Singh (Migration)

[2019] AATA 5578

Singh (Migration) [2019] AATA 5578 (21 August 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jasvir Singh

CASE NUMBER:  1728194

DIBP REFERENCE(S):  BCC2017/3229878

MEMBER:Stephen Conwell

DATE OF DECISION:  21 August 2019

DATE CORRIGENDUM

SIGNED:1 June 2020

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

The final sentence appearing in paragraph 9 of the Decision Record, should be deleted and replaced with the following:

“As the applicant was granted his Student visa on 3 April 2014, the relevant instrument specifying eligible education providers for this visa is IMMI 14/007.”

Stephen Conwell
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jasvir Singh

CASE NUMBER:  1728194

HOME AFFAIRS REFERENCE(S):          BCC2017/3229878

MEMBER:Stephen Conwell

DATE:21 August 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 21 August 2019 at 4:57pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered higher education course ceased – applicant changed to vocational course – non-attendance due to illness and medical treatment – no deferment of studies sought – decision under review affirmed

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2 cls 573.223, 573.231; Schedule 8; Condition 8516; r 1.40

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 7 November 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 no longer met subclauses 573.231 or 573.223(1A) and had not complied with Condition 8516. The delegate noted that the applicant had been enrolled in a higher degree course to be provided with the 573 visa, but left her course provider and enrolled in vocational courses in hospitality. 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 22 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English

4. The applicant provided a copy of the delegate’s decision to the Tribunal.

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

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 is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 is attached to the applicant’s visa. This condition 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.

8. 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 14/015.

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’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 applied for the visa on 3 April 2014, the relevant instrument specifying eligible education providers for this visa is IMMI 14/007.

10. 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. 

11. The decision record identified that the Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 17 October 2017. The decision record sets out that on 3 April 2014 the applicant satisfied the primary criteria for the grant of the 573 visa and met cl.573.231 or cl.573.223(1A) to be granted the visa. These clauses require the applicant to be enrolled in a bachelor or master degree course, or 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 r.1.40A.

12. The decision record notes that according to the Provider Registration and International Student Management Systems (PRISMS), the visa holder has not held enrolment in a course of study specified for their visa since 9 March 2017.  Therefore, he has not complied with condition 8516 attaching to his visa. This meant that his visa may be cancelled under paragraph 116(1)(b) of the Act. According to the delegate’s decision, the departmental systems indicated that at the time of the NOICC, the applicant was no longer enrolled in a bachelor or master degree course, nor 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 r.1.40A.

13. On the basis of the information set out in the delegate’s decision, and the documentary and oral evidence of the applicant, the Tribunal is satisfied that when the applicant’s enrolment in a Bachelor of Business was cancelled on 9 March 2017, he did not continue to satisfy cl.573.231 or cl.573.223(1A), and therefore did not continue to be a person who would satisfy the primary criteria for the grant of the visa.  The Tribunal finds that the applicant had not been enrolled in a course at the Higher Education Sector since 9 March 2017 until 23 October 2017 (the period of the alleged breach).  There is no evidence before the Tribunal to indicate that the applicant satisfied the secondary criteria for the grant of the visa.  The Tribunal therefore finds that he breached condition 8516 of his student visa.

14. On the evidence before it the Tribunal he fails to meet cl.573.231.            

15. 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

16. 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’.

    Background Information

17. On 3 April 2014 he was granted a TU-573 Student visa with condition 8516 attached.  The applicant arrived in Australia on 16 April 2013.  He initially enrolled in English for Academic Purpose which was to lead to a Bachelor of Business degree at University of Canberra.  He completed his English course in June 2014.   

18. The applicant was to commence his Bachelor studies in August 2015 however he was advised by email from the University of Canberra advising that this course and several others would not be offered in 2015. This email was tendered as evidence to the Tribunal.

19. The applicant responded to the NOICC on 1 November 2017 in which he describes his response to the cancellation of his university course:

    I decided to take advice from my family friends who [had] already studied in Australia … I genuinely wanted to study so I choose the course which I do not understand(sic) would be a waste of time and money[;] that’s why I decided to change my course.  After talking and getting ideas from my peers and some resources online I decided to do Certificate 3, 4 in commercial cookery and Diploma of Hospitality … [I] started my course of Certificate III in Commercial Cookery but after [a] couple of months I started feeling ill, as I was having severe stomach pain so due to that reason I could not attend my classes frequently …

    Then I started Certificate  IV of Commercial Cookery but I was still suffering from the pain  … I went to hospital in emergency  … There I found out that I have [a] kidney stone ….

20. On the advice of his family the applicant returned to India on 22 October 2016 for medical treatment; he returned to Australia on 8 November 2016 but due to his ongoing medical condition, he couldn’t attend classes nor pay his course fees.  His enrolment in his studies, including his Bachelor of Business, was cancelled on 9 March 2017.

