1500742 (Migration)

[2015] AATA 3478

1500742 (Migration) [2015] AATA 3478 (13 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sandeep Singh aka Sandeep Singh Bal

CASE NUMBER:  1500742

DIBP REFERENCE(S):  BCC2014/2818659

MEMBER:Bruce MacCarthy

DATE:13 October 2015

PLACE OF DECISION:  Sydney

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

Statement made on 13 October 2015 at 8:00am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 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 delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with a condition of his visa, namely 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 7 October 2015 to give evidence and present arguments.  

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). 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. The applicant told the Tribunal at the hearing that his visa was granted on 2 August 2013. 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(2) and cl.573.231 of Schedule 2 to the Regulations unless 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 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, he would have had to satisfy the requirements of cl.573.223(1A).

8. The versions of cl.573.223(1A) and cl.573.231 set out in the decision under review are not the versions applicable in the present case, though the differences have no practical effect.  The applicable versions of cl.573.223 and cl.573.231 are set out in the attachment to this decision.

9. The definition of “eligible higher degree student” set out in the decision under review is the definition applicable at the time the applicant applied for the visa.  Under this definition, to be an eligible higher degree student, a person had 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 had to be provided by an “eligible education provider.”  If the applicant proposed to take another course of study before, and for the purposes of the principal course of study the applicant must be also have been enrolled in that course and that course must have been be provided by the eligible education provider or an “educational business partner” of that eligible education provider.

10. On 23 November 2014, the definition of “eligible higher degree student” was amended to add “an advanced diploma in the higher education sector” to the other two principal courses mentioned in the definition.  However, in the circumstances of the present case, that changed definition makes no difference to the analysis that follows. 

11. The Tribunal is aware that those to whom subclause 573.223(1A) applies are regarded as being of a lower immigration risk than other applicants for Subclass 573 visas.  The evidentiary requirements of subclause 573.223(1A) are less onerous than the corresponding requirements of cl.573.223(2) that apply to other applicants for Subclass 573 visas

12. When subclause 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.

13. Information in the delegate’s decision indicates that the applicant was notified, on 31 October 2014, of the intention to consider cancelling his visa.  The notice (see folios 6-10 of the Department’s file) referred to the fact that the applicant was no longer enrolled in any course of a type mentioned in the previous paragraph and that, as a result, he had not continued to be a person who would satisfy either cl.573.223(1A) or cl.573.231.  He was invited to respond to the notice in writing by (effectively) 7 November 2014.  His response, dated 4 November 2014, is at folios 4-5 of the Department’s file and is summarised on page 2 the decision under review.

14. At the hearing, the applicant confirmed that his visa had been granted under the “streamlined visa arrangements” [which are applicable to eligible higher degree students].  At the time the visa was granted, he was enrolled in a Bachelor of Business course at Griffith University (an eligible education provider) as his principal course.  That enrolment was conditional upon his successful completion of a Diploma of Business course at Southbank Institute of Technology (an educational business partner of Griffith).  In turn, his enrolment in the Diploma of Business course was conditional upon his successful completion of a certificate for in Business course, also at Southbank.

15. In his response to the Department’s notice, the applicant said that, having successfully completed his first course, he failed some subjects in the diploma course and he was unsure he would be able to meet the entry requirements for the degree course.  After consulting an agent, he changed courses and enrolled in a Certificate IV in Commercial Cookery course and a Diploma of Hospitality course at a different education provider.  It is implicit in his response that he failed to enrol in any course in the higher education sector.  He said that he had recently taken steps towards being enrolled in a Bachelor of Business course at the Holmes Institute, but had not yet obtained a confirmation of enrolment.  At the hearing, he confirmed that at the time the visa was cancelled, he had not secured an enrolment in the Higher Education sector.

