1502497 (Migration)

[2015] AATA 3456

1502497 (Migration) [2015] AATA 3456 (8 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jobanjeet Singh

CASE NUMBER:  1502497

DIBP REFERENCE(S):  BCC2014/3010624

MEMBER:Mr S Norman

DATE:8 October 2015

PLACE OF DECISION:  Sydney

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 08 October 2015 at 9:55am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 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). The applicant applied for merits review by the (now) Administrative Appeals Tribunal on 19 February 2015.

2. The delegate cancelled the visa under s.116(1)(b) of the Act, on the basis that the applicant did not continue to satisfy the primary criteria for the grant of the visa and did not comply with condition 8516. 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 2 October 2015 to give evidence and present arguments. 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

4. 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) of the Act. 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?

5. 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. Condition 8516 states:

   The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

6. The criteria for the grant of the Student visa previously held by the applicant, included subclause 573.231 & 573.223(1A) of Schedule 2 of the Migration Regulations. They state:

   Reg 573.1 - Interpretation and preliminary

   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.

   and:

   Reg 573.231

   If the applicant is not an eligible higher degree student, or does not have a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:
   (a)      the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and
   (b)      the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:

   (i)      made under regulation 1.40A; and

   (ii)      in force at the time the application was made.

7. The delegate was satisfied the applicant met the requirements for the grant of the Subclass 573 – Higher Education Sector visa and granted same on 9 January 2014, with condition 8516 attached.

8. Subsequently, and after considering PRISMS, the Department delegate was satisfied the applicant was no longer enrolled in a Bachelor’s degree course or that he was 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 regulation 1.40A.  Therefore, the delegate was satisfied the applicant had not continued to be a person who would satisfy the primary criteria for the grant of the visa as he had not complied with condition 8516. By NOICC dated 25 November 2015,[1] the applicant was advised that his Subclass 573 Student visa may be cancelled (for the reasons set out above).

   [1] DIBP file – folio 23.

9. Amongst other things, after the applicant was advised that his Subclass 573 visa may be cancelled, he contacted the American College “who is participating under SVP program in association with Alphacrucis College.” They had already issued the applicant a “COE for a Diploma of Management and Advanced Diploma of Management”.  The applicant is now waiting for a COE “for Degree program which would eventually take some time.”  A letter dated 28 November 2014 from American College of Australia was lodged,[2] advising that the applicant was enrolled first, in the course of Diploma of Management (start date 1/12/2014 - end date 26/06/2015); and second, Advanced Diploma of Management (start date 6/07/2015 – end date 5/02/2016).  It was also claimed the applicant will commence his Bachelor of Business study with Alphacrucis College on 29 February 2016.  However, the applicant was still waiting for his COE from Alphacrucis College which would take 6-8 weeks.

   [2] DIBP file – folio 18.

10. The delegate noted that holders of the Subclass 573 visa are allowed to change their course and field of study if they wish. However, the applicant changed to a course that did not meet the requirements of subclause 573.231 or 573.223(1A) and therefore, he did not continue to meet the criteria for the grant of his Subclass 573 visa.  The delegate explained that the holder of the Subclass 573 visa is expected to be starting at a higher educational level and not at a lower level that may be suitable for the Subclass 572 visa.  It was stated that if the intention was to study at the Diploma level it was more appropriate for the applicant to have obtained a Subclass 572 visa.  However, as the applicant had changed his course and was not meeting the requirements of subclause 573.231 or 573.223(1A), he no longer met the criteria for the grant of a Subclass 573 visa. The applicant’s Subclass 573 visa was cancelled on 13 February 2015.

11. By undated statement lodged with the Tribunal, the applicant said (words to the effect) the delegate was in error, and that he had COE’s for courses; that he was enrolled in a package of courses which included a Bachelors Degree.

12. In summary, the Tribunal understands the applicant travelled to Australia purportedly to study a Bachelor of Information Technology at Queensland University of Technology. The start date for that course was 20 July 2015, and the applicant “defaulted” on 3 June 2014, and part of the monies he had paid were then refunded. While studying for his Diploma of Information Technology (at Vocational Education and Training – BNIT) – (being the course he was undertaking for the purposes of, the principal course of study) he was advised that college was to close so the applicant was offered a transfer to the exact same program at South Bank Campus. Though regular student follow up occurred, the applicant did not respond. This may have been due to his alleged depression (though no medical evidence was provided); and/or having “failed in few subjects”.

13. The applicant then approached an Australian migration agent, who he said misled him, and told him to apply to “study” in a course which was not appropriate for the Subclass 573 visa. However at hearing, the Tribunal put to him it may not accept it was plausible that he did not understand he was required to continue to study in an appropriate course, as I would expect that either his Indian migration agent, or his Australian migration agent, would have advised him of this. The applicant did not agree, but the Tribunal is satisfied the applicant was aware of the appropriate level of course he was required to “study” for the purposes of the Subclass 573 visa. 

