Jaspreet Singh (Migration)

[2018] AATA 4952

Jaspreet Singh (Migration) [2018] AATA 4952 (26 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaspreet Singh Jaspreet Singh

CASE NUMBER:  1711486

HOME AFFAIRS REFERENCE(S):           BCC2017/1081554

MEMBER:Christine Kannis

DATE:26 October 2018

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 26 October 2018 at 7:38am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – failed to enrol in higher education sector course – subsequent re-enrolment – change of field – continued to study – awareness of course cancellation – reliance on advice of friends – decision under review set aside

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

CASES
Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 May 2017 made by a delegate of the Minister for Immigration and Border Protection 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 issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal on 11 September 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. 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. On 4 November 2015 the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8516 attached. Condition 8516 requires that the 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. In respect of a criterion requiring the visa holder to be enrolled, it has been held that this requires the visa holder to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

9. In the present case the applicant was required to meet, among other criteria, subclause 573.231 or 573.223(1A) of Schedule 2 to the Migration Regulations 1994.

10. Essentially, subclause 573.231 provides that, unless a person is an eligible higher degree student as set out in 573.223(1A), that person must be enrolled or the subject of a current offer of enrolment in a principal course of a kind specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application: cl.573.231. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI14/015.

11. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant’s enrolment in a Bachelor of Business was cancelled on 22 June 2016.  He was not an eligible higher degree student and was not enrolled or the subject of a current offer of enrolment in a principal course of a kind specified for Subclass 573 by the Minister in IMMI14/15 from 22 June 2016.

12. On 3 May 2017 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) on the basis that he had failed to comply with condition 8516. On 10 May 2017 the applicant responded to the NOICC and provided the following information:

    ·After he completed Certificates III and IV in Commercial Cookery his education provider, Empyrean Education Institute, changed campus. 

    ·The new campus location was too far away from his accommodation and after seven months he transferred his enrolment to another education provider, New England College Perth.

    ·After two months he notified Empyrean Education Institute of his change of enrolment and was then informed his enrolment had been cancelled.

    ·He had completed a Diploma of Leadership and Management at New England College Perth. A letter confirming he commenced the course on 1 August 2016 and finished the course on 20 April 2017 was provided.

    ·He was not aware of his obligations regarding condition 8516. After receiving the NOICC he contacted a migration agent and was advised of the requirement to maintain enrolment in a Bachelor degree course. As soon as he realised his mistake he enrolled in a Bachelor of Business.

    ·His intention is to pursue a new study pathway including a Bachelor of Business and CoEs for an Advanced Diploma of Leadership and Management created on 3 May 2017 and a Diploma of Hospitality Management created on 3 May 2017 were provided. A CoE for a Bachelor of Business course created on 9 May 2017 was provided.

    ·He wants to own a restaurant in India. His family spent all their savings on his study to make his future bright. His mother suffers from hypertension and if his visa is cancelled her health could be badly affected and that will have a serious impact on his family.

13. Prior to the hearing the applicant’s representative provided additional documentation which included but was not limited to a written submission and a Personal Statement.

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 a 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 of a kind specified for the particular subclass, in this case, a Higher Education Sector course, the applicant breaches condition 8516 of the visa. 

15. The Tribunal acknowledges that the applicant obtained CoEs on 3 and 9 May 2017 for pathway courses and a Bachelor degree course.  However, in the Tribunal’s view, a breach is established once the applicant ceased to be enrolled in the relevant course, despite the subsequent re-enrolment.

16. On the basis of the information before it, the Tribunal is satisfied that when the applicant’s enrolment in a Bachelor of Business was cancelled on 22 June 2016 he did not continue to satisfy cl.573.231 or cl.573.223(1A) and therefore did not continue to be a person who would satisfy the primary criteria for the grant of the visa. There was no evidence before the Tribunal to indicate that the applicant satisfied the secondary criteria for the grant of the visa. The Tribunal finds therefore that he breached condition 8516 of his student visa.

17. 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

18. 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 his representative, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

19. The applicant told the Tribunal that six months after he arrived in Australia he decided to change his field of study from Accounting to Cookery. He completed Certificates III and IV in Commercial Cookery and worked in restaurants with a view to opening his own restaurant in India after completion of his studies.

20. In early 2016 Empyrean Education Institute relocated to Fremantle. He was living and working in the Perth inner city area and he found travel to Fremantle was problematic. He told Empyrean Education Institute that he wanted to change his college to be nearer his home and work but the education provider cancelled his enrolment. The Tribunal noted that PRISMS indicates his enrolment in an Advanced Diploma of Business was cancelled for non-payment of fees. The applicant said he had missed making an instalment payment.

