Bhatti (Migration)

[2018] AATA 5732

Bhatti (Migration) [2018] AATA 5732 (30 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arvinder Singh Bhatti

CASE NUMBER:  1703750

HOME AFFAIRS REFERENCE(S):           BCC2017/256212

MEMBER:Stephen Conwell

DATE:30 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 30 November 2018 at 5:20pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – continuing to satisfy visa criteria – enrolment in a registered Higher Education Sector course – enrolment changed to vocational courses – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 116, 140, 189, 198
Migration Regulations 1994, Schedule 2 cls 573.111, 573.223, 573.231; Schedule 8; Condition 8516; r 1.40

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 February 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.

3. The applicant sought review of the delegate’s decision at the Tribunal and attached a copy of the delegate’s decision dated 24 February 2017, with his application.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 28 November 2018 to give evidence and present arguments.

6. 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

7. Under s.116(1)(b) 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. In this instance condition 8516 attached to the applicant’s 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?

8. The delegate’s decision 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.

9. The decision states that on 29 July 2014 the applicant satisfied the primary criteria for the grant of the subclass 573 visa and met cl.573.231 or cl.573.223(1A) to be granted the visa. 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.

10. 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, master’s 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.

11. The delegate’s decision refers to the Provider Registration and International Student Management System (PRISMS), which shows that the applicant was no longer enrolled in a higher education course from 20 April 2016. A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 9 February 2017. The applicant provided a response on 22 February 2017. In his response the applicant did not dispute that there are grounds for cancellation of his visa, however he submitted reasons as to why his visa should not be cancelled.

12. The delegate found that the applicant had 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.

13. On the basis of the information before it, including the applicant’s oral evidence given at hearing as outlined below in this decision, 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 finds therefore that he breached condition 8516 of his student visa.

14. 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

15. 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’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

16. The purpose of a student visa is to enable the visa holder to undertake study in Australia.  The purpose of the Higher Education visa is to enable the visa holder to undertake study at the higher education level.  The applicant confirmed at hearing that the purpose of his travel to and stay in Australia was to study; in pursuit of which, at the time of his visa cancellation he was enrolled in the bachelor degree program at KOI Sydney, whilst studying at Nova College, Melbourne in a diploma of business package.

    The extent of compliance with visa conditions

17. The Tribunal has considered the extent of compliance with visa conditions.  The applicant has breached condition 8516 and has done so for a considerable period.  There is no evidence that the applicant has breached any other visa conditions and the Tribunal therefore considers this factor to be neutral in deciding whether to cancel his visa.

    Circumstances in which ground of cancellation arose

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

19. The applicant would have been advised of the visa conditions at the time of the visa grant.  The Tribunal is not satisfied the applicant took adequate steps to ensure that he continued to comply with his visa conditions and requirements. By not engaging in the study for which his visa was granted, the applicant was breaching the condition upon which his visa was granted. There is no evidence available to the Tribunal that the applicant tried to verify whether he was complying with the conditions of his visa.

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

21. The applicant acknowledged he had not been enrolled in higher education studies as required by his visa since 20 April 2016 and had in fact been enrolled in vocational courses prior to and after that time.  He said he had received incorrect advice from his migration agent which he had relied upon.

22. The Tribunal notes the applicant’s claim that the breach arose due his receiving incorrect migration advice. The Tribunal acknowledges that it would be an unfortunate it incorrect migration advice led to the applicant’s breach of his visa condition, however the Tribunal does not accept that this would constitute circumstances beyond his control.

23. 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.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

24. The Tribunal has considered the degree of hardship that may be caused.  The applicant said he would feel shame in returning to India without any qualification and he would find it difficult to justify the four years he has spent in Australia.  He said his parents would be disappointed in him as they have invested a substantial sum of money in his education.

25. The Tribunal acknowledges that the applicant’s parents would suffer a financial cost as well as be disappointed at his lack of success, should his visa be cancelled. The Tribunal finds this weighs in favour of the applicant.

    Past and present conduct of the visa holder towards the department

26. The Tribunal has considered the past and present conduct of the visa holder towards the department.  Nothing adverse is known about the applicant’s past and present conduct towards the Department.  The Tribunal this gives some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

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

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

28. 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 applicant has not raised concerns in regards to this. The applicant is not currently in detention and it appears unlikely that he will be detained if the cancellation occurs. The Tribunal therefore gives this factor minimal weight.

    Whether any international obligations would be breached as a result of the cancellation

29. 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.

    Any other relevant matters

30. Before closing the hearing the Tribunal asked the applicant if there is anything else he wished to be considered and he said he has nothing further to add.

31. The Tribunal finds that the applicant 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 his visa was granted. The Tribunal finds 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 finds that there is nothing adverse known about the applicant’s past and present conduct towards the Department; it is prepared to accept that some hardship and financial loss may be caused by the cancellation.  

32. 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

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

    Stephen Conwell
    Member