1500902 (Migration)

[2015] AATA 3417

1500902 (Migration) [2015] AATA 3417 (27 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ankit Bharatbhai Patel

CASE NUMBER:  1500902

DIBP REFERENCE(S):  BCC2014/2892794

MEMBER:Hannah McGlade

DATE:27 August 2015

PLACE OF DECISION:  Perth

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

Statement made on 27 August 2015 at 9:59am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 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 visa applicant had not complied with the conditions of his visa in regards to the requirement that he have an enrolment in a higher education course as required under the Subclass 573 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 26 August 2015 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent.

5. 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

6. 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?

7. 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 is attached to the applicant’s visa. This condition requires that the applicant is enrolled in, or has an offer of enrolment in, a course of study that is a principal course: cl.573.231. The Subclass 573 visa is a visa for higher education students and it requires that the applicant is enrolled in (or has a current offer of enrolment) in the higher education courses, such as the bachelor or master’s degree.

8. According to the decision record, the applicant arrived in Australia on 28 July and cancelled his enrolment in the Bachelor of Business course less than two months later on 2 September 2013. The applicant does not disagree with the delegate’s finding in this respect. In response to the NOICC the applicant advised the department in writing on 11 November 2014 that when he started his Bachelor of Business degree he had some difficulties in communication not being well versed in spoken English. He ran into difficulties with assignments and was not able to perform well enough to cope with the standard of English required. His friends suggested he move to West Australia. He began studying a Certificate IV in Business under a course in Diploma of Business management leading to an Advanced Diploma in Business Management. It was then his college informed him that he was in breach of his visa conditions and could not pursue this course of study. He then enrolled in a Diploma of Hospitality. He commenced this stream of study with a Certificate III in Commercial Cookery. The applicant has finished the Certificate III course. He has no enrolment in a Bachelor Course but his college has told him that if he continues studying they will provide him with a Certificate of Enrolment for a Bachelor course.

9. The tribunal finds that the applicant has not been enrolled in a Bachelor course since he cancelled his course in September of 2013. He did not have an offer of enrolment in another Bachelor course at this time (or any time after). As such, it is clear that he has not complied with the requirements of the Subclass 573 visa that he be enrolled, or have an offer of enrolment, in a Bachelor course.

10. 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

11. 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’.

12. The applicant has explained that the breach occurred in the context of his difficulties in studying and particularly in relation to his lack of adequate English speaking skills.

13. He also claims that education providers have not given him proper advice and have enrolled him in their college without ensuring that his visa conditions were met.

14. The applicant told the tribunal that he will experience hardship if the visa is cancelled. The main issue is the money that has been spent coming to Australia and on the studies. This has also taken his time and he will have to go back to India and study again.

15. According to the applicant, the College he is now enrolled in is ready to offer his admission to a Bachelor course.

16. The applicant told the tribunal that his current 573 visa will expire on 30 August 2016.

17. The tribunal considers that the applicant did not take reasonable steps to ensure that he met his visa conditions, being the requirement that he be enrolled in or have a current offer of enrolment in a higher education course, being a Bachelor or Master’s degree course.

18. The tribunal also notes that the applicant has been in Australia for now over two years on a 573 visa which is specifically for students undertaking studies in the higher education sector. He has made no progress at all in a Bachelor degree, and has only completed a Certificate III in Commercial Cookery. His visa will expire in one year, at a time when he would likely still be studying at the Certificate or Diploma level (and not the Bachelor level). He has no current offer of enrolment in a Bachelor course. His advice to the department was that he did not have the required level of English to successfully undertake the Bachelor course in 2013 and that is why he cancelled the course. This evidence leads the tribunal to consider that the applicant did not have the capacity and/or commitment to study at the higher education level.

19. The tribunal has considered the hardship that will be caused to the applicant as a result of the visa being cancelled. This includes the money he has spent on studying in Australia and the time he has spent studying in Australia. The tribunal considers that the applicant was required to be studying or engaged in studies leading to the award of a bachelor or master’s degree under the conditions of his visa. He has not ensured that he met the conditions in this regard and has undertaken a course of study relevant to the vocation sector. The hardship that will result does not sufficiently outweigh the tribunal’s concern that he has not had the capacity or commitment to study at the higher education sector, for which the visa was granted. The tribunal does not consider the circumstances advanced by the applicant, namely his lack of knowledge of the visa conditions, his difficulties in studying at the higher education level due to limited English skills, reported wrongful advice by colleges and the hardship that will result from the visa cancellation, are sufficiently persuasive for the tribunal to exercise the discretion in favour of the applicant. The tribunal considers that the applicant has lacked proper regard for his visa conditions, has made little progress in studies and no progress in the higher education sector notwithstanding that he arrived in Australia more than two years ago, and appears to lack capability and/or commitment to studying at the higher education sector level, which is the requirement of the Subclass 573 visa. Moreover, his visa will expire in one year’s time and he will at that time still not be studying at the Bachelor or Master’s level, which is the purpose of the Subclass 573 visa.

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

    DECISION

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

    Dr Hannah McGlade
    Member