1511682 (Migration)

[2016] AATA 3724

1511682 (Migration) [2016] AATA 3724 (30 March 2016)

DECISION RECORD

DIVISION:Migration and Refugee Division

APPLICANT:  Mr Navjot Singh

CASE NUMBER:  1511682

DIBP REFERENCE(S):  BBC2015/1504072

MEMBER:Alexis Wallace

DATE:30 March 2016

PLACE OF DECISION:  Brisbane

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 30 March 2016 at 3:23pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 August 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 did not satisfy a condition attached to his student visa. That condition was condition 8516 which stated that the visa holder continue to be a person who would satisfy the primary or secondary criteria for the grant of the visa. In particular, the delegate found that the applicant was granted a subclass 573 visa on the basis that he would undertake a Bachelor or Masters course and, because he had not commenced such a course yet, he was in breach of 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 30 March 2016 to give evidence and present arguments.  He was represented in relation to the review by a registered migration agent initially but, by the time of the hearing, he was without representation.

4. 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

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 his visa. In this instance the relevant condition is condition 8516. As stated above, that condition requires the applicant to continue to be a person who would satisfy the primary or secondary criteria for the grant of the visa. The issue taken by the delegate is that the applicant was in breach of condition 8516 because he had not commenced a Bachelor or Masters course.

7. The documentary evidence before the Tribunal includes Certificates of Enrolment, offers of enrolment in Bachelor courses, email communication between the applicant and various course providers, English language test results and written statements by the applicant. 

8. The evidence before the Tribunal establishes that the applicant applied for a student visa to travel to Australia and undertake a package of courses, being an English language course, a Diploma of Nursing and a Bachelor of Nursing.  On successful completion of the applicant’s current course, being a Diploma of Nursing, he will progress across to second year of a Bachelor of Nursing course.  He was required to undertake an initial English language course on his arrival in Australia in order to obtain the necessary English language test result to secure admission to the Diploma course.

9. Since his arrival in Australia, the applicant has worked consistently and diligently to progress through his package of courses.  He has not changed the direction of his study plan nor has he deviated from his stated intention to achieve a Bachelor of Nursing qualification.  On the contrary, he has been faced with several challenges from education providers and administrative relationships between course providers that were beyond his influence or control.  He has also had to overcome several enrolment obstacles due to various requirements in relation to English language ability.  Despite these difficulties, the applicant has demonstrated a commitment to his studies and to achieving progression towards the Bachelor of Nursing qualification. 

10. On the evidence before it, the Tribunal finds that the applicant has continued to be a person who would satisfy the primary or secondary criteria for the grant of the visa, as required to comply with condition 8516. 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.

11. However, even if the ground for cancellation did arise, the Tribunal would exercise its discretion not to cancel the applicant’s visa.  In written submissions and in oral evidence, the applicant gave a comprehensive and consistent account of his time in Australia and his continuing efforts at course progression. The applicant presented as a credible, reliable and honest witness. His commitment to his study program was demonstrated by his relocation from the Gold Coast to Brisbane in order to enrol in a Diploma of Nursing course at Careers Australia when he was unable to progress with a local Gold Coast education provider due to English language test results.  He experienced some difficulty integrating into his class in Brisbane given that he was the only Indian student and he felt it necessary to cease wearing his turban in order to fit in.  Despite this, and illness in his family at home in India, his commitment to his studies is unwavering.    

12. The documentary evidence before the Tribunal indicates that the applicant has made many attempts to obtain offers of enrolment in a Bachelor of Nursing course so that his enrolment can commence as soon as his Diploma course concludes.  He is willing to relocate to other parts of Australia in order to achieve his academic goals.  This is evident from the fact that he has now obtained offers of enrolment from Flinders University in South Australia and University of Southern Queensland in Toowoomba.  These courses require his relocation from Brisbane.  There is also documentary evidence that the applicant is recently attempted to enrol in a Bachelor of Nursing course with Griffith University, his initially preferred education provider. 

    DECISION

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

    Alexis Wallace
    Member