Deol (Migration)

[2019] AATA 2446

Deol (Migration) [2019] AATA 2446 (30 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurtej Singh Deol

CASE NUMBER:  1802653

HOME AFFAIRS REFERENCE(S):           BCC2017/4010000

MEMBER:Nicola Findson

DATE:30 June 2019

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 30 June 2019 at 10:48pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – continue satisfaction of primary criteria – ceased to be enrolled in a Higher Education Sector course – consideration of discretion – struggled with original courses – significant health issues – new study pathway – issues with course providers – genuine intention of pursuing higher education study – actively engaging in studies since arrival – reliance on misinformed advice – remedied breach upon notice – decision under review set aside

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

CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
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 1 February 2018 made by a delegate of the Minister for Home Affairs 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) of the Act on the basis that the delegate found the applicant had breached condition 8516 which was attached to his Subclass 573 Higher Education Sector visa. The delegate went on to consider that the factors in favour of cancellation outweighed those against, 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 17 April 2019 to give evidence and present arguments.

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

5. 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

6. 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). 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.

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. In this instance, condition 8516 attached to the applicant’s visa. 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 the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

8. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant is enrolled in, or the subject of a current offer of enrolment in a principal course of a kind 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.

   Does the ground for cancellation exist?

9. The applicant provided to the Tribunal a copy of the delegate’s decision record, for the purpose of the review.  The decision record indicates that on 2 July 2015, the applicant was granted a visa in Subclass 573 Higher Education Sector on the basis of his enrolment in a higher education sector level course. According to the delegate’s decision record, the applicant has not been enrolled in a Bachelor’s degree or Masters degree course since 4 February 2016, and that he is not currently enrolled in a course of study that is a principal course of a type specified for a Subclass 573 visa, by the Minister, in an instrument made under regulation 1.40A.

10. On 16 January 2018, 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 a response to the Department on 19 January 2018, in which he indicated that he arrived in Australia to study a Diploma of Business at the Phoenix Academy leading to a Bachelor of Business at Edith Cowan University; he struggled with his choice of course, and so decided to switch his pathway; and he always intended completing a Bachelor degree in Australia. 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 required by cl.573.231.

11. Condition 8516 requires that the visa holder must ‘continue to be a person who would satisfy the primary or secondary criteria… for the grant of the visa’.  Clause 573.231 is relevant.  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 applies 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 applies as if the criteria were being assessed at 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, irrespective of subsequent re-enrolment.

12. At the hearing, the applicant confirmed that he held an enrolment in a Bachelor of Business, on his arrival in Australia.  He indicated he was unable to proceed with this enrolment when, despite his best efforts, he began to fail units in his prerequisite Certificate III business course.  He conceded he was not enrolled in a higher sector course of study after 4 February 2016, and up until the Department issued him with a NOICC.  He acknowledged that this was in breach of condition 8516.

13. On the basis of the information set out in the delegate’s decision, and the documentary and oral evidence of the applicant, the Tribunal is satisfied that when the applicant’s enrolment in a Bachelor of Business was cancelled on 4 February 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 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.

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 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’.

16. It is well established that the function of the Tribunal is to arrive at the correct or preferable decision (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60). That case also considered the role of policy, and the Tribunal has had regard to Departmental policy.

17. The applicant gave evidence to the Tribunal that he completed his secondary schooling in India.  He told the Tribunal that after he completed his schooling, he wanted to come to Australia to pursue a tertiary qualification, before returning home to settle in to a career.  He confirmed he was granted his visa on the basis of his enrolment in his principal course of study, a Bachelor of Business.

