Grewal (Migration)

[2018] AATA 254

Grewal (Migration) [2018] AATA 254 (14 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dalbeer Singh Grewal

CASE NUMBER:  1621701

DIBP REFERENCE(S):  BCC2016/3382510

MEMBER:Tigiilagi Eteuati

DATE:14 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 14 February 2018 at 4:20pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector visa – Did not intend to study a Higher Education course – Applicant may reapply for another student visa offshore

LEGISLATION
Migration Act 1958, s 116

Migration Regulations 1994, r1.40A Schedule 2 cl 573 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 2 November 2017 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 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 26 May 2015 when his enrolment in a Bachelor of Information Technology was cancelled and 22 November 2016 when he enrolled in a Bachelor of Business. A copy of the delegate’s decision was provided to the Tribunal by the applicant. This is consistent with records held by the Department and was conceded 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 Information Technology degree was cancelled on 26 May 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’.

14. When the applicant arrived in Australia in June 2014 he was enrolled in a Certificate IV in Information Technology Networking to be followed by a Diploma in Information Technology Networking and then a Bachelor of Information Technology. He said that he found the course very difficult and this was compounded by the deterioration in his maternal grandmother’s health ending in her death in late 2014. He said that he withdrew from the course and this resulted in the cancellation of his enrolment in the Diploma and Bachelor degree course. Enrolment in the Bachelor of IT course was cancelled on 26 May 2015 and the applicant was in breach of condition 8516 since that date.

15. The applicant then enrolled in a Certificate IV in Business and a Diploma of Business. He completed the Certificate IV course but withdrew from the Diploma course. He then enrolled in another Diploma of Business and an Advanced Diploma of Business. He completed the Diploma of business and withdrew from the Advanced Diploma of Business. Instead, the applicant enrolled in a Certificate IV in Commercial Cookery. He said that he decided to enrol in the cookery course as he planned to open a family motel business in India and that a practical understanding of cookery would be beneficial for the business.

16. The applicant was sent a Notice of Intention to Consider Cancellation (NOICC) on 14 November 2016 after which he enrolled in a Bachelor of Business and a Diploma of Hospitality Management.

17. The applicant explained that he had no interest in studying information technology and decided to study business because he believed that it would be easier for him to pass business courses than IT courses. He said that he always knew that he was required to maintain enrolment in a HE course but that when he changed courses from IT courses to the business courses he had no intention of completing a bachelor degree.

18. The applicant said that he only enrolled in the Bachelor of Business course after he received the NOICC in order to try to avoid the cancellation of his visa. He said that if he was to regain a student visa he did not intend to study a HE course and instead wanted to complete his cookery course and then undertake an Advanced Diploma in Hospitality Management.

19. The Tribunal raised with the applicant its preliminary view that, as he had admitted he had no intention to study a HE course and intended to continue to study VET courses, this appeared to weigh in favour of cancellation of his visa. The applicant said that he wanted the cancellation decision set aside so that he could apply for another visa onshore and complete vocational courses in hospitality and cookery.

20. The Tribunal also indicated that the only hardship that the applicant has indicated that he will face if the delegate’s decision was affirmed was that he believed that he would have to wait longer to be granted another student visa if he applied offshore rather than in Australia.

21. The Tribunal has decided that the decision under review should be affirmed. The Tribunal is not satisfied that the applicant has the desire to successfully undertake a HE course in Australia. He is admitted as much. The visa was granted to the applicant for a certain period of time to study the courses which he had nominated to study, that is, IT courses leading to a Bachelor of IT degree. However, he failed the Diploma if IT Networking course and his enrolment in the Bachelor of IT was consequently cancelled in breach of condition 8516.

22. The applicant was not permitted to undertake only vocational courses and any difficulties which the applicant now faces are of the applicant’s own making. It was the applicant’s responsibility to comply with the conditions of his visa and to inform himself of those conditions. The applicant had every chance to study the courses for which he came to Australia to study but instead decided to complete a number of vocational courses. The Tribunal notes that, had the applicant’s visa not been cancelled, it would have expired on 30 August 2017. There is no bar on the applicant re-applying for a visa and, other than having to leave Australia to apply for another visa, it is unclear what possible affect the outcome of these proceedings would have on the applicant. Whether or not he is successful before the Tribunal, he will not hold a student visa and will have to apply for another student visa.

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

    DECISION

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

    Tigiilagi Eteuati
    Member