SHUJAT (Migration)

[2019] AATA 6752

SHUJAT (Migration) [2019] AATA 6752 (26 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr USAMA SHUJAT

CASE NUMBER:  1718298

HOME AFFAIRS REFERENCE(S):          BCC2017/1912268

MEMBER:Mark Bishop

DATE:26 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 26 September 2019 at 3:01pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – continue satisfaction of primary criteria – enrolment in the higher education sector – consideration of discretion – significant breach – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2, cl 573.231; 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 16 August 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 applicant was no longer enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas. 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 26 September 2019 to give evidence and present arguments. Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

4. The applicant provided a copy of the decision record to the Tribunal.

5. 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 affirmed.

   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). 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?

   s.116(1)(b) - non-compliance with conditions

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 a visa holder continue to satisfy the primary or secondary criteria for the grant of a visa.

9. 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 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 met cl.573.231 if they were not an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student.

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. The relevant instrument specifying education providers as eligible education providers for this visa was IMMI 12/037.

12. To satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type 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. ‘Principal course’ is defined in r.1.40. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 12/037.

13. The delegate stated the applicant was provided with a NOICC on 24 July 2017. This notice invited the applicant to respond in writing. The applicant provided a response on 31 July 2017. The applicant agreed there were grounds for visa cancellation. The applicant provided reasons why the visa should not be cancelled. The applicant agreed there had been non-compliance.

14. The delegate made a finding the applicant had not been enrolled in an Advanced Diploma, Bachelor degree or Master degree by coursework since 30 November 2015. The applicant advised in evidence this finding was correct. Therefore 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 regulaion1.40A. Based on this information the Tribunal is of the view the applicant has not continued to be a person who would satisfy either subclause 573.231 or 573.223(1A). As such, it appears that the applicant has not continued to be a person who would satisfy the primary criteria for the grant of the visa and has not complied with condition 8516.

15. In evidence to the Tribunal the applicant advised he had not enrolled in a further course in the higher education sector after 30 November 2015.

16. Based on the information before me, the Tribunal is satisfied that there is a ground for cancellation of the applicant’s visa under paragraph(s) s116(1)(b) breach of condition - 8516 of the Act.

    Consideration of discretion

17. 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’.

    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

18. There is no evidence before the Tribunal to suggest that the applicant’s original intention for travel to and stay in Australia was not for the purpose stated in his application, namely to study. In evidence the applicant advised the Tribunal he came to Australia for the purpose of study. The applicant entered Australia on 30 October 2015.  The delegate made a finding the applicant did not commence courses in General English and a Master of Business Administration. In evidence the applicant agreed this finding was correct. The Tribunal gives this consideration a little weight in the visa holder’s favour.

19. Since entry the applicant has never studied in the proposed courses, which may indicate the applicant’s purpose of travel and stay in Australia is not for the purpose of study.

20. In evidence the applicant advised the Tribunal he had commenced and completed a Diploma in Business in March 2017. He had not completed any other courses since 2015.

21. The Tribunal asked the applicant to address compelling need. The applicant advised it was for the purpose of achieving an education.

22. There is no evidence before the Tribunal to suggest that the visa holder’s original intention for their travel to and stay in Australia was not for the purpose of study.

23. The Tribunal gives this consideration little weight in the visa holder’s favour.

    The extent of compliance with visa conditions

24. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) for the purpose of study. The applicant has not held enrolment in a course of study specified for his visa at the Student Higher Education Sector (subclass573) level from  30 November 2015. The delegate made a finding (based on PRISMS) that the applicant had not been enrolled in the Higher Education sector since 30 November 2015..

25. The applicant did not obtain a new approved confirmation of enrolment or a letter of offer in a course of study specified for the Student Higher Education Sector (subclass 573), which  would have commences within the validity period of his then Student subclass 573 visa.

26. Therefore, the applicant did not comply with condition 8516 which states 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.

27. There is no evidence before the Tribunal to suggest the applicant has been non-compliant with another condition of their visa.

28. The Tribunal considers the extent of the applicant’s non-compliance to be significant and give this consideration no weight in the applicant’s favour.

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

29. The Tribunal asked the applicant to address the degree of hardship he might face if his student visa was cancelled. The applicant advised he would have wasted a lot of time over a four year period. He cannot return home without completion of his studies. He comes from a backward error without much development. It is the purpose of his life to get higher education. He is the eldest son in his family and ultimately will have responsibility for looking after his parents and siblings. Without a proper education he will not be able to achieve this goal. He has three brothers and two sisters.

30. The Tribunal acknowledges the applicant may face a degree of family or community disapproval if he should return home because of student visa cancellation. Unfortunately in years past the applicant made decisions not to pursue studies in Australia consistent with conditions attached to his visa. It is clear he made those decisions not to study English and in the HE sector shortly after arrival in Australia. The applicant was granted a student visa for one purpose. To study in the HE sector in Australia. He has not complied with that decision. The hardship that might eventuate is a direct consequence of decisions made by the applicant.

