Gurpartap Singh (Migration)

[2019] AATA 1638

Gurpartap Singh (Migration) [2019] AATA 1638 (18 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurpartap Singh

CASE NUMBER:  1813763

HOME AFFAIRS REFERENCE(S):           BCC2018/819587

MEMBER:Damian Creedon

DATE:18 May 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 18 May 2019 at 10:36am

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 – reliance on agents’ advice – intends to study at bachelor level – decision under review set aside

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 May 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) on the basis that the applicant did not continue to be a person who would satisfy the primary criteria for the grant of 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 12 April 2019 to give evidence and present arguments.  He was represented in relation to the review by his registered migration agent.

4. 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

1. 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?

1. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa. This condition mandates that:

   The 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.

2. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 7 July 2016.  By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 11 April 2018, the applicant was advised that it appeared he had breached condition 8516 which was attached to his TU-573 Higher Education Sector Student visa.

3. The delegate then noted that on the grant of his visa, the applicant was required to meet, amongst other criteria, cl.573.231 or cl.573.223(1A). These stated:

   573.231

   [573.231 substituted by SLI 2012, 35 with effect from 24/03/2012 - LEGEND note]
   If the applicant is not an eligible higher degree student, or does not have a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

   (a) the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and

   (b) the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:

   (i) made under regulation 1.40A; and

   (ii) in force at the time the application was made

   and:

   573.223(1A)
   …..

   (1A) If the applicant is an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

   (a)the applicant gives the Minister evidence that the applicant has:

   (i)a level of English language proficiency that satisfies the applicant’s eligible education provider; and

   (ii) educational qualifications required by the eligible education provider; and

   (b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

   (ii)      any other relevant matter; and

   (c)  the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

   (i) the costs and expenses required to support the applicant during the proposed stay in Australia; and

   (ii) the costs and expenses required to support each member (if any) of the applicant’s family unit.

   Further:
   573.1      Interpretation and preliminary provided:
   …..

   eligible higher degree student means an applicant for a Subclass 573 visa in relation to whom the following apply:

   (a) the applicant is enrolled in a principal course of study for the award of:

   (i)   a bachelor’s degree; or

   (ii)   a masters degree by coursework;

   (b) the principal course of study is provided by an eligible education provider;

   (c) if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study:

   (i)   the applicant is also enrolled in that course; and

   (ii) that course is provided by the eligible education provider or an educational business partner of the eligible education provider.

4. In the NOICC, the applicant was also advised that according to the Provider Registration and International Student Management System (PRISMS) it appeared he was no longer enrolled in a Bachelors degree or a Masters degree and therefore he was not enrolled in a course of study that was a principal course of a type specified for TU-573 visas by the Minister in an instrument under reg.1.40A. Accordingly, as he had not continued to be a person who would satisfy either cl.573.231 or cl.573.223(1A), it also appeared he did not continue to be a person who would satisfy the primary criteria for the grant of the visa – as required by condition 8516. Finally that his visa may therefore be cancelled under s.116(1)(b) of the Act.

5. The applicant responded to the Department NOICC letter and disputed that he had ceased to be enrolled as alleged.  Nonetheless the delegate cancelled the visa on 9 May 2018.

Did the applicant breach Condition 8516?

1. The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’). It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia.

2. The PRISMS report obtained by the delegate indicated that on 14 August 2017 the applicant’s prospective educational provider, Murdoch University, notified the Department of Education and Training that it had cancelled his confirmation of enrolment due to non-commencement of studies.  In his oral evidence given at the hearing before the Tribunal, the Applicant conceded that his enrolment in that registered course of study had ceased and that he had enrolled instead in certificate courses in commercial cookery, well below the bachelor’s degree or master’s degree level required to maintain the Higher Education Sector enrolment mandated by condition 8516.

3. Accordingly, the Tribunal is satisfied that the delegate was correct in reaching the conclusion that the Applicant was in breach of condition 8516 of his visa.

Consideration of discretion – analysis and findings

1. 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’.

