Ravinder (Migration)

[2019] AATA 1643

Ravinder (Migration) [2019] AATA 1643 (15 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ravinder

CASE NUMBER:  1810618

HOME AFFAIRS REFERENCE(S):           BCC2014/2193703

MEMBER:Sean Baker

DATE:15 May 2019

PLACE OF DECISION:  Melbourne

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 15 May 2019 at 10:26am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – continue satisfaction of primary criteria – ceased to be enrolled in a Higher Education Sector course – enrolled in Diploma and Advanced Diploma of Management – distinction between higher education and vocational diploma and advanced diploma courses – consideration of discretion – genuine student – very short period of non-compliance – compassionate circumstances – length of stay in Australia – the level of study were the visa to be reinstated – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 1.40A; Schedule 2, cls 573.223, 573.231; Schedule 8, Condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 December 2014 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 delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not comply with condition 8516 on his visa, and the reasons for not cancelling the visa did not outweigh those in favour of cancellation. 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 provided a copy of the decision record to the Tribunal.

4. The matter was remitted to the Tribunal on the basis that the previous Tribunal’s decision to affirm the cancellation was affected by jurisdictional error. The previous Tribunal failed to engage in its statutory task to consider, by way of reasoning based on the factual material before it, whether the applicant satisfied cl.573.231 and therefore whether he met condition 8516. The Tribunal’s reasoning in considering whether the diplomas that the applicant was still enrolled in fell within cl.573.231 was not evident from the decision record. The Tribunal failed to refer to the information contained in cl.573.231 or any Ministerial instrument it considered relevant to its decision.

5. The applicant appeared before the Tribunal on 29 November 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. 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. 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 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 the holder of the visa continues to be a person who would satisfy the primary or secondary criteria for the grant of the visa.

9. In the case of the applicant, he satisfied the criteria for the grant of a subclass 573 higher education sector visa  on 13 February 2014 which required amongst other requirements, that he be enrolled in a bachelor or master degree course,[1] 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.[2]

   [1] Cl.573.223(1A)

   [2] Cl.573.231

10. 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. The decision record sets out that his enrolment in the Bachelor of Business (Marketing Management) at University of Canberra was cancelled on 23 July 2014. He subsequently enrolled in a Bachelor of Business at Stott’s College on 11 September 2014, after the NOICC was issued.

11. It is clear that an applicant may satisfy either cl.573.231 or cl.573.223(1A) to in turn meet condition 8516. The applicant confirmed at hearing that for this period, he was not enrolled in a bachelor or Master’s course, and therefore could not satisfy cl.573.223(1A).

12. It is claimed however that for this period he held enrolment in a Diploma of Management and Advanced Diploma of Management from Brighton Institute of Technology. It has been put forward that these enrolments constitute ‘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’ as required for cl. 573.231.

13. The relevant instrument, made under r.1.40A by the Minister was at the time of the visa grant, IMMI12_037, which indicates that types of courses specified for subclass 573 include:

    Higher Education Diploma

    Higher Education Advanced Diploma

    Bachelor Degree

    Graduate Certificate

    Graduate Diploma

    Associate Degree

    Masters by Coursework

14. The instrument at time of the cancellation and as at the date of this decision is IMMI14_015, which indicates that types of courses specified for subclass 573 include:

    Diploma (Higher Education)

    Advanced Diploma (Higher Education)

    Bachelor Degree

    Graduate Certificate (Higher Education)

    Graduate Diploma (Higher Education)

    Associate Degree

    Masters by Coursework

15. Relevantly, both instruments also specify that for a subclass 572 (vocational education and training) visa, types of courses include a Vocational Education and Training Diploma and Vocational Education and Training Advanced Diploma and a Diploma (Vocational Education and Training), Advanced Diploma (Vocational Education and Training).

16. The argument is that the Diploma and the Advanced Diploma which the applicant enrolled in in the period in questions satisfy the definition of a higher education diploma and advanced diploma.

17. There are a number of difficulties with this argument.

18. Firstly, but not determinatively, the education provider who issued the CoEs appeared to have considered them to be vocational education and training level courses, because it has specified in the CoE under ‘course level’, that the courses are a diploma and advanced diploma ‘(Course sector:VET)’.

19. It is also relevant, as I raised with the applicant at hearing, that Brighton institute has classified the courses which superseded the Diploma and Advanced Diploma of Management, the Diploma and Advanced Diploma of Leadership and management, as VET sector courses on CRICOS.[3] Indeed, as I noted to the applicant, it appears that Brighton only offers VET level courses and is not an eligible higher education provider nor an educational business partner. The course code for the Diploma the applicant was enrolled in, the Diploma of Management at Brighton, is also discussed as a vocational course on the training website of the Department of Education.[4]

    [3] >

    The instrument and the regulations do not further define the differences between vocational education and higher education courses. However, when the statutory scheme is looked at as a whole, the scheme clearly intends there to be a distinction between higher education and vocational diploma and advanced diploma courses. If these courses are higher degree then the Vet sector visa appears to have little work to do.

20. Lastly, and again, whilst not determinative, the intention of the applicant during the relevant period, and as confirmed by him at the hearing, was to apply for a vocational level visa, a subclass 572, which he did and which was subsequently refused. The applicant applied for the Diploma and Advanced Diploma with the express intention of satisfying the criteria for the subclass 572 vocational level visa.

