Kainsrey (Migration)

[2017] AATA 1187

Kainsrey (Migration) [2017] AATA 1187 (7 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Daljit Singh Kainsrey

CASE NUMBER:  1622469

DIBP REFERENCE(S):  BCC2016/3310093

MEMBER:Tigiilagi Eteuati

DATE:7 July 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 07 July 2017 at 10:40am

CATCHWORDS

Migration – Cancellation – Subclass 573 Higher Education Sector visa – Enrolment in University cancelled – Not enrolled in specified course – Lack of progress in courses – May not have ability to successfully undertake and complete higher education degree course 

LEGISLATION
Migration Act 1958, ss.116
Migration Regulations 1994, Schedule 2, cl 573.223(1A), cl 573.231, IMMI14/015, r 1.40A, 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 15 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 5 July 2017 to give evidence and present arguments.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant’s representative was present at the 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. 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.

8. 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.

9. 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.”

10. 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

11. 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).

12. 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 since 9 September 2015 when his enrolment in a Bachelor of Commerce degree course with Federation University Australia was cancelled. This was admitted by the applicant and accords with records held by the Department.

13. 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 Business degree was cancelled on 11 November 2016 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.

14. 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

15. 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’.

16. The applicant gave evidence that he arrived in Australia in March 2014 and completed an English language course by mid-2014. When he arrived in Australia, the applicant was also enrolled in a Certificate IV in Business, a Diploma of Business and a Bachelor of Business. He said that he was undertaking the Certificate IV and Diploma courses but was not passing and in mid-2015 he sought the advice of a migration agent who organised for the applicant to enrol in similar courses with a different provider, namely, Holmes Institute. He said that at the time the migration agent reminded him that it was a condition of his visa to be enrolled in a HE course. The applicant said that he began the courses at Holmes institute but again found them too difficult and was not passing his courses. He said that at both institutions, he had been provided with insufficient assistance by the providers and he attributed his failure in the courses, in part, to the lack of assistance he received.

17. The applicant said that towards the end of 2015, he withdrew from his courses at Holmes Institute and enrolled in a Certificate IV in Commercial Cookery with the New England Institute of Technology. He said that when he withdrew from his courses at Holmes Institute and enrolled in the Commercial Cookery course, he had “forgotten” that it was a condition of his visa to remain enrolled in a HE course.

18. The applicant said that he performed well in his Cookery course and that his teachers were helpful. He said that he believed that he improved his English language skills during the course and gained confidence in his ability to successfully undertake a Bachelor of Business Course. The applicant said that he had taken a number of business/management units as part of his Cookery course and that this showed that he would be able to complete a Bachelor of Business degree.

19. The Tribunal raised its concern that given that the applicant had withdrawn his enrolment in the HE courses and chose instead to undertake a VET Commercial Cookery Course that the applicant may not have the desire to undertake a HE course in Australia. The applicant said that he wished to complete a Bachelor of Business course as this would assist him in managing the restaurant that he planned to open in India. He said that as soon as he received the NOICC he enrolled in a Bachelor of Business course with Holmes Institute.

20. The Tribunal raised its concern that given that the applicant had failed to even pass a Certificate IV in business twice with different institutions, the applicant may not have the ability to successfully undertake a Bachelor of Business degree. The applicant said that in the past his English was poorer than it currently was and that previously he had not had sufficient support from his education providers. He said that he had gained confidence during his cookery course and improved his English language ability. He also said that he had passed several business/management units during his cookery course which indicated that he could successfully undertake a Bachelor of Business degree.

21. The applicant said that after his visa was cancelled he became depressed. The Tribunal asked the applicant whether he had sought any medical or counselling assistance and he said that he had not.

22. Towards the conclusion of the hearing the applicant said that he had recently received a 6 in an IELTS test and the Tribunal allowed the applicant until 6 July 2017 to provide evidence of this if he wished. The Tribunal indicated that no further written submissions were required. On 7 July 2017 it came to the Member’s attention that an email which was time stamped 6.18pm on 6 July 2017 was received by the Tribunal. That email attached an IELTS results sheet which indicated that the applicant had scored an overall grade of 6 in an IELTS test in January 2017. The email also attached further submissions including in relation to the IELTS test which were not sought by the Tribunal but have been considered.

23. The Tribunal finds that the applicant does not have the ability to successfully undertake a HE course in Australia. For 18 months the applicant attempted to complete a Certificate IV in business at two separate institutions and failed to do so. The Tribunal finds that if the applicant was unable to complete even a Certificate IV in Business he will be unable to complete a Bachelor of Business degree. The Tribunal does not accept that the applicant’s failure to pass any of his business courses in the past was attributable to having poor English ability at the time. He gave evidence that he had attained a 5.5 in an IELTS test prior to coming to Australia and completed an ELICOS course here before starting his business courses. In addition, the applicant was able to complete the Cookery course directly after failing to complete his business courses which also supports the view that it was not his language skills which prevented him from passing the business courses. The Tribunal notes that the evidence that he has recently received a 6 score in an IELTS test does not alter the Tribunal’s findings.

24. 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 any higher education courses in Australia. However, the applicant’s lawyer informed the Tribunal, and the Tribunal accepts, that the applicant would not be prevented from applying for another student visa for any period of time if his visa remains cancelled. In fact, the applicant’s representative indicated that the only practical benefit of succeeding in the application before the Tribunal is that the applicant would be able to apply for a further student visa onshore whereas he would have to make the application offshore if his visa remained cancelled. Even if his visa was not cancelled it would have expired in September 2017. It was the applicant’s responsibility to abide by the conditions of his visa and to understand the consequences of failing to abide by the conditions of his visa.

25. In any event, the Tribunal finds that the applicant’s lack of ability to successfully undertake higher education courses in Australia heavily outweighs any hardship that he or his family members may face because of the cancellation of the applicant’s visa.

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

    DECISION

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

    Tigiilagi Eteuati
    Member