Kumar (Migration)

[2017] AATA 1627

Kumar (Migration) [2017] AATA 1627 (23 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Naveen Kumar

CASE NUMBER:  1621542

DIBP REFERENCE(S):  BCC2014/2805393

MEMBER:Antoinette Younes

DATE:23 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 23 August 2017 at 6:41pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Current enrolment in a registered course – Circumstances for visa grant no longer exist – No longer an eligible higher degree student – Applicant left Australia – Three-year exclusion period

LEGISLATION

Migration Act 1958, ss 116, 189

Migration Regulation 1994, cl 573.223, cl 573.231, r 2.43, Condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 January 2015 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 has not complied with a condition of the visa, in this case condition 8516. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The matter was before the Tribunal (a different Member) previously and on 9 December 2016, the Court remitted it for reconsideration.

4. The applicant appeared before the Tribunal on 12 July 2017 and 15 August 2017 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter.

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 grounds set out in s.116(1)(a) and 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. Condition 8516 provides that “The 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. Subclause 573.231 requires that if subclause 573.223(1A) does not apply, amongst other things, the visa holder is enrolled in, or is the subject of a current offer of enrolment in, the course of study that is a principle course of study and that the principle course of study is of a type that was specified for the subclass 573 visa in an instrument by the Minister.

9. Subclause 573.223(1A) requires, amongst other things, that the visa holder at the time of application has a confirmation of enrolment in each course of study and that the stated intention of the applicant is to comply with any conditions subject to which the visa is granted, and that the applicant has sufficient funds to meet the costs and expenses required for the duration of the proposed stay in Australia. At the time of application, the delegate was satisfied that the applicant met the relevant requirements and consequently the applicant was granted the visa to which condition 8516 was attached.

10. The applicant gave evidence via telephone from India as he has departed Australia.  He stated that he came to Australia in March 2013 as the holder of a subclass 573 visa to undertake a Bachelor of Information Technology (BIT course) commencing on 18 March 2013. He stated that he failed all the four subjects in the first semester because he had problems adjusting. His enrolment in the BIT degree was cancelled, although he was not sure when that occurred. The Tribunal pointed out that there is information that it was cancelled on 3 August 2013 (as referred to in the delegate’s decision record). He stated that he subsequently enrolled in various baking courses and that he was not aware of the requirements of the subclass 573 visa in relation to course type. He said he had a Confirmation of Enrolment for the course of Bachelor of Business at Stott’s College commencing 25 July 2016 and ending on 30 June 2019.

11. The applicant provided the following documents:

    a.Letter of Offer dated 31 July 2013 from Stott’s College in the course of Bachelor of Business to commence on 25 July 2016 and to finish on 30 June 2019, a letter from the College dated 5 November 2014 and a Confirmation of Enrolment in the Bachelor of Business degree course. 

    b.Confirmation of enrolment, at Sheila Baxter Training Centre, in the course of certificate IV in food processing, commencing 6 February 2015 and ended 27 May 2016.

    c.Letter of acceptance, Confirmation of enrolment, and other documents from Sheila Baxter Training Centre, relating to the course of certificate III in retail baking, from 4 October 2013 until 12 December 2014.

    d.Senior secondary certificate examination results.

    e.Work related documents from Ponti’s bakery.

12. The applicant gave evidence that he did not commence in the Bachelor of Business course because at Stott’s College because his visa was cancelled.  He said he received partial refund for the course fees which he had paid. He stated that when he received the notice of intention to consider cancellation (sent on 31 October 2014), he was given seven days to respond so he enrolled in the Bachelor of Business to demonstrate his intention to study.

13. The evidence before the Tribunal indicates that subsequent to the cancellation of his enrolment in BIT course, the applicant commenced studying in a bakery course in October 2013 which means that he was not enrolled in a higher degree since the cancellation of his enrolment in August 2013 until November 2014. The delegate found that the applicant had breached condition 8516 as he was not enrolled in a course of study that is a principle course of study and that the principle course of study is of a type that was specified for the subclass 573 visa in an instrument by the Minister. Similarly, the previous Tribunal made those findings.

