Ambujam Ramaswamy (Migration)

[2018] AATA 4946

Ambujam Ramaswamy (Migration) [2018] AATA 4946 (23 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Girikrishna Ambujam Ramaswamy

CASE NUMBER:  1717099

HOME AFFAIRS REFERENCE(S):           BCC2017/2151828

MEMBER:Michelle East

DATE:23 October 2018

PLACE OF DECISION:  Perth

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

Statement made on 23 October 2018 at 10:42am

CATCHWORDS

MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolled in vocational courses – unable to cope with Masters course – knowingly breached visa – studied whilst on bridging visa – engaged in employment – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth),r 1.40A, Schedule 2 cls 573.111, 573.223, 573.231, Schedule 8 Condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 July 2017 made by a delegate of the Minister for Immigration and Border Protection 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 delegate found the applicant had breached condition 8516 which was attached to the applicant’s 573 higher education sector visa and found that the factors against cancellation did not outweigh those in favour of cancellation and cancelled the visa. 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 22 October 2018 to give evidence and present arguments.  The applicant also provided a further submission to the Tribunal dated 20 October 2018.

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 the holder did not comply with a condition of their visa. The condition specifies that the holder must continue to be a person who would satisfy the criteria for the grant of the visa. 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. The applicant provided a copy of the delegate’s decision with the application for review. It indicates 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 the present case the applicant was required to meet, among other criteria, subclauses 573.231 or 573.223(1A) of Schedule 2 to the Migration Regulations 1994.  The decision stated that on 9 February 2016 the applicant satisfied the primary criteria for the grant of the subclass 573 visa and met 573.231 or cl.573.223(1A) to be granted the visa.

7. Essentially, subclause 573.231 provides that, unless a person is an eligible higher degree student as set out in 573.223(1A), that person must be enrolled 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.

8. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a Bachelor degree, Masters degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111.

9. The primary decision record refers to PRISMS which shows that the applicant was no longer enrolled in a higher education course.  A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 11 July 2017.  A response was provided on 18 July 2017.  The applicant conceded in that response that he had not complied with ‘student visa condition 8516’.  The delegate found that the applicant breached condition 8516 of the visa because he no longer satisfied the primary criteria as he ceased to be enrolled in a higher education course, that is, a course of study that was the principal course of a type specified for a subclass 573 visa by the Minister in an instrument made under r.1.40A.

10. On the basis of the information before it, including the applicant’s own oral evidence given at hearing, the Tribunal is satisfied that when the applicant ceased to be enrolled in a higher education course he did not continue to satisfy cl.573.231 or cl.573.223(1A) and that he therefore did not continue to be a person who would satisfy the primary criteria for the grant of the visa.  There is no evidence before the Tribunal to indicate that the applicant satisfied the secondary criteria for the grant of the visa.  The Tribunal therefore finds that he breached condition 8516 of his student visa.

11. 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 visa should be cancelled.

    Consideration of discretion

12. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

13. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of any breach and any reasons for the breach.

14. The purpose of a student visa is to enable the visa holder to undertake study in Australia.  The purpose of the Higher Education Sector visa is to enable the visa holder to undertake study at the higher education level.  The evidence before the Tribunal, including the applicant’s own oral evidence, is that he came to Australia in February 2016 to study a Master of Commerce (Professional Accounting) at Curtin University.  He started first semester but failed 4 units.  He then enrolled in and completed a Certificate III in Commercial Cookery between 18 July 2016 and 16 June 2017.  At the hearing the applicant produced evidence that he had completed a Certificate IV in Commercial Cookery and a Diploma of Hospitality in 2018.  He said he had undertaken this study whilst holding a bridging visa.  The applicant also produced evidence of working up to 40 hours per week as a commercial chef in Fremantle in recent times.

15. The applicant acknowledged he had ceased to be enrolled in a higher education course as required by his visa since July 2016 and in fact had enrolled voluntarily in a vocational course.  He said he had been unable to cope with the Masters course but still wanted to obtain some Australian qualifications.  He said in consultation with his family and friends he decided to enrol in the Certificate III and IV in Commercial Cookery and Diploma of Hospitality.

16. The Tribunal finds the applicant’s breach of condition 8516 to be significant because he was not engaging in study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.

17. The Tribunal questioned the applicant whether there were any compelling reasons for him to remain in Australia and he said there were not.

18. The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

19. The Tribunal has considered whether the breach arose due to circumstances beyond the applicant’s control.

20. The applicant in his response to the NOICC said he was not able to cope with the Masters course due to the difference in the system of education, change in teaching style and higher standard of education at that level.  He said after talking with family and friends he transferred to a different course.  He said he didn’t apply for a subclass 572 visa because he had been told by some of his friends that if he wanted to study at a lower education level his visa would be refused and he didn’t wish to risk it.

21. The applicant has conceded in his evidence that he knew he was breaching the conditions of his visa and deliberately chose not to apply for the correct visa because he feared he would be refused. 

22. Even if the applicant was honestly mistaken as to whether he could continue to study at a lower level on his visa, the Tribunal is of the view that as a holder of the student visa the applicant had the responsibility to familiarise himself with the conditions of his visa and what these required of him.  The applicant would have been advised of his visa conditions at the time of the visa grant.

23. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control.  The Tribunal finds this weighs in favour of visa cancellation.

24. The Tribunal has considered the extent of compliance with visa conditions.  The applicant has breached condition 8516 and has done so knowingly for a considerable period.  There is no evidence that the applicant has breached any other visa conditions however the Tribunal is concerned with the level of non-compliance with condition 8516.  The Tribunal finds this weighs in favour of visa cancellation.

25. The Tribunal has considered the degree of hardship that may be caused.  The applicant said even though he had completed his courses he would like to obtain further work experience in Australia prior to returning to India to set up his own business.  He said he needed to apply for a graduate visa to enable him to work to gain further experience.  He asked that his visa not be cancelled so he would be able to do this.

26. The Tribunal accepts the applicant would suffer some hardship if he were to have his visa cancelled and finds this weighs in favour of the applicant.

27. The Tribunal has considered the past and present conduct of the visa holder towards the department.  The Tribunal is concerned that the applicant knowingly engaged in conduct which he knew was in breach of his visa, continued studying on his bridging visa and now has been working since the completion of his course.  The Tribunal was not in possession of his bridging visa documents and doesn’t know whether he had working rights for the hours he has been working in recent times.

28. The Tribunal considers this factor neutral in considering whether to cancel the visa.

29. The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled.

30. There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation.

31. The Tribunal is mindful that the delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act, if he does not voluntarily depart Australia.  Further, the applicant will have limited options to apply for further visas in Australia.  The Tribunal acknowledges the difficulty this would cause the applicant however finds in itself to not be sufficient to weigh in the applicant’s favour.

32. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant has breached condition 8516 of his visa.  The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant is not fulfilling the purpose of his travel to and stay in Australia as he is not undertaking study at the level for which is visa was granted.  The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa.  It will not be in breach of Australia’s international obligations.  The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

33. The Tribunal recognises that the cancellation of the visa is a significant matter.  However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Michelle East
    Member