Sharma (Migration)

[2018] AATA 5877

Sharma (Migration) [2018] AATA 5877 (25 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abhishek Sharma

CASE NUMBER:  1802533

HOME AFFAIRS REFERENCE(S):           BCC2014/2169806

MEMBER:Jason Pennell

DATE:25 October 2018

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 25 October 2018 at 9.10am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary)(Class TU) visa – Subclass 573 Higher Education Sector – not being enrolled in a course at an appropriate level – not satisfied applicant was a genuine applicant for entry and stay as a student – significant change in course direction in such short time – eligible higher degree student enrolled in vocational education course – not enrolled in a bachelor’s degree or master’s degree course – difficulty with English language comprehension – acted on inaccurate advice from migration agent – decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994, Schedule 2, r 1.04, cls 573.112, 573.223(1A), Schedule 8, 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 1 October 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 had breached condition 8615 by no longer being enrolled in a course at an appropriate level and not in accordance with the primary grant of the applicants 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 24 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

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

5. 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

1. 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.

2. The applicant was born on 18 August 1991 in Delhi, India. His mother and father together with his younger sister continue to live in Delhi.

3. The applicant attended and completed High School at Sarvodya Bal Vidalaya No 2. He then attended the University of Delhi where he obtained a Bachelor of Commerce in 2012.

4. On 23 December 2013 the applicant was granted a Student (subclass 573) Visa and arrived in Australia on 9 January 2014. On his arrival in Australia the applicant enroled and completed an 

5. The applicant attended and completed High School at Sarvodya Bal Vidyalaya No.2. The applicant then attended the University of Delhi where he completed a Bachelor in Commerce in 2012.

6. On 23 December 2013 the applicant was granted a Student (subclass 573) Visa and arrived in Australia on 9 January 2014. The applicant was enrolled in a Masters of Accounting course at Federation University commencing in March 2014. The applicant failed the first semester of the Masters course.

7. On 1 July 2014, the applicant applied for a TU-572 Vocational Education Visa and Training Sector visa (‘the 572 visa’) and on 25 July 2014 enrolled to study a commercial cookery course, a course for which a 572 visa could be obtained.

8. On 29 July 2014 the applicant notified the education provider of his cessation of studies and as a result his enrolment in the Masters course was cancelled.

9. On 14 August 2014 the delegate of the minister refused the applicant for the 572 visa because the applicant had not explained why he had made such a significant change in direction within such a short time. As a result the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.

10. On 5 September 2014, the Department notified the applicant of its intention to cancel the 573 visa.

11. In late September 2014, the applicant obtained enrolment in a Bachelor of Accounting course which was a qualifying course of the 573 visa.  

12. 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 was attached to the applicant’s visa. Condition 8516 requires that the applicant 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 applicant to be enrolled, it has been held that this requires the applicant to maintain enrolment while they hold the visa.[1]

    [1] Singh v MIBP [2016] FCA 679.

13. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant is an eligible higher degree student who satisfies cl.573.223(1A), or, if not, is enrolled in, 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.[2]

    [2] cl.573.231

14. 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’s degree, master’s degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector.[3] ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112.

    [3] cl.573.111

15. According to the Provider Registration and International Student management Systems (PRISMS), the applicant was not enrolled in a bachelor’s degree or master’s degree course and was not enrolled in a course of study that is a principal course of a type specified in subclass 573 visas by the Minister in an instrument under regulation 1.40A. As such the applicant was not a person who continued to satisfy either subclauses 573.231 or 573.223(1A) and as such was not a person who satisfied the primary criteria for the grant of the visa in breach of condition 8516.

16. By a Notice of Intention to Cancel Certificate dated 5 September 2014 (‘the NOICC ’) the department notified the applicant of its intention to consider cancelling his visa. The applicant responded to the NOICC on 12 September 2014 advising that he had obtained enrolment in a Bachelors of Accounting course, a qualifying course for a 573 visa after the date of the NIOCC.

17. On 1 October 2014 the delegate cancelled the applicants 573 visa pursuant to s.116(1)(b) of the Migration Act 1958 (Cth).

18. On 29 January 2015 the Migration Review Tribunal conducted a review hearing of the department’s decision to cancel the applicant’s visa.

