Kumar (Migration)

[2018] AATA 253

Kumar (Migration) [2018] AATA 253 (14 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anil Kumar

CASE NUMBER:  1701340

DIBP REFERENCE(S):  BCC2016/3296449

MEMBER:Tigiilagi Eteuati

DATE:14 February 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 14 February 2018 at 3:32pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector visa – Completed two Diplomas in Australia – Unable to satisfy the primary or secondary criteria –May reapply for another student visa

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 116

Migration Regulations 1994, r 1.40A Schedule 2 cl 573 Schedule 4 4013, Schedule 8 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 18 January 2017 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 2 November 2017 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal 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. 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?

8. 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.

9. 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.

10. 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.”

11. 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

12. 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).

13. 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 when his enrolment in a Bachelor of Information Technology (IT) degree was cancelled on 29 July 2015. He re-enrolled in a Bachelor of Business degree on 11 January 2017 after receiving the Notice of Intention to Consider Cancellation (NOICC). This was admitted by the applicant and accords with records held by the Department.

14. On the basis of the above information, the Tribunal finds that the applicant ceased to meet paragraph 573.223(1A) when his enrolment in Bachelor of IT degree was cancelled on 29 July 2015 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.

15. 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

16. 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’. The Tribunal has carefully considered the material and submissions provided by the applicant including the post hearing submissions made by the applicant’s representative.

17. When the applicant arrived in Australia on his subclass 573 visa in March 2014 he was enrolled in an English language course to be followed by a Diploma of IT Networking and then a Bachelor of IT degree. He said that he completed the English language course in June 2014 and started the Diploma of IT networking in July 2014. He said that within a week of starting the diploma course he found the course too difficult. He said that he attempted the course for 6 months but could not pass and was failing the course.

18. The applicant said that he did not know anything about IT and had no interest in IT. He said that he had applied to do IT courses because he had been told that he could be more likely to be granted a visa if he applied for IT courses. He said that he approached TAFE to seek to change courses but was told that he would have to contact James Cook University (JCU), where he had a COE for the bachelor degree course, if he wanted to change courses. The applicant said that he wanted to change from IT to business courses. He said that he had no interest in business courses but he had heard from others that business courses were easier and he simply wanted to complete courses in Australia.

19. The applicant said that he approached JCU and asked to change courses to do business related courses. He said that JCU told him that he would have to do an additional English language course before he could begin a Diploma of Business followed by a Bachelor of Business degree. In addition, the applicant indicated that JCU told him that he would have to pay them $23,500 upfront in order to pursue the new course of study.

20. He enrolled in a Diploma of Management at New England Institute of Technology (NE) in February 2015 which he completed in August 2015. He then began an Advanced Diploma of Leadership and Management wat NE in September 2015 which he completed in June 2016. He then enrolled in a third diploma, this time a Diploma of Business, at NE in July 2016. He received the NOICC in December 2016 and then enrolled in a Bachelor of Business degree with Holmes Institute in January 2017.

21. The applicant said that he and his family would suffer hardship if his visa remained cancelled because his parents did not know his visa had been cancelled and believed that he was still studying in Australia. In addition, he said that if he were to return to India without any qualifications that he would have to work on a farm. He said that he could not study in India as he had not studied there for some time. The Tribunal pointed out that the applicant had decided not to study a bachelor course and had instead enrolled in three successive diploma courses, finishing two. The Tribunal indicated that it was hard to accept that he would not be accepted into any course of study in India and that in any event there did not appear to be any bar on the applicant applying for a further visa. The applicant said that Australian qualifications were held in higher regard than Indian qualifications in India.

22. The Tribunal raised with the applicant its concern that, because the applicant decided to withdraw from his courses leading to a bachelor degree and instead enrolled in a number of vocational courses and because he indicated that he had no interest in studying business, he may not have the will or desire to successfully undertake a HE course in Australia. The applicant indicated that if he was given a chance he would complete a bachelor degree and return to India.

