Purba (Migration)

[2019] AATA 2832

Purba (Migration) [2019] AATA 2832 (22 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amrinder Singh Purba

CASE NUMBER:  1703595

HOME AFFAIRS REFERENCE(S):           BCC2016/3133063

MEMBER:Christine Kannis

DATE:22 February 2019

PLACE OF DECISION:  Perth

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

Statement made on 22 February 2019 at 12:07pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – unsatisfactory course progress – applicant changed to vocational courses – advice that enrolment could be maintained – decision under review set aside

LEGISLATION

Migration Act 1958, ss 116, 140, 189
Migration Regulations 1994, Schedule 2 cls 573.111, 573.223, 573.231; Schedule 8; Condition 8516; r 1.40

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 21 February 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 Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal on 4 February 2019 to give evidence and present arguments. The Tribunal also received evidence from Mr Jonathan Karamanoglu.

5. The applicant was represented in relation to the review by his registered migration agent.

6. 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

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. 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. On 10 April 2014 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.

9. 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 10 April 2014.

10. 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.

11. 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.

12. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant’s enrolment in a Bachelor of Business was cancelled on 21 October 2015.  The reason for cancellation was indicated to be “Unsatisfactory course progress”. 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.

13. The Tribunal noted that PRISMS indicated the applicant enrolled in a Bachelor of Business at the Australia School of Management (ASM) on 14 July 2015. This enrolment was cancelled on 8 July 2016.

14. On 2 February 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. Responses were received on 4, 8, 9 and 10 February 2017. At the time of responding the applicant provided CoEs for an Advanced Diploma of Business created on 26 July 2016 and a Bachelor of Business created on 3 February 2017.  He also provided an offer letter dated 12 January 2017 from the Australia School of Management (ASM) for a Bachelor of Business.

15. Prior to the hearing the applicant’s representative provided a written submission which included the following information:

    ·The applicant was enrolled in a Bachelor of Business at James Cook University in Townsville Queensland.  The course commenced on 28 July 2014. A CoE evidencing this enrolment was provided.

    ·The applicant was enrolled in a Bachelor of Business at ASM in Perth. The course commenced on 10 August 2015. A CoE evidencing this enrolment was provided.

    ·The applicant was enrolled in an Advanced Diploma of Business at the Keystone College of Business and Technology in Perth. The course commenced on 25 July 2016. A CoE evidencing this enrolment was provided.

    ·The applicant was enrolled in a Bachelor of Business at the Australian School of Business in Perth.  CoEs created on 3 February 2017 and 10 February 2017 evidencing this enrolment were provided.

    ·The applicant relocated to Perth after studying for a year in Townsville. He commenced a Bachelor of Business at ASM in Perth on 10 August 2015. He completed seven out of eight subjects and was exhausted. He decided to defer a semester however a Student Support Officer at ASM advised him not to defer and to complete an Advanced Diploma of Business with a lesser study load after which he could return to ASM, claim credits for the diploma course and complete his Bachelor of Business at ASM within one year.

    ·The applicant and his friend, Mr Karamanoglu, called the Department in June 2016 and were advised that he could study an Advanced Diploma of Business then complete his Bachelor’s degree at ASM while maintaining enrolment for the Bachelor’s degree.

16. 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. 

17. The applicant’s enrolment in a Bachelor of Business at James Cook University was cancelled on 15 October 2015. His enrolment in a Bachelor of Business at ASM was created on 14 July 2015 and cancelled on 8 July 2016. The applicant’s enrolment in an Advanced Diploma of Business was not enrolment in a course of study that was a principal course of a type specified for a Subclass 573 and he was not an ‘eligible higher degree student’ when undertaking this study. The Tribunal noted that this course is in the Vocational, Education and Training Sector. 

18. The Tribunal acknowledges that the applicant obtained a CoE for a Bachelor degree course following receipt of the NOICC.  This was created seven months after his enrolment in the Bachelor of Business at ASM 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.

19. On the basis of the information before it, the Tribunal is satisfied that when the applicant’s enrolment in a Bachelor of Business at ASM was cancelled on 8 July 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.  

20. 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

21. 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 his representative, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

22. The applicant told the Tribunal he attained good results when he commenced the Bachelor of Business course at ASM. He said he was exhausted and wanted to defer his study for a year. He spoke to a Student Support Officer at ASM in June 2016 who advised him not to waste his time by taking a year off. She suggested he study an Advanced Diploma of Business and said he would be credited with the course when he returned to ASM to complete his Bachelor of Business. The applicant told the Tribunal that the Student Support Officer assured him that he would remain enrolled in the Bachelor of Business whilst he was undertaking the Advanced Diploma of Business.

