Singh (Migration)

[2019] AATA 4996

Singh (Migration) [2019] AATA 4996 (17 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harpal Singh

CASE NUMBER:  1706302

HOME AFFAIRS REFERENCE(S):           BCC2017/604194

MEMBER:Melissa McAdam

DATE:17 July 2019

PLACE OF DECISION:  Sydney

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 17 July 2019 at 10:27am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – business studies – not enrolled in higher course of study – unaware enrolment cancelled – unsatisfactory attendance – continued efforts to study – family bonds and responsibilities – responsible behaviour and compliance – multiple course enrolments –decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 359A
Migration Regulations 1994 (Cth), r 1.40A, cls 573.223, 573.231, Condition 8516

CASES
Ibrahim v MHA [2019] FCAFC 89
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 22 March 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 applicant was represented in relation to the review by his registered migration agent.

3. The applicant’s Student visa was granted on 27 November 2014.  He lodged the application for the visa on 4 November 2014.

4. The delegate cancelled the visa under s.116(1)(b) on the basis that she was satisfied that the applicant had not complied with a condition of the visa. That condition was Condition 8516 – the 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.

5. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   NOICC

6. On 6 March 2017 the delegate sent a Notice of Intention to Consider Cancellation of the applicant’s Student visa (NOICC), under s.116 of the Act. In the notice the delegate set out Criteria 573.231 and 573.223 (1A)

   573.231

   If subclause 573.223(1A) does not apply:

   (a)  the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and

   (b) the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:

   (i) made under regulation 1.40A; and
   (ii) in force at the time the application was made.

   eligible higher degree student means an applicant for a Subclass 573 visa in relation to whom the following apply:

   (a) the applicant is enrolled in a principal course of study for the award of:

   (i) a bachelor’s degree; or
   (ii) a masters degree by coursework;

   (b)  the principal course of study is provided by an eligible education provider;

   (c) if the applicant proposes to undertake another course of study before, and for the
   purposes of, the principal course of study:

   (i) the applicant is also enrolled in that course; and
   (ii) that course is provided by the eligible education provider or an educational business partner of the eligible education provider.

   573.223 (1A)

   If the applicant is, and was, at the time of application, 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:
       (a) the applicant gives the Minister evidence that the applicant has:

   (i) a level of English language proficiency that satisfies the applicant’s eligible education provider; and
   (ii) educational qualifications required by the eligible education provider; and

   (b)  the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
   (ii) any other relevant matter; and

   (c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

   (i) the costs and expenses required to support the applicant during the proposed stay in Australia; and
   (ii) the costs and expenses required to support each member (if any) of the applicant’s family unit.

7. In the NOICC the delegate set out information that the applicant’s confirmation of enrolment (CoE) in relation to a Bachelor of Business course concluded on 6 January 2016, and that since then the applicant had not held enrolment in a course of study of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A.

   Response to NOICC

8. On 13 March 2017 the applicant wrote to the Delegate stating that he was enrolled in a Bachelor of Business [Information Systems Management] which was to commence on 24 July 2017. He stated that he was not aware this enrolment had been cancelled. He stated he was asking Victoria University to reissue the CoE and had also applied to King’s Own Institute for enrolment in a Bachelor of Business (Accounting).

9. On 17 March 2017 the applicant submitted a receipt for tuition fee and enrolment fee payments at Kings Own Institute.

10. On 22 March 2017 the delegate cancelled the applicant’s visa. The delegate referred to information that the applicant’s enrolment in a Bachelor of Business (Information Systems Management) at Victoria University had been cancelled on 6 January 2016, and the applicant had not held enrolment in a higher course of study since that date.

    Pre-Hearing Submission

11. On Sunday 2 June 2019 the applicant’s Agent provided the following documents to the Tribunal:

    -A copy of a CoE from the New England Institute of Technology for an Advanced Diploma of Business, with course level described as Advanced Diploma (Course Sector: VET), created on 8 February 2017.

    -A copy of the CoE for the applicant’s cancelled Bachelor of Business at Victoria University, created on 20 October 2014.

    -A copy of an email from a Compliance Officer at Victoria University, to the applicant, informing him his CoE was cancelled after the university received notification from the applicant’s pathway provider (Zenith Business Academy) that he had been reported for unsatisfactory attendance.  The writer advises that the cancellation notice was sent to the applicant via email on 6 January 2016 to the address: ‘[email protected]’.

    -A copy of an email from the applicant to Victoria University, dated 22 March 2017, asking for a ‘release letter’ as required by ‘King’s Own Institute’. The email includes an earlier email from a Compliance Officer at Victoria University, dated 21 March 2017, informing the applicant a release letter is not needed because he had been ‘reported already’. The writer advises the applicant that the cancellation notice that had been sent to the applicant should be sufficient to obtain admission at a new education provider. The writer also suggests the applicant could provide her details to the new provider if more information was required by them.

