Sharma (Migration)

[2017] AATA 2506

Sharma (Migration) [2017] AATA 2506 (5 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Raghu Rajan Sharma

CASE NUMBER:  1615691

DIBP REFERENCE(S):  BCC2016/2474470

MEMBER:Tigiilagi Eteuati

DATE:5 October 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 05 October 2017 at 1:50pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Not enrolled in any course – Bachelor degree cancelled – Completed only VET courses – Did not reapply for another visa – Applicant’s responsibility to inform himself of visa conditions

LEGISLATION
Migration Act 1958, s 116(1)(b)
Migration Regulations 1994, r 1.40A, Schedule 2, cl 573.223 (1A), cl 573.231, Schedule 8, Condition 8516

CASES
Singh v Minister for Immigration & Anor [2015] FCCA 2998
Singh v Minister for Immigration and Border Protection [2016] FCA 611

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 September 2016 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 16 June 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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. 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.

8. 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 (regulations).

9. 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.”

10. The courses currently 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);

    ·      Associate Degree; and

    ·     Masters by Coursework

11. At the time the applicant was granted his subclass 573 visa on 18 June 2013, IMMI12/037 was in effect and is the relevant instrument for the purposes of assessing whether the applicant breached condition 8516 in this case.

12. The courses specified by the Minister in instrument IMMI12/037 for a subclass 573 visa were:

    ·     Higher Education Diploma

    ·     Higher Education Advanced Diploma

    ·     Bachelor Degree

    ·      Graduate Certificate

    ·      Graduate Diploma

    ·      Associate Degree

    ·      Masters by Coursework

13. It is noted that in both the current instrument and IMMI12/037, the diplomas and advanced diplomas specified were “Higher Education” diplomas and advanced diplomas.

14. 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 regulations since 22 November 2014 when his enrolment in a Bachelor of Information Technology Degree course with QUT was cancelled.

15. The applicant’s representative conceded that the applicant had ceased to be enrolled in a Bachelor degree when his enrolment in a Bachelor of Information Technology with QUT was cancelled on 22 November 2014. However, he argued that the applicant had not breached condition 8516 because it was arguable that the diploma and advanced diploma courses he had been enrolled in met the alternative criteria in paragraph 573.231 of Schedule 2 to the regulations. That is, those courses were arguably higher education (HE) courses specified by the Minister in IMMI12/037.

16. The applicant relied on the decision of Charlesworth J in Singh v Minister for Immigration and Border Protection [2016] FCA 611 (Singh) where her Honour stated (at paragraphs 42 to 44):

    “As to the question of whether the course in which the applicant remained enrolled would, in any event, satisfy the definition of a “higher education course” for the purposes of the Act, in my opinion, a further arguable issue fell for determination by the Federal Circuit Court. It is a question that goes to a jurisdictional fact conditioning the exercise of the Minister’s power to cancel the 573 Visa at all and which, in any event, was relevant to the Minister’s assessment of the seriousness of the applicant’s alleged breach of condition 8516.
    It is, in my opinion, arguable that the Diploma in which the applicant remained enrolled was a “higher education course”. The argument may be briefly stated. A “higher education course” includes a course specified in an instrument made under reg 1.40A of the Regulations: see cl 573.231 (1A)(b) of Sch 2 to the Regulations extracted at [16] of these reasons. At the time of the Minister’s decision to cancel the applicant’s 573 Visa, a “higher education course” was specified, in such an instrument, to include a “Diploma (Higher Education)”: see Instrument IMMI 14/015 titled Types of Courses for Student Visas. The instrument also specifies a “Diploma (Vocational Education and Training)” to be a course for the purposes of a Subclass 572 (Vocational Education and Training Sector) visa. The instrument, unhelpfully, gives no guidance as to which of those two descriptions apply to any particular Diploma course. In the context of the present case, it does not assist a decision-maker to determine whether the applicant’s Diploma has the characteristic of a “Higher Education” Diploma or “Vocational Education and Training” Diploma. There is room for argument in and around that.
    In the proceedings in this Court, the Minister contended that a Diploma in Website Development should be regarded as “Diploma (Vocational Education and Training)” within the meaning of the instrument, because that was how it was described by the educational institution offering the course. As I have mentioned, the question of whether the course properly met that description involves a question of construction of the Act and the instrument. It is not a question for the educational institution itself to finally determine. Quite apart from the principles in Li to which I have referred, an error in construction of a legislative instrument is an error that is ordinarily amenable to judicial review.”

17. Singh involved an application for leave to appeal from a decision of the Federal Circuit Court. The applicant had held a subclass 573 visa that the delegate of the Minister cancelled under section 116 of the Act. The Tribunal affirmed the delegate’s decision and the applicant sought judicial review in the Federal Circuit Court. The respondent Minister applied for orders dismissing the proceeding on the basis of the applicant had not raised an arguable case for the relief claimed and the Federal Circuit court dismissed the proceedings on this basis.