18. The applicant provided evidence to the Tribunal that he commenced a Certificate III in Business Management at the Phoenix Academy, immediately on his arrival in Australia in July 2015. However, despite attending all the classes for the following six months and his best efforts, he found it difficult to meet the requirements of the course.  He indicated to the Tribunal that he found the education system in Australia to be very different to India.  He said because of this, and his young age, he struggled to settle and adjust.  He indicated, and the documentary evidence supports, that his feelings of stress and failure led to a dormant thyroid health issue resurfacing, and he suffered significant symptoms of weight loss (30 kilograms), tiredness, shaking hands and depression.  He said that after speaking with his family, a decision was made for him to return to India to consult his medical practitioner and resume medication.  He said that he spent a two week period in India between 13 and 26 January 2016, and on his return to Australia, despite having paid several thousand dollars in fees upfront, he was informed by his education provider that his CoE’s were to be cancelled.  The applicant told the Tribunal that he wanted to stay in Australia and study, so, he consulted a migration agent and on his advice enrolled in another package of (commercial cookery) courses at the Kingston College, which it was hoped he would find easier.  He told the Tribunal that he was unable to start his new package of courses immediately, and so to maintain an enrolment, his agent first enrolled him in (and he undertook) a marketing course.  The applicant claimed that he was led to believe by his agent that he would arrange his enrolment in a Bachelor degree course to comply with his visa conditions, in conjunction with the Kingston College. The applicant indicated to the Tribunal that he did not have any reason to doubt the advice he had received and at this time believed he was not breaching any visa conditions.  He also indicated he enjoyed his new study pathway.  He said he completed the marketing units in which he was enrolled over a two month period and then successfully completed several cookery units after that. 

19. The applicant indicated to the Tribunal that his study in Australia was again compromised towards the end of 2016, when a new teacher commenced at the Kingston College.  He said the teacher treated him (and other students) harshly.  He said he was issued with fines for turning up a few minutes late to class in inclement weather or for submitting online assignments slightly late.  He was also asked to complete re-assessments on several occasions.  He said, and the documentary evidence reflects that, he was made to pay a total of $500 in fines, before he decided to complain to the Ombudsman during Term 3 about this unfair situation.  He said that the fact that he had complained exacerbated his bad treatment at the College, so he again (on the advice of his migration agent) changed his course provider to continue his cookery studies. He said that the Kingston College reported him to the Department for unsatisfactory course progress, but this was after he had complained to the Ombudsman and indicated to the College that he did not want to continue his studies there.

20. The applicant told the Tribunal that his agent next arranged enrolments for him at the New England College Perth – including a Certificate IV in Commercial Cookery, a Diploma of Hospitality Management and an Advanced Diploma of Hospitality Management.  Given the New England College Perth did not offer a Bachelor degree in Perth, his agent undertook to arrange a CoE in a higher sector course through a Queensland provider for him. After his studies at the New England College were well underway, in 2017, he learned that the school at which he was to be enrolled in a Bachelor degree had closed down.   The applicant (like many other impacted international students) was offered an immediate enrolment in a higher sector course at an alternate education provider for $10,000, or he was told he could wait a few months and enrol in the same course for a lesser fee of $5,000.  He played the “waiting game” and decided on the latter option.

21. The applicant provided evidence to the Tribunal that when he received his NOICC, he immediately sought advice from his agent.  He indicated that he was told by his agent that he would follow up an enrolment in the higher education sector and was assured that it would all be alright.  The applicant indicated to the Tribunal that he deeply regrets relying on the assistance of his previous migration agent.

22. During the review process, the applicant engaged a new migration agent and sought work rights to continue with his studies.

23. The applicant told the Tribunal that, despite the circumstances surrounding his breach and his slow progress as a result, he has continuously studied (albeit at a vocational level) since he arrived in Australia, and his intention has always been to complete higher sector study.  He indicated, and produced evidence, that he has almost completed his Certificates III and IV in Commercial Cookery and would like to complete his Diploma studies before commencing a Bachelor of Tourism and Hospitality Management at the SERO Institute in Perth.  He indicated that he has enjoyed his cookery studies and would still like to attain a higher sector qualification in Australia before returning to India to work for a big hotel there.  He indicated that attaining a higher education in Australia is important to him and will give him better employment prospects in India.  He indicated that he has been (and remains) committed to achieving a higher education in Australia; a lot of money – approximately $50,000 - has been paid by his parents to enable him to become qualified; and he will feel like a failure and hugely disappoint his parents if he returns to India without a higher sector qualification.

24. The evidence before the Tribunal also indicates that despite suffering significant health issues, the applicant remained enrolled and continued to study.

25. At hearing, the Tribunal discussed with the applicant the discretionary factors the Tribunal would consider in making its decision and all of the relevant circumstances in his case.  In assessing the evidence, the Tribunal notes that the applicant presented as a reliable witness.  It can be satisfied that it can rely on his oral evidence to make many of its findings.