14. The applicant subsequently lodged with the Tribunal a COE from Alphacrucis College Limited. That was a COE for the applicant to study Bachelor of Business from 29 February 2016 (which COE the applicant said was valid at the time of the delegate’s 13 February 2015 decision to cancel his Subclass 573 visa – and which the Tribunal accepts based on the documentary evidence on file). However, that meant the applicant was proposing to wait a considerable period prior to commencing a course of study, appropriate to his Subclass 573 visa. Some monies were paid to Alphacrucis College Limited (Initial Pre-Paid Tuition Fee), but the COE was subsequently cancelled (after the applicant’s Subclass 573 visa was cancelled on 13 February 2015). The applicant also lodged with the Tribunal a Provisional Offer and Student Agreement from Alphacrucis College, relating to a Bachelor of Business degree, due to commence on 13 February 2017.

15. Regulation 573.212 provides that if an applicant is an eligible higher degree student, the applicant must inter alia have a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student. Based on the evidence before it, the Tribunal is satisfied the applicant was enrolled in a course of study for the award of a Bachelor degree (being the abovementioned COE for Alphacrucis College Limited) at the time of the delegate’s decision.

16. However, the Tribunal also accepts the applicant did not have a relevant COE for a considerable time prior to being issued the abovementioned COE from Alphacrucis College Limited, shortly prior to his visa being cancelled. Therefore, the Tribunal is satisfied the applicant did not continue to meet the primary criteria for the grant of his visa.

17. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act 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

18. 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’.

19. The applicant told the Tribunal (both orally at hearing and in writing), that his parents wished him to study in Australia and he had focussed on his studies in India, to facilitate him being accepted to study in Australia. He said Australian educational qualifications are more highly regarded in India (than local qualifications) and he wished to gain an Australian qualification prior to returning to India to pursue a business opportunity. After discussing this at hearing, the Tribunal accepts the applicant’s primary purpose for coming to and staying in Australia, was to study.

20. The Tribunal does not accept the applicant did not know that he was required to study an appropriate course of ‘study’ to continue to meet the criteria for the Subclass 573 visa. However, the Tribunal is satisfied the applicant sought to remedy this as soon as he was able, and as stated above, the Tribunal accepts the applicant held an appropriate COE from Alphacrucis College Limited, to study Bachelor of Business from 29 February 2016 – and which COE was valid at the time of the decision to cancel his Subclass 573 visa.

21. The Tribunal notes the applicant’s response to the NOICC included that he had “already spent too much money to get a visa and study” in Australia.  After discussing it at hearing, the Tribunal accepts the applicant’s parents are farmers and both he and they (as they are partially supporting him) would be subject to financial hardship if the applicant’s visa is cancelled.

22. As stated above, the Tribunal accepts the applicant breached condition 8516 of his Subclass 573 Student visa. However, the Tribunal has not accorded substantial weight to the applicant’s claimed depression at the cessation of his prior College, because those circumstances were common to all students at the College and the applicant was offered the same course at an alternate College (South Bank Campus).  

23. The Tribunal has not seen any evidence that the applicant has for instance, been uncooperative or otherwise acted in an adverse manner towards the Department. The Tribunal also acknowledges that if the applicant’s visa is cancelled, he may become an unlawful noncitizen and liable to detention under s.189 and removal under s.198 of the Act.  If detained, and based on the evidence and findings herein, there is no reason to conclude the applicant’s detention would be indefinite. The Tribunal also accepts the applicant would have limited options to apply for a further visa in Australia and may be required to return to his country of origin.

24. There was no evidence that satisfied the Tribunal the cancellation of the applicant’s visa would lead to the applicant’s removal from Australia in breach of Australia’s non-refoulement obligations.

25. By undated statement lodged with the Tribunal, the applicant said if his Student visa was cancelled, given inter alia the money his parents had paid for him to study in Australia, this would bring a “high degree of shame”. The applicant also said if he returned he would have to work on his family’s farm and he had no farming skills as his parents told him to focus on his studies. By letter of 24 September 2015 (Head Member, Village Ekal Gadda Council, Punjab), it was also claimed the applicant’s family had sent the applicant to study to “become a businessman” and to give the family a “brighter future”. The family “spent their savings” and would be ridiculed if the applicant’s visa was cancelled. Further, the grandfather (Joban) passed away in 2013 and it “took many months for this family to come out of the shock”. However, the Tribunal was not satisfied the “shame” for the applicant or his family, would necessarily outweigh grounds for cancelling a visa.

26. Be that as it may, the Tribunal is satisfied the adverse consequences of the probable serious financial hardship arising from the cancellation of the visa, the relative young age of the applicant (22 years), the letter in support from his local village elder, and the fact that he held a valid COE from Alphacrucis College Limited, in order to study Bachelor of Business from 29 February 2016 at the time his Subclass 573 visa was cancelled, support the conclusion that the Tribunal should exercise the discretion to not cancel the visa.

27. Therefore, and considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Mr S Norman
    Member