21. The applicant told the Tribunal that Empyrean Education Institute advised him that his enrolment in an Advanced Diploma of Business had been cancelled but they did not advise him that his enrolment in a Bachelor of Business had also been cancelled. He had previously paid $1,000 to the Australian School of Management for a CoE in a Bachelor of Business and he believed he was still enrolled in the course when he commenced a Diploma of Leadership and Management at New England College Perth in August 2016. The Tribunal noted this was inconsistent with his statement in his response to the NOICC that he was not aware of his obligations regarding condition 8516. He was unable to satisfactorily explain the inconsistency to the Tribunal.

22. The Tribunal had regard to the letter from New England College Perth confirming that the applicant commenced a Diploma of Leadership and Management course on 1 August 2016. The course was not a Higher Education Sector course. The course commenced six weeks after the applicant’s enrolment course in a Bachelor of Business was cancelled. The course finished on 20 April 2017 which was two weeks before the NOICC was issued.

23. The applicant told the Tribunal that as soon as he became aware of the breach of condition 8516 he sought to rectify his error and enrolled in pathway courses and a Bachelor of Business. After his visa was cancelled he lost his study rights. He applied to have his study rights re-instated on two occasions. His first application was rejected but his second application was successful and he was granted study rights in April 2018. His plan is to study a Diploma of Hospitality and a Bachelor of Business.

24. The applicant told the Tribunal the breach occurred because he relied on the advice of his friends when he enrolled in a Diploma of Leadership and Management at New England College Perth. He said he very much regrets relying on this advice and said he did not use good judgment and he made a wrong decision.

25. When asked about the hardship that may be caused by cancellation of his visa the applicant said if his visa is cancelled his career would be spoilt. He said he has spent four or five years in Australia with the purpose of gaining qualifications which will assist him in running his own restaurant.  He said his father has spent a lot of money to support him during his studies.

26. In the Personal Statement the applicant said when he opens a restaurant in India it will important for him to have a business plan which will include a consideration of  start-up expenses and operational costs, acquisition of the necessary licenses, advertising and marketing and staffing. He told the Tribunal he has gained cooking skills but he will also need business skills.

27. The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia, the circumstances in which the ground of cancellation arose and the reason and extent of the breach.

28. The purpose of the Higher Education Sector visa is to enable the visa holder to undertake study at a higher education level. The applicant ceased to be enrolled in a Higher Education Sector course for a period of more than ten months following cancellation of his enrolment in the Bachelor of Business. The Tribunal accepts that the applicant believed he was satisfying the conditions of his visa however considers it was his responsibility to ensure he understood the conditions attached to his visa and to ensure that he complied with those conditions while studying and living in Australia, including the 8516 condition. 

29. The Tribunal finds the applicant’s breach of condition 8516 to be significant because he was not engaging in study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.  The Tribunal gives this some weight in favour of cancellation.

30. The applicant’s representative said the breach arose due to circumstances beyond the applicant’s control, namely that Empyrean Education Institute relocated. The Tribunal does not accept this proposition. The applicant chose to not attend the relocated campus because of his preference to attend a campus near his work and home.

31. The Tribunal accepts the applicant would suffer a degree of emotional and financial hardship if he were to have his visa cancelled and finds this weighs in favour of the applicant.

32. Nothing adverse is known about the applicant’s past and present conduct towards the Department.  The Tribunal gives this some weight in the applicant’s favour.

33. The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled.

34. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant however finds in itself to not be sufficient to weigh in the applicant’s favour. 

35. 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.

36. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

37. The Tribunal is satisfied that the applicant has a genuine intention of pursuing higher education study in the future.  He continued to study after his enrolment in the Bachelor of Business was cancelled. The Tribunal accepts that because he had paid $1,000 to the Australian School of Management and was not advised by Empyrean Education Institute that his enrolment in the Bachelor of Business had been cancelled when his enrolment in other courses had been cancelled, he believed he was still enrolled in the Higher Education Sector course. He continued to study, albeit in a different course level, until his visa was cancelled.

38. The Tribunal is also satisfied that the applicant’s failure to comply with his visa conditions was due to his reliance on the advice of friends. The applicant’s reliance on incorrect advice is not a reason not to cancel the visa however the Tribunal has placed weight on his continued study in a Diploma of Leadership and Management at New England College Perth from 1 August 2016 to 20 April 2017.

39. The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively and considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Christine Kannis
    Member