JAGATJIT SINGH (Migration)

[2018] AATA 1784

JAGATJIT SINGH (Migration) [2018] AATA 1784 (27 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  JAGATJIT SINGH

CASE NUMBER:  1707947

DIBP REFERENCE(S):  BCC2017/132861

MEMBER:Fiona Meagher

DATE:27 February 2018

PLACE OF DECISION:  Brisbane

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 27 February 2018 at 8:03pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Whether the ground for cancellation exists – Applicant not enrolled in relevant course – Whether the visa should be cancelled – Studies undertaken at vocational level – Applicant has progressed academically – Genuine intention to study at a higher education sector level – Decision set aside and substituted

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, Condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 April 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had breached condition 8516 which was attached to the applicant’s 573 higher education sector visa, and found that the factors against cancellation did not outweigh those in favour of cancellation and cancelled the visa. A copy of the delegate’s decision was provided with the application for review.

3. The issue in the present case is whether that ground for cancellation is made out, and if so whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 20 February 2018 to give evidence and present arguments.

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

6. 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

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. This condition specifies that the holder must continue to be a person who would satisfy the criteria for the grant of the visa.

   Does the ground for cancellation exist?

8. The delegate’s decision sets out that the applicant’s enrolment for a Bachelor of International Tourism and Hotel Management was cancelled on 19 April 2016.

9. According to the delegate’s decision, in the present case, the applicant was granted a visa in subclass 573 higher education sector on 9 July 2014, in order to ultimately study for a Bachelor of International Tourism and Hotel Management, which visa was cancelled on 19 April 2016 on the basis that the applicant was not a person who would satisfy the primary criteria for the grant of the visa. That is, the applicant no longer satisfied the primary criteria as he ceased to be enrolled in a higher education course, which is a course of study that was the principal course required by cl.573.231.

10. The Tribunal finds that courses specified for a subclass 573 visas are, relevantly, higher education sector courses. The Tribunal finds that the applicant ceased to be a person who satisfy the primary criteria because he ceased to be enrolled in, or to be the subject of an offer of enrolment in an eligible course and he was not an eligible higher degree student.

11. The Tribunal notes that the applicant commenced studying in Australia in an English level course which he started on 13 October 2014, and completed on 30 January 2015. He subsequently commenced a diploma of hotel management at the Queensland Institute of business and technology, but was unsuccessful in relation to that course. Accordingly his certificate of enrolment was cancelled. The applicant then enrolled in and successfully completed a diploma of management at the American College Pty Ltd. Although the applicant completed his diploma of management in March 2016 at the American College Pty Ltd, he did not find it to be an ideal academic environment for him, and consequently he enrolled in an advanced diploma of leadership and management due to start in May 2016 at the Cambridge Academy of English. The applicant has now completed his advanced diploma of leadership and management (partly whilst on a bridging visa), and has been accepted to undertake a bachelor of business at the Kaplan Institute, pending the outcome of this review.

12. Notwithstanding the efforts made by the applicant, and the current status of his application to undertake a bachelor degree, the Tribunal considers that bridges established once the applicant ceased to be enrolled in the relevant course.

13. 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”. The reference to “the visa” in this context is to the visa which was granted and which the condition attaches. If the applicant was granted a subclass 573 visa, the grant of the visa has been done pursuant to s.65 on the basis of the Minister’s satisfaction that the visa applicant satisfies the criteria for the grant of a subclass 573 visa. The relevant criteria to be considered in relation to compliance with condition 8516 other criteria applicable to the subclass 573 visa at the time it was granted. Clause 573.231 is relevant.

14. 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 the visa condition which applied 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 applied as if the criteria were being assessed as 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 the kind specified for the particular subclass, in this case, a higher education course, the applicant reaches condition 8516 of the visa.

15. The Tribunal finds that when the applicant ceased to be enrolled, or to be the subject of an offer of enrolment, in a higher education course, he ceased 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. As such, the Tribunal finds that the applicant breached condition 8516 of his visa.

16. 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 the discretion to cancel the visa

17. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

18. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

    Purpose of travel to and stay in Australia.

19. The purpose of a student visa is to enable the visa holder to undertake study in Australia. The purpose of the higher education visa is to enable the visa holder to undertake study at the higher education level. The evidence before the Tribunal indicates that the applicant has not yet undertaken study at the higher education level. He has however continued to study, albeit at the vocational level, and the Tribunal is satisfied that he has completed his diploma of management and his advanced diploma of leadership and management. The Tribunal is also satisfied that he intends to now pursue a bachelor degree.

20. The Tribunal had before it the applicant’s response to the Notice of Intention to Consider Cancellation (NOICC) of his visa. In that document, the applicant’s registered migration agent submits that the applicant struggled with study in Australia initially, due to the fact that he was new to the country and was taking time to settle. The response also referred to difficulties he experienced in living in his shared accommodation. The applicant provided consistent oral evidence to that contained within the NOICC, save that he also said that he experienced difficulty in getting money and time to pay for a semester of his initial diploma of hotel management.

21. The Tribunal considers that the evidence in this case favour the finding that the breach was not beyond the applicant’s control. However, there is evidence that the applicant was under some stress when starting his substantive studies in Australia, and that he has demonstrated a consistent desire to pursue studies, and indeed made progress in that regard. Therefore the Tribunal gives little weight to the circumstances of the breach in relation to the cancellation of the visa.

    Extent of compliance with visa conditions.

22. There is no evidence before the Tribunal that the applicant has breached any other conditions of his visa than condition 8516. He has also given convincing evidence of his ongoing intentions to study in Australia, achieve the academic outcomes he has been pursuing, and to be compliant with his visa conditions. Accordingly, the Tribunal gives little weight to this factor in relation to the cancellation of the visa.

    Hardship that may be caused to visa holder and family.

23. The Tribunal has considered the degree of hardship that may be caused. The applicant has said that he will disappoint and embarrass his parents, and furthermore be unable to take over the care of his father’s business, which was the purpose of him undertaking an Australian education in the first place. The Tribunal gives this factor some weight in favour of the visa not being cancelled.

    Past and present behaviour towards DIBP.

24. There is no evidence before the Tribunal to suggest that, aside from the breach of the 8516 visa, that the past and present conduct of the visa holder towards the department has been inappropriate. He has consistently attempted to pursue a pathway towards his bachelor degree study, and has gained study rights and continued to study whilst on his bridging visa. The Tribunal gives this factor some weight in favour of the visa not being cancelled.

    Whether cancellation may result in breach of any of Australia’s international obligations

25. There is nothing to suggest, and the applicant does not claim, that Australia’s international obligations would be breached as a result of the cancellation.

26. The Tribunal has considered all of the circumstances of the applicant. The Tribunal finds that the applicant breached condition 8516 of his visa, and that the breach was significant, as he has not undertaken study for the purpose for which the visa was granted, namely for higher education. However, the Tribunal also acknowledges that the applicant has been undertaking study consistently whilst in Australia, and has taken a number of steps to attempt to ensure compliance with the conditions of his visa. The Tribunal accepts that the applicant will undertake a bachelor course as soon as possible, and that he is genuine in respect of his academic intentions.

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

    DECISION

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

    Fiona Meagher
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.