    -A copy of an email from a Compliance Officer at Victoria University, dated 5 January 2016 and addressed to the applicant at ‘[email protected]’. The writer advises the applicant that his non-commencement of studies at Victoria University has been reported to the Department of Education and Department of Immigration, and that as a result of his non-commencement his Confirmation of Enrolment has been cancelled.

    -Written submissions from the Agent that at the time of cancellation of his visa, the applicant was enrolled in Advanced Diploma of Business and this course is a higher education course.  The Agent submitted that Victoria University did not follow regulations and the cancellation of the applicant’s CoE was not fair and reasonable. The applicant was not aware of the cancellation until he received the notice from the Department. The applicant stays with his sister, her husband and her child and looks after the child of his sister. The applicant’s sister and her family are Australian citizens. She and her husband are shift workers and have to work night shifts so there are times when the couple are not at home and their child is looked after by the applicant. The applicant wakes up the child in the morning, makes him ready for school, serves him breakfast, drops him to school, and in the afternoon picks him up from school. If the applicant’s visa is not granted, he will have to leave the country. This will have a devastating effect on his sister’s family.  She will have no option but to leave her job to look after her child. She and her husband will have to abandon their plan to buy house. They have already lodged an application for a home loan and are waiting for approval.

    Tribunal Hearing

12. The applicant appeared before the Tribunal on 3 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister, Ramandeep Kaur. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

13. The following is a summary of the information provided by the applicant at the hearing:

    a.He was previously studying at a college. The college cancelled his enrolment but sent the notice to the wrong email address so he didn’t receive it.  He does not know which email address the college sent the notice to.  Two years later he received the Department’s cancellation notice.

    b.He still does not know why Victoria University cancelled his enrolment. Their emails were sent to an email address the applicant has never used.

    c.The Tribunal put to the applicant that the university appeared to explain why his enrolment was cancelled, and indicated the email address they had used ‘[email protected]’, in the copy of the letter he had submitted to the Tribunal.  The applicant responded that he has never used the email address [email protected]. This is the email address the university sent the cancellation messages to, so he didn’t receive them.  He started his Certificate IV at ZBA college and changed to a different college, Hibernia Institute, where he competed a Diploma.

    d.His Agent sent an email to ZBA College to notify them he had changed his college. The Agent did this when the applicant started studying at Hibernia College in February 2016.  His Agent was ‘Jaz’ from ‘Royal Institute’. He was an Education Agent. The applicant will provide written confirmation of this to the Tribunal.

    e.The applicant studied a Diploma of Business at Hibernia Institute. He stopped studying there on 16 September 2016. He then applied to study an Advanced Diploma of Business, and enrolled on 13 February 2017.

    f.He is not currently studying. He applied for a three year course but was refused because his visa was cancelled.

    g.The courses he has completed in Australia are English Language courses and a Certificate IV in Business.

    h.The Tribunal put to the applicant under s.359A of the Act that his PRISMS education history record indicated he had not competed the Certificate IV in Business course.  The applicant responded that he completed the course at ZBA. The Tribunal asked why the PRISMS’ record did not indicate this. The applicant responded that he did not complete the course as he still had a few subjects to do. He did not complete some subjects. He then applied to a different college.

    i.He has completed a Diploma in Business.

    j.In 2018 he was under pressure so could not concentrate on his studies.  He was not working.  His sister supported him.  She works on a rotating shift so the applicant looks after her child and takes the child to and from school. While the child is at school the applicant just stays at home.  Sometimes he goes out to buy something.  He did not work because of mental pressure from his visa cancellation.  He was able to look after a child despite his mental pressures because the child is very good and it gives him pleasure.

    k.The Tribunal asked the applicant why he did not return to India if his situation here was difficult.  He responded that he wished to complete study.  He would like to study a Bachelor degree in Australia.

    l.The Tribunal asked the applicant if it would cause him any hardship if his visa remained cancelled and he responded that his studies are incomplete.  This is depressing. He is attached to his sister’s son who is attached to him.  If he is not in Australia there will be no one to look after his sister’s son, particularly at night. He will not be able to apply for any job in India.

    m.His parents know his visa was cancelled. His sister is fully supporting him.  She paid for all his study costs.  She has done this for a long time.

    n.There is no other reason why he cannot return to India.

    o.He was only 18 when he arrived in Australia. Now all his friends are here.  His mother visited him in Australia last year.

