Brar (Migration)

[2018] AATA 3620

Brar (Migration) [2018] AATA 3620 (27 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arshdeep Singh Brar

CASE NUMBER:  1704771

HOME AFFAIRS REFERENCE(S):           BCC2017/387213

MEMBER:Christine Kannis

DATE:27 July 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 27 July 2018 at 7:58am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Ceased enrolment in Higher Education Sector course – Short period of non-enrolment – Subsequent re-enrolment – Reliance on education consultant’s advice – Continued study – Past and present behaviour – Decision under review set aside

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

CASES
Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 March 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 issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

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

5. The applicant was represented in relation to the review by his registered migration agent.

6. 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

7. 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?

8. On 7 January 2016 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 respect of a criterion requiring the applicant to be enrolled, it has been held that this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

9. In the present case the applicant was required to meet, among other criteria, subclause 573.231 or 573.223(1A) of Schedule 2 to the Migration Regulations 1994.

10. 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. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI14/015.

11. The courses specified by the Minister in instrument IMMI14/015 for a subclass 573 visa are:

    ·Diploma (Higher Education)

    ·Advanced Diploma (Higher Education)

    ·Bachelor Degree

    ·Graduate Certificate (Higher Education)

    ·Graduate Diploma (Higher Education)

    ·Associate Degree

    ·Masters by Coursework.

12. 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.

13. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant’s enrolment in a Master of Cyber Security was cancelled on 18 July 2016.

14. On 17 February 2017 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) on the basis that he had failed to comply with condition 8516 of his visa because he had ceased to be enrolled in a Higher Education Sector course. The applicant provided written responses to the NOICC on 21 February 2017 and 6 March 2017 and provided CoEs for the following courses:

    ·Diploma of Leadership and Management from New England College Perth.

    ·Advanced Diploma of Leadership and Management from New England College Perth.

    ·Graduate Certificate in Leadership Diversity from Australian Institute of Business and Technology.

    ·Graduate Diploma of Portfolio Management from Australian Institute of Business and Technology.

15. At the time of responding to the NOICC the applicant was enrolled in the above courses. He also provided a letter of offer from Elite Education Institute for a Bachelor of Business (Business Management) course.

16. The CoEs for the Diploma of Leadership and Management and for the Advanced Diploma of Leadership and Management were created on 25 July 2016.  These courses are not courses of the type specified instrument IMMI14/015 for the subclass 573 visa. These courses are Vocational Education and Training courses.

17. The CoEs for the Graduate Certificate in Leadership Diversity and the Graduate Diploma of Portfolio Management were created on 19 October 2016. These courses are courses specified instrument IMMI14/015 for a subclass 573 visa.

18. The Letter of Offer for the Bachelor of Business (Business Management) was dated 20 October 2016.

19. 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 Sector course, the applicant breaches condition 8516 of the visa. 

20. The Tribunal acknowledges that the applicant obtained CoEs for Higher Education Sector courses on 19 October 2016 and a Letter of Offer dated 20 October 2016 for a Bachelor Degree course.  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.

21. On the basis of the information before it, the Tribunal is satisfied that when the applicant’s enrolment in a Master of Cyber Security was cancelled on 18 July 2016 he did not continue to satisfy cl.573.231 or cl.573.223(1A) and therefore did not continue to be a person who would satisfy the primary criteria for the grant of the visa. There was 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.

22. 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

23. 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 his representative, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

24. Prior to the hearing the applicant’s representative provided a written submission and documentation which included but was not limited to CoEs and letters from New England College Perth.

25. The written submission said the applicant had attempted to comply with the conditions of his visa at all times and in support of this provided the following:

    ·    The applicant was enrolled in an Academic English Program of 20 weeks duration from 1 February 2016 to 1 July 2017. He completed the first 10 weeks but failed the last 10 weeks. His education provider advised him to re-enrol in the same course and said he must pass the course in order to be eligible to continue to study the Master of Cyber Security course. He felt disillusioned and distressed at having to study the same course again and pay $10,000 for an English course he could have undertaken elsewhere. His education provider refused to let him commence the Master of Cyber Security course until he had successfully completed the Academic English Program and so he had no choice but to seek enrolment elsewhere.

    ·    After receiving advice from an educational consultant the applicant decided to change his field of study to Leadership and Management.

    ·    The applicant obtained CoEs for Diploma of Leadership and Management, Advanced Diploma of Leadership and Management, Graduate Certificate in Leadership Diversity and the Graduate Diploma of Portfolio Management and he believed he was complying with his visa conditions by enrolling in courses at the vocational and higher sector levels.

    ·    When his visa was cancelled the applicant was not permitted to work for a period of time and this exacerbated his anxiety and depression and he considered giving up and returning home. After discussions with his parents and his friends he decided to stay and had his work rights reinstated. Amidst such harsh conditions the applicant kept studying and successfully completed the Diploma of Leadership and Management and Advanced Diploma of Leadership and Management.

    ·    The applicant is currently enrolled in a Certificate III in Light Vehicle Mechanical Technology, a Certificate IV in Automotive Mechanical Overhauling and a Diploma of Automotive Technology. He also has an Offer Letter for a Bachelor of Business.

    ·    At the completion of the Leadership and Management courses the applicant felt he wanted to take up a more practical vocational course of study to improve his employment opportunities when he returns to India. He believes the study of automotive services and repair courses will enable him to gain valuable knowledge and skills in the automotive industry.