14. However, subclause 573.231 requires that if subclause 573.223(1A) does not apply, amongst other things, the visa holder is enrolled in, or is the subject of a current offer of enrolment in, the course of study that is a principle course of study and that the principle course of study is of a type that was specified for the subclass 573 visa in an instrument by the Minister. As mentioned previously, the applicant provided a letter of offer dated 31 July 2013 from Stott’s College in the course of Bachelor of Business to commence on 25 July 2016 and to finish on 30 June 2019. The offer was not conditional and its acceptance was not due by a specified date. The Tribunal has noted that the applicant did not take up the offer up until and subsequent to be notified of the intention to consider cancellation of his visa. The relevant wording of subclause 573.231 is the reference to being subject to a current offer of enrolment. The evidence before the Tribunal namely the letter of 31 July 2013 indicates that the applicant was subject to a current offer of enrolment. The question is not whether or not he took up the offer but whether he had an offer as contemplated by subclause 573.231.

15. On the evidence before it, the Tribunal finds that the applicant has not breached subclause 573.231 or subclause 573.223(1A) and that there is no breach of condition 8516 on the basis. The Tribunal is satisfied that the ground for cancellation under section 116(1)(b) does not arise.

16. As discussed in the course of the hearing whilst the applicant did comply with condition 8516, the evidence before the Tribunal indicates that there is ground for cancellation under section 116(1)(a) namely that circumstances which permitted the grant of the visa no longer exist. The Tribunal is satisfied and as explained below that at the time of the delegate’s and the Tribunal’s decisions, the circumstances were the same to enliven consideration of cancellation under section 116(1)(a).

17. The applicant was granted a subclass 573 visa on the basis of his intention to undertake a higher education level course of Bachelor of Information Technology at an educational institution that was eligible under the streamlined student visa processing arrangements. As a consequence, the applicant was required to provide less evidentiary requirements on the basis that he was a lower migration risk and he was granted the visa for the purpose of undertaking his principal course of study in the Bachelor of Information Technology in 18 March 2013.

18. The evidence before the Tribunal indicates and the Tribunal finds that the applicant was granted the visa on the basis of being an eligible higher degree student (as noted in the delegate’s decision record). The Tribunal finds that on the evidence before it, the applicant is no longer an eligible higher degree student in that he is no longer enrolled in a principle course of study for the specified award. The Tribunal is satisfied that his enrolment in the bakery course is not a principle course of study to satisfy the requirements for being an eligible higher degree student.

19. The Tribunal is satisfied that the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists, namely the applicant is no longer an eligible higher degree student and that there are grounds for cancellation pursuant to s.116(1)(a).  The applicant provided explanations as discussed below.

20. For those reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(a) 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

21. 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.

22. 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 purpose of the visa holder’s travel and stay in Australia

23. The applicant has claimed that the reason to travel and stay in Australia has been to study. In the course of the hearing, he expressed interest in returning to Australia to undertake further studies. The evidence before the Tribunal does not contradict the applicant’s claims.

24. The Tribunal is satisfied that the purpose of the applicant’s travel and stay in Australia is commensurate with the objectives and requirements of the student visa he was granted. The Tribunal has given weight to this aspect, however the applicant was granted a subclass 573 student visa with the expectation that he would study at the level the visa had been approved, which the applicant did not do for a substantial period of time.

25. On the evidence before it, the Tribunal is not satisfied that the purpose of the applicant’s travel and stay mean that the visa should not be cancelled.

    ·the extent of the non-compliance with visa conditions

26. Although not strictly a visa condition, the applicant is no longer an eligible higher degree student.  The applicant was granted a student visa in February 2013 to undertake specified studies in Australia.