19. On 10 March 2017 the Federal Circuit Court dismissed the applicant’s application to review the decision of the Migration Review Tribunal’s decision.

20. On 22 December 2017 the Federal Court of Australia made orders that the application to review the decision to cancel the applicants 573 visa be remitted to the Tribunal for determination in accordance with the law.

21. The applicant acknowledged[4] that from 29 July 2014 to 11 September 2014, a period of six week, he was neither enrolled in a vocational course or in a bachelors or master’s degree course. Therefor the applicant conceded that he breached condition 8516 during this period as he did not continue to be a person who would satisfy the primary or secondary criteria.[5]

    [4] Applicants submissions by Carina Ford Immigration Lawyers dated 17 October 2018 @ p.3

    [5] Singh v Minister for Immigration and Border Protection [2016] FCA 679.

22. Accordingly, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act is satisfied. 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

1. 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’.

Applicants purpose of traveling and staying in Australia.

1. During the course of the hearing the applicant confirmed that his intended purpose was to remain in Australia and study a Masters in Accounting.

2. The Tribunal is satisfied that the applicant’s intention at the time of the visa application does not constitute a reason not to cancel his visa. The applicant failed to maintain his enrolment in a registered course in accordance with his visa conditions. He conceded to the Tribunal that he had breached condition 8516 of his visa by failing to be enrolled in a course at the appropriate level and therefore not meeting the primary criteria for the grant of his visa. As a result the applicant became the holder of a bridging visa following his student visa cancellation.

3. While the applicant did breached condition 8516, his evidence to the Tribunal was that after failing his first semester of the master’s course was very upset and panicked about his future. As a result he sought the advice of a migration agent who advised him to enrol in a vocational course. The applicant’s evidence was that he wrongly took the agents advice by enrolling in Commercial Cooking and Hospitality course and seeking to obtain a subclass 572 visa. Contrary to his evidence before the Migration Review Tribunal the applicant said that he did not want to enrol in the vocational course but did so, being unfamiliar with the processes, on the advice of his migration agent at that time. He confirmed that it was always his intention to further his studies in accounting. The Tribunal accepts the applicant’s evidence in relation to his enrolment in the vocational course.

4. At the time of receiving the NOICC the applicant sought enrolment in a Bachelors of Accounting. The applicant’s submission was that the refusal of his application for a subclass 572 visa and the NOICC caused the applicant to re-focus and put himself back on track in achieving a Masters in Professional Accounting.  The applicant is currently enrolled in a Master of Professional Accounting at Southern Cross University.

5. Accordingly, the Tribunal gives some weight to the applicant’s statement that the purpose of him traveling and staying in Australia was to Masters of Accounting.

Compliance with visa conditions

1. The applicant concedes that from 29 July 2014 to 11 September 2014 (a period of approximately six week) he was not enrolled in Commercial Cookery and Hospitality Courses nor did he hold any enrolment.  That is during this six week period he was in breach of condition 8516 as he did not continue to satisfy the primary or secondary criteria. The applicant’s visa was cancelled on 1 October 2014.

2. The Tribunal does not consider a period six weeks of non-compliance to be significant.

3. The Tribunal considers that applicant’s non-compliance with his visa conditions is not significant and as such gives some weight in favour of the applicant in considering this factor.

The degree of hardship that may be caused to the Applicant. 

1. The applicant’s evidence was that he wanted to complete a Masters of Professional Accounting so that she could return to India and obtain a good job. Save to say that he wanted a position in the accounting profession he was not able to inform the Tribunal precisely the nature and type of position he wanted upon his return. His evidence was that if his visa is cancelled he would not be able to achieve a Master’s qualification and will not be able to obtain better employment as an accountant in India.   

2. The applicant has already completed a Bachelor of Business degree in India and did not provide any evidence as to what type of position he may expect to obtain upon his return to India in the event he achieves a master’s qualification. He did not provide any evidence as to how any job he may reasonably expect to obtain in India would be better with a master degree rather than his current qualification, a bachelor’s degree. Nevertheless, the Tribunal accepts that by not completing his Masters course the applicant may be restricted from obtaining a ‘better position’ upon his return to India.

