BALKARANJIT SINGH (Migration)

[2018] AATA 798

BALKARANJIT SINGH (Migration) [2018] AATA 798 (21 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr BALKARANJIT SINGH

CASE NUMBER:  1620495

DIBP REFERENCE(S):  BCC2016/3470408

MEMBER:Christine Kannis

DATE:21 February 2018

PLACE OF DECISION:  Perth

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 21 February 2018 at 6:52 am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Ceased enrolment in course – Poor academic performance – Unable to satisfy the primary criteria – Enrolled in a Diploma of Leadership and Management course – Course does not satisfy the visa requirements

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994 r 140A Schedule 2 cl 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 1 December 2016 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 5 February 2018 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 set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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. 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 8 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 it was a criterion for the grant of the applicant’s visa 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.

7. Information from the Provider Registration and International Student Management System (PRISMS) shows that the applicant’s enrolment in a Bachelor of Engineering (Mechanical) Honours course at Edith Cowan University (ECU) was cancelled on 11 March 2016. He was also enrolled in the pathway course of Diploma of Science (Engineering Studies) at PIBT.

8. On 11 November 2016 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 to the NOICC dated 17 November 2016.

9. The applicant enrolled in a Bachelor of Business on 16 November 2016 and a Confirmation of Enrolment (CoE) from the Australian School of Management was provided. The course was due to commence on 20 February 2017.

10. The applicant was not enrolled for a period of more than eight months, from 11 March 2016 until 16 November 2016.

11. Condition 8516 contains a temporal requirement in the words ‘continue to be’.  Although there has been no judicial consideration of condition 8516 and the meaning of this wording, in the context of a visa condition which applied at all times while the visa is held, the Tribunal is of the view that this condition must be met at all times.  The use of the term ‘would satisfy’ the criteria, suggests that it applied as if the criteria were being assessed as the time compliance with the condition is required, that is, at any time during the period of the visa.  Therefore, if the applicant ceases to be enrolled in a principal course of a kind specified for the particular subclass, in this case, a higher education course, the applicant breaches condition 8516 of the visa. 

12. The Tribunal acknowledges that the applicant was approved to enrol in a higher education sector course on 16 November 2016.  However, in the Tribunal’s view, a breach is established once the applicant ceased to be enrolled in the relevant course, despite the subsequent re-enrolment.

13. 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.  There is no evidence before the Tribunal to indicate that the applicant satisfied the secondary criteria for the grant of the visa.  As such, the Tribunal finds that the applicant breached condition 8516 of his visa. 

14. 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

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’.

16. The Tribunal had regard to a letter dated 17 March 2016 from PIBT advising the applicant that he had been excluded from studying at PIBT. The letter advised that his CoE had been cancelled and that he had been reported to the Department for poor progress. He was advised that he must contact the Department on what action he needed to take.

17. In his response to the NOICC the applicant provided the following information:

    ·    When he arrived in Australia he studied he struggled to complete the Diploma of Science (Engineering Studies) and attempted the same course for seven semesters. His efforts were in vain and he succumbed to depression and stress and his homesickness hindered any attempts to manage his studies. He was frightened that being unable to complete his studies would mean that he had wasted his finances.

    ·    He returned to India from 30 January 2016 to 27 February 2016 to attend his sister’s wedding. Before he left Australia he enrolled in the next semester at PIBT.

    ·    On 17 March 2016 he contacted PIBT because he was unable to access his student portal. He was informed that he had been excluded from the college after they had emailed him a warning letter about his poor performance and tried to contact him when he was away. He received a cancellation of enrolment letter and was shocked and disappointed.

    ·    He complied with his visa conditions but he was not aware of the differences between streamlined and non-streamlined colleges and of the consequences of not being enrolled in a higher degree level course. He is a genuine student with a lack of understanding of rules and measures to maintain his visa conditions.

    ·    He decided to enrol in a course relevant to business studies which was his new found aspiration. He thought that once he completed a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management, he could then enrol in a Bachelor course.

18. Prior to the hearing the applicant provided the following documents:

    ·    A CoE from the New England School of English indicating the applicant was enrolled in a Diploma of Leadership and Management with a course start date of 11 April 2016. The CoE was created on 8 April 2016.

    ·    Documentation from New England College Perth indicating that the applicant completed a Diploma of Leadership and Management in 2016.