31. The applicant may be caused some financial difficulty if his visa is cancelled. Whilst the Tribunal acknowledges some hardship may be caused to the applicant as a consequence of a visa cancellation and be required to depart Australia, the Tribunal notes that he may be eligible to apply for a Bridging Visa E, which may allow him to remain in Australia temporarily enabling finalisation of any outstanding matters.

32. The applicant will become an unlawful noncitizen and be liable for detention under Section 189 and removal under Section 198 of the Migration Act 1958 if he does not voluntarily depart Australia.

33. The applicant will be subject to Section 48 of the Act which means that he will have limited options to apply for further visas in Australia and may be required to return to his country of origin.

34. There is no evidence that any family members in Australia will be negatively impacted by the cancellation of the visa.

35. Although there may be some hardship to the applicant as a result of the cancellation, the Tribunal notes that there is no evidence to suggest the applicant could not complete his studies outside of Australia.

36. The Tribunal gives these considerations little weight in the visa holder’s favour.

    Circumstances in which ground of cancellation arose

37. The Tribunal has considered the grounds upon which the cancellation arose. They are outlined in detail in the delegate’s decision and summarised above. The Tribunal has reviewed the information provided on the Departmental and Tribunal files.

38. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) for the purpose of study. He provided copies of a Graduation Certificate in a Diploma of Business, an offer of enrolment in a MBA in January 2018 and a COE for enrolment in a Diploma of Accounting from June 2017 until June 2018. The Diploma of Business and COE were for study in the VET sector not the HE sector. The applicant advised the Tribunal he did not pursue study in his Accounting Diploma and did not proceed to enrol in the MBA in 2018.

39. The delegate made a finding based upon the applicant’s PRISMS record as set out in the decision record that the applicant Confirmation of Enrolment (COE) for course; 74683F36- Master of Business Administration [084520C], was cancelled on 30 November 2015 by Group Colleges Australia Pty Ltd due to non-commencement of course. In evidence the applicant advised the Tribunal it was true he never commenced this course.

40. This information indicates the applicant has not been enrolled in a Higher Education sector course since 30 November 2015.

41. The applicant did not provide any evidence that he had obtained a new approved confirmation of enrolment or a letter of offer in a course of study specified for the Student Higher Education Sector (subclass 573), which will commence within the validity period of his Student subclass 573 visa. The applicant did advise he enrolled in and completed a Diploma of Business in 2017. The applicant did provide a letter of offer in an MBA during 2018. This letter of offer was after the date of visa cancellation (16 August 2017). He advised the Tribunal he did not proceed with this offer. This Diploma was in the VET sector not the HE sector.

42. Therefore, the applicant has not complied with condition 8516 which states 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.

43. The applicant provided a detailed response to the NOICC as follows:

    ·He had a problem understanding and managing his study. He did not receive any counselling from his education provider;

    ·He received advice to follow an alternate pathway. He enrolled and completed VET level courses. He intended to return to the HE sector in the future;

    ·He outlined the value of a degree in Accounting;

    ·He outlined reasons for studying in Australia;

    ·He outlined reasons for choosing GCA as his education provider;

    ·He plans to return home at the completion of this future degree and assist his father in the field of commerce. He lives with friends in Australia.

44. The delegate made a finding based on PRISMS that the applicant never commenced the course referred to above in paragraph 37 above. In evidence the applicant advised this finding was correct.

45. The applicant was the holder of a subclass 573 visa granted for the purpose of studying in the higher education sector. He did not follow his study plan of a package of courses starting with General English and leading to a Master of Business Administration. His then current 573 visa was due to expire prior to commencement of a further enrolment in a MBA at GCA on 15 January 2018. The applicant provided a letter of offer issued 18 July 2017 from GCA for enrolment in this MBA at GCA commencing 15 January 2018. The applicant did not pursue this enrolment. The offer of enrolment was unsigned. The applicant did not provide a receipt for payment of any portion of fees. In evidence the applicant advised he did not commence this course. The Tribunal has considered this information. The applicant did not provide any evidence that he had accepted submitted or been approved by GCA for this offer of enrolment in the MBA.

46. Although the applicant had obtained a letter of offer in a Higher Education Sector course, this course was not scheduled to commence until 15 January 2018; which was outside of the validity of his then current Subclass 573 visa.

47. The Tribunal gives these considerations little weight in the applicant’s favour.

    Past and present of the visa holder towards the department behaviour

48. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach

    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

49. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart Australia.  It is noted the applicant may be barred from re-entering Australia for a period of three years. He has presented no specific evidence in relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

50. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

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

51. There is nothing before the Tribunal to indicate there are international obligations to consider.

    Any other relevant matters

52. The applicant advised the Tribunal the last four years in Australia had been tough as he had been unable to work or study and has missed out on significant cultural events in his home country.

53. The applicant advised the Tribunal he would like to have his visa re-instated so he could pursue studies and do some travel.

54. The Tribunal has considered all factors both individually and cumulatively in the context of the breach. The Tribunal finds that the applicant was not enrolled in a course of study that is the principal source of a type specified for the Subclass TU-573 visa  and that a breach in excess of 12 months is significant in the context of a student’s study period

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

    DECISION

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

    Mark Bishop
    Member