14. The following is a summary of the information provided by the applicant’s sister at the hearing:

    a.She and the family want the applicant to be settled down.  He needs to complete his studies and then should do a business in India – such as an import/export business.

    b.Their father is a farmer and their mother is a housewife. 

    c.She works nightshifts and her husband is a truck driver.  He is a casual driver and sometimes works from 4 pm to midnight. 

    d.They have two sisters. One sister is in Australia on a Student visa.  She completed the course at ZBA College and is now studying a Bachelor of Accounting in GCA.  She lives in Blacktown.

    e.The other sister arrived in Australia in February on a Visitor visa.  She is now on a Bridging visa. She lives with the witness in Wentworthville.  She has applied for a Student visa.

    f.The Tribunal asked why her sister cannot help look after her child.  The witness responded that she is now living with their other sister in Blacktown.

    Post Hearing Submissions

15. On 13 June 2019 the applicant submitted to the Tribunal a copy of a forwarded email. The email was dated 3 June 2019, from the Student Adviser of Royal Admissions (or Royal Migration), to “harry chahal” referencing an “attached CoE cancellation proof” and advising the company does not have a “ZBA Release letter”.  Included was a copy of another  forwarded email. This email was dated 14 December 2015, from the Student Services Department of Zenith Business Academy, to the applicant at “[email protected]”, copying in his education agent at “[email protected]”, with the subject line “ZBA Non Commencement – Final Notice”. The writer informs the applicant that his confirmation of enrolment has been cancelled due to his non-commencement of the course and the Department of Education had been notified of this via PRISMS. The writer also informs the applicant that cancellation of his enrolment can have an effect on his student visa and he is advised to contact the DIBP to check this effect.

    Section 359A letter

16. On 19 June 2019 the Tribunal wrote to the applicant informing him that Departmental records indicated that on 6 March 2017 he provided his email address to the Department as “[email protected]”.  The Tribunal invited the applicant to comment on or respond to this information.

    Applicant’s Response to s.359A letter

17. On 3 July 2019 the applicant wrote to the Tribunal stating the following (in summary):

    -He never gave the email address ‘[email protected]’ to the Department of Immigration.

    -On 6 March 2017 the department sent his s.116 notice to him at his address ‘[email protected]’.

    -If he had provided the other email to the department it would have communicated with him via that email instead.

    -He attached copies of communication from the Department to him, at the ‘[email protected]’ email address.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. 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?

19. 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.

20. Condition 8516 requires that the 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.  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: Singh v MIBP [2016] FCA 679.

21. 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 under cl.573.223(1A).

22. The definition of ‘eligible higher degree student’ at the time of application, required that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a bachelor’s degree, or masters degree by coursework: 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, at the time of application, was IMMI 14/047.

23. 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 14/015.

24. IMMI 14/015 specifies that the types of courses eligible for the Subclass 573 visa are:

    -  Diploma (Higher Education)

    -  Advanced Diploma (Higher Education)

    -  Bachelor Degree

    -  Graduate Certificate (Higher Education)

    -  Graduate Diploma (Higher Education)

    -  Associate Degree

    -  Masters by Coursework

25. The evidence before the Tribunal indicates that the applicant ceased to be an eligible higher degree student on 6 January 2016 when his enrolment in a Bachelor of Business (Information Systems Management) at the Victoria University was cancelled. The applicant has not disputed that his enrolment was cancelled then, and has provided correspondence from Victoria University confirming the cancellation of his enrolment on this date.  On cancellation of this enrolment the applicant was no longer enrolled in a Bachelor degree or Masters degree by coursework. The Tribunal therefore finds that the applicant ceased to be an eligible higher degree student on 6 January 2016 and no longer met the criteria in cl. 573.223(1A).

26. The applicant’s Agent has argued that because the applicant was enrolled in a Diploma  of Business with Hybernia College and later an Advanced Diploma of Business with the New England Institute of Technology, these courses can be considered ‘higher education courses’ for the purpose of cl. 573.231.

27. However the Diploma of Business at Hybernia Institute is described in the Commonwealth Register of Institutions and Courses for Overseas Students (’CRICOS) to be Vocation Education and Training (or ‘VET’)[1], not a higher education course.  There is no evidence that the Diploma of Business course has been approved as a Diploma (Higher Education) course in the Higher Education Sector. The Advanced Diploma of Business at the New England Institute of Technology is identified by the education provider, in the Confirmation of Enrolment issued to the applicant, as a ‘VET’ course.  It is also described in the CRICOS to be Vocation Education and Training (or ‘VET’)[2], not a higher education course. There is also no evidence that this Advanced Diploma of Business course has been approved as a Diploma (Higher Education) course in the Higher Education Sector.  On the basis of the evidence before it the Tribunal finds that the Diploma of Business and Advanced Diploma of Business were not higher education courses, and so not courses of a type specified for subclass 573 visas by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application.  Therefore the Tribunal finds that the applicant did not meet cl. 573.231 at the relevant time.