23. The Tribunal has decided that the decision under review should be affirmed. The Tribunal is not satisfied that the applicant has the desire to successfully undertake a HE course in Australia. The visa was granted to the applicant for a certain period of time to study the courses which he had nominated to study, that is, IT courses leading to a Bachelor of IT degree. However, he failed the Diploma if IT Networking course and his enrolment in the Bachelor of IT was consequently cancelled in breach of condition 8516.

24. The Tribunal does not accept that the applicant was asked to pay $23,500 in a single payment if he wished to change courses to do business courses. There is simply no evidence of this and no good reason why JCU would have made this demand. Indeed, the applicant made no mention of JCU’s supposed request for an upfront payment of $23,500 in his response to the NOICC. Even if this were true, the applicant could have obtained a COE for courses leading to a bachelor degree at another institution.

25. After he finished his first Diploma course, instead of seeking to enrol in a bachelor course the applicant enrolled in another diploma, this time the Advanced Diploma in Leadership and Management . Again, after completing the advanced diploma he could have enrolled in a bachelor degree but did not do so and again enrolled in a third diploma, this time a Diploma of Business. This third Diploma was to be completed by February 2017 and his visa was to expire in September 2017. All of these facts strongly suggest that the applicant did not have the desire to successfully undertake a HE course.

26. Instead of continuing with his courses leading to a Bachelor of IT degree, the applicant decided to change courses to study three vocational diplomas at a college. He indicated that he was unaware of condition 8516 prior to changing courses. The Tribunal does not accept that the applicant believed that he could abandon his HE course and still meet the conditions of his subclass 573 visa. Even if this was accepted, it was the applicant’s responsibility to inform himself of the conditions of his visa and to comply with them.

27. The Tribunal notes that the applicant’s representative provided post hearing submissions in which he argued that the applicant would be prevented by Public Interest Criterion 4013 from applying for another visa for three years from the cancellation of his visa if the cancellation was affirmed. He indicated that clause 4013(2)(ca) provided that the applicant would be affected by a risk factor which would prevent him applying for a visa for three years from the date of the cancellation of his visa.

28. This argument is rejected. Clause 4013(2)(ca) applies to those whose visas were cancelled because the Minister was satisfied that a ground mentioned in paragraph 116(1)(fa) of the Act applied to the person. The applicant’s visa was not cancelled because the Minister was satisfied that a ground mentioned in paragraph 116(1)(fa) of the Act applied to him, but pursuant to section 116(1)(b)because the Minister’s delegate found that the applicant breached a condition of his visa. Further, because condition 8516, the condition that the applicant breached, is not specified in Part 2 of Schedule 4 to the Migration Regulations 1994, the applicant was not affected by a risk factor for the purposes of clauses 4013(1) and (2)(b) of Schedule 4.

29. 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 a higher education course in Australia. However, the Tribunal notes that the applicant has completed two courses and can apply for another student visa at any time. The Tribunal does not accept that the applicant would not be able to gain admission to study in India.

30. The applicant was not permitted to undertake only vocational courses and any difficulties which the applicant now faces are of the applicant’s own making. It was the applicant’s responsibility to comply with the conditions of his visa and to inform himself of those conditions. The applicant had every chance to study the courses for which he came to Australia to study but instead decided to complete a number of vocational courses. The Tribunal notes that, had the applicant’s visa not been cancelled, it would have expired on 3 September 2017. There is no bar on the applicant re-applying for a visa and, other than having to leave Australia to apply for another visa, it is unclear what possible affect the outcome of these proceedings would have on the applicant. Whether or not he is successful before the Tribunal, he will not hold a student visa and will have to apply for another student visa. Whether or not the decision is set aside on a discretionary basis does not change the fact that the applicant breached condition 8516 and any future student visa decision maker will not be compelled to grant the applicant a visa if the Tribunal sets aside the cancellation decision.

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

    DECISION

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

    Tigiilagi Eteuati
    Member