Omkar Singh (Migration)

[2019] AATA 390

Omkar Singh (Migration) [2019] AATA 390 (8 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Omkar Singh

CASE NUMBER:  1725702

HOME AFFAIRS REFERENCE(S):           BCC2017/2904349

MEMBER:Christine Kannis

DATE:8 February 2019

PLACE OF DECISION:  Perth

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

Statement made on 08 February 2019 at 4:24pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered Higher Education course – applicant ceased enrolment – death in applicant’s family – medical certificate supplied – further fees required to re-sit exam – decision under review affirmed         

LEGISLATION

Migration Act 1958, ss 116, 189
Migration Regulations 1994, Schedule 2 cls 573.111, 573.223, 573.231; r 1.40; Condition 8516

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 11 October 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 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 delegate’s decision was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal on 29 January 2019 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Hindi and English languages.

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. A visa may be cancelled under s.116(1)(b) of the Act 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?

7. On 20 July 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.

8. In the present case the applicant was required to meet, among other criteria, cl.573.231 or cl.573.223(1A) of Schedule 2 to the Migration Regulations 1994.  The delegate’s decision stated the applicant met cl. 573.231 or cl.573.223(1A) on 20 July 2015.

9. Essentially, cl.573.231 provides that, unless a person is an eligible higher degree student as set out in cl. 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.

10. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a Bachelor degree, Masters degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111.

11. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant’s enrolment in a Bachelor of Information Technology was cancelled on 14 April 2016.  The reason for cancellation was indicated to be “Student Notifies Cessation of Studies” and the delegate referred to the applicant failing to re-enrol in the March 2016 intake. The delegate found the applicant breached condition 8516 of the visa because he no longer satisfied the primary criteria as he ceased to be enrolled in a higher education course, that is, a course of study that was the principal course of a type specified for a Subclass 573 visa by the Minister in an instrument made under r.1.40A.

12. On 21 September 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. A response was received on 5 October 2017. At the time of responding the applicant provided a Letter of Offer dated 9 October 2017 for an Advanced Diploma of Business and a Bachelor of Business and a CoE for a Certificate IV in Business which was created on 10 July 2017.

13. 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. 

14. The Tribunal acknowledges that the applicant obtained a Letter of Offer for a pathway course and a Bachelor degree course following receipt of the NOICC.  A CoE was not provided. The Tribunal acknowledges that the applicant provided a CoE for a Certificate IV in Business which was created 15 months after his enrolment in the Bachelor of Information Technology was cancelled. However, in the Tribunal’s view, a breach is established once the applicant ceased to be enrolled in the relevant course, despite any subsequent re-enrolment.

15. On the basis of the information before it, the Tribunal is satisfied that when the applicant’s enrolment in a Bachelor of Information Technology was cancelled on 14 April 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.

16. 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

17. 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 matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

18. The applicant told the Tribunal that he was unable to complete his course and sit his exams in the first semester of the Bachelor of Information Technology course in 2015. He said he missed classes and missed an exam because he was unable to study due to his grandfather’s death. He said he provided the education provider, Federation University Australia, with a Medical Certificate in relation to his unfitness to study. The Tribunal noted that when responding to the NOICC the applicant did not refer to his grandfather’s death, did not refer to being unfit to study or sit an exam and did not provide a Medical Certificate. The Tribunal asked the applicant about the period which was covered by the Medical Certificate. His response was that it may have been September 2015 and it was for a period of two weeks.  The applicant did not provide the Tribunal with a copy of any Medical Certificate.

19. The applicant said after he missed sitting an exam Federation University Australia told him he had to re-enrol and pay the requisite fees again. He told the Tribunal he believed the Medical Certificate entitled him to re-sit the exam without having to pay the fees again. He said he did not re-enrol because it wasn’t fair to make him pay the fees again and Federation University Australia would not allow him to re-enrol without doing so.

20. PRISMS shows the applicant enrolled in Certificate III and IV Commercial Cookery courses and a Diploma of Hospitality Management in February 2016. The Tribunal noted these courses are in the Vocational, Education and Training Sector. The Tribunal asked the applicant the reason he enrolled in these courses. He said several friends had changed from Information Technology to Hospitality studies and he followed them. He enrolled at Stanley College in February 2016 however his enrolment was cancelled in February 2017 because Stanley College said he had to pay $25 per unit to re-enrol in some units. He said Stanley College treated him unfairly because they tried to make him pay twice for the same units.

