1500515 (Migration)

[2015] AATA 3415

1500515 (Migration) [2015] AATA 3415 (27 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kulveer Kaur
Mr Gursev Singh Bhangu

CASE NUMBER:  1500515

DIBP REFERENCE(S):  BCC2014/2594920

MEMBER:David Corrigan

DATE:27 August 2015

PLACE OF DECISION:  Melbourne

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

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 27 August 2015 at 5:52pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 January 2015 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) 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 a condition of his visa (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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

4. The applicant appeared before the Tribunal on 27 August 2015 to give evidence and present arguments.

5. The applicants were represented in relation to the review by their registered migration agent.

6. 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

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. 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?

8. 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 the applicant’s visa. The requirement in condition 8516 is for a visa holder to continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

9. It was a criterion for grant of the applicant’s Subclass 573 visa that if cl.573.223(1A) does not apply 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: cl.573.231. 

10. Clause 573.223(1A) relevantly provides:

    (1A) If the applicant is 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.

11. Eligible higher degree student is defined as clause 573.111 as follows:

    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:

    (i)      a bachelor’s degree; or

    (ii)      a masters degree by coursework;

    (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.

12. On 28 January 2014, the applicant was granted a Student (Temporary)(Class TU) Higher Education Sector Subclass 573 visa which had condition 8516 attached to it.  The visa was granted on the basis of her enrolment in an ELICOS course and a Bachelor of Business in International Hospitality Management with Southern Cross University (SCU) on the Gold Coast.  She completed the ELICOS course and was scheduled to commence the Bachelor course on 16 June 2014.  However she did not begin this course and withdrew from it.  She enrolled in Certificates III and IV of Commercial Cookery at the Technical Institute of Victoria and then applied for a Vocational Education and Training Sector student visa (subclass 572) on 16 July 2014.   After being issued a Notice of Intention to Consider Cancellation (NOICC) of her visa on 14 November 2014, she obtained a letter of offer from SCU, dated 17 December 2014 to complete a Bachelor of Business in Tourism and Hospitality at SCU and was later enrolled in this course (a submitted Confirmation of Enrolment shows this)

13. The evidence before the Tribunal shows that from June 2014 until January 2015, the applicant was no longer enrolled in a bachelor’s degree or master’s degree and she was 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 r.1.40A.  The evidence before the Tribunal shows that in June 2014 the applicant ceased to be enrolled in a bachelor’s degree or master’s degree by coursework or 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 and that she was not enrolled until January 2015.  Her offer of enrolment from SCU was only made on 17 December 2014.

14. The requirement in condition 8516 is for a visa holder to continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.  Given, the applicant was not enrolled in a bachelor’s degree or master’s degree by coursework or 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 and was not the subject of a current enrolment in such a course, she ceased to be an eligible higher degree student.  She also failed to be 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.  Accordingly, she did not continue to satisfy subclauses 573.231 or 573.223(1A) and she thus failed to comply with condition 8516. 

15. 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

16. 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 relevant matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel to and stay in Australia

17. The Tribunal is satisfied that the applicant travelled to Australia with the intention to study and has given this factor some weight in her favour.

    The extent of compliance with visa conditions

18. The Tribunal has also taken into account that the applicant was in breach of condition 8516 for a substantial period of time from June 2014 until at least 17 December 2014.  Whilst she obtained an offer of enrolment in a Bachelor’s course at SCU and later was enrolled this was only after receiving the NOICC.  Overall it considers the extent of the breach is a significant factor that points to cancelling the visa.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

19. In written submissions and at the hearing, the applicant claimed that she was misadvised by her education agent in India as to the content of the Bachelor of Business and International Hospitality Management in that he said it would enhance her practical skills as well as technical knowledge and she would be taught cookery and that SCU was located in Brisbane rather than the Gold Coast.  She said she had to make a long journey to from Brisbane to Gold Coast to attend the SCU as a result and this was tiresome for her given her health problems.  Asked whether she had researched the location of the university and the content of the course, she claimed that she was from a small village and did not have access to computers there. The Tribunal does not accept this explanation.  She was about to make a major move to live in another country and spend a large amount of money doing so and the Tribunal does not consider it credible or plausible that she would not make the effort to obtain internet access to investigate such critical matters.  It also does not consider it credible or plausible that she would think that a Bachelor of Business in International Hospitality Management would have a substantial element of teaching cooking skills involved in it given the level of the course and its subject matter of management.

