1502463 (Migration)

[2016] AATA 3708

1502463 (Migration) [2016] AATA 3708 (1 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harmeet Singh

CASE NUMBER:  1502463

DIBP REFERENCE(S):  BCC2014/3049537

MEMBER:David Corrigan

DATE:1 April 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 01 April 2016 at 5:02pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 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)(a) on the basis that the circumstances which permitted the grant of the visa no longer exists. 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 30 March 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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)(a). 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)(a) if the Minister or the Tribunal is satisfied the circumstances which permitted the grant of the visa no longer exist. The proper construction of s.116(1)(a) was discussed in detail by the Full Federal Court in MIMA v Zhang (1999) 84 FCR 258. The Court held that s.116(1)(a) is concerned with a material change in the circumstances (per Merkel J at [74]). The relevant circumstance is the subject of the ministerial reflection and does not extend to the Minister’s own state of mind (per French and North JJ at [54]).

8. A visa may be cancelled under s.116(1)(a) if the Minister or the Tribunal is satisfied the circumstances which permitted the grant of the visa no longer exist. The proper construction of s.116(1)(a) was discussed in detail by the Full Federal Court in MIMA v Zhang (1999) 84 FCR 258. The Court held that s.116(1)(a) is concerned with a material change in the circumstances (per Merkel J at [74]). The relevant circumstance is the subject of the ministerial reflection and does not extend to the Minister’s own state of mind (per French and North JJ at [54]).

9. It was a criterion for grant of the applicant’s Subclass 573 visa if cl.573.223(1A) does not apply that the applicant is enrolled in, or the subject of a current offer of enrolment in a principal course of a kind specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application: cl.573.231. 

10. Clause 573.223(1A) relevantly provides:

    (1A) If the applicant is an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

    (a)      the applicant gives the Minister evidence that the applicant has:

    (i)      a level of English language proficiency that satisfies the applicant’s eligible education provider; and

    (ii)      educational qualifications required by the eligible education provider; and

    (b)      the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

    (i)      the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

    (ii)      any other relevant matter; and

    (c)      the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

    (i)      the costs and expenses required to support the applicant during the proposed stay in Australia; and

    (ii)      the costs and expenses required to support each member (if any) of the applicant’s family unit.

11. Eligible higher degree student is defined as clause 573.111 as follows:

    eligible higher degree student means an applicant for a Subclass 573 visa in relation to whom the following apply:

    (a)      the applicant is enrolled in a principal course of study for the award of:

    (i)      a bachelor’s degree; or

    (ii)      a masters degree by coursework;

    (b)      the principal course of study is provided by an eligible education provider;

    (c)      if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study:

    (i)      the applicant is also enrolled in that course; and

    (ii)      that course is provided by the eligible education provider or an educational business partner of the eligible education provider.

12. The applicant was granted a Subclass 573 Higher Education Sector visa on 15 January 2014 at Victoria University in a Diploma of Business (Enterprise) and a Bachelor of Business (Management) as an eligible higher degree student under the Streamlined Visa Processing (SVP) arrangements.  On 24 June 2014, the applicant’s enrolment in the Diploma and Bachelor course were cancelled after he had notified cessation of studies.  The applicant enrolled in Certificates III and IV in Commercial Cookery and a Diploma of Hospitality at Technical Institute of Victoria (TIV) and on 2 July 2014 as per the submitted Confirmation of Enrolment (CoE), he enrolled in a Bachelor of Business at Acknowledge Education Pty Ltd (Stotts) for the period 25 July 2016 to 30 June 2016.  On 14 November 2014, he was sent a Notice of Intention to Consider Cancellation (NOICC).  His enrolments in these courses were later cancelled by TIV and Stotts. 

13. Stott’s and TIV are not eligible education providers or educational business partners (IMMI 14/007 or indeed any instrument). The evidence before the Tribunal shows that on 24 June 2014 the applicant ceased to be enrolled in another course of study to be taken before, and for the purposes of, the principal course of study that was provided by an eligible education provider or an educational business partner of the eligible education provider and he has not been enrolled in such a course since.  He therefore at the time of the delegate’s decision and this decision was and is not an eligible higher degree student and therefore the circumstances which permitted the grant of the visa no longer exist.

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

15. 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’.

    The purpose of the visa holder’s travel to and stay in Australia

16. The applicant studied a Diploma of Business when he first came to Australia and the Tribunal is satisfied that the applicant travelled to Australia with the intention to study and has given this factor some weight in his favour.

    The extent of compliance with visa conditions

17. The Tribunal has no evidence before it that the applicant has not complied with his visa conditions.  It considers this is a consideration that is in his favour and it has taken this into account and given it some weight.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

18. The applicant told the Tribunal that he was convinced by a friend that there were more opportunities in the food industry in India and that this friend referred him to an education agent (Mr Harry) in Footscray.  The applicant said he was unaware of SVP and that Mr Harry showed him that he could change courses.  The applicant said he did not consult the Department on this issue.  The applicant said he undertook the Certificate III course at TIV and that when he received the NOICC, he went back to Mr Harry who advised him to apply for a Subclass 572 visa but this was refused by the Department.  The applicant’s agent at the hearing later commented that this was a Subclass 573 visa application.  The delegate’s decision supports that the applicant did apply for a Subclass 573 visa on 26 November 2014 and this was later refused as the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student and that he intended to stay in Australia temporarily.

