Kaur (Migration)

[2017] AATA 912

Kaur (Migration) [2017] AATA 912 (22 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Gurpreet Kaur
Mr Ramandeep Singh Dhaliwal

CASE NUMBER:  1613347

DIBP REFERENCE(S):  BCC2016/2439352

MEMBER:Sean Baker

DATE:22 May 2017

PLACE OF DECISION:  Melbourne

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

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 22 May 2017 at 5:05pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector visa – Applicant ceased enrolment in a registered course – Enrolment twice changed into different registered courses – Valid course offer letters at cancellation date – Same enrolment currently maintained – No ground for cancellation

LEGISLATION

Migration Act 1958, ss 116, 140, 348

Migration Regulation 1994, cl 573.223, cl 573.231, r 1.40A, Condition 8516

CASES

Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80
MIMIA v Ahmed (2005) 143 FCR 314
Singh v MIBP [2015] FCCA 2998

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 August 2016 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) 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 delegate found 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. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. The applicant provided a copy of the delegate’s decision with her application for review.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

4. The applicants appeared before the Tribunal on 22 May 2017, to give evidence and present arguments.

5. 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

6. 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?

7. The Departmental decision identified that the Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 4 August 2016. The Departmental decision sets out that on 28 August 2014 the applicant satisfied the primary criteria for the grant of the 573 visa and met cl.573.231 or cl.573.223(1A) to be granted the visa. These clauses require the applicant to be enrolled in a bachelor or master degree course, or enrolled in or the subject of a current offer of enrolment in a course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under r.1.40A. (In these reasons I may refer to such courses as ‘higher education’).

8. According to the delegate’s decision, the departmental systems indicated that the applicant at the time of the NOICC was no longer enrolled in a bachelor or master degree course and was therefore not an eligible higher degree student and was not enrolled in a course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under r.1.40A. Departmental systems indicated that the applicant ceased to be enrolled in a Bachelor of Information Technology at RMIT and then enrolled in a Bachelor of Business-Accounting at Cambridge College, but her enrolment in this course ceased on 13 November 2015, since which time the applicant has not held enrolment in a course of study specified for Subclass 573 visas.

9. At hearing the applicant provided an offer letter from Stott’s College (Tf.31) dated 6 November 2015 for a Bachelor of Business. The Tribunal has confirmed that this is a CRICOS registered course at the higher education level. The Offer is for a course start date of 19/03/2018 and there is nothing in the offer letter to indicate that the letter is not current. It does not appear that this offer letter was before the delegate.

10. The Tribunal notes that the offer letter was issued prior to the ceasing of the applicant’s enrolment in the Bachelor of Business – Accounting at Cambridge. 

11. It is clear that an applicant may satisfy either cl.573.231 or cl.573.223(1A) to in turn meet condition 8516. In this case it appears that the applicant continued to meet one of these criteria – at the time that her enrolment in the Bachelor of Business – Accounting at Cambridge ceased, she already held the valid letter of offer from Stott’s College, which continued to be a valid letter of offer for some indeterminate time. Some information suggests that offer letters expire only on the census letter for the course – which in this case would mean sometime after 19/03/2018.

12. ‘Current offer of enrolment’ (my emphasis) is not defined or explained in the legislation or Departmental policy, but in this case the applicant held an offer letter which appears to meet the requirements of cl.573.231[1] prior to the ceasing of her enrolment, and there is no information before me that this offer letter has ceased. Therefore, from the information now available, I find that until her visa was cancelled, the applicant continued to meet either cl.573.231 or cl.573.223(1A) and therefore was not in breach of condition 8516. For these reasons, I am not satisfied that the ground for cancellation in s.116(1)(b) exists. It follows that the power to cancel the applicant’s visa does not arise.

    [1] Singh v MIBP [2015] FCCA 2998 at [79]-[80].

13. The Tribunal notes that there are factors identified in the delegate’s decision which may provide a basis for cancellation under a separate provision of s.116. However, the Tribunal has considered the guidance provided by the Courts in these situations. Whilst not clear from doubt, there is a suggestion that the Tribunal is somewhat limited in considering alternate grounds for cancellation in cases such as these. The Tribunal considers MIMIA v Ahmed (2005) 143 FCR 314 at [35], [38] to indicate that the Tribunal may not have the power to decide a case on grounds different to those raised in the s.119 notice.

14. The Tribunal therefore considers that despite the concerns raised by the delegate, and at hearing, in relation to the genuineness of the applicants claimed intention to study, the matter must be remitted to the Department.

    DECISION

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

16. The Tribunal has no jurisdiction with respect to the second named applicant.

    Sean Baker
    Member