16. The applicant also confirmed that he had withdrawn from the Diploma of Business course in August 2014 and that, as a result, his enrolment in that course and his related enrolment in the Bachelor of Business course were both cancelled in August 2014.  He confirmed that he was not enrolled in any course of a kind mentioned in paragraph 12 above for a period of approximately 5 months before his visa was cancelled.  The Tribunal therefore finds that the applicant did not continue to satisfy the primary criteria for the grant of a Subclass 573 visa throughout that period.  He therefore did not comply with Condition 8516 of his visa. 

17. 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

18. 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

19. The applicant came to Australia for the purposes of study.  When he arrived in Australia, his principal course was to be a Bachelor of Business degree course at Griffith University, an eligible education provider.  His enrolment in this course was conditional upon his successful completion of a preliminary Diploma of Business course at the Southbank Institute of Technology (Southbank), an educational business partner of Griffith.  In turn, the enrolment in the diploma course was conditional upon his successful completion of a Certificate IV in Business course at Southbank.

20. The applicant has told the Tribunal that he completed his Certificate IV in Business course but did not pass the diploma course.  Although he could have persevered with the diploma course by repeating the subjects he failed, he said he doubted his ability to complete the course successfully and move onto the degree course.  After consulting a migration agent, he enrolled in a package of courses at the Australian Institute of Technology and Management (AITM).  The first of these was a Certificate IV in Commercial Cookery course scheduled to run between 8 September 2014 and 7 March 2016.

21. He commenced this course and, according to AITM, he had satisfactory course progress and attendance up until the last day of his study.  In accordance with the provisions of s.359AA, the Tribunal discussed with the applicant information received from AITM to the effect that his last day of study was 4 November 2014, only a few days after he received a notice from the Department that it was considering cancelling his visa.  The Tribunal pointed out that the information was relevant because it indicated that he ceased his studies at AITM more than 2 months before his visa was cancelled when he could have continued. 

22. The Tribunal said it could conclude from this information that he was not serious about his cookery studies and had merely enrolled in an easy course of study to justify remaining in Australia.  It may conclude that, when he realised that his visa was in jeopardy, he discontinued those studies in order to seek an alternative enrolment which might be consistent with his then current visa.

23. In response, the applicant said that he had discontinued his studies after he received the Department’s notice because he wanted to focus on re-enrolling in a degree course.  He had engaged a new migration agent who was attempting to secure an enrolment for him at Holmes College.  That agent had advised him that the 3 courses and AITM which had not yet commenced appeared to be of no value to him so it was better for him to discontinue those enrolments.  He therefore cancelled enrolments in those courses on 5 November 2014.

24. He did not explain to the Tribunal’s satisfaction why he had also ceased studying in the cookery course.  He said that the first term of his studies would have lasted from September 2014 to February or March 2015.  In these circumstances, there was nothing to prevent him continuing his studies up until the time his visa was cancelled and a “no study” condition was placed upon his subsequent Bridging visa.

25. All Later in the hearing, the Tribunal received information from AITM to the effect that the applicant’s course of study involved 7 terms, each of approximately 2-3 months duration, each successive one starting a few days after the conclusion of the one before.  The first term ran between 8 September and 14 November 2014 and the second term ran between 17 November 2014 and 6 February 2015.  As pointed out to the applicant at the hearing, this information, though different in detail from the information he had provided, did not change the fact that he could have continued studying after 4 November 2014 up until the time the visa was cancelled on 14 January 2015.

26. In his response to the Department dated 4 November 2014, having explained his reasons for discontinuing his studies at Southbank and foregoing the opportunity to study at Griffith, the applicant went on to explain his reasons for studying in the hospitality field.  He spoke about his passion for cooking and said that he enrolled in a Diploma in Hospitality course to supplement his Certificate IV in Commercial Cookery course, although there is no evidence before the Tribunal which would suggest that he ever enrolled in a Diploma in Hospitality course.  He provided copies of a number of confirmations of enrolment (CoEs) for courses at AITM, but, apart from that for the Certificate IV in Commercial Cookery course, the others were in the field of either Business or Management. 