27. In the course of the hearing, the applicant explained to the Tribunal that he had been advised that his enrolment in the bachelor of business degree at Stott’s College meant that he was complying with the conditions of his visa. In response to the notice of intention to consider cancellation, the applicant provided a letter dated 6 November 2014 in which he indicated that:

    a.He came to Australia to pursue higher education in information technology. He has always been a hard-working student and had aspirations to pursue education. He came to Australia to get qualifications which are highly recognised in his home country.

    b.He commenced his studies at the University of Ballarat but found the course very difficult and he was unable to satisfy the requirements for the second semester. Subsequent to completing the first semester, in 2013 he transferred to a non- SVP provider and at that time he was not aware of the possible impacts of changing courses. In the same month, he applied for admission into a bachelor’s degree so as he could have a diploma leading to a bachelor study.

    c.He believes he has maintained his visa condition and is not in breach. He was made aware of various possible impacts of the course change. He believes that no further action is warranted and he has always been a law-abiding citizen and does not have an adverse migration history. He would be grateful for the opportunity to complete his studies in Australia and fulfil his goals.

28. Although it is plausible that the applicant got advice that was incorrect, it is the applicant’s responsibility to ensure that he would continue to meet the visa criteria.

    ·the degree of hardship that may be caused (financial, psychological, emotional or other hardship)

29. The Tribunal acknowledges that the cancellation of the applicant’s visa would be disappointing to the applicant and that there are financial and emotional consequences.  However, the Tribunal is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

30. The applicant gave evidence that he returned to India in November 2016 where he has remained. He stated that given that his student visa was cancelled, he decided that it was better for him to return to India. He stated that he is working currently in India as a helper in a bakery.

31. The applicant has left Australia so there is no issue that 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 the 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 applicant’s visa was cancelled 16 January 2015, over 2 ½ years ago so any exclusion period would only apply until 16 January 2018.

32. Overall, looking at the circumstances cumulatively, the Tribunal is not satisfied that in this case there is a degree of hardship that means that the applicant’s visa should not be cancelled.

    ·The circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

33. The applicant has claimed that he had been given incorrect advice but as the Tribunal had expressed earlier, as the visa holder, the applicant has responsibility.  The Tribunal does not consider the circumstances in which the ground for cancellation arose to be beyond the applicant’s control.

34. The evidence before the Tribunal indicates that the applicant did not pass any of the subjects in the BIT degree and soon after, he enrolled at the Vocational Education and Training Sector Level, inconsistent with the subclass 573 visa. Soon after he was notified of the intention to consider cancellation of his visa, the applicant enrolled in the bachelor of business course, despite having the letter of offer as early as 31 July 2013 or beginning of August 2013. This suggests to the Tribunal that the applicant had only enrolled in the course in an attempt to obtain a favourable outcome in relation to the cancellation, rather than, out of genuine interest, intention or desire to undertake the course.

35. The Tribunal has carefully considered the applicant’s circumstances and on the evidence before it, the Tribunal is not satisfied that those circumstances as accepted by the Tribunal mean that the visa should not be cancelled.

    ·past and present conduct of the visa holder towards the department

36. The applicant responded to the notice of intention to consider cancellation and the Tribunal has given this aspect some favourable weight.

    ·if breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

37. This is not a breach of the holder of a subclass 457 visa.

    ·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

38. The applicant has left Australia so there is no issue that 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 the 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.

39. The applicant’s visa was cancelled 16 January 2015, over 2 ½ years ago so any exclusion period would only apply until 16 January 2018.

40. Accordingly, the Tribunal is not satisfied that there are consequences of the cancellation which mean that the visa should not be cancelled.

    ·whether there would be consequential cancellations under s.140

41. There is no evidence that there would be consequential cancellations in this case.

    ·whether any international obligations would be breached as a result of the cancellation

42. There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation.

    ·any other relevant matters.

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

44. The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively. The Tribunal recognises that the cancellation of the visa is a significant matter. However on balance and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

45. For those reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(a) exists as the applicant had ceased to be an eligible higher education student.

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

    DECISION

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

    Antoinette Younes

    
    Senior Member