26. The Tribunal has considered the circumstances in which the ground for cancellation arose. He claims, essentially, that he struggled to adjust when he arrived in Australia, suffered significant health problems and as a consequence found it difficult to progress to his principal course of study. He also claims he relied on the misinformed advice and assistance of a migration agent in relation to his education options, and was led to believe he was satisfying the requirements of his principal course of study.  The applicant claimed that it was not until he received the NOICC from the Department that he came to appreciate he was in breach of his visa condition and the severity of his situation.  The Tribunal accepts that the applicant subsequently remedied the breach and enrolled in a Bachelor course on 19 January 2018. 

27. In the Tribunal’s view, the applicant, as the holder of the visa, had the responsibility to familiarise himself with the conditions of his visa and what these required him to do.  The applicant would have been advised at the time of the visa grant that his visa was subject to certain conditions.  In the Tribunal’s view, the applicant was obliged to ensure that he was familiar with the requirements of these conditions.  It considers that relying on advice and assistance from his previous agent was not enough.  Ultimately the responsibility for compliance with visa conditions lies with the visa holder.

28. As indicated in the delegate’s decision, the applicant had his enrolment cancelled by his course provider in the Bachelor of Business on 4 February 2016, and he did not enrol in another higher education course until 19 January 2018.  The Tribunal accepts that he has been enrolled in lower educational sector courses, however his visa required him to be enrolled in the higher education sector.  The Tribunal accepts the applicant’s evidence that he is enjoying his cookery pathway and has been doing well in his studies and this is supported by the documentary evidence he has provided to the Tribunal.  It accepts that the applicant has now enrolled in a Bachelor degree in which he is interested and that he is committed to completing that degree.  The Tribunal is satisfied that the applicant has a genuine intention of pursuing higher education study in Australia. 

29. In the circumstances of this case, the Tribunal gives this factor some weight in favour of the visa not being cancelled. 

30. With respect to the degree of hardship, the applicant indicated to the Tribunal that he, with his family’s support, wants to continue his higher education sector study in Australia.  The evidence before the Tribunal is that the applicant’s family would be disappointed if he returned to India without a tertiary qualification, and he would feel as if he has wasted a significant amount of money and failed if he returns empty handed and without the ability to pursue a good career.  The Tribunal gives this factor some weight in favour of not cancelling the visa.

31. The Tribunal has considered the extent of compliance with visa conditions.  It is the case that the applicant has breached condition 8516.  However, there is no evidence that the applicant has breached other conditions of his visa.  In addition, the evidence of him actively engaging in studies from the time of her entry to Australia in July 2015, as well as him re-enrolling (at a significant cost) in a Bachelor degree when he became aware that he was in breach of a visa condition, is indicative that he wishes to study in compliance with his relevant visa conditions.  The Tribunal therefore gives this factor little weight towards his visa remaining cancelled.

32. According to the delegate’s decision record, there is no information before the delegate to indicate any specific matters of relevance regarding the applicant’s behaviour towards the Department.   The Tribunal gives this little weight towards the visa not being cancelled.

33. There is no evidence before the Tribunal that there would be consequential cancellations under s.140.

34. There is nothing to suggest, and the applicant does not claim, that any international obligations would be breached as a result of the cancellation. The Tribunal gives no weight to this consideration.

35. 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 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. The Tribunal acknowledges the difficulty this would cause the applicant and gives these consequences some limited weight in favour of not cancelling the visa.

1. The Tribunal recognises that the cancellation of a visa is a significant matter and has weighed the evidence before it, including evidence that was not available to the delegate at that time of decision. The Tribunal considers that the discretionary factors above indicate that the applicant should be given an opportunity to remain in Australia to engage in higher education sector study.

2. The correct and preferable decision therefore is not to cancel the visa. The Tribunal, in reaching this decision, notes that had the visa not been cancelled it would have already ceased naturally.  The Tribunal is conscious that setting aside the visa cancellation will allow the applicant the opportunity to be considered for a further student visa while in Australia, to enable him to complete his Bachelor of Business course.

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

   DECISION

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

   Nicola Findson
   Member