21. The Tribunal put to the applicant that his evidence was that both Federation University Australia and Stanley College had treated him unfairly in requiring him to pay certain fees. At this pot the applicant denied having said Federation University Australia had treated him unfairly and said he did not re-enrol at Federation University Australia because of the burden of study and because of his grandfather’s death. The Tribunal noted that his evidence was clearly that both education providers had treated him unfairly because they required him to pay fees he felt he should not have to pay.

22. The Tribunal put to the applicant that 15 months elapsed between the cancellation of his enrolment in the Bachelor of Information Technology and the creation of the CoE for the Certificate IV in Business.  The Tribunal also noted that five months elapsed between cancellation of his Hospitality courses and creation of the CoE for the Certificate IV in Business. The Tribunal asked him about the delay and he said he used the time to think about what he wanted to do and spoke to friends about what he should study.

23. The applicant told the Tribunal he was aware that he was not enrolled in a Higher Education Sector course after his enrolment in the Bachelor of Information Technology was cancelled but said he had no choice.  He said it was his fault that he did not comply with the conditions of his Subclass 573 visa. 

24. The applicant said since cancellation of his Subclass 573 visa he has continued to study by teaching himself from books. He has financially supported himself through his part-time employment as a kitchen hand. He said it will be problematic for him if he has to depart Australia without obtaining a Business qualification. He is a songwriter and he wants to produce music. He said a Business qualification is the basis for any business venture.

25. 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.

26. The purpose of the higher education sector visa is to enable the student to undertake study at a higher education level.

27. The applicant is not currently enrolled in a higher education level course required by his Subclass 573 visa. He has not held enrolment in a course of study specified for his visa at the Higher Education Sector (subclass 573) since he ceased studying his Bachelor of Information Technology at Federation University Australia on 14 April 2016. Since that date he enrolled in a variety of Certificate and Diploma courses below the Higher Education Sector level and the PRISMS reveals he has not completed any course.

28. 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. In addition, the applicant breached condition 8516 knowingly for a considerable period.

29. The applicant claimed that he changed to the Hospitality courses due to Federation University Australia not allowing him to re-enrol unless he paid the requisite fees. He later referred to the difficulty of the Information Technology course. The Tribunal is prepared to accept that may have been the case, however, that does not explain why he abandoned higher education study altogether. If the applicant did not want to do the Information Technology course he had the option of transferring to any other course at the higher education level. He did not do that.

30. The Tribunal questioned the applicant whether there were any compelling reasons for him to remain in Australia and he said he would like to be given the opportunity to complete his Business studies. 

31. The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

32. The Tribunal has considered whether the breach arose due to circumstances beyond the applicant’s control.

33. The applicant conceded that he knew he was breaching the conditions of his visa.  He said several friends changed their area of study from Information Technology to Hospitality and he followed them. When his enrolment in the Hospitality courses was cancelled he said he spoke to friends about his study options. The Tribunal noted he waited five months before enrolling in the Certificate IV in Business.

34. Having considered all the matters raised by the applicant at hearing the Tribunal finds that it is positively satisfied that the applicant’s non-compliance with the visa condition was not due to circumstances beyond his control. He did not agree with the fees he was required to pay and said he found the study to be a burden. He said this was in part due to his grandfather’s death however no evidence was provided to substantiate this claim.

35. The Tribunal finds that there are no extenuating or compassionate circumstances in this case.

36. The Tribunal accepts the applicant would suffer some hardship if he were to have his visa cancelled and finds this weighs in favour of the applicant.

37. 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.

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

39. 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. 

40. 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.

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

42. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant has breached condition 8516 of his visa.  The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant is not fulfilling the purpose of his travel to and stay in Australia as he is not undertaking study at the level for which is visa was granted.  The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa.  It will not be in breach of Australia’s international obligations.  The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

43. 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.

    DECISION

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

    Christine Kannis
    Member