21. It is also clear from the CRICOS information and the AQF framework that courses are either higher degree diplomas or vocational education and training diplomas, and cannot be both, because the pathways are very different.

22. Having considered the above, I find that the Diploma and Advanced Diploma of Management at Brighton in which the applicant held enrolment at the relevant time were vocational education and training level courses, and I further find that for this reason these courses do not satisfy the definition of a Higher Education Diploma or Higher Education Advanced Diploma as expressed in either instrument considered above.

23. I find therefore that for the period from the cancellation of his Bachelor enrolment on 23 July 2014, until his enrolment in a Bachelor of Business at Stott’s College on 11 September 2014, the applicant 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’ as required for cl. 573.231. For this period he therefore did not meet either cl.573.231 or cl.573.223(1A) and therefore did not satisfy condition 8516.

24. 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 visa should be cancelled.

    Consideration of discretion

25. 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’.

26. The applicant responded to the NOICC, and his representative also made several pre-hearing as well as a post-hearing submission. I have taken these into account in considering the factors below.

    the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

27. The applicant said at the hearing that he had come to Australia to study, and that he had a compelling need to remain in Australia to study. I note that for the period that he held his student visa, he remained enrolled in registered courses (albeit, as I have found above, for a short period at the vocational level). There is no information before me to indicate that the applicant’s purpose was otherwise than to study and I give this some weight towards the visa not being cancelled.

    the extent of compliance with visa conditions

28. The breach of condition 8516, as found above is for only a very short period of time. There is no evidence before me that he has breached any other conditions on his student or subsequent bridging visas and I therefore give this factor only little weight towards the visa being cancelled.

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

29. The applicant reiterated that he wished to complete his studies in Australia. He did not outline any other hardship. I accept that having spent a number of years in Australia, there would be some hardship to the applicant were the visa to be cancelled, but the applicant has not demonstrated a significant degree of hardship to himself or anyone else would accrue. I therefore give this factor only little weight towards the visa not being cancelled.

    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

30. The applicant’s submissions about the circumstances surrounding this period can be summarised as follows. The applicant’s father passed away when he was a child. Soon after his arrival in Australia his mother was diagnosed with terminal cancer. She passed away in August 2014. During this time, the applicant says that he was unable to concentrate on studies, did poorly and considered returning to India but was convinced not to by his family. He was poorly advised by a migration agent to change courses and seek a vocational education and training subclass visa.

31. As did the delegate, I accept that the period of his mother’s passing and subsequently would have been a difficult and distressing time for the applicant. I accept that this may have contributed to him doing poorly in his studies at Holmesglen. I have some sympathy for these events and how they may have affected the applicant. I accept that he may have made poor choices at this time affected by the loss and grief, which I accept may have led him to cease studying and then attempting to transition to easier, more achievable courses as the vocational level.

32. I note also, as the representative has pointed out, that the period of time from the applicant’s arrival to the cancellation of his student visa was very short. Due to this shortened period it is difficult to get a sense of what the applicant may have done on recovering from his grief at his mother’s death.

33. I have less sympathy for his claim that his previous agent led him astray by suggesting he study at the vocational level. I do not accept that the applicant can abrogate his responsibility to be aware of visa conditions and comply with those conditions to a third party.

34. I have also taken into account whether the applicant has demonstrated that he would study, and would study at the higher education level were the visa to be reinstated. The representative submits that this is beyond the scope of the review. I do not agree. It is, I consider, directly relevant to the central question of whether the visa should remain cancelled or that decision be set aside so the applicant can hold or apply for a student visa. I have some concerns given his decision to apply for a enrol in vocational education level courses, but again I return to the fact that the whole process from his arrival in Australia to the cancellation of his student visa took less than 12 months. There is not, I consider, enough information either way to determine whether he would study and at what level.

35. Having carefully considered the circumstances surrounding the period in which the non-compliance occurred, I consider these considerations finely balanced, but given the compassionate circumstances, I am willing to give the applicant the benefit of the doubt and give this factor some weight towards the visa not being cancelled.

    past and present behaviour of the visa holder towards the department

36. The applicant cooperated with the Department. I give this little weight towards the visa not being cancelled.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

37. The applicant indicated there was no reason he could not return to India. I consider that were the decision affirmed the applicant would be free to return to India and would not therefore be detained for any period of time. Whilst he may be limited in the range of visas he may be able to apply for, this is the intended consequences of the legislation. I therefore give this factor no weight.

    whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

38. The applicant said that there was no reason he could not return to India and that there was no reason he would be harmed in India (other than his claim that he would have wasted 5 years in Australia with no completed study). I therefore give this factor no weight.

    any other relevant matters

39. The representative has claimed that the applicant’s previous student visa has expired and that the applicant is estopped from making a visa application in Australia. I do not consider this to be relevant to my consideration.

40. The considerations here are finely balanced. Whilst I have found that the applicant did breach a condition on his visa, the period of breach was for a very short period, there are compassionate circumstances around the period of breach, and the total time the applicant spent in Australia does not allow a conclusion that he is not a genuine student. I consider that in this case the applicant should have a further opportunity to demonstrate that he can study. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    DECISION

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

    Sean Baker
    Member