    ·    A CoE from the Australian School of Management indicating the applicant was enrolled in a Bachelor of Business with a course start date of 20 February 2017. The CoE was created on 16 November 2016.

    ·    A Statement of Academic Record dated 8 January 2018 from Murdoch University indicating that the applicant failed two units and passed one unit in Semester 2, 2017 in a Bachelor of Business course.

    ·    A written submission from the applicant’s representative which provided the following information:

    o   The applicant came to Australia to study a Diploma of Science and a Bachelor of Engineering because it was his parents’ wish.

    o   The applicant struggled and failed many units and became depressed.

    o   The applicant returned to India to visit from January 2016 to February 2016. When he returned he resumed his studies at PIBT however in the third week of the semester he was no longer allowed access to his student portal and was told he had been excluded from the college due to his poor performance.

    o   The applicant commenced business studies at New England College in a Diploma of Leadership and Management with a view to obtaining a place at ECU in a Bachelor degree.

    o   The termination notice sent by PIBT was sent to an incorrect home address and if it had been sent to the correct address the applicant believed he could have been able to explain his situation and the reasons for his performance and that he would not have been terminated.

    o   The applicant consulted a migration agent for advice on enrolment and was told to enrol in a vocational course package but he refused to do so because he had no interest in the suggested course.

    o   The migration agent failed to advise the applicant of the importance of enrolling in a Bachelor course to maintain his education level for the Subclass 573 visa.

    o   The applicant was working as a part-time shift manager at Domino’s and was practising management so he tried to enrol at ECU in a Bachelor of Business. He was informed that an enrolment in a Bachelor course was only possible if he had completed a diploma course.

    o   The applicant enrolled in an Advanced Diploma of Management at New England College Perth and was unaware that he needed to maintain his higher sector education study level. He was passing all his subjects in the Diploma of Leadership and Management course when he received the NOICC.

    o   The applicant enrolled in a Bachelor of Business at the Australian School of Management however the education provider subsequently shut down. The applicant then enrolled in a Bachelor of Business at Murdoch University.

19. The applicant’s evidence to the Tribunal was not materially different to the information provided in his response to the NOICC and in the written submission from his representative.

20. The applicant conceded that he had made a mistake in failing to contact the Department when he received the letter from PIBT dated 17 March 2016. He said when he received the letter he sought advice from a migration agent who advised him to undertake Cookery studies. He had no interest in that field of study but had developed an interest in Business Management. At the time he was working for Domino’s Pizza and part of his duties were managerial in nature.

21. The applicant told the Tribunal that when he attempted to enrol in a Bachelor of Business at ECU he was advised that because he had already been excluded from a diploma course, he could not enrol at ECU at that time. Consequently he enrolled at New England College in a Diploma of Leadership and Management.

22. The applicant said he was not aware that the Diploma of Leadership and Management was a course that was at a level which did not satisfy his visa requirements. 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.

23. The applicant told the Tribunal that he is currently studying a Bachelor of Business at Murdoch University. Murdoch University advised that it will not provide him with a CoE because of his visa status but will issue one if his visa is reinstated. The Tribunal accepts that the applicant studied three units in a Bachelor of Business course at Murdoch University in Semester 2, 2017.

24. When asked about the potential hardship that may be caused to him or his family if his visa is cancelled the applicant said that it would mean the two semesters he has undertaken Business studies in Australia would have been wasted. He said money would also have been wasted if he returns to India without a qualification. His father has a hotel business in India and he hopes to initially work in that business.

25. 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.

26. The applicant came to Australia for the purposes of study. His visa was granted on the basis that he would study a Bachelor of Engineering (Mechanical) Honours. The applicant commenced study in the course however he struggled to achieve satisfactory results and subsequently decided that he would study a Bachelor of Business.

27. 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 for a period of eight months. The Tribunal accepts that the applicant undertook the Diploma of Leadership and Management with a view to enrolling in a Bachelor of Business at the completion of the course. The Tribunal accepts that the applicant did not understand the significance of the course level of a pathway course with respect to satisfying the conditions of his visa.

28. The Tribunal placed weight on the date of the CoE from the New England School of English which was created on 8 April 2016, very shortly after the applicant was informed that his enrolment at PIBT had been cancelled.

29. The Tribunal is satisfied that the applicant has a genuine intention of pursuing higher education study in the future. The Tribunal has concerns about whether the applicant will achieve satisfactory results, given the Semester 2, 2017 result details provided.

30. 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.

31. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Christine Kannis
    Member