27. Given his comments in his response dated 4 November 2014, it is difficult to see why he did not continue his studies in commercial cookery after that day, and seek an enrolment in a degree course which would commence immediately after the completion of the cookery studies.

28. As noted above, although the applicant said on 4 November 2014 that he had sought enrolment in a degree course, he has not explained why he had failed to secure any such enrolment before the visa was cancelled on 14 January 2015.

29. In his written submission received on 1 October 2015, the applicant said that, if the decision to cancel his visa were to be set aside, he would “immediately obtain an offer and COE to do a Bachelor of Business to follow the Certificate IV and Diploma at AITM.”  [The Certificate IV course to which he referred is obviously the Certificate IV Commercial Cookery course, though it is not clear to which course he was referring when he referred to the “Diploma” course, given that he had provided evidence that he had been enrolled in 2 diploma courses at AITM, one in the field of Business and the other in the field of Management.]  However, in his oral evidence at the hearing, he contradicted his written assertion that he intended to recommence studies in cookery.

30. When the Tribunal asked the applicant what action he would take if his visa were not cancelled.  The Tribunal said it envisaged 3 possible scenarios.  The first was that he would immediately commence a degree course.  The second was that he would resume his cookery studies and complete the Certificate IV course but immediately enrol in a degree course to commence after the conclusion of his cookery studies.  The third was that he would resume his cookery studies but immediately apply for a Subclass 572 visa appropriate to that course.

31. In response, the applicant indicated that he would not resume his cookery studies.  He said he would immediately enrol in a Bachelor of Business course but he would undertake a preliminary Diploma of Business course.  He said that he had discussed this option informally with American College and Alphacrucis College, and had been given to understand that applications for an enrolment would be accepted, but he had nothing in writing.  The Tribunal commented at the hearing that it seemed strange that he now contemplated undertaking courses of a similar nature to courses which, only a year or so ago, he thought would be too difficult for him. 

32. The Tribunal, having considered the all the applicant’s evidence regarding his course changes, is not satisfied that the applicant has been pursuing studies with a particular goal in mind.  It is of the view that the applicant has sought enrolments in order to maintain an eligibility for a student visa, rather than seeking a student visa to pursue a particular pattern of studies.  The Tribunal is not satisfied that, if the visa were to be granted, the applicant would pursue studies to the degree level.

    The circumstances in which ground of cancellation arose

33. The ground the cancellation arose because the applicant, having withdrawn from his Diploma of Business course at Southbank, ceased to be an eligible higher degree student.  When his enrolment in the Bachelor of Business course at Griffith was cancelled, he no longer had an enrolment, or offer of enrolment, in any course of study of a kind prescribed for Subclass 573.  Therefore, he no longer satisfied the primary criteria for the grant of his visa, and was in breach of Condition 8516. 

    The reason for, and extent of, the breach of any visa condition

34. The applicant told the Tribunal the breach arose because he did not believe he would be able to pass his Diploma of Business course so he decided to withdraw from his original package of studies and enrolled instead in a Certificate IV in Commercial Cookery course and other courses in the Vocational Education and Training sector at AITM.

35. The applicant claims that he consulted a migration agent who advised him that he could change his enrolments without having to change his visa.  He has provided evidence to the Tribunal that he had paid some money (2 payments totalling $800 apparently intended for “COE Fees”) to that migration agent.  However, as discussed with him at the hearing, in accordance with the procedures set out in s.359AA of the Act, that agent told the Tribunal that he had orally advised the applicant about the effect of Condition 8516 and of the need to apply for a Subclass 572 visa once he had secured the enrolments he was seeking.  The agent had also given the Tribunal a copy of a letter to the applicant from Southbank in which Southbank had advised the applicant that the cancellation of his enrolment at Southbank may place him in breach of his visa conditions and that, for that reason, he should approach the Department. 

