1501623 (Migration)

[2016] AATA 3018

1501623 (Migration) [2016] AATA 3018 (19 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harmanjit Singh

CASE NUMBER:  1501623

DIBP REFERENCE(S):  BCC2014/2893618

MEMBER:Dr Hannah McGlade

DATE:19 January 2016

PLACE OF DECISION:  Perth

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 19 January 2016 at 11:36am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 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) on the basis that the applicant had breached condition 8516 of his visa as he was no longer enrolled in a course of study that is a principal course of study specified for the Subclass 573 visa by the Minister. 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 December 2015 to give evidence and present arguments.

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

5. 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

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). 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 the visa holder to continue to be a person who would satisfy the primary or secondary criteria for the grant of the visa.

8. The delegate cancelled the review applicant’s visa on the basis that, according to the PRSIMS information system, he was no longer enrolled in the required course of study. As such, he would not be a person who would continue to meet subclause 573.231 or 573.223(1A) and would not have been compliant with condition 8516.

9. The tribunal is satisfied that the ground for cancellation exists. The applicant does not dispute that he cancelled his original Certificate of Enrolment in the required courses. He said that he had failed his exams, was ‘totally stressed’, purchased a ticket to return home but his family in India told him to stay and try another field of study. He then transferred to the hospitality field.

10. The tribunal finds on this evidence and that of the PRISM records that the applicant was not enrolled in the required course of study in 2014 and in breach of condition 8516.

11. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1) 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

12. 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’.

13. The applicant gave evidence that his career ‘will be destroyed’ if the visa is cancelled and he has to return home to India without achieving his qualifications. His parents have expended more than $30,000 in his education to date. He is commencing a Diploma in Hospitality in 2016 and will commence the Bachelor of Business degree in November of 2016. He has provided evidence of his enrolment in this higher education course.

14. The applicant has completed a Certificate III and IV in Commercial Cookery.

15. The applicant told the tribunal that he has been working in accordance with the visa restrictions. He provided his bank statements which indicated to the tribunal that he had not been over working or breaching visa conditions in this regard.

16. The tribunal accepts the applicant’s claim that he found his original course of study too hard and that was why he cancelled his original course of study and decided to return home. He gave the tribunal a copy of his airline ticket dated 22 June 2014 showing he had purchased an airline ticket to return to India as he claimed.

17. Having considered the considerable sum of money the applicant’s family has invested in his Australian education, his evidence of study and completion of a Certificate II and IV in Commercial Cookery, and his enrolment in a Diploma and Bachelor course, the tribunal has decided to set aside the visa cancellation.

18. The tribunal considers that the applicant is a genuine student and that the visa cancellation in his circumstances would cause undue hardship to him and his family.

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

    DECISION

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

    Dr Hannah McGlade
    Member