20. The Tribunal has taken into account that the applicant had some medical problems when she undertaking the ELICOS.  She has provided a medical certificate which says she was suffering from a medical condition from 6 to 7 March 2014 and another medical certificate from another doctor stating that she had a medical condition and was unfit for duty from 10 to 18 March 2014. She has submitted a letter from this doctor, dated 25 August 2015 concerning the nature of the problems which it is stated would have caused extreme chui. She has also submitted a medical certificate from another doctor stating that she had a medical condition and was unfit for work from 3 to 4 September 2014 and a letter from another medical clinic, dated 28 October 2014 asking her to make an appointment to see a doctor regarding blood test results.  Whilst the Tribunal accepts that she suffered from a medical condition that caused her extreme tiredness and lethargy it is not satisfied, on the evidence before it, that she suffered depression and the Tribunal notes that during this period she was able to successfully complete her ELICOS studies.  However, given the nature of her medical problems, the Tribunal is prepared to accept that she suffered some level of stress during this period which resulted in her wanting to change courses and it has taken this into account in her favour.

21. The applicant claimed that a migration agent advised her it was fine to swap to Certificate III and IV courses and that it was 99% certain she would get a subclass 572 visa.  This agent lodged the Subclass 572 visa application on her behalf on 16 July 2014; however it was rejected by the Department on 1 October 2014 as the delegate was not satisfied she was a genuine temporary entrant.  The Tribunal has some concerns that the applicant was misadvised by this agent given there has been no complaint made to the Department or the Migration Agents Registration Authority about the conduct of this agent.  However, it is prepared to accept that she was not advised by this agent of the consequences of ceasing her enrolment in the Bachelor’s course and this partially constitutes an extenuating circumstance beyond her control and it has given this some weight in her favour.

    The degree of hardship that may be caused to the visa holder and any family members: decision-makers should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision

22. The Tribunal has taken into account that the applicants (and their newborn daughter) may be required to return to their home country if the visa is cancelled and that the applicant’s parents will be disappointed and angry and that this will cause her some stress.  However, the Tribunal does not consider, on the evidence before it, that this will cause any substantial degree of hardship to the applicant and family members and has only placed limited weight on this factor.

    The visa holder’s past and present behaviour towards the Department (for example, whether a person has been truthful in statements or applications made to the Department or have previously complied with visa conditions)

23. The Tribunal has no evidence before it that the applicant’s past and present behaviour towards the Department has been untruthful or she has not complied with previous visa conditions.  It considers this is a consideration that is in her favour and it has taken this into account.

    Whether there are mandatory legal consequences to a cancellation decision, such as:

    ·     whether indefinite detention is a possible consequence of the cancellation decision , if a person cannot be removed from Australia consistently with Australia’s non-refoulement obligations 

    ·     whether there are provisions in the Act which prevent the person from making a valid application for a visa without the Minister personally intervening (for example, s46A, s46B, s48, s48A, s91E, s91K and s91P of the Act) and

    ·     whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and liable to be detained under s189, and liable for removal under s198.

24. The Tribunal notes that the applicant is currently a holder of a Bridging Visa E and there are no provisions of the Act that that prevent her from validly applying for a protection visa without the Minister personally intervening.  The applicant would not become an unlawful non-citizen as a direct result of the cancellation of the student visa.  The Tribunal is not satisfied that indefinite detention is a possible consequence of the cancellation decision, if a person cannot be removed from Australia consistently with Australia’s non-refoulement obligations. The Tribunal does not consider that any of these above factors are mandatory legal consequence of cancellation of the student visa.  It does not consider these are factors that support not cancelling the visa. 

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140

25. The Tribunal has taken into account that the second named applicant’s dependent student visa would be cancelled and it has given this some weight that supports not cancelling the visa.

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, such as children in Australia whose interests could be affected by the cancellation or removal would result in a breach of Australia’s non-refoulement obligations

26. The applicant did not raise any matters that indicated that this was an issue and the Tribunal finds there would not be any breach of any obligations under relevant international agreements and the Tribunal finds this factor is not relevant.

    The impact of cancellation on any victim of family violence, or if family violence is a factor

27. The applicant did not raise any matters that indicated that this was an issue and the Tribunal finds this factor is not relevant.

    Any other relevant matters

28. The Tribunal has taken into account in the applicant’s favour that she did seek the advice of an agent and a Subclass 572 visa application was lodged a relatively short period after she ceased to be enrolled in SCU which indicates that she did take some steps to address her visa and study situation.  It has also taken into account in her favour that she obtained enrolment in Certificate III and IV courses that were broadly consistent with the field of the hospitality industry of the Bachelor’s degree she was granted the visa for.  It has also taken into account that SCU were prepared to offer her re-enrolment in the Bachelor’s course and she successfully completed the ELICOS course.  The applicant has given evidence that if her visa was re-instated, she would pursue a streamlined Bachelor degree package that incorporates a cookery scheme and that she would hope to do a Bachelor of Business at SCU in Melbourne.  The Tribunal accepts that this is her current intention.

29. It considers these are factors that support not cancelling the visa.

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

    DECISION

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

32. The Tribunal has no jurisdiction with respect to the second named applicant.

    David Corrigan
    Member