18. On appeal, Charlesworth J granted leave to appeal and allowed the appeal in part. Charlesworth J held that the Federal Circuit Court had erred in dismissing the application as raising no arguable case because, inter alia, it was arguable that the diploma the applicant had been enrolled in was a HE course for the purposes of clause 573.231 of Schedule 2 to the regulations. Her Honour held that it was arguable whether the diploma was properly characterised as a HE diploma or a vocational education and training (VET) diploma and the relevant instrument gave no guidance as to which of the two descriptions applied to any particular diploma course. Her Honour said that it was not a question for the educational institution offering the diploma to finally determine the question of whether the course was a HE or VET course.

19. It was not disputed by the applicant’s representative that the PRISMS and CRICOS records indicated that the diploma and advanced diploma taken by the applicant were VET courses or that Australian Careers College did not appear to be a registered higher education provider. The argument was that the institute offering the courses can not determine whether the course is a HE or VET course and therefore it was unclear whether the courses in which the applicant was enrolled were HE courses and whether he continued to meet the criterion in paragraph 573.231 of Schedule 2 to the regulations. The applicant said that because of the uncertainty, the applicant should be given the ‘benefit of the doubt’ that he had continued to meet the criteria of his visa.

20. The Tribunal agrees that education providers can not determine for themselves whether their courses are HE or VET courses. Rather, education providers apply to have their courses registered as either HE courses or other courses including 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).

21. 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 >

    CRICOS is publically available and the Tribunal considers that IMMI12/037 is sufficiently certain that the references to “higher education” therein are references to courses which have been registered as such in CRICOS. If this is incorrect and there is not sufficient certainty as to what “higher education” in the instrument means then it would appear that the relevant parts of the instrument would be invalid. It does not appear that this would assist the applicant as he would presumably then have to continue to meet the criteria in in paragraph 573.223(1A) of Schedule 2 to the regulations.

22. However, while the Tribunal has found that the references to “higher education” in the instrument are permissible references to courses which have been registered as such in CRICOS, the issue is not determinative in this matter. Even if the diploma and advanced diploma courses that the applicant undertook were HE courses, there is no dispute that the applicant was not enrolled in any courses for a period of time in 2016. It appears that the applicant was not enrolled in any course from 27 March 2016 when he completed his advanced diploma, until 31 August 2016, when he enrolled in a Diploma of Marketing VET course. Thus, even if he was not in breach of condition 8516 when his enrolment in the Bachelor of Information Technology degree was cancelled on 22 November 2014, which the Tribunal finds he was, he would have breached condition 8516 after 27 March 2016 when he completed the advanced diploma course and was no longer enrolled in any course. The Tribunal notes that the applicant was also in breach of condition 8202 from this date.

23. On the basis of the above information, the Tribunal finds that the applicant ceased to meet paragraph 573.223(1A) when his enrolment in the Bachelor of Information Technology degree was cancelled on 22 November 2014 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 the instrument.

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 power to cancel the visa should be exercised.

    Consideration of discretion

25. 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’.

26. When the applicant was granted his subclass 573 visa in June 2013, he was enrolled in an IELTS preparation course, a Certificate IV in Web-Based Technologies, a Diploma of Website Development and a Bachelor of Information Technology. He completed the IELTS preparation course and commenced the Certificate IV. He said that found the course very difficult and was failing the course so he dropped out of the course. He did not commence his diploma course and his enrolment was cancelled on 15 July 2014. His enrolment in the Bachelor degree was cancelled on 22 November 2014.

27. On 2 June 2014 the applicant enrolled in a Certificate IV in Small Business Management, a Diploma of Management and an Advanced Diploma of Management with Australian Careers College (Careers). He completed these courses, completing the last of these courses on 27 March 2016. The applicant said that Careers had a duty to inform him that he was required to maintain enrolment in a HE course as the holder of a subclass 573 visa but did not do so. He said that Careers failed to inform him that he was required to maintain enrolment in a HE course.

28. The applicant said that after he completed his advanced diploma course in early 2016 he travelled to India where he stayed for approximately two months visiting his mother. He said that after he returned from India he enrolled in a Diploma of Marketing in late August 2016. At first he said that he enrolled in the course because he knew that he was required to be enrolled in a course to meet his visa conditions. He then said that he was told by someone at Careers that he needed to complete three diplomas before he could be admitted into a Bachelor course. He later said that he enrolled in the Diploma course because it was due to conclude in March 2017 and his visa was to expire in March 2017. He said that after he completed the advanced diploma in March 2017, he did not have sufficient time left on his visa to complete a Bachelor degree. 

29. The Tribunal asked the applicant whether he or his family members may suffer any hardship if his visa were to remain cancelled. He said that they would suffer financial hardship because his mother, with some help from his uncle, had paid a lot of money in tuition fees for the courses he had done and that money would be wasted if his visa remained cancelled. The Tribunal reminded the applicant that he had chosen the courses he undertook and that he had completed three courses so it was difficult to see how the money which his family paid for the courses was wasted. The applicant said that the qualifications that he had completed would not assist him in obtaining a job in India and that he needed a degree to have a successful future.

