Sharma (Migration)

[2018] AATA 4698

Sharma (Migration) [2018] AATA 4698 (10 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shubham Sharma

CASE NUMBER:  1714101

HOME AFFAIRS REFERENCE(S):           BCC2017/1568574

MEMBER:Michelle East

DATE:10 October 2018

PLACE OF DECISION:  Perth

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

Statement made on 10 October 2018 at 2:58pm

CATCHWORDS+
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a higher education course – advice of migration agent – reliance on education provider – enrolled in lower level courses – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 1.40A, Schedule 2, cls 573.111, 573.223, 571.231, Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 June 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 delegate cancelled the visa under s.116(1)(b) on the basis that the delegate found the applicant had breached condition 8516 which was attached to the applicant’s 573 Higher Education Sector visa and found that the factors against cancellation did not outweigh those in favour of cancellation and cancelled the 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 9 October 2018 to give evidence and present arguments.

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 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 the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa. The condition specifies that the holder must continue to be a person who would satisfy the criteria for the grant of the 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. The applicant provided a copy of the delegate’s decision with the application for review. It indicates the applicant was granted a visa in subclass 573 Higher Education Sector with condition 8516 attached. 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 the present case the applicant was required to meet, among other criteria, subclauses 573.231 or 573.223(1A) of Schedule 2 to the Migration Regulations 1994.  The decision stated that on 13 July 2015 the applicant satisfied the primary criteria for the grant of the subclass 573 visa and met cl.573.231 or cl.573.223(1A) to be granted the visa.

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

9. 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.

10. The primary decision record refers to PRISMS which shows as at 8 June 2016 the applicant was no longer enrolled in a higher education course.  A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 8 June 2017.  A response was provided on 15 and 16 June 2017.  The delegate found that 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.

11. On the basis of the information before it, including the applicant’s own oral evidence given at hearing as outlined below in this decision, the Tribunal is satisfied that the applicant was not enrolled in a higher education course and therefore did not satisfy cl.573.231 or cl.573.223(1A) and he was not a person who would satisfy the primary criteria for the grant of the visa.  There is 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.

12. 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

13. 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’.

14. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of any breach and any reasons for the breach.

15. The purpose of a student visa is to enable the visa holder to undertake study in Australia.  The purpose of the Higher Education Sector visa is to enable the visa holder to undertake study at the higher education level.  The evidence before the Tribunal, including the applicant’s own oral evidence is that from 8 June 2016 he was not enrolled in Higher Education Sector level courses.

16. In his response to the NOICC the applicant advised upon receiving the Notice he immediately enrolled in a Bachelor of Business course at Stott’s College for the academic term 30 July 2018 to 30 June 2020.  He said he had been misguided by his education agent that the packaged course he was enrolled in at Stanley College would not breach his visa conditions.

17. The applicant acknowledged he had not been enrolled in higher education studies as required by his visa since June 2016.  Prior to that he had been enrolled in a packaged course for a Bachelor of Information Technology (IT).  He said as part of that package he initially enrolled in a Certificate IV in IT but failed.  He said he re-enrolled in a slightly different course, a Certificate IV in Computer Science.  He said he again failed this and realised he would not be able to complete a Bachelor’s degree in IT. On advice from his education agent, he then enrolled in a packaged course in Commercial Cookery with a view to completing a Diploma of Hospitality.

18. The Tribunal notes that the applicant paid for an enrolment for a Bachelor of Business at Stott’s College after he received the NOICC.

19. 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.

20. The Tribunal questioned the applicant whether there were any compelling reasons for him to remain in Australia and he said there were not, other than him wanting to complete his education.

21. 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.

22. The Tribunal has noted the applicant’s evidence that he claims the breach arose due to circumstances beyond his control, namely, incorrect advice.  Whilst the Tribunal is sympathetic to the applicant’s situation, the applicant was the holder of a higher education visa.  By not engaging in the study for which his visa was granted, the applicant was breaching the condition upon which his visa was granted.  There is no evidence available to the Tribunal that the applicant tried to verify whether he was complying with the conditions of his visa.

23. The Tribunal is of the view that as a holder of the student visa the applicant had the responsibility to familiarise himself with the conditions of his visa and what these required of him.  The visa applicant would have been advised of visa conditions at the time of the visa grant.  The Tribunal is not satisfied the applicant took adequate steps to ensure he was complying with his visa conditions and requirements.  The applicant’s own oral evidence was that he relied on his education provider and took no independent steps to determine if he was complying with the condition of his visa.

24. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control.  The Tribunal finds this weighs in favour of visa cancellation.

25. The Tribunal has considered the extent of compliance with visa conditions.  The applicant has breached condition 8516 and has done so for a considerable period.  There is no evidence that the applicant has breached any other visa conditions and therefore the Tribunal considers this factor to be neutral in deciding whether to cancel his visa.

26. The Tribunal has considered the degree of hardship that may be caused.  The applicant spoke of the money his father had invested in him in his education and living expenses.  He said it would be difficult for him to return to India without education.  He said he wished to help his father in his business and also wanted to open his own restaurant.  He said a business degree would help him to achieve these goals. 

27. The Tribunal accepts the applicant would suffer a degree of emotional and financial hardship if he were to have his visa cancelled and finds this weighs in favour of the applicant.

28. The Tribunal has considered the past and present conduct of the visa holder towards the department.  Nothing adverse is known about the applicant’s past and present conduct towards the Department.  The Tribunal finds this gives some weight in the applicant’s favour.

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

30. 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.

31. The Tribunal is mindful that the delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act, if he does not voluntarily depart Australia.  Further, the applicant will have limited options to apply for further visas in Australia.  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. 

32. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant 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 his 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.       

33. 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

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

    Michelle East
    Member