Gurjot Singh (Migration)

[2018] AATA 800

Gurjot Singh (Migration) [2018] AATA 800 (15 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurjot Singh

CASE NUMBER:  1621920

DIBP REFERENCE(S):  BCC2016/3382225

MEMBER:Tigiilagi Eteuati

DATE:15 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 15 February 2018 at 6:31pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Did not successfully undertake a Higher Education course – Changed to vocational courses – Hardship – Additional financial expenses – Family disappointment – Able to reapply for a visa offshore

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 116
Migration Regulations 1994 rr 1.03, 1.40A Schedule 2 cls 573.231, 573.223 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 19 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. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. 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

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)(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?

7. 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?

8. 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.

9. 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.

10. 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.”

11. The courses 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); and

    ·      Associate Degree Masters by Coursework

12. Education providers apply to have their courses registered as either Higher Education (HE) courses or other courses including Vocational Education and Training (VET) courses, English Language Intensive Courses for Overseas Students (ELICOS) courses and foundation programs, under a system established under the Education Services for Overseas Students Act 2000 (ESOS Act).

13. Details of courses which have been registered are contained in the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and the status of a course, for example whether a course is a HE or VET course can be determined by examining the register. This can be done through the CRICOS website at >

    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 Migration Regulations 1994 when his enrolment in a Bachelor of Business degree was cancelled on 2 September 2015. He re-enrolled in a Bachelor of Business degree on 30 November 2016 after receiving the Notice of Intention to Consider Cancellation (NOICC). This was admitted by the applicant and accords with records held by the Department.

14. On the basis of the above information, the Tribunal finds that the applicant ceased to meet paragraph 573.223(1A) when his enrolment in Bachelor of Business degree was cancelled on 2 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.

15. 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

16. 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 carefully considered the material and submissions provided by the applicant and his representative.

17. When the applicant arrived in Australia in March 2014 he was enrolled in an English language course to be followed by a Diploma of Business and then a Bachelor of Business degree at Griffith University.

18. He said that he completed the English language course by mid-2014 and began the Diploma of Business course. He said that he found the course too difficult and said that it was difficult for him to attend as the course was conducted on the Gold Coast whereas he lived with family in Brisbane. He said that he dropped out of the diploma course and his enrolment was cancelled in October 2014. His enrolment in the Bachelor of Business course was cancelled on 2 September 2015 for non-commencement and he was in breach of condition 8516 from this date. The applicant enrolled in a Bachelor of Business course on 30 November 2016 after he received the NOICC on 18 November 2016.

19. After the applicant ceased the Diploma course in 2014, he enrolled in a Certificate IV in Business, a Diploma of Management and an Advanced Diploma of Management at the Australian National Institute of Business on 22 October 2014. The applicant completed the Certificate IV in April 2015 and completed the Diploma of Management in November 2015. He withdrew from the Advanced Diploma of Management in March 2016 and on the same day enrolled in Certificates III and IV in Commercial Cookery. He withdrew from the certificate III course on 12 December 2016 and his visa was cancelled on 19 December 2016. The certificate IV course was consequently cancelled. The certificate IV course was to be completed in October 2017 and, had his visa not been cancelled, the applicant’s visa would have expired in August 2017.

20. The Tribunal raised with the applicant its concern that as the applicant dropped out of his courses leading to a bachelor degree in October 2014, that his enrolment in the degree was cancelled on 2 September 2015 and that he instead enrolled in a number of vocational courses which would have been completed in October 2017 had his visa not been cancelled, the applicant had no desire to successfully undertake a HE course.

21. The applicant said that he was unaware that he was required to maintain enrolment in a bachelor degree until he received the NOICC on 18 November 2016. He said that he had always intended to study a Bachelor of Business degree. He said that his aim was to open a restaurant in India and that he took the Certificate IV in Business, the Diploma of Management and enrolled in the cookery courses to help him realise his objective.

22. The Tribunal also raised with the applicant that, although he knew that he could simply re-apply for another student visa offshore once his visa was cancelled in December 2016 that he decided to remain in Australia and not study instead of returning to India to study or re-apply for another student visa. The Tribunal indicated that this may also indicate that the applicant did not have the desire to undertake a HE course in Australia.

23. The applicant said that although he knew that he could apply for another visa offshore, he was advised by his representatives that the Tribunal review process would be swift and he would be able to apply for another visa onshore shortly after his visa was cancelled. The Tribunal does not accept that the applicant believed this to be the case. His representatives regularly appear before the Tribunal in these matters and know that these matters can take over a year before they are decided in the Tribunal. The Tribunal does not accept that the applicant’s representatives told him that his application before the Tribunal would be resolved shortly after his application was made.

24. The Tribunal also raised its concern that, although the applicant had completed a Certificate IV in Business and a Diploma of Management, he had failed a Diploma of Business in the past and this may suggest that he did not have the ability to successfully undertake a bachelor degree in business. The applicant said that he was confident that he could do so if given the opportunity.

25. The applicant said that he and his parents would suffer hardship if his visa was cancelled because his parents had spent a great deal of money on his fees and expenses in Australia. The Tribunal reminded the applicant that he had done the courses which he wanted to do and that there would be no bar on him re-applying for a visa once he left the country. The applicant then said that his parents would have to pay for his airfares to and from India if his visa remained cancelled. Further, the applicant claimed that if he returned to India people may discover that his visa was cancelled and that this would be embarrassing for him.

26. 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. 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, business courses leading to a Bachelor of Business degree. However, he was failing the Diploma of Business and his enrolment in the Bachelor of Business was cancelled in breach of condition 8516.

27. Instead of continuing with his courses leading to a Bachelor of Business degree, the applicant decided to change courses to study a number of vocational courses at a college. He indicated that he was unaware of condition 8516 prior to changing courses. The Tribunal does not accept that the applicant believed that he could abandon his HE course and still meet the conditions of his subclass 573 visa. Even if this was accepted, it was the applicant’s responsibility to inform himself of the conditions of his visa and to comply with them.

28. After he finished his first vocational course, a Certificate IV in Business, instead of seeking to enrol in a bachelor course the applicant undertook another vocational course, this time a Diploma of Management . Again, after completing the diploma he could have enrolled in a bachelor degree but did not do so and dropped out of an advanced diploma course to enrol in two vocational cookery courses. The second of these cookery courses was to be completed by October 2017 and his visa was to expire in August 2017. All of these facts strongly suggest that the applicant did not have the desire to successfully undertake a HE course.

29. The Tribunal is willing to accept that the applicant and his family members may experience disappointment that the applicant’s visa was cancelled before he was able to complete a HE course in Australia. However, the Tribunal notes that the applicant has completed two courses and can apply for another student visa at any time. The fact that the applicant’s parents will have to pay for the applicant’s airfares to and from India and that the applicant may be embarrassed if members of his community discover that his visa was cancelled carry very little weight in his favour.

30. 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 in August 2017.

31. 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. Whether or not the decision is set aside on a discretionary basis does not change the fact that the applicant breached condition 8516 and any future student visa decision maker will not be compelled to grant the applicant a visa if the Tribunal sets aside the cancellation decision.

32. 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.

    Tigiilagi Eteuati
    Member