21. At the hearing, the applicant confirmed that he held an enrolment in a Bachelor of Business, on his arrival in Australia.  He indicated that upon being advised by the University of Canberra that the Bachelor of Business course in which he was enrolled was no longer offered, he sought the advice of family and friends regarding his study choices which led him to enrol in hospitality studies in the VET sector.  He conceded he was not enrolled in a higher sector course of study after 9 March 2017, and up until the Department issued him with a NOICC.  He acknowledged that this was in breach of condition 8516.

    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

22. The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia and whether the applicant has a compelling need to travel to or remain in Australia.

23. The Tribunal considers that the purpose of a Student visa is to enable the applicant to study in Australia.  The primary decision record indicates that PRISMS evidence available to the Department indicated the applicant ceased to be enrolled in a principal course of study at the higher education level from 9 March 2017.  The Tribunal considers the applicant’s breach of condition 8516 over a period exceeding seven months to be significant; it finds that the applicant had not been fulfilling the purpose of his travel to and stay in Australia as a holder of a Student visa. 

24. The Tribunal notes that the applicant has on two occasions enrolled in a principal course of study at the Higher Education level: the original Bachelor of Business (Marketing Management) course at University of Canberra (which was not offered in 2015); he then enrolled in a Bachelor of Tourism and Hospitality Management course on 23 October 2017, a few days after receiving the NOICC on the 17th October. 

25. Since the University of Canberra declined to offer the Bachelor of Business (Marketing Management) course in 2015 it would have been open to the applicant to seek to enrol in a Higher Education course at another education provider. He did not do so. Instead the applicant enrolled in a range of vocational level courses, claiming he wished to utilise these as a ‘pathway’ to the higher education program.  The Tribunal is of the view that in deciding to approach tertiary studies via a ‘pathway’ of Vocational Education and Training (VET) studies, it became incumbent on the applicant to notify the Department of his change in enrolment and seek advice on how he might continue his VET studies without breaching his visa conditions. The applicant did not do so - he remained on his subclass 573 Higher Education visa whilst enrolling in VET studies.

26. The Tribunal notes the various claims the applicant has made as to why he chose to study hospitality in Australia – it is a vast global industry and it has been his dream to obtain a qualification in Australia. Given the time he has spent in Australia as well as the financial cost to his parents for his studies, he wished to overcome the misfortune of his medical problems and complete his studies in Australia.

27. The Tribunal accepts that the applicant underwent treatment for a medical condition (a kidney stone) and upon family advice he returned to India for treatment from 22 October – 8 November 2016. Whilst the Tribunal accepts the applicant’s medical history, there is no evidence that the applicant sought a deferment of his studies on the basis of his medical condition. 

28. The Tribunal notes that the applicant is currently enrolled in a Diploma of Hospitality Management  for the period, 5 August 2019 to 2 February 2020 at the Victorian Academy of Commerce and Technology Start-ups (VACTS). He was previously enrolled in a Certificate IV in Commercial Cookery at the same institute from 28 January to 28 July 2019.  The Tribunal considered whether, on this basis, the applicant met 573.223(1A) from the time of his enrolment in this particular course.  The Tribunal finds that the applicant did not meet the definition of an ‘eligible higher degree student’ as his enrolment was not in a principal course with an ‘eligible education provider’ as specified in IMMI 14/007. The Tribunal notes that the applicant’s enrolments at VACTS are each not in a principal course of a kind specified for that subclass by the Minister in an instrument under r.1.40A whilst VACTS is not an eligible education provider specified by the relevant instrument. 

29. On the evidence the applicant had not been enrolled in a course at the Higher Education Sector since 9 March 2017 until 23 October 2017.  The Tribunal also considered whether the applicant met cl.573.231 based upon his current enrolment in Diploma course at VACTS: he does not.  The applicant has not complied with condition 8516.  On the facts before the Tribunal he fails to meet cl.573.231.            

    The extent of applicant's compliance with visa conditions

30. The Tribunal has considered the extent of the applicant’s compliance with visa conditions.  There is no evidence that the applicant has breached any visa condition other than condition 8516. However the Tribunal views with concern the applicant’s failure to comply with  condition 8516 of his visa by not being enrolled at a Higher Education Sector level for a period exceeding seven months (from 9 March to 23 October 2017). Further that this breach was not rectified until the applicant had received  the NOICC. 

31. The decision record notes that the applicant’s Provider Registration and International Student Management System (PRISMS) record shows that he enrolled in the Bachelor of Tourism and Hospitality Management on 23 October 2017. The course was due to commence on 22 July 2019. The applicant’s current Student visa expired on 30 October 2018, and therefore as noted by the delegate, he did not commence a principal course of a type specified for Subclass TU-573 visas by the Minister in an instrument made under Regulation 1.40A, while his current student visa was in effect.