    ·    He has serious aspirations to complete these courses and then progress to achieve a Bachelor of Business degree so he will be equipped with the skills to operate his own automotive service and repair business in India.

26. The CoEs provided prior to the hearing were for the Certificate III in Light Vehicle Mechanical Technology dated 12 March 2018, the Certificate IV in Automotive Mechanical Overhauling dated 12 March 2018, the Diploma of Automotive Technology dated 12 March 2018 and the Bachelor of Business dated 28 May 2018. Letters and Certificates evidencing the applicant’s completion of the Diploma of Leadership and Management and Advanced Diploma of Leadership and Management were also provided.

27. The Tribunal asked the applicant about his enrolment in vocational courses following the cancellation of his enrolment in the Master of Cyber Study. He was not enrolled in a Higher Education Sector course for three months.  The applicant said he was confused and said he relied on the advice of education consultants at all times and believed that his enrolments satisfied his visa requirements. 

28. The Tribunal had regard to the PRISMS and noted that the applicant’s enrolment in the Graduate Certificate in Leadership Diversity and the Graduate Diploma of Portfolio Management was cancelled on 10 March 2017. The Tribunal noted this meant the applicant was not enrolled in a Higher Education Sector course from 10 March 2017 until his recent enrolment in a Bachelor of Business on 28 May 2018.  He said after cancellation of his enrolment on 10 March 2017 he contacted universities about enrolling in a Higher Education Sector course but he was told that he could not enrol because his visa had been cancelled.

29. The applicant’s oral evidence at hearing was not materially different to the information contained in the written submission. He said when he failed the second 10 weeks of the English course he believed  that his failure to successfully complete a basic English course meant that he was unlikely to be able to successfully undertake the Master of Cyber Security. Based on this he decided to change his field of study and undertake Leadership and Management courses. He discussed his options with education consultants and college counsellors and decided he would undertake vocational training courses which would lead to a Bachelor degree.

30. The applicant told the Tribunal that his second career choice is to work in the automotive industry. There are good employment opportunities in India in this industry and he hopes to either own a business or work in a large company. He previously completed a Bachelor of Computer Application in India and this qualification together with Australian qualifications in Leadership, Management and Vehicle/Automotive Mechanical will enable him to find a good job.

31. The applicant’s representative asked the Tribunal to take into account that the applicant has continued to study, albeit at times not in the sector for which his visa was granted. The written material provided prior to the hearing showed the applicant commenced the Diploma of Leadership and Management on 1 August 2016 and completed the course on 4 June 2017. He commenced the Advanced Diploma of Leadership and Management on 5 June 2017 and completed it on 4 March 2018.

32. The applicant is currently enrolled in and undertaking a Certificate III in Light Vehicle Mechanical Technology. The course ends on 10 March 2019 and the CoE for the Certificate IV in Automotive Mechanical Overhauling indicates the course commences on 11 March 2019 and ends on 8 September 2019. The CoE for the Diploma of Automotive Technology indicates the course commences on 9 September 2019 and ends on 7 June 2010. The CoE for the Bachelor of Business indicates that the course commences on 27 July 2020.

33. When asked about the potential hardship that may be caused to him or his family if his visa is cancelled the applicant said if he returns to India without the Australian qualifications he wants to obtain, his future will be adversely affected because he won’t be able to get a good job. He said returning without the Australian qualifications will also hurt his parents because they have spent a lot of money on sending him to Australia to study.

34. The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia, the circumstances in which the ground of cancellation arose and the reason and extent of the breach.

35. 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 Sector course for a period of three months following cancellation of his enrolment in the Master of Cyber Study. The Tribunal accepts that the applicant undertook the Leadership and Management studies and enrolled in Graduate Certificate and Graduate Diploma courses with a view to undertaking a Bachelor of Business at the completion of the courses. The Tribunal accepts that the applicant relied on the advice of his education consultant and believed that he was satisfying the conditions of his visa however considers it was his responsibility to ensure he understood the conditions attached to his visa and to ensure that he complied with those conditions.

36. The Tribunal placed weight on the PRISMS and the CoEs provided which indicate that the applicant was studying before his visa as cancelled and has continued to study after cancellation of his visa. His initial breach of condition 8516 occurred during the period from 18 July 2016 to 19 October 2016. His recent breach was during the period from 10 March 2017 to 28 May 2018. The Tribunal accepts that the applicant tried to enrol in a Higher Education Sector course during the latter period but was advised that his visa status prevented enrolment.

37. The Tribunal is satisfied that the applicant has a genuine intention of pursuing higher education study in the future and is currently enrolled in a Bachelor of Business. The Tribunal is also satisfied that the applicant has attempted to comply with his visa conditions and that his failure to do so at times was because he relied on his education consultant’s advice. The applicant’s reliance on incorrect advice is not a reason not to cancel the visa however given the short period of time he wasn’t enrolled in a Higher Education Sector course (three months) and his continued study, the Tribunal finds the breach not to be significant.

38. The Tribunal has no evidence before it that the applicant’s past and present behaviour towards the Department has been untruthful or unco-operative.  It considers this is a consideration that is in his favour and it has taken this into account.

39. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice pertaining to his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion.

40. There are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

41. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

42. The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively and considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

43. 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