1501987 (Migration)

[2016] AATA 3341

1501987 (Migration) [2016] AATA 3341 (24 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ashviben Sanjaykumar Gandhi

CASE NUMBER:  1501987

DIBP REFERENCE(S):  BCC2014/3210622

MEMBER:Dr Hannah McGlade

DATE:24 February 2016

PLACE OF DECISION:  Perth

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

Statement made on 24 February 2016 at 11:25am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 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 applicant had not complied with a condition of her visa. The applicant made this finding based on the PRISM record that showed the applicant was no longer enrolled in a bachelor or master’s degree course and was not enrolled in a course of study that is a principal course of a type specified by the Subclass 573 visa by the Minister in an instrument under regulation 1.40A. 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 10 February 2016 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 their visa. In this instance condition 8516 provides that the visa holder must continue to be a person who would satisfy the primary or secondary criteria for the grant of the visa. The criteria for the subclass 573 visa include subclause 573.231 or subclause 573.223(1A), according to which the applicant must be enrolled in, or have a current offer of enrolment in, a course of study that is a principal course specified by the Minister in an instrument. The subclass 573 visa requires applicant to be enrolled in a course of study at the bachelor or master’s degree level.

7. The applicant was granted the subclass 573 visa on the basis of her enrolment in a Bachelor of Science. The applicant subsequently cancelled her enrolment in the Bachelor of Science degree and enrolled in a Certificate IV in Patisserie, Diploma of Hospitality and Associate Degree of Hospitality. She had no enrolment in the required course of study, being a Bachelor or Master’s degree course.

8. As the applicant did not have the required enrolment in the principal course of study, 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

9. 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’.

10. The applicant told the tribunal that she completed a Foundation course after arriving in Australia but that her results were below average and that is why she could not continue to progress towards a Bachelor of Science. Her family were encouraging her to study business as they own a shop and retail business. She has completed a Diploma in Hospitality but is no longer studying as she wanted to await the outcome of the tribunal review process. The applicant was offered enrolment in an Associate Degree in Hospitality commencing 15 February 2016 but she could not provide the tribunal with a Certificate of Enrolment for this course as she had not taken up the letter of offer deciding instead to wait on the decision. She said that she could commence this study.

11. The applicant told the tribunal that she wanted to continue to study in Australia. She said that her parents would not support her to undertake any further studies if her visa was cancelled and she was sent home. They would probably arrange for her to be married and she would have no chance to study again. She needs to have a degree.

12. The tribunal discussed with the applicant the fact that she was presently not studying at all, as she had not taken up the offer of enrolment in the Associate Degree in Hospitality. This suggested to the tribunal that she may not be committed to studying in Australia, and in which case the tribunal would be unwilling to set aside the visa cancellation. The tribunal is of the view that an applicant should clearly be undertaking studies in Australia, or at least have the ability to undertake studies in Australia, in order to hold the 573 visa as this is a visa for the purpose of studying in Australia.

13. The tribunal gave the applicant an opportunity following the hearing to support her claim that she could commence the Advanced Degree in Hospitality by providing a Certificate of Enrolment (COE). The applicant then advised that she was not able to obtain a COE.

14. The tribunal accepts that the applicant may suffer some hardship if her visa is cancelled as her family may not support her to undertake further studies, and they may in fact want her to be married instead. This possible hardship is not sufficient to set aside the visa cancellation as the tribunal is not satisfied that the applicant is committed to actually studying in Australia. She has no current enrolment and is not studying even though she had an offer of enrolment previously in an Associate Degree course. While she told the tribunal she had not taken up further studies due to the hearing process and her wish to know the status of her review and visa, the tribunal still considers it possible or even likely that the applicant has no genuine commitment to undertake further study in Australia. As she is not studying, and not able to show any evidence that she has ability to study in Australia through providing a COE the tribunal is not satisfied that she will undertake study in Australia.

15. The tribunal also notes that the applicant has changed her study plan dramatically from the Bachelor of Science to the Hospitality sector and she is no longer enrolled or seemingly able to be enrolled in any course of study.

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

    DECISION

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

    Dr Hannah McGlade
    Member