1502310 (Migration)

[2016] AATA 3274

1502310 (Migration) [2016] AATA 3274 (16 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manpreet Singh

CASE NUMBER:  1502310

DIBP REFERENCE(S):  BCC2014/3024326

MEMBER:Christine Kannis

DATE:16 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 16 February 2016 at 1:45pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 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 issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 16 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. In this case, the relevant ground is 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. On 4 February 2014 the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8516 attached. Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In this case he would have had to meet, among other criteria, the requirements of cl.573.223(1A) of Schedule 2 to the Regulations 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.  If cl.573.223(1A) did not apply, he would have had to satisfy the requirements of cl.573.231 that he was enrolled in, or the subject of a current offer or enrolment in a principal course of a kind specified for that subclass by the Minister in an instrument under r.140A that was in effect at the time of the visa application: cl 573.231. The relevant instrument in this case relevantly included a Bachelor Degree course in the courses specified for a Subclass 573 visa.

7. The applicant’s visa was granted on the basis that he would study a higher education course, a Bachelor of Business.

8. Information from the Provided Registration and International Student Management System (PRISMS) shows that the applicant’s enrolment in a Bachelor of Business course was cancelled on 26 May 2014.

9. The Tribunal finds that when the applicant ceased to be enrolled, or to be the subject of an offer of enrolment, in a higher education course, he ceased to be a person who would satisfy the primary criteria for the grant of the visa. As such, the Tribunal finds that the applicant breached condition 8516 of his visa.

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. On 14 November 2014 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) on the basis that the delegate considered that the applicant did not comply with condition 8516 of his visa, because he ceased to be enrolled in a higher education sector course. The applicant provided a written response by email to the NOICC dated 18 November 2014 (his response).

13. In his response the applicant said that he had made “wrong decisions under wrong guidance”. He said that he ceased his course because of stress, depression and ill health. He said his father told him to return to India and he booked a ticket but then changed his mind because he did not want to return without completing his studies. The applicant told the Tribunal that when his enrolment in the Bachelor of Business was cancelled he had decided to return to India. He said he then changed his mind and decided to stay in Australia.

14. The applicant told the Tribunal that he came to Australia in February 2014 and lived with his cousin in Brisbane. He said after one or two months his cousin left Brisbane to live in Tasmania. He was alone in Brisbane and found it difficult to be in living alone a new place.

15. The applicant said he discussed his difficulties with his father. His father told him he would support whatever decision he made however he recommended the applicant move to Perth and have a little break from study.  In his response the applicant said that “a guy” gave him wrong guidance. He told the Tribunal that this person was a friend. The applicant said that “somebody” told him to have his enrolment cancelled if he wanted to move to Perth.

16. The applicant told the Tribunal that an agent in India assisted him with his visa application. He did not contact the agent to discuss ceasing his Bachelor of Business course and only discussed this with his father and with friends.

17. The applicant said that after his enrolment was cancelled on 26 May 2014 he wanted to enrol again but referred to his “circumstances” and said that it would take time and that he received the NOICC before he could enrol again.

18. The Tribunal noted that the applicant commenced a Certificate IV in Commercial Cookery (Certificate IV) on 2 June 2014 and asked him about this enrolment. He said that friends told him that it was an easy course he could complete before moving to Perth. He moved to Perth in November 2014.

19. The Tribunal asked the applicant whether he saw a doctor about the stress, depression or ill health he referred to his response. He said he did not see a doctor.

20. The Tribunal considered the applicant’s evidence that he relied on the wrong advice of others and made “wrong decisions under wrong guidance”. The Tribunal noted that despite consulting an agent in India prior to travelling to Australia, the applicant did not discuss the important decision to cease his studies with an agent before doing so. The Tribunal considers it was his responsibility to ensure he understood the conditions attached to his visa and to ensure that he complied with those conditions.  The applicant’s ignorance of his visa conditions and his reliance on incorrect advice are not reasons not to cancel the visa.

21. The Tribunal has considered the purpose of the applicant’s travel and stay in Australia, the circumstances in which the ground of cancellation arose and the reason and extent of the breach.

22. The applicant came to Australia for the purposes of study. His visa was granted on the basis that he would study a Bachelor of Business. The applicant commenced   study in the course however his enrolment was cancelled four months later and PRISMS shows he commenced   the Certificate IV course on 2 June 2014. This cookery course was not a higher education course and his enrolment in it was cancelled on 10 October 2014.

23. The purpose of the higher education student visa is to enable the student to undertake study at a higher education level. The applicant ceased to be enrolled in a higher education course and has not undertaken any higher education study since the date of cancellation of his enrolment in the Bachelor of Business course.

24. The breach of condition had lasted for several months before the applicant’s visa was cancelled. The applicant was not enrolled in a higher education course or any course at all when he was sent the NOICC. The Tribunal regards this as a significant breach of his visa condition.

25. With respect to the degree of hardship, the applicant told the Tribunal that his father said he will support him in whatever he chooses to do. He said he will be distressed if he has to return to India because it will be “hard” to start the visa process all over again and he will feel like he has wasted a lot of time.

26. The Tribunal accepts that the applicant may suffer some personal emotional hardship in returning to India. Nevertheless, the Tribunal is prepared to accept that hardship may be caused by the cancellation because he will not be able to pursue study in Australia.

27. Nothing adverse is known about the applicant’s past and present conduct towards the Department. The cancellation will not affect any other person’s visa and will not result in a breach of Australia’s international obligations. Family violence is not an issue. The Tribunal is prepared to accept that hardship may be caused by the cancellation. The Tribunal is not satisfied that the applicant has a genuine intention of pursuing higher education study in the future.

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

    DECISION

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

    Christine Kannis
    Member