23. The applicant told the Tribunal that after speaking to the Student Support Officer he contacted the Department to make sure the advice he had been given was correct. He said the Department advised him that he could study the Advanced Diploma of Business whilst maintaining his enrolment for a Bachelor of Business.

24. PRISMS shows the applicant enrolled in an Advanced Diploma of Business at Keystone College of Business and Technology which commenced on 25 July 2016. This course is in the Vocational, Education and Training Sector.  

25. The Tribunal put to the applicant that more than seven months elapsed between the cancellation of his enrolment in the Bachelor of Business at ASM on 8 July 2016 and the issuing of the NOICC.  The applicant told the Tribunal he was not aware that he was not enrolled in a Higher Education Sector course and was shocked when he received the NOICC.  He said on receiving the NOICC he contacted the Department and ASM. The Department could not assist him and ASM issued a new CoE for the Bachelor of Business course.

26. The applicant said since cancellation of his Subclass 573 visa he has been financially supported by his family and his friends. He has no current work rights. His family are not aware that his visa has been cancelled.

27. Regarding any hardship he will suffer if he has to depart Australia without obtaining a Bachelor of Business qualification, the applicant said he will lose his dream which is to expand his father’s tailor business. His father operates a small tailor business in India. He said when he completes his study he wants to return to India with ideas from Australia which will give him a competitive advantage. He will study market and fabric trends and hire cutters and tailors. He said he intends on paying employees per piece and not per hour.

28. The applicant said if he has to depart Australia without obtaining a Bachelor of Business qualification his family will be disappointed and they would have wasted money on sending him to Australia to study. The Tribunal noted that he has completed an Advanced Diploma of Business.

29. Mr Karamanoglu is a former work colleague and friend of the applicant. He told the Tribunal he was present during a phone call between the applicant and the Department around June 2016. The call was on speaker phone and he said the purpose of the call was to make sure the applicant could change his course and transfer to another college. He said his recollection was that the Department advised that he could do so as long as he maintained his enrolment at ASM.

30. The applicant’s representative told the Tribunal that if the applicant has to depart Australia without obtaining a Bachelor of Business qualification he will have wasted time and money.

31. Following the hearing the applicant’s representative provided a further written submission which included but was not limited to information with respect to the applicant’s plans to use the business knowledge and skills he has gained through his study in Australia.

32. 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.

33. The purpose of the Higher Education Sector visa is to enable the student to undertake study at a higher education level.

34. The applicant is not currently enrolled in a higher education level course required by his Subclass 573 visa. Prior to the issuing of the NOICC he had not held enrolment in a course of study specified for his visa at the Higher Education Sector level since he ceased studying his Bachelor of Business at ASM on 8 July 2016.  He subsequently enrolled in a diploma course below the Higher Education Sector level and PRISMS reveals he has completed the course.

35. 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. The Tribunal noted that seven months elapsed between the cancellation of his enrolment and the issuing of the NOICC. The Tribunal accepts that the applicant was not aware that he was not enrolled in the Bachelor of Business during the seven month period and was not aware that he was in breach of condition 8516.

36. The Tribunal questioned the applicant as to whether there were any compelling reasons for him to remain in Australia and his response was only to complete his study. The Tribunal accepts that prior to cancellation of his visa the applicant continued to study, albeit at a lower level from 25 July 2016, and continued to study in his chosen field of Business. The Tribunal accepts the applicant’s evidence that he intends to return to India at the completion of his study. The Tribunal accepts his evidence that he intends to use the knowledge and skills acquired in Australia to expand his father’s business.

37. 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.

38. The Tribunal has considered whether the breach arose due to circumstances beyond the applicant’s control. The Tribunal makes no findings as to whether the applicant was given incorrect advice by the Student Support Officer at ASM and/or the Department when he enrolled in the Advanced Diploma of Business. The Tribunal informed the applicant that as a holder of the student visa the applicant he had the responsibility to familiarise himself with the conditions of his visa and what these required of him.   

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

40. 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.

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

42. 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. 

43. 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.

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

45. The Tribunal is satisfied that the applicant has a genuine intention of pursuing higher education study in the future.  He maintained study in the field of Business, albeit in a Vocational, Education and Training Sector course from 25 July 2016. The Tribunal accepts he believed he was still enrolled in the Higher Education Sector course until he received the NOICC.  

46. The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively and considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    DECISION

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

    Christine Kannis
    Member