36. When this information was discussed with the applicant at the hearing, he denied that the agent had given in that advice, and said that, having spent as much money has he had on his education in Australia, there was no way he would have failed to take such advice if it had been given, and risk having his visa cancelled.

37. The applicant also made the point that the agent had not advised him in writing that he (the agent) would receive a commission from AITM.  The Tribunal had asked the agent concerned for copies of relevant written advice given to the applicant.  The agent provided copies of a number of documents, but none of these mentioned any commission receivable from AITM.  AITM had confirmed that a commission was payable.

38. Although the Tribunal accepts that the agent failed to disclose in writing that he would receive a commission, it is not satisfied that he failed to disclose to the applicant the impact of the cancellation of enrolments at Griffith and Southbank, and of the subsequent enrolments in the Vocational Education and Training sector.  The Tribunal can envisage that it may have been in the agent’s interests to fail to mention the commission payable to him, but it cannot envisage a corresponding advantage from a failure to mention the need to make a further application, given that an agent would have a legitimate reason to charge a fee for assisting with a new visa application.

39. In particular, the Tribunal is not satisfied that the applicant changed courses because the agent suggested he should.  Rather, the Tribunal believes that the applicant had decided to change courses and approached the agent to seek his help in achieving that aim.

1. As noted above, the breach of Condition 8516 lasted for a period of approximately 5 months.  Moreover, the breach was drawn to the applicant’s attention approximately 10 weeks before the visa was cancelled, but the applicant did not rectify the breach in that time.  The Tribunal regards a breach of approximately 5 months as a significant one and gives considerable weight to this factor.

   The degree of hardship that may be caused

2. Cancellation of the visa will in all likelihood mean that the applicant will have to leave Australia without obtaining any further educational qualification beyond the Certificate IV qualification already obtained.  The Tribunal accepts that this may indirectly cause financial hardship, given that he may not be able to take up employment opportunities which would be available if he had higher qualifications. 

3. In his written submissions and in his oral evidence, the applicant has referred to the fact that his family has spent a considerable sum of money to send him to Australia to study and had to pay his living expenses while he is here.  The Tribunal accepts that, if the visa is cancelled, some of that money will have been wasted.  However, that money has already been spent, and cancellation will not cause any additional financial cost.

   The applicant’s past and present conduct towards the Department

4. 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

5. There is no evidence to suggest that there would be any consequential cancellations of visas under s.140.

   Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

6. Cancellation of the visa could, in theory result in the applicant becoming unlawful and subject to detention, if he were to remain in Australia without a further visa after the expiry of his current bridging visa.  However this is a hypothetical situation, and the Tribunal has no reason to believe that he would remain in detention for an indefinite period.

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

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

   The impact on any victims of family violence

8. There is nothing to suggest that family violence is an issue in the present case.

   Any other relevant matters raised by the visa holder.

9. The applicant has said that, if he has to return home without completing his studies, he will “carry a high degree of shame” because of the cancellation of his visa and because he will have not taken his chance to help his family to a better future.  He said that his parents would also be seen as fools that having wasted their money on him.  The Tribunal has taken this into account, but considers it to be a factor of relatively little weight in comparison to other factors considered by the Tribunal, particularly the extent of the breach of Condition 8516.

   Conclusion

10. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Bruce MacCarthy
    

    Member

    ATTACHMENT

    Schedule 2 to the Migration Regulations 1994

    573.223

    (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)     the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)the applicant’s circumstances; and

    (ii)the applicant’s immigration history; and

    (iii)if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)any other relevant matter; and

    (b)     the applicant meets the requirements of subclause (1A) or (2).

    (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.

    (2)If the applicant is not an eligible higher degree student, or does not have 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 in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; 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 access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.

    573.231If the applicant is not an eligible higher degree student, or does not have a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

    (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.

    Schedule 8 to the Migration Regulations 1994

    8516

    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.