    [1] See the CRICOS entry page for the Hybernia Institute – Diploma of  Business course at  

    [2] See the CRICOS entry page for the New England Institute of Technology – Advanced  Diploma of  Business course at

1. 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 visa should be cancelled.

   Consideration of discretion

2. 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 applicant’s travel and stay in Australia, whether he has a compelling need to travel to or remain in Australia

3. The applicant came to Australia to study.  He commenced study but his enrolment was cancelled after several months due to an unsatisfactory attendance record.  The applicant has undertaken brief periods of other study over the subsequent years he has remained in Australia.  He has been enrolled in courses in each of the years he has been in Australia up until early this year.  He has also completed English language courses and a Diploma in Business. 

4. Since 6 January 2016 the applica nt has been enrolled in a Diploma of Business which he commenced on 1 February 2016 and finished on 16 September 2016; a Diploma of Management, with the enrolment cancelled on 4 February 2016; and a Bachelor of Accounting with Group Colleges Australia which commenced on 28 August 2017, with the applicant’s enrolment cancelled on 20 February 2019.

5. The Tribunal notes that in the period following the cancellation of the applicant’s Student visa he has not completed any course he has enrolled in. The instability of the applicant’s visa situation would likely adversely impact upon the applicant’s ability to successfully study in Australia.

6. The Tribunal considers that the applicant has made some efforts to continue his studies in Australia and to continue to pursue studies in Australia. The Tribunal gives this factor some weight in the applicant’s favour.

   The extent of compliance with visa conditions

7. There is no indication that the applicant has not complied with any other condition of his visa.  The Tribunal therefore gives this factor some weight in the applicant’s favour.

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

8. The applicant states he needs his visa so he can complete a Bachelor degree in Australia. He stated he will not be able to obtain work in India without a qualification. The Tribunal accepts that the applicant’s job prospects may be enhanced in India if he returns there with a higher education qualification. However there is no indication, apart from his statement, that the applicant will not be able to obtain satisfactory or reasonable employment in India. The Tribunal gives this factor only a little weight in the applicant’s favour.

9. The applicant also stated he has become attached to his young nephew who is also attached and reliant upon him for care at times. The care he provides frees the child’s parents to both work, to save money to purchase a home.  The Tribunal accepts that the applicant does shares some of the responsibility for the care of his nephew. However the Tribunal notes that the applicant’s other two sisters are also living in Sydney and have capacity to help the child’s parents at times they are unavailable to look after him.  In view of the claimed bond between the applicant and his nephew and the support he is providing, the Tribunal accepts that it will be distressing and difficult for him, the child and the child’s parents if he has to depart Australia in the near future. The Tribunal therefore gives these factors some weight in the applicant’s favour.

   Circumstances in which ground of cancellation arose.

10. The applicant provided documentary evidence that his enrolment in the required type of course was cancelled due to his unsatisfactory attendance record at his Certificate IV in Business Administration. The applicant stated this was a result of him electing to change colleges from Zenith Business Academy (‘ZBA’) to Hybernia Institute. However his enrolment at Hybernia Institute didn’t commence until February 2016, sometime after his enrolment was cancelled by ZBA.  In view of this evidence the Tribunal considers that the applicant bears some responsibility for the cancellation of his enrolment by ZBA.

11. The applicant also stated that he was unaware his enrolments were cancelled until he received the Department’s NOICC. However this statement is clearly contradicted by the documents he submitted on 13 June 2019 which included an email from the education provider ZBA for his Certificate IV course, sent to the applicant on 14 December 2015 to his confirmed email address ([email protected]), advising him of the cancellation of his enrolment and the potential impact upon his Student visa.  The applicant’s claim to have been unaware of the cancelation action and notice by Victoria University due to them addressing their correspondence to an unknown email address, is also undermined by the Department’s records which confirm that the same address used by the university, had also been provided to the Department by the applicant.

12. The Tribunal considers that the evidence from the applicant he was unaware of the cancellation procedures and decisions regarding his enrolment until receiving the NOICC, is unreliable.   

13. The Tribunal considers these factors indicate a substantive level of personal responsibility for the applicant’s breach of his visa condition and that they weigh in favour of the Tribunal exercising its discretion to cancel the applicant’s visa.

    Past and present behaviour of the visa holder towards the department

14. The applicant has been responsive and cooperative with both the Department and the Tribunal in the matter of his visa cancellation. The Tribunal therefore gives this factor some weight in favour of the applicant’s case.

    Whether there would be consequential cancellations under s.140

15. There is no evidence of any consequential cancellations under s.140 of the Act.

    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

16. The cancellation of the applicant’s visa means that he could potentially become an unlawful non-citizen, subject to detention and removal from Australia. There is no suggestion that the applicant will be indefinitely detained. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future he would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a further visa for up to three years. However, those are the intended consequences of the legislation and do not weigh in favