Shrestha (Migration)

[2020] AATA 1334

Shrestha (Migration) [2020] AATA 1334 (5 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Santosh Shrestha

CASE NUMBER:  1718271

HOME AFFAIRS REFERENCE(S):          BCC2014/2225729

MEMBER:Stephen Conwell

DATE:5 February 2020

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 05 February 2020 at 3:53pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Federal Circuit Court remittal – enrolment in a registered Higher Education course ceased – applicant’s changed to vocational course – eligible higher degree student – eligible education provider – visa condition met at all relevant times – applicant applied for a subclass 572 visa – decision under review set aside    

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2 cls 573.223, 573.231; Schedule 8, Condition 8516; r 1.40

CASES

Abhishek v MIBP [2016] FCCA 82
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60
Singh v MIBP [2016] FCA 679
Singh v MIBP [2018] FCA 29
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 12 November 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) on the basis that the applicant had not complied with a condition of his visa, namely condition 8516. 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. On 22 April 2015, the Migration Review Tribunal, the statutory predecessor to this Tribunal, affirmed the delegate’s decision to cancel the decision. The applicant sought for the decision to be judicially reviewed by the Federal Circuit Court of Australia.

4. A Court order dated 10 August 2017 stated the Migration Review Tribunal was in jurisdictional error by failing to consider all elements of cl.573.223 as well as cl.573.231 of Schedule 2 to the Regulations. The matter was remitted back to this Tribunal to be determined according to law.

5. Following this court remittal, the applicant appeared before the Tribunal on 16 May 2019 to give evidence and present arguments. The applicant was invited, and attended a further hearing held on  4 February 2020 to give evidence and present arguments with respect to the discretionary factors which are to be considered when deciding whether to cancel the visa.  

6. Both Tribunal hearing were conducted with the assistance of an interpreter in the Nepali and English languages. The applicant was represented in relation to the review by his registered migration agent, who attended both Tribunal hearings.

7. 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

8. 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). 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?

9. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied the holder did not comply with a condition of his visa. In this instance one of the conditions attached to the applicant’s visa was condition 8516. This condition requires that he must continue to be a person who would satisfy the primary criteria or secondary criteria, as the case requires, for the grant of the visa. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

10. 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: cl.573.231. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 12/037.

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’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: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. As the applicant’s 573 visa was granted on 23 October 2013, the relevant instrument specifying eligible education providers for this visa is IMMI 14/007.

12. At the time his 573 visa was granted the applicant was found to satisfy the primary criteria for a Subclass 573 visa. To do so, he would have to meet the requirements of cl.573.223(2) and cl.573.231 of Schedule 2 to the Regulations unless he was an ‘eligible higher degree student’ who had a confirmation of enrolment in each course of study for which he was an eligible higher degree student. If he was an ‘eligible higher degree student’ who had a confirmation of enrolment in each course of study for which he was an eligible higher degree student, he would have to satisfy the requirements of cl.573.223(1A).

    Was the applicant an ‘eligible higher degree student’ after 31 July 2014?

13. In the present case, the applicant’s visa was cancelled on the basis the applicant did not continue to be a person who would satisfy either subclauses 573.231 or 573.223(1A).  As such it appeared that the applicant no longer satisfied the primary criteria for the grant of the visa and did not comply with condition 8516. 

14. The evidence before the Tribunal is that the applicant’s enrolment in the Bachelor of Information Technology was cancelled on 31 July 2014 however he was enrolled at this time in a Diploma of Hospitality at a Victorian education provider, Australian Careers Education Pty Ltd (ACE).  According to the relevant instrument, IMMI 14/007, ACE is not listed as an “eligible education provider”.  Upon cancellation of his enrolment in the enrolment in the Bachelor of Information Technology, the applicant ceased to be enrolled in a principal course with an ‘eligible education provider’ that is a Bachelor’s degree or a Master’s degree by coursework. 

15. The Tribunal finds that the applicant’s enrolment in the Diploma of Hospitality course at ACE meant that he no longer satisfied the definition of “eligible higher degree student” and in turn no longer met the requirements of cl 573.223(1A), since ACE was not listed as an “eligible education provider” in the relevant instrument. It is a point conceded by the applicant’s representative, Mr Aleksov in the Federal Circuit Court hearing of this matter.[1]  The Tribunal is satisfied that after 31 July 2014 the applicant ceased to be a eligible higher degree student as he no longer met the requirements of cl. 573.223(1A).

    Alternatively, did the applicant satisfy cl. 573.223 or cl. 573.231 after 31 July 2014?

    [1] [2017] FCCA 1875 at para 30.

16. When clause 573.223(1A) does not apply, cl.573.231 requires that the applicant 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. In that instrument the following courses were specified for Subclass 573:

    Higher Education Diploma; Higher Education Advanced Diploma; Bachelor Degree;

    Graduate Certificate; Graduate Diploma; Associate Degree; and Masters by Coursework.

17. According to the delegate’s decision, the applicant was notified on 12 September 2014 of the intention to consider cancelling his visa (NOICC). The NOICC referred to the Provider Registration and International Student Management System (PRISMS) student record system that showed the applicant was no longer enrolled in a bachelor degree or master’s degree by coursework, and 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 under regulation 1.40A. As a result he had not continued to be a person who would satisfy either cl.573.223(1A) or cl.573.231. He was invited to respond to the notice in writing; the applicant provided his written response to the NOICC on 15 September 2014. It was only after receiving the NOICC that the applicant enrolled in a Bachelor of Business on 6 October 2014.

18. The applicant’s response to the NOICC suggested that he was unaware that his 573 Higher Education visa had been granted under ‘streamlined visa processing’ (SVP), which required him to enrol only at certain SVP approved educational providers. He further claimed that he had been misled by a friend’s migration agent who assured him that he was able to change his enrolment to a VET (Vocational Education Training) course without risk to his visa status. The delegate gave little weight to these claims as the applicant submitted no evidence in support of them.  By decision of 12 November 2014 the delegate cancelled the applicant’s 573 visa, which decision is the subject of this review.

19. It is the Tribunal’s view that it must assess the applicant’s enrolment status for the period between cancellation of his enrolment in the Bachelor of Information Technology (31 July 2014) and his subsequent enrolment in a Bachelor of Business on 6 October 2014. The Tribunal must consider whether the applicant’s enrolment in the Diploma of Hospitality during this period met the course requirements for a Subclass 573 as listed in IMMI 12/037, or if he was enrolled in some other course at a level required for a Subclass 573 visa at the time the enrolment in the Bachelor of Information Technology was cancelled.  If the Tribunal is not satisfied that in the period between 31 July to 6 October 2014 the applicant was enrolled in a course that met the course requirements for a Subclass 573 Higher Education visa, it would be open to the Tribunal to conclude that the applicant was in breach of condition 8516, and such a breach which could not be rectified by his subsequent enrolment in a Bachelor course. Should the Tribunal come to that conclusion, the ground of cancellation would be made out.

20. On the evidence before it, the Tribunal is satisfied that the applicant was enrolled solely in a Diploma of Hospitality during the period between 31July to 6 October 2014; there is no evidence of his enrolment in any other course of study during this time.

    Did the applicant’s enrolment in a Diploma of Hospitality meet the course requirements for a Subclass 573 Higher Education visa?

21. The relevant instrument,  IMMI 12/037 specifies the following courses to be Higher Education courses appropriate for the sub-class 573 visa: 

    • Higher Education Diploma
    • Higher Education Advanced Diploma
    • Bachelor Degree
    • Graduate Certificate
    • Graduate Diploma
    • Associate Degree

    ·Masters by Coursework

22. The instrument specifies the following courses to be VET courses appropriate for the subclass 572 visa: 

    • Certificate I, II, III and IV, other than ELICOS
    • Vocational Education and Training Diploma
    • Vocational Education and Training Advanced Diploma
    • Vocational Graduate Certificate

23. The applicant cites the decision in Singh v Minister for Immigration and Border Protection[2] [Singh] in which Charlesworth J observes that the instrument, “unhelpfully, gives no guidance as to which of those two descriptions apply to any particular Diploma course.”

    [2] [2016] FCA 611

24. The Tribunal notes that her Honour dismisses the suggestion that an educational provider’s description of a course it offers as being vocational or higher education was not of itself conclusive for the purposes of the relevant instrument and the Act. Her Honour points out that the question of whether a particular course properly meets the description which the educational provider attaches to it involves a question of construction of both the Act and the relevant instrument.  It is not a question which the educational provider itself may determine. 

25. The applicant was enrolled in the Diploma of Hospitality at the ACE, an educational provider based in Victoria. The Tribunal must assess the Diploma of Hospitality having regard to the integrated statutory scheme created by the Act and the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act).

26. A number of matters discussed by White J in Singh v MIBP [2018] FCA 29 indicate that the Diploma of Hospitality course cannot reasonably be understood as a course for a Diploma (Higher Education) so that the applicant’s enrolment in that course could satisfy the cl. 573 criteria.

27. Firstly, it was the Australian Skills Quality Authority (ASQA), the entity with responsibility under the ESOS Act for Australia’s VET sector, which approved the Diploma of Hospitality course at ACE.  Each VET accredited course is allocated a national code and is listed on the national register (training.gov.au). This website confirms that ACE is a Registered Training Organisation (RTO) accredited to offer the Diploma of Hospitality Management, which succeeds and is equivalent to, the Diploma of Hospitality it offered at the time of the applicant’s enrolment.

28. Secondly, the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) records the Diploma of Hospitality as a VET course.  On the CRICOS website a search of this diploma as a Higher Education course reveals only one offering - a Diploma of Hospitality Management offered by the International College of Management, Sydney Pty Limited. Whereas a search of this diploma as a VET course reveals 154 offerings, including the course offered by ACE.

29. Thirdly, the applicant’s response to the NOICC acknowledges that he had commenced a VET course.  It was for this reason that he had applied for a Subclass 572 visa (being the visa appropriate for those studying VET courses).

30. Finally, the applicant’s Overseas Student Confirmation of Enrolment (COE) completed by ACE in accordance with its obligations under the ESOS Act and dated 26 June 2014 identified the “course sector” of the Diploma of Hospitality as “VET”.  It did not identify the course as a Higher Education course. 

31. The data from the CRICOS website indicates that that the Diploma of Hospitality and its successor, the Diploma of Hospitality Management, has been, and continues to be offered overwhelmingly as a VET course. There is only instance of the course having been approved as a Diploma (Higher Education) course in the Higher Education Sector and that is by an education provider other than ACE. 

32. In these circumstances, the Tribunal is satisfied that the Diploma of Hospitality offered by ACE and in which the applicant was enrolled after 31 July 2014 is not a Higher Education Diploma  as required by the relevant instrument. 

33. The applicant’s representative put forward a number of submissions to the Tribunal in the course of corresponding dated 6 May 2019; 21 May 2019 and 3 June 2019. The Tribunal will consider each of these submissions in the paragraphs below.

    Applicant’s visa cancellation set aside; visa expired on 30 August 2016

34. The applicant’s representative submits that the Tribunal ‘cannot conduct a review of a decision on a visa (on its merits), that no longer exists. The submission argues that whilst the Act does not expressly deal with the consequences of a decision to set aside a s.116 cancellation, the Department’s Procedures Advice Manual (PAM3) requires that where a s.116 cancellation decision has been set aside by a Court, the visa is taken to have never been cancelled.

35. The Tribunal accepts this explanation of PAM 3, however it finds that it is not pertinent to the circumstances before it. In this instance the Court did not set aside the delegate’s decision to cancel the visa, rather the Court found jurisdictional error in the MRT decision. It follows from this reasoning, that the Tribunal finds that the delegate’s decision to cancel the visa remains extant and capable of review.

    Applicant enrolled in bachelor degree at date of visa cancellation

36. The applicant’s representative claims that, as the applicant was enrolled in a Bachelor course the time of the visa cancellation (12 November 2014), the applicant was not in breach of condition 8516. The Tribunal does not share this view. Condition 8516 requires that the visa holder must ‘continue to be a person who would satisfy the primary or secondary criteria… for the grant of the visa’.  Clause 573.231 is relevant.  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 applies at all times while the visa is held, the Tribunal is of the view that this condition must be met at all times.

37. If, during the period of holding a Subclass 573 visa, the visa holder ceased to be enrolled in, or the subject of a current offer of enrolment in a course of a type specified for Subclass 573 and so would not satisfy cl.573.231 or the alternative criterion in cl.573.223(1A), a breach of condition 8516 would be established and could not be ‘cured’ by a subsequent enrolment or offer of enrolment in a course of the relevant type. In Abhishek v MIBP [2016] FCCA 82 (Judge Heffernan, 2 February 2016, the Court commented at [9] at that a breach of condition would still occur if a person withdrew from one course and then re-enrolled in a different course a fortnight later.

38. In light of the Abhishek decision the Tribunal finds that the applicant’s subsequent enrolment in a Bachelor of Business on 6 October 2014 does not cure or prevent a possible breach of condition 8516 by the applicant following the cancellation of his enrolment in the Bachelor of Information Technology, a few months earlier, on 31 July 2014.

39. Since the Tribunal finds that upon cancellation of his enrolment in the Bachelor of Information Technology on 31 July 2014, the applicant ceased to be an “eligible higher degree student” and further, that his enrolment in the Diploma of Hospitality course at ACE did not otherwise comply with the elements in cl. 573.223 and cl. 573.231. In these circumstances, he did not comply with condition 8516 of his visa.  The Tribunal is therefore satisfied that grounds for cancellation of the applicant’s subclass 573 visa existed. 

40. 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

41. 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’.

42. It is well established that the function of the Tribunal is to arrive at the correct or preferable decision (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60). That case also considered the role of policy, and the Tribunal has had regard to Departmental policy.

    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

1. The purpose of a Student visa is to enable the visa holder to undertake study in Australia.  The purpose of the Higher Education visa is to enable the visa holder to undertake study at the higher education level.  The Tribunal gives weight to the applicant’s oral evidence that the purpose of his travel to and stay in Australia was to study, which is why he has remained in Australia for this lengthy period, pursuing this merits review.

   The extent of compliance with visa conditions

2. The Tribunal has considered the extent of the applicant’s compliance with visa conditions.  Upon cancellation of his enrolment in the Bachelor of Information Technology on 31 July 2014, the applicant fell in breach of condition 8516.  There is no evidence that the applicant has breached any other visa conditions and the Tribunal therefore gives this factor little weight in deciding whether to cancel his visa.

   Circumstances in which ground of cancellation arose

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

4. The applicant agreed that he arrived in Australia on a subclass 573 Higher Education visa under the Streamlined Visa Process (SVP), however he claims not to have understood the evidentiary and efficiency benefits afforded to him under the SVP program. The applicant’s evidence is that after struggling in the first two semesters of his Diploma of Computing course (which was to lead eventually to the Bachelor of Information Technology) he and a friend had received misleading advice from a migration agent to the effect that it would be possible to change their enrolment to the VET sector by changing their visa status from the subclass 573 Higher Education visa to the subclass 572 visa appropriate for the VET sector.  This agent (who is not the applicant’s current representative) assisted the applicant with admission into ACE for hospitality studies and with his application for the subclass 572 visa.

5. The applicant indicated to the Tribunal that he did not have any reason to doubt the advice he had received and at this time believed he was not breaching any visa conditions. He claims he relied on the advice and assistance of a migration agent in relation to his education options, and was led to believe he was satisfying the requirements of his principal course of study. The applicant claimed that it was not until he received the NOICC from the Department that he came to appreciate he was in breach of his visa condition and the severity of his situation.   

6. In his response to the NOICC the applicant that after seeking advice from “other agencies” he became aware of his visa conditions and of his obligations under the SVP scheme. The Tribunal is not satisfied the applicant took adequate steps to ensure that he continued to comply with his visa conditions and requirements. 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.

7. The Tribunal notes the applicant’s claim that the breach arose due his receiving incorrect migration advice. The Tribunal acknowledges that it would be unfortunate if incorrect migration advice led to the applicant’s breach of his visa condition however the Tribunal does not accept that this would constitute circumstances beyond his control.

8. In the Tribunal’s view, the applicant, as the holder of the visa, had the responsibility to familiarise himself with the conditions of his visa and what these require of him.  The applicant would have been advised at the time of the visa grant that his visa was subject to certain conditions.  In the Tribunal’s view, the applicant was obliged to ensure that he was familiar with the requirements of these conditions.  It considers that relying on advice and assistance from his previous agent was not enough.  Ultimately the responsibility for compliance with visa conditions lies with the visa holder.

9. The Tribunal questioned the applicant whether there were any compelling reasons for him to remain in Australia and he said there were not, however he would welcome the opportunity to obtain an Australian qualification before returning to his home country of Nepal. 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.

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

10. The Tribunal has considered the degree of hardship that may be caused.  The applicant said he would be very disappointed to return to Nepal without any qualification and he would find it difficult to justify the more than six years he has spent in Australia.  He said he has been on a Bridging Visa E since cancellation of his Student visa, with no work or study rights. These conditions have made living in Australia very difficult for him during the past five years following cancellation of his Student visa, however he is determined to obtain an Australian qualification if given the opportunity to study.

11. He said his parents would be disappointed in him as they have invested a substantial sum of money in his education, which he estimates to be approximately 27 lakh (2.7m NPR) Nepalese rupees, which at the time of decision is approximately $35,127 AUD. The Tribunal acknowledges that the applicant’s parents would suffer a financial cost as well as be disappointed at his lack of success, should his visa be cancelled. The Tribunal also acknowledges the lengthy time that he has remained onshore, pending the outcome of this merits review The Tribunal finds this weighs in favour of exercising its discretion to not cancel the visa.

    Past and present conduct of the visa holder towards the department

12. 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 gives some weight in favour of exercising its discretion to not cancel the visa.

    Whether there would be consequential cancellations under s.140

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

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

14. 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 applicant has not raised concerns in regards to this. The applicant is not currently in detention and it appears unlikely that he will be detained if the cancellation occurs. The Tribunal therefore gives this factor minimal weight.

    Whether any international obligations would be breached as a result of the cancellation

15. 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.

    Any other relevant matters

16. Before closing the second hearing on 4 February 2020 the Tribunal asked the applicant if there is anything else he wished to be considered and he reiterated that he hoped to be granted another opportunity to obtain an Australian qualification.  In her closing submission his representative urged the Tribunal to exercise its discretion in favour of the applicant, pointing to the lengthy time that the applicant has remained onshore in pursuing this merits review, and the restrictive conditions which apply to the applicant’s Bridging visa E status.

17. The Tribunal has considered the circumstances in which the ground for cancellation arose. He claims, essentially, that he claims he relied on the misleading advice and assistance of a migration agent in relation to his education options, and was led to believe he was satisfying the requirements of his principal course of study.  The applicant claimed that it was not until he received the NOICC from the Department that he came to appreciate he was in breach of his visa condition and the severity of his situation.  The Tribunal accepts that upon receiving the Department’s NOICC, the applicant remedied the breach and enrolled in a Bachelor course on 6 October 2014. Although this subsequent enrolment does not ‘cure’ his breach of condition 8516, the Tribunal notes that the applicant was in breach of this condition for a period of only three months. 

18. Nevertheless, in the Tribunal’s view, the applicant, as the holder of the visa, had the responsibility to familiarise himself with the conditions of his visa and what these required him to do.  The applicant would have been advised at the time of the visa grant that his visa was subject to certain conditions.  In the Tribunal’s view, the applicant was obliged to ensure that he was familiar with the requirements of these conditions.  It considers that relying on advice and assistance from his previous agent was not enough.  Ultimately the responsibility for compliance with visa conditions lies with the visa holder.

19. The Tribunal considers that the applicant has maintained, in his lengthy time onshore, a consistent interest in obtaining an Australian qualification.  The Tribunal accepts as plausible the proposition that the bachelor level study was too challenging for the applicant.  That is consistent with his oral evidence that he would be happy to complete a VET qualification and return to his home country.  He might have attempted to allow his 573 visa to continuing running, even though he planned not to study in the higher education sector.  He did not, and appropriately, applied for a 572 visa.

20. Under his Bridging visa E, the applicant has had no right to work or study.  No adverse inference is drawn against the fact that in compliance with visa conditions, he has not been studying.

21. On the evidence, the Tribunal accepts the applicant attempted bachelor level study and found it too challenging; he then received incorrect and possibly misleading migration advice and sought to transition to VET sector study.  For these reasons, the technical breach of condition 8516 and the cancellation of his visa and the events which flow from it do not indicate that his intentions are not in line with the visa criteria.

22. The Tribunal is satisfied that the applicant has a genuine intention to seek an educational outcome in Australia. In the circumstances of this case, the Tribunal gives this factor considerable weight in favour of exercising its discretion to not cancel the visa.

23. 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 and gives these consequences some limited weight in favour of exercising its discretion to not cancel the visa.

24. The Tribunal recognises that the cancellation of a visa is a significant matter and having weighed the evidence before it the Tribunal considers that the discretionary factors above indicate that the applicant should be given an opportunity to remain in Australia to pursue an educational outcome.

25. The correct and preferable decision therefore is not to cancel the visa. The Tribunal, in reaching this decision, notes that had the visa not been cancelled it would have already ceased naturally on 12 November 2014 – a date that has long passed. Thus, the value of setting aside the Department's cancellation is questionable, since there is no longer a visa to reinstate.  Nevertheless the Tribunal notes that setting aside the visa cancellation will afford the applicant the opportunity to apply for a new Student visa thereby allowing the Department to re-assess his circumstances and intentions with respect to studying in Australia.

26. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Stephen Conwell
    Member