32. The Tribunal is of the firm view that visa holders are expected to both study, and study at the visa subclass level for which they were approved at the time of application. This has not been the case with the applicant.  On the evidence before it the Tribunal weighs this factor in favour of cancelling the visa.

    The degree of hardship that may be caused to applicant and any family members if the visa is cancelled:

33. The Tribunal has considered the degree of hardship that may be caused to the applicant or his family members should his Student visa be cancelled. In relation to hardship caused to himself, the applicant said he needed to complete his studies so he could pursue a successful future and to ensure that the time and financial cost he and his family have invested in his studies are not wasted.  He also bemoaned the fact that his medical problem ‘derailed’ his study plans and he would have to essentially ‘start again.’

34. The Tribunal accepts that the applicant was diagnosed as having a kidney stone(s) and on his family’s advice he returned to India on 22 October 2016 for treatment. He returned to Australia a few weeks later on 8 November 2018. The Tribunal finds that it was the applicant’s decision, taken with the advice of his family, to return to India for medical treatment.

    The Tribunal accepts that the applicant and his family may suffer some frustration and financial hardship should his visa is cancelled and he is required to depart Australia. The Tribunal does not however consider there to be any particular hardship imposed on the applicant’s family by the cancellation of his visa.  The Tribunal notes it is entirely open to the applicant to pursue studies in India. The Tribunal gives this claim of hardship little weight when considering its discretion to cancel the visa.

    Circumstances in which the ground of cancellation arose

35. As previously noted, the applicant’s initial enrolment in a bachelor degree ceased when the University of Canberra declined to offer the bachelor course in which he was enrolled. Acting upon advice from friends and family, the applicant then enrolled in studies in the vocational education and training (VET) sector, thereby failing to comply with the conditions attaching to his Higher Education (573) visa. The applicant’s studies were interrupted by a medical condition for which he chose to return to India for treatment. Upon his return to Australia in November 2016, he attempted to resume his studies in the VET sector however due to ongoing medical issues, he was unable to pay his fees or maintain attendance, resulting in cancellation of his enrolment. 

36. The applicant was issued with a NOICC on 17 October 2017; a few days later he enrolled in the Bachelor of Tourism and Hospitality Management on 23 October 2017.  He responded in writing to the NOICC on 1 November 2017. His visa was cancelled on 7 November 2017.

37. Whilst the Tribunal accepts that the applicant experienced a serious health issue in 2016 which required medical attention, there is no evidence that the applicant sought to engage with either his education providers or with the Department in order to seek a deferment of his studies or  to request a change to his visa status in line with his new enrolments.

38. Given the applicant was a direct party to his enrolment, the Tribunal is of the opinion that it is his responsibility to be aware of, and comply with the conditions of his visa whilst studying and living in Australia.  This includes being aware of any conditions such as condition 8516 which required that the applicant continue to satisfy the primary criteria that permitted the grant of the visa including that he maintain enrolment at the Higher Education Sector level.  In light of this, the Tribunal finds on the evidence he would have been aware that he had ceased enrolment with a registered education provider.  The Tribunal further notes that applicants are expected to be mindful of the requirements of their visa and to inform the Department of any changes to their status. 

1. The Tribunal finds that the applicant would reasonably have been aware that his failure to remain enrolled with an eligible higher education provider would have an impact upon his eligibility to continue to hold his Student visa.   On the evidence before it concerning the ground for which the cancellation arose, the Tribunal weighs this factor in favour of cancelling the visa.

   The applicant’s past and present conduct towards the Department

2. The Tribunal has considered the past and present behaviour of the applicant towards the Department and notes that the applicant has been co-operative with the Department by responding to NOICC.  

   Whether there would be consequential cancellations under s.140

3. There is no evidence to suggest that any other person's visa would be cancelled under s.140 if the applicant's visa were to be cancelled.

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

4. There is no evidence to suggest that the cancellation of the visa would result; it he breach of any of Australia's international obligations.

5. The Tribunal notes that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s189 and removal under s198 of the Migration Act if he does not voluntarily depart Australia. He will also be subject to an s48 bar which will limit his options in applying for further visas in Australia. The Tribunal notes that the applicant will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a temporary visa for three years from this date. The Tribunal however also notes that if his visa is cancelled, the applicant may be eligible to apply for a Bridging Visa E to allow him to remain in Australia to finalise any outstanding matters and visa applications that have been lodged. On the evidence before it concerning the mandatory legal consequences of cancellation, the Tribunal weighs this factor neither in favour nor against cancelling the visa.

6. On the evidence before it the Tribunal considers the applicant’s breach of condition 8516 for a period exceeding seven months to be serious. The Tribunal has taken into account the applicant’s previous submissions in response to the NOICC as well as his written and oral submissions at the hearing.  On the evidence before it the Tribunal has determined that the visa should be cancelled.

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

   DECISION

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

   Stephen Conwell
   Member