3. The applicant submits that he has suffer considerable financial and personal hardship as a result of him not being able to study while waiting review of his visa cancelation. His submission is that his family have devoted considerable resources in order for him to achieve his goal of obtaining a qualification in Australia. As such, he says that it will bring considerable shame to him if he was to return to India without having obtained his Master qualification. The Tribunal places no weight on any shame or embarrassment that the applicant may endure in circumstances where the cancelation of his visa appears to be as a result of his own inexperience and/or incompetence.

4. However, the Tribunal acknowledges that if the applicant’s visa is cancelled he will suffer some hardship by having to return India without an a masters qualification and as such has given some weight to hardship the applicant may suffer in the event that his visa is cancelled in making its decision.

The circumstances in which the grounds for cancellation arose

1. The applicant conceded to the Tribunal that there were grounds for the cancelation of his visa. However, he stats that his visa should not be cancelled by reason that:

   (a)The period of time he was in breach of condition 8516 as not significant.

   (b)That he failed his master’s course due to the changed environment and due to the fact that he found it difficulty in comprehending English.

   (c)That as a result of him failing the first semester of the Masters course he panicked and wrongly accepted the advice of his migration agent to change his studies to Commercial Cooking and Hospitality. 

2. As to the time of that the applicant was in breach of condition 8516 the Tribunal has accepted that the period of time of the breach was not significant.

3. The Tribunal accepts that it was the applicant’s intention to obtain masters qualification in Australia that would enable him to obtain a better position.  The applicant’s evidence was that prior to commencing the masters course he undertook an English speaking course. He said that he had difficulty in comprehending the classes due to the fact that they were conducted at a greater speed than he had been used to in his English classes. He also said that there were a larger number of people in his lectures/classes which made it more difficult to for him comprehend what was being taught. While it is a matter that the applicant may have reasonably anticipated prior to his arrival in Australia, the Tribunal accepts that upon his arrival in Australia he had difficulty in understanding the classes in the Masters of Accounting course.  It is reasonable to expect that a person learning English would have some difficult in comprehending classes involving language that is technical and specific to a particular field of study.

4. The applicant’s evidence is that he has now been in Australia for approximately four years and his ability to speak and understand English has greatly improved.

5. Finally, the Tribunal accepts the applicant’s evidence that he was upset and panicked as a result of failing the first semester of his master course. He sought the advice of an agent who recommended a course of action of enrolling in a vocational course that was contrary to the conditions of his visa. The applicant’s evidence was that he wrongly accepted the agents advise enrol in a commercial cookery and hospitality course and seek a 572 visa. His evidence was that he regrets having taken the advice and that upon realising the gravity such action upon receiving the NOICC he sought enrolment in a Bachelors of Accounting course and has obtained enrolment in a Masters of Professional Accounting.

6. While the Tribunal has concerns about the fact that he enrolled in vocational course contrary to his visa conditions, it is prepared to accept his evidence that he acted in accordance with his agents instructions out of fear and confusion for the situation he found himself in at that time. The Tribunal takes into the account the fact that he has sought and obtained enrolment in a Master’s of Professional Accounting course at the Southern Cross University as evidence of his intention to ‘put matters back on track’ and  obtain a Master’s qualification in Australia.

7. Accordingly, the Tribunal gives some weight to the applicant’s statement that he breached the conditions of the visa due to the fact that he had panicked as a result of failing the first semester of his master course. Albeit that these factors appear to be matters within the applicant’s control, the Tribunal accepts that in circumstances of stress a person may make poor decisions that adversely affect their personal circumstances.  Accordingly, the Tribunal places some weight on this consideration in the applicants favour.

Past and present behaviour of the applicant

1. The applicant has been cooperative and courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight is given to his in consideration of this factor.

Persons in Australia whose visa would be cancelled under s.140.

1. The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s.140 of the Migration Act 1958 (‘the Act”). According to the Departments records there are no person in Australia whose visa may be cancelled under s.140 of the Act.

2. Accordingly, the Tribunal places no weight on this consideration in the applicant’s favour.

Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled.

1. The circumstances of this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision. 

Other relevant factors

1. Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case. 

2. Therefore having considered the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

DECISION

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

Jason Pennell

Member