30. The Tribunal raised its concern that given his evidence that his mother earned approximately AUD$24,000 and his fees for a Bachelor degree would be approximately $12,000 a semester, the applicant may not have the financial means to undertake a HE course in Australia. The applicant said that his uncle would also provide some money and that his mother would take out a loan in India to pay for his fees.

31. The Tribunal also raised its concern that, given that the applicant had his enrolment in a bachelor degree cancelled in 2014 and that he had not enrolled in a HE course since and has instead completed a number of VET courses, the applicant may not have the desire to undertake a HE course in Australia.

32. The applicant gave various responses to this concern. He said that intended to enrol in a bachelor degree course once he had completed the certificate and three diploma courses in which he had enrolled. He said that it was his understanding that he had to have completed the three diplomas in order to enrol in a bachelor degree. The applicant said that the reason he had not enrolled in a bachelor course earlier was that he was not offered enrolment. However, the applicant admitted that he had not attempted to enrol in a bachelor degree. Later in the hearing, he appeared to claim that he applied to enrol in a Bachelor course with Christian Heritage College by speaking with the receptionist at the college.

33. 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, information technology courses leading to a Bachelor of Information Technology degree. However, the applicant was failing his Certificate IV course and dropped out of his information technology courses. His enrolment in the Bachelor degree was cancelled on 22 November 2014.

34. Instead, in June 2014, the applicant decided to change courses to study a certificate IV and two vocational diplomas at a college. He completed the second diploma, an Advanced Diploma of Management on 27 March 2016. At any time, it appears that the applicant could have applied for enrolment in a HE course but did not. The Tribunal does not accept the applicant’s claim that he tried to enrol by speaking with a receptionist at the Christian Heritage College. He had applied for enrolment in courses before and knew the process for doing so. Indeed, after he completed the Certificate IV and two diplomas, the applicant did not enrol in a HE course. Instead he was not enrolled in any course and decided to spend two months in India. On his return, he did not enrol in a HE course but chose to enrol in yet another VET diploma, this time a Diploma of Marketing. He gave different accounts of why he did so. First he said that he did so for the purposes of showing the Department that he was enrolled in a course for the purposes of keeping his visa. He then said that he was told by someone at Careers that he needed to complete three diplomas before he could be admitted into a Bachelor course. Finally, he said that he knew that his visa was only valid until March 2017 so he could not undertake a Bachelor course in the remaining time so he undertook a diploma course.

1. The Tribunal does not accept that the applicant believed that he had to complete three diplomas to secure enrolment in a Bachelor course. He knew from his first lot of enrolments that he would be able to begin a Bachelor course after completion of one diploma. This claim is inconsistent with his claim that he did not enrol in a Bachelors course because he did not have time on his visa to complete a Bachelor degree. This claim is also rejected. The applicant said that he believed that if a student had not completed their course by the time their visa expired that they could apply for another visa to complete the course. Further, this claim appears to be inconsistent with the applicant’s claim that he tried to enrol in a Bachelor course by speaking with the receptionist at a college, a claim which has been rejected.

2. The applicant claims that the colleges that he attended were responsible for ensuring that he complied with his visa conditions in that they should have told him that he could not study only VET courses on a subclass 573 visa. This argument is rejected. It was the applicant’s responsibility to inform himself of the conditions of his visa and to ensure that he complied with them.

3. That the applicant did not intend to undertake a HE course is also reinforced by the fact that, after the applicant’s visa was cancelled in September 2016, the applicant could have left Australia and simply applied again for another visa. He is free to reapply for another visa offshore as he is not subject to any ban on reapplying for a visa and has not done so. One would expect that, if the applicant had genuinely wanted to undertake higher education courses, he would have done so in India or by reapplying for a student visa to Australia. This gives further weight to the view that the applicant does not have the desire to undertake a HE course in Australia.

4. 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 applicant decided not to undertake any HE courses and chose to undertake a number of VET courses instead. Tribunal notes that the applicant has completed three VET courses and can apply for another student visa at any time.

5. The applicant was not permitted to undertake only VET course and any difficulties which the applicant now faces are of the applicant’s own making. It was the applicant’s responsibility to inform himself of the the conditions of his visa and to comply with 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 VET courses. The Tribunal notes that, had the applicant’s visa not been cancelled, it would have expired on 15 March 2017. As the applicant’s visa was cancelled for breach of condition 8516, he is not subject to Public Interest Criterion 4013 and there is no bar on him re-applying for a visa once he is offshore. Therefore, the only obvious disadvantage of his visa remaining cancelled is that he would have to apply for a visa offshore. 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.

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

   DECISION

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

   Tigiilagi Eteuati
   Member