2. The applicant presented as an earnest and eager witness, and overall the Tribunal found his evidence to be credible and truthful.  Where possible he endeavoured to support his oral statements with documentary evidence and he did not convey an impression of concoction or recent invention.  Where relevant, the applicant’s evidence to the Tribunal is referred to in its analysis below.

Circumstances in which the ground of cancellation arose.  Were the circumstances beyond the visa holder’s control?

1. The applicant explained that when he came to study in Australia he was enrolled in a package comprising a Certificate IV in Information Technology Networking, a Diploma of Information Technology Networking and a Bachelor of Science.  The Certificate and Diploma courses were pre-requisites to the Bachelor’s degree.

2. While he was initially doing well in his studies, he came to realise that the information technology (‘IT’) courses were too difficult for him; they were, he stated, “beyond [his] skill set”.  He found it difficult to satisfactorily complete the course units and he was not confident in being able to complete the required IT coursework.  He attempted the practical exam for his Certificate IV but he did not pass it. 

3. He stated that the new learning environment in Australia and the complexity of the subject matter were factors affecting his ability to progress.  As a consequence, after around six months of the Certificate IV course he formed the view that he would not meet the eligibility requirements to commence his bachelor’s degree in science.  Upon reaching this view he claims that he began to explore other course options with the intention of not breaching his visa conditions.

4. The applicant explained that he explored other courses in the vocational education and training (‘VET’) sector that would lead to a bachelor’s degree as he was not eligible for direct entry to a bachelor’s degree.  He claimed that be consulted several education agents for advice before settling upon a new course direction.  After taking this advice, and in consultation with his family, he chose to enrol in a commercial cookery pathway with Stanley College leading to a bachelor’s degree in business.  He claimed that he chose this pathway as it was of interest to him; it was within his “skill set”; would lead him to completing a bachelor’s degree in business; and he received advice that it was consistent with his visa status.

5. He stated that he depended “heavily” on the advice of his various agents.  In reliance on their advice he (mistakenly) believed that he was acting within the scope of his visa’s conditions. The NOICC and subsequent cancellation was a “surprise” to him as he had thought, in reliance on his agents’ advice, that he was acting within the terms of his visa, though he understands now that he was mistaken. 

6. He stated that if his visa was restored and he was allowed to complete his study pathway his long term career goal is to return to India, work to gain experience and then open his own business.  If he is unsuccessful in his application he would have no meaningful qualifications.  He stated that this is his “last opportunity” to pursue higher studies as his family cannot afford to send him elsewhere to study and, with the gap in his studies, he would be unable obtain enrolment in “reputable private colleges” in India.

7. The applicant produced various documents to the Tribunal evidencing his relationship with the various agents he employed and his reliance upon the advice he received.  A number of these documents have been prepared in connection with ongoing complaints the applicant has made to regulatory bodies concerning the advice he has received, and it is not appropriate for the Tribunal to reproduce them here.  Suffice it to note that they are consistent with the claims the applicant has made to the Tribunal concerning the advice he received from those paid advisers.

8. In all of the circumstances the Tribunal is prepared to accept that the applicant relied upon the advice of his agents in choosing the pathways he did.  Although the applicant is not absolved from taking personal responsibility for his decisions, nonetheless the Tribunal considers that these circumstances weigh moderately in in his favour.

The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia.

1. The Tribunal has considered the purpose of the visa holder’s travel and stay in Australia and whether the visa holder has a compelling need to travel to or remain in Australia. The Tribunal accepts that the applicant came to Australia with the intention of studying. The Tribunal notes that the applicant arrived in Australia and attended the courses he selected but failed several units over the course of his studies.  The Tribunal accepts that he engaged with his course providers in an attempt to address his own performance limitations as a student. The Tribunal also accepts that Australia was chosen as a place to complete the applicant’s tertiary studies for, among other reasons, the presence of family members in Australia to provide a source of support for him.  However, the Tribunal does not consider this evidence to demonstrate a compelling need to travel to or remain in Australia and affords it no weight in his favour.

