1501759 (Migration)

[2016] AATA 3340

1501759 (Migration) [2016] AATA 3340 (2 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abu Nagpal

CASE NUMBER:  1501759

DIBP REFERENCE(S):  BCC2014/2971643

MEMBER:Sean Baker

DATE OF ORAL DECISION:  2 March 2016

TIME OF ORAL DECISION:  10.32 AM

DATE OF WRITTEN STATEMENT:         2 March 2016

PLACE OF DECISION:  Melbourne

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 02 March 2016 at 5:12pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 4 February 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 delegate found the applicant had breached condition 8516 which was attached to the applicant’s 573 Higher education sector visa, and found that the factors against cancellation did not outweigh those in favour of cancellation and cancelled the 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. The applicant provided a copy of the delegate’s decision with his application for review.

3. The Tribunal gave its decision on the review at the conclusion of the hearing held on 2 March 2016. The following are the reasons for that decision.

4. The applicant appeared before the Tribunal on 2 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Nagpal, the applicant’s wife.

5. The applicant was represented in relation to the review by his 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. 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. This condition specifies that the holder must continue to be a person who would satisfy the criteria for the grant of the visa.

   Does the ground for cancellation exist?

8. The Departmental decision identified that the Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 14 January 2015. The Departmental decision sets out that on 20 December 2012 the applicant satisfied the primary criteria for the grant of the 573 visa and met cl.573.231 or cl.573.223(1A) to be granted the visa. These clauses require the applicant to be enrolled in a bachelor or master degree course, or enrolled in or the subject of a current offer of enrolment 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.

9. According to the delegate’s decision, the departmental systems indicated that the applicant at the time of the NOICC was no longer enrolled in a bachelor or master degree course and was therefore not an eligible higher degree student and 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. That decision is silent on whether the applicant held a current letter of offer. I discussed this with the applicant at hearing. He presented a letter of offer from Stott’s college for a Bachelor of Business, dated 5 September 2013. He gave evidence that his Master of Information Technology enrolment was cancelled on 8 October 2013, and this evidence accords with the information from department systems.

10. It is not clear whether this offer letter is ‘a current offer of enrolment’, or was at the material times. I note that the offer letter does not indicate that the applicant has paid a deposit to secure his place, and his evidence was that as far as he was aware, he had not paid his agent any money as a deposit. In the event, he did not take up this offer letter, instead seeking and gaining enrolment at Cambridge for a Bachelor of Business at a later date, after the NOICC was issued. However, the commencement date for the Stott’s College was 27 July 2015, and it is not beyond the bound of possibility that at the time of the issuing of the NOICC, the applicant did, in fact, hold a ‘current offer of enrolment’ for the purposes of cl.573.231. I draw from the reasoning in Singh v Minister of Immigration [2015] FCCA 2998 that my consideration should be whether the applicant satisfies cl.573.223(1A), and if not, whether the applicant then meets the criteria set out in cl.573.231.[1] I note that at all times relevant to this applicant, a Bachelor degree is a course specified for subclass 573 visas by the Minister in an instrument made under r.1.40A and in force at the time the application was made.[2] On considering this evidence, it appears that the applicant may, from 5 September 2013 until the issuing of the NOICC and cancellation of his visa, have held a current offer of enrolment in a course of study that is a principal course, being the Bachelor of Business from Stott’s College, a type specified by the Minister in an instrument made under r.1.40A and in force at the time the application was made, and that he therefore would in that time, have met cl.573.231.

    [1] Singh v Minister of Immigration [2015] FCCA 2998 at [79] – [80].

    [2] See Immi 14/015 and prior to that Immi 12/037.

11. On this evidence and reasoning, it would appear that the applicant has not, in fact, breached condition 8516, as he has been enrolled in, or the subject of a current offer of enrolment in a relevant course up until the time his visa was cancelled on 4 February 2015.

12. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(b) exists. It follows that the power to cancel the applicant’s visa does not arise.

13. Ordinarily, this would be the end of the consideration. However, in this case, there were such compelling reasons for the cancellation to be set aside, that I have set these out below as an alternate basis for the decision.

    Consideration of discretion

14. 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’.

15. I discussed with the applicant his reasons for travelling to Australia. He had a background in It from India, having completed an advanced diploma in hardware technology and a Bachelor of IT in India. He then attempted the Master of IT here, and did well enough in the networking subject, which was his field, but failed the other two. He wished to change course, and consulted with a representative from the firm CECA, who he states told him that he could enrol in a certificate III, IV and Bachelor of Business. The representative did not explain that the applicant should remain enrolled in a higher education level course. I accept the evidence of the applicant and find that in this case he relied on the mis-advice of the agent. Even so, this alone would not be enough to indicate that the visa should be reinstated. However, the contemporaneous letter of offer from Stott’s evidences that the applicant had then, and appears to have continued at all relevant times, to have a genuine intention to study at the higher education level. he gave cogent reasons why the Bachelor of Business would assist him to work in his father’s business as a wholesaler and retailer of pharmaceuticals.

16. I note that the applicant has not been idle, and is currently enrolled at Cambridge to commence a Bachelor of Business (management) next month, and expressed a desire and intention to start his studies. I accept his evidence on this.

17. I took evidence from the applicant and his wife on the hardship continued cancellation would cause. I was able to see the mutual regard and love they have for each other, and they each have considerable contact with the others’ family. They expressed a strong wish for the applicant’s wife to visit his family in India, but had not done so because the applicant was on a bridging visa that did not permit travel. The applicant indicated that it was his brother-in-laws birthday that day. The couple indicated that there would be serious and significant hardships to their relationship were the visa to be cancelled.

18. The applicant indicated that he had not breached any other conditions on his student visa and I accept this evidence.

19. I have weighed these factors against the possible breach here. Even were I to accept that the applicant was in breach of condition 8516 from the cancellation of his enrolment in his Master of IT on 8 October 2013 until the issue of the NOICC and his enrolment in the Bachelor of Business at Cambridge, which I do not, I find that any such breach was inadvertent, caused at least partially by the mis-advice from the applicant’s representative, and outweighed by the hardship this cancellation would cause to the applicant and his wife, which I give significant weight to. I find that the applicant has a genuine intention to study at the higher education level and also give this significant weight.

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

    DECISION

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

    Sean Baker
    Member