was designated as an eligible education provider in the relevant instrument [IMMI 14/007] and Brisbane North Institute of TAFE was designated as an educational business partner of QUT.  Given this, the applicant was, at the time, an eligible higher degree student, and was assessed on the basis of his satisfaction of cl.573.223(1A). 

14. The decision under review given to the Tribunal by the applicant states that his enrolment in a Bachelor of Information Technology degree course was cancelled on 24 March 2014.  This was because, at the time the first of his courses was scheduled to commence, the applicant was still in India, having not yet been granted a visa.  The Tribunal notes that the applicant did not sign his application for the visa until less than 2 weeks before his first course was scheduled to commence.  The decision under review states that the applicant was going to be enrolled when he commenced his studies in the preliminary courses.  No doubt this was because until it was known when he commenced the preliminary courses, and appropriate intake for his degree course could not be determined.  However, as he confirmed at the hearing, he did not commence studies in the relevant preliminary courses, he never re-enrolled in the degree course.

15. At the hearing, the applicant and his agent confirmed that, from the moment he ceased to have a confirmation of enrolment in each of the 3 courses for which he was an eligible higher degree student, he ceased to be an eligible higher degree student, and no longer satisfied the requirements of cl.573.223(1A) of Schedule 2 to the Regulations.  For all the periods when he had no enrolment in the higher education sector, he could not satisfy the alternative requirements of cl.573.231.  In these circumstances, he was not complying with Condition 8516 of his visa. 

16. On the basis of the evidence before it, the Tribunal finds that the applicant did not comply with Condition 8516 of his visa after 24 March 2014. The Tribunal is therefore 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

17. 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’.

    The purpose of the applicant’s travel and stay in Australia

18. The applicant came to Australia for the purposes of study.  When the visa was granted, it was granted on the basis that the applicant would study a package of courses leading to a Bachelor of Information Technology degree at QUT.  However, by the time the applicant arrived in Australia, his enrolment in the degree course had already been cancelled.  Strictly speaking, the fact that this enrolment had been cancelled meant that he was not complying with the conditions of his visa from the moment he arrived.  However, the Tribunal does not regard this as this detrimental to the applicant as it was clearly expected that, once he arrived in Australia and commenced his study in first of the preliminary courses, he would be given a further enrolment in the degree course.

19. At the hearing, the applicant confirmed that, when he arrived in Australia, in the middle of April 2014, he was expecting to commence studies in his Certificate III in Information Digital Media and Technology course on 30 June 2014.  However, his package of courses was cancelled on 19 May 2014 because the student advised his education provider that he was intending to move to Sydney.  Even if the applicant had been enrolled in the degree course, once he withdrew from the preliminary courses in May 2014, he would no longer have satisfied the primary criteria for the grant of a Subclass 573 visa.

20. The applicant later enrolled in an Advanced Diploma of Management course in the Vocational Education and Training sector at Apex College in Sydney and applied for a Subclass 572 visa.  However, the decision under review indicates that that visa application was refused.  He subsequently withdrew from Apex College and enrolled in a further Advanced Diploma of Management course at Group Colleges Australia leading to a Bachelor of Business degree at Universal Business School Sydney (part of Group Colleges Australia).    This education provider is not an eligible education provider specified in IMMI 14/007.

21. Although these last 2 enrolments are shown in PRISMS records as having been cancelled, the Tribunal understands that the system generated cancellations on the basis of the cancellation of the applicant’s visa.  The Tribunal has received evidence from the college concerned indicating that the applicant is still enrolled in the Advanced Diploma of Management course.  That he is attending on a regular basis, and that he has successfully completed almost 40% of the subjects.  The College has provided further information explaining that an error resulted in the applicant initially being placed in the wrong course and that that error is the main reason why he has not completed more than 50% of his course.

    The circumstances in which ground for cancellation arose

22. The ground for cancellation arose because the applicant’s enrolment at Southern Cross University was cancelled in July 2014 because of the applicant discontinued his studies.  Having ceased to be enrolled in a course in the Higher Education sector, he no longer satisfied the primary criteria for the grant of the visa and, as such, was not complying with Condition 8516 of his visa. 

23. The applicant has provided evidence to the Tribunal, in the form of a police report and medical certificates, which has satisfied it that, shortly after arriving in Australia he was physically assaulted in Brisbane.  He has explained that while he expected to have some support on arrival in Australia, he had no support and found it difficult to obtain accommodation in Brisbane.  In these circumstances the physical attack prompted him to move to Sydney where he enrolled in lower level courses

24. Having been refused a Subclass 572 visa appropriate to his new courses, he sought to re-enrol in the higher education sector, with a preliminary course at advanced diploma level.  As noted above, although his enrolments are shown in the PRISMS system as cancelled, he has continued to pursue his studies in the advanced diploma course.

    The reason for, and extent of, the breach of Condition 8516

25. As noted above, the breach arose because the applicant’s enrolments in his courses at QUT and Brisbane North Institute of TAFE were cancelled. 

26. While he has not been able to secure a further enrolment under the streamlined visa processing arrangements with an eligible education provider, the Tribunal is satisfied that the applicant, on completion of his advanced diploma course, will be in a position to commence studies in degree course albeit at a which is not an eligible education provider.

27. The breach of Condition 8516 had lasted for several months by the time the visa was cancelled.  The Tribunal regards this as a significant breach of that condition.  However, having had the benefit of taking oral evidence from the applicant, and given that he does appear to be a genuine student, the Tribunal is prepared to give him the benefit of any doubt and to accept that the breach occurred because the applicant did not understand the significance of his withdrawal from his courses.  The Tribunal accepts that, since getting advice from his current migration agent he has genuinely attempted to rectify the situation.

    The degree of hardship that may be caused to the applicant and any family members

28. Cancellation of the visa will in all likelihood mean that the applicant will have to leave Australia without obtaining any educational qualification.  The Tribunal accepts that this may indirectly cause financial hardship, given that he may not be able to secure employment attracting the remuneration he might possibly achieve if he had qualifications.

    The applicant’s past and present conduct towards the Department

29. The Tribunal is not aware of any adverse conduct on the part of the applicant towards the Department beyond the matters previously discussed.

    Whether there would be consequential cancellations under s.140

30. There is no evidence to suggest that any other person’s visa would be cancelled under s.140 if the applicant’s visa were to be cancelled.

    Whether any international obligations would be breached as a result of the cancellation

31. There is no evidence to suggest that the cancellation of the visa would result in the breach of any of Australia’s international obligations.

    Conclusion

32. Without an enrolment in a degree course at an eligible education provider, the applicant cannot continue to satisfy cl.573.223(1A).  However, it is implicit in the information received from his education provider that he has a current offer of enrolment in the Bachelor of Business course and that, on reinstatement of his visa, that enrolment can be confirmed.  In these circumstances, the Tribunal considers he may well satisfy the alternative requirements of cl.573.231 and cl.573.223(2).  The Tribunal considers he ought to be given an opportunity to establish that.

33. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

34. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Bruce MacCarthy
    Member