19. The Tribunal has taken into account that the applicant did not consult the Department nor a migration agent when he decided to change courses and it considers it is his obligation to be aware of the SVP system and it finds that there were not extenuating circumstances beyond his control which led to the ground existing. 

    The degree of hardship that may be caused to the visa holder and any family members: decision-makers should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision

20. The Tribunal has taken into account that the applicant may be required to return to his home country if the visa is cancelled.  He referred to spending $12,500 on fees to the educational providers and to having spent $36,000 on living expenses since January 2014 which I accept.  I also accept that his parents will be disappointed.  However, the applicant has given evidence that his father has his own (small) business and his father was sending him $700-$800 per month (which is a sizeable amount in India).  The applicant is a young adult man with no family of his own to support.  The Tribunal does not consider, on the evidence before it, that cancellation will cause any substantial degree of hardship (including financial, psychological or emotional) to the applicant and family members and has given only limited weight to this factor.

    The visa holder’s past and present behaviour towards the Department (for example, whether a person has been truthful in statements or co-operative in their dealings with the Department)

21. The Tribunal has no evidence before it that the applicant’s past and present behaviour towards the Department has been untruthful or unco-operative.  It considers this is a consideration that is in his favour and it has taken this into account.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140

22. This is not relevant.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

23. The applicant did not raise any matters that indicated that this was an issue and the Tribunal finds there would not be any breach of any obligations under relevant international agreements and the Tribunal finds this factor is not relevant.

    The impact of cancellation on any victim of family violence, or if family violence is a factor

24. The applicant did not raise any matters that indicated that this was an issue and the Tribunal finds this factor is not relevant.

    Whether there are mandatory legal consequences to a cancellation decision, such as:

    ·     whether indefinite detention is a possible consequence of the cancellation decision , if a person cannot be removed from Australia consistently with Australia’s non-refoulement obligations 

    ·     whether there are provisions in the Act which prevent the person from making a valid application for a visa without the Minister personally intervening (for example, s46A, s46B, s48, s48A, s91E, s91K and s91P of the Act) and

    ·     whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and liable to be detained under s189, and liable for removal under s198.

25. The applicant told the Tribunal that he was the current holder of a Bridging visa.  The Tribunal therefore finds that the applicant will not become an unlawful non-citizen as a direct result of the cancellation of the student visa and be liable to be detained and removed.  Even if this does eventuate, the Tribunal has given this factor only limited weight in his favour.  There are no provisions of the Act that that prevent him from validly applying for a protection visa without the Minister personally intervening and the Tribunal has given only little weight to other provisions that would prevent him from applying for other visas.  The Tribunal is satisfied, on the evidence before it, that indefinite detention is a possible consequence of the cancellation decision because he cannot be removed from Australia consistently with Australia’s non-refoulement obligations.  It considers this is not a factor that supports not cancelling the visa. 

    Any other relevant matters

26. The Tribunal considers the applicant’s study and family history is indicative that he did not ever intend to study at the higher education level for which the visa was granted.  The applicant told the Tribunal that in India he had obtained a Diploma of Computing and that his father had a clothes shop and he had come to Australia to do business courses to help his father upon return.  However, despite this educational and family business background, the applicant pulled out of his Diploma of Business (Enterprise) and his Bachelor of Business (Management) after only five months and enrolled in unrelated courses in cookery and hospitality in this.  The applicant said he did cooking at home in India and was convinced by a friend that involvement in food would provide a good profit.  In his statement, he said that Mr Harry persuaded him that there were better career opportunities.  His response to the NOICC and his evidence at the hearing referred to him wanting to open a restaurant in India.  The applicant told the Tribunal that if his visa was reinstated, he would seek enrolment in VET level courses in cookery and hospitality and enrolment in a Bachelor of Hospitality at Victoria University (a SVP provider).  The Tribunal found the applicant’s evidence on these matters unconvincing and in the light of his previous study and family business history it has considerable concerns of his intention to study at the higher education level.  The Tribunal considers this supports the cancellation of his visa.

27. The Tribunal has taken into account in the applicant’s favour, that shortly after the cancellation of his courses at Victoria University, on 2 July 2014, he enrolled in a Bachelor of Business at Stott’s and other courses at TIV.  This indicates that he met the alternative criteria in cl.573.231 in that he was enrolled in, in a principal course of a kind specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application (IMMI 12/037). The applicant continued to be enrolled in these courses until his visa was cancelled.[1]  But for a brief period of a week, he met condition 8516 in that he continued to be a person who satisfied the criteria for the grant of the visa.  It considers this is a consideration that is in his favour and it has taken this into account.

    [1] See Singh v MIBP [2015] FCCA 2998 (Judge Smith, 27 November 2015).

28. The Tribunal has taken into account that his bridging visa granted on 7 July 2015 has condition 8207 (no study) attached to it which has meant that he has not been able to obtain enrolment in a SVP or any other type of course. It has not given adverse weight to the fact that he has not currently enrolled.

29. The matter is finely balanced, but considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    David Corrigan
    Member