Gill (Migration)

[2018] AATA 373

Gill (Migration) [2018] AATA 373 (12 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sahilpreet Singh Gill

CASE NUMBER:  1621846

DIBP REFERENCE(S):  BCC2016/3186505

MEMBER:Tigiilagi Eteuati

DATE:12 February 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 12 February 2018 at 11:34am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Grounds for cancellation - Requirement to continue to satisfy primary and secondary criteria of the visa – Extensive period spent not enrolled – Consideration of discretion – Poor academic performance - Limited capacity to fund studies

LEGISLATION
Migration Act 1958, s 116(1)(b), 1.40A
Migration Regulations 1994, Schedule 2, cls 573.223(1A), 573.231, Schedule 8, Condition 8516

CASES
Singh v Minister for Immigration & Anor [2015] FCCA 2998

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 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 delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not meet the condition of his visa to continue to satisfy primary and secondary criteria for the grant of his 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 3 November 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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 certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). 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. 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. This condition requires that a visa holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

7. In the present case, the delegate found that the applicant had failed to continue to satisfy the criteria for the grant of his visa in paragraph 573.223(1A) or the alternative criteria in paragraph 573.231 of Schedule 2 to the Migration Regulations 1994 (regulations).

8. For a person in the applicant’s circumstances these criteria can be summarised as Smith J did at paragraph 31 of his reasons in Singh v Minister for Immigration & Anor [2015] FCCA 2998 as follows:

   “In summary, in order to satisfy the criteria for the grant of a class TU visa by reference to subclass 573; an applicant in this applicant’s circumstances had to either:

   have had, both at the time of application and at the time of decision, a confirmation of enrolment in a course of study for the award of, relevantly a bachelor’s degree, or

   at the time of decision be enrolled in or be the subject of the current offer of enrolment in a course of study specified by the Minister.”

9. The courses currently specified by the Minister are contained in instrument IMMI14/015 made pursuant to regulation 1.40A. The courses specified 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; and

   ·     Masters by Coursework

10. The Minister’s delegate determined that the applicant had not met the criteria in paragraphs 573.223(1A) or the alternative criteria in paragraph 573.231 of Schedule 2 to the regulations between 6 October 2015 and 30 November 2016 when he re-enrolled in a bachelor degree after he had received the Notice of Intention to Consider Cancellation (NOICC). The Tribunal notes that the applicant admitted that his enrolment was cancelled on 15 September 2015 and it appears that he was notified of the cancellation on 6 October 2015. A copy of the delegate’s decision was provided to the Tribunal by the applicant.

11. On the basis of the above information, the Tribunal finds that the applicant ceased to meet paragraph 573.223(1A) when his enrolment in the Bachelor of Business degree was cancelled on 15 September 2015 and he did not meet the alternative criteria in paragraph 573.231 as he was not enrolled in a course specified by the Minister in IMMI14/015.

12. 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

13. 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’. The Tribunal has also carefully considered all of the material and submissions provided by the applicant.

14. When the applicant arrived in Australia on 28 June 2014 he was enrolled in a Certificate IV in Information Technology Networking (IT) to be followed by a Diploma of IT and then a Bachelor of IT degree. The applicant said that he found the Certificate IV course too difficult and although he tried to pass was failing the course. He withdrew from the course and his enrolment in the Diploma and Bachelor of IT courses were cancelled.

15. The applicant then enrolled in a Certificate IV in Business and a Diploma of Business with TAFE to be followed by a Bachelor of Business degree at QUT. He was unable to pass the Certificate IV in Business and his enrolment in the Diploma of Business and Bachelor of Business degree were consequentially cancelled. His enrolment in the Bachelor degree was cancelled on 15 September 2015 and the applicant was not enrolled in a HE course until he enrolled in a Bachelor of Business degree course at Holmes Institute on 30 November 2016 after he received the NOICC on 17 November 2016.

16. After his enrolments were cancelled in September 2015 he then enrolled in a Certificate IV in Small Business Management and a Diploma of Business, finishing the latter course on 28 August 2016. He said that the reason he passed these courses was because his teachers taught him in Punjabi and Hindi and he was helped by others with his assignments.

17. The applicant said that he knew that he was required to remain enrolled in his Bachelor degree course but said that he could not afford the fees. He said that his uncle, who had been paying for his fees was involved in a serious accident in 2016. He said that, because his uncle could not work and his family were paying for his medical expenses, they were unable to pay his fees. The Tribunal notes that the applicant’s enrolment in the Bachelor course ceased in September 2015 and his uncle was not injured until August 2016.

18. The applicant said that if his visa remained cancelled he and his family members would suffer hardship because he would not be allowed to apply for another visa. The Tribunal indicated that because his visa was cancelled for breach of condition 8516 it did not appear that there was any bar on him applying for another visa offshore. The applicant then said that he would suffer hardship if his visa were cancelled because he would have to pay for airfares to and from India. He also said that he would incur expenses in engaging an agent to apply for a visa in India. The Tribunal pointed out that he had said that his parents had been paying for him to live in Australia since the visa cancellation in December 2016 and that they would continue to pay for his living expenses if he remained here.

19. The Tribunal raised with the applicant its concern that because the applicant had not been able to pay his fees for a Bachelor degree in the past that he may not be able to pay in the future. The applicant said that he now had money to pay his fees. He said that he had money from his own subcontracting cleaning company which he had run since 2014.

20. The Tribunal raised its concern that, since the applicant had changed courses several times and had been running his company since 2014, shortly after he arrived, he may not have the will to study a higher education degree in Australia. The applicant indicated that he did wish to study a bachelor degree and if he were given the chance would complete a bachelor degree.

21. The Tribunal raised its concern that, as the applicant had failed to pass certificate IV level courses in IT and business, and that he was only able to complete 2 vocational level courses at an institution where he said that the teachers taught him in Indian languages and that other students helped him with assignments, he may not have the ability to successfully complete a bachelor degree in Australia. The applicant indicated that now his English language skills had improved and he would have no problems passing his courses.

22. The Tribunal finds that the applicant does not have the ability to successfully undertake a higher education course in Australia. The applicant’s lack of ability is evidenced by his poor academic performance and his family’s inability to pay his fees. Given that the applicant was initially unable to pass certificate IV courses and was only able to pass vocational level courses because they were taught in Indian languages and that he was assisted with his assignments by other students, the Tribunal does not accept that the applicant would be able to successfully undertake a bachelor degree if he were given another opportunity to do so. Additionally, because the applicant’s family were unable to assist with his fees, the Tribunal finds that the applicant will not be able to pay for fees for a higher education course.

23. The Tribunal is also concerned that the applicant does not have the will successfully complete a higher education course as he changed courses several times and had been running a company in Australia without a business visa since 2014. This weighs in favour of affirming the decision.

24. The Tribunal is willing to accept that the applicant and his family members may experience disappointment and shame that the applicant’s visa was cancelled before he was able to complete a higher education course in Australia. However, if his visa was not cancelled it would have expired in August 2017 and there is no bar on the applicant applying for another visa. It appears the applicant would simply have to return to India and apply for a further visa. 

25. The Tribunal finds that the applicant’s lack of ability and will to successfully undertake higher education courses in Australia heavily outweighs any hardship that he or his family members may face because of the cancellation of the applicant’s visa.

26. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

27. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.