The extent of compliance with visa conditions

1. The applicant was, ultimately, responsible for the breach pertaining to his visa.  His visa was granted on 7 July 2016 for him to undertake a bachelor’s degree at Murdoch University.  He changed that study pathway in December 2016 with the consequence that his bachelor’s CoE was cancelled by Murdoch University.  He claimed that he had “genuinely” relied on his agents to ensure that he was enrolled in all courses required for his changed study pathway (culminating in the bachelors of business) and that he made genuine efforts to ensure that he met the visa conditions.  Evidence of this reliance was provided to the Tribunal as described above.  He claimed that he had “tried everything possible” to stay enrolled in an appropriate course of study since arriving in Australia. 

2. It is clear to the Tribunal that the applicant has not complied with condition 8516.  He was not an ‘eligible higher degree student’ following his decision to not pursue his bachelor’s degree in science.  Balanced against this the Tribunal is prepared to accept that he placed an over-reliance on advice that he received from paid advisers.  While noting, again, that the applicant cannot absolve himself of the responsibility to manage his own affairs, in all of the applicant’s circumstances the Tribunal does not consider that his breach of condition 8516 is, by itself, indicative of a reckless or indifferent attitude to Australian visa conditions.

3. In all the circumstances, the Tribunal finds the extent of the applicant’s breach to weigh only modestly in favour of cancellation.

Degree of hardship that may be caused (financial, psychological, emotional or other hardship).

1. The applicant claimed that he suffers from depression and anxiety caused by the uncertainty surrounding his future.  He claims his self-confidence is low and that he feels helpless that he has been unable to continue his studies.  He states that he did not study or work during the “waiting process” for his hearing before the Tribunal as he was incorrectly advised that he did not have study and work rights.  The applicant stated that his father and brother-in-law will finance his studies in Australia should continue in that pathway.  He is presently residing with his sister and brother-in-law.

2. The rest of his family (his mother, father and elder brother) reside in India – his elder brother owns a small business.

3. At the hearing the applicant advised that he had intended to call his sister as a witness to attest to her and her husband’s willingness to financially support the applicant.  Regrettably the applicant’s sister was unable to attend the hearing and the applicant elected to proceed without her evidence.  At the conclusion of the hearing the Tribunal allowed the applicant until close of business on 3 May 2019 to file any further submissions or evidence that he wished the Tribunal to consider.  Further submissions were filed and the Tribunal has taken these into account and accepts that the applicant’s family intend to support him in his studies.

4. The Tribunal notes the applicant’s evidence but does not consider it exceptional from the circumstances facing the majority of applicants in his situation and affords it no weight. 

Past and present behaviour of the visa holder towards the department.

1. Save for the matters already set out above, nothing adverse is known about the applicant’s other conduct towards the Department.

2. The Tribunal affords no weight to this consideration.

Whether there would be consequential cancellations under s.140.

1. The applicant has no one else associated with this visa.  As such the Tribunal gives this no weight.

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.

1. The delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia.  Further, s.48 of the Act means that he will have limited options to apply for further visas in Australia.

2. There is nothing to indicate the applicant would not be able to return to India.  The Tribunal affords little weight to this consideration in determining whether to cancel the visa.

Whether any international obligations would be breached as a result of the cancellation

1. There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation.

Conclusion

1. The Tribunal has considered the totality of the applicant’s circumstances. 

2. The Tribunal has found that the applicant has breached condition 8516 of his visa, however the Tribunal has had the benefit of speaking to the applicant which has enabled the Tribunal to obtain more information about his circumstances and genuineness in the presentation of his evidence.  Given the applicant’s evidence, and the assessment the Tribunal has made as to his character, the Tribunal is satisfied on balance that he intends to study at a bachelor level and most likely a bachelor of business. At times, during the giving of his evidence, the applicant exhibited what appeared to the Tribunal to be a degree of naiveté in his reliance on paid advice, but that reliance appeared to the Tribunal to be honestly held.  For the reasons stated the Tribunal considers that the gravamen of his breach of condition 8516 is tempered by the reliance he placed on his paid advisers and, in the totality of the evidence presented, the Tribunal places more weight in favour of the applicant and not cancelling the visa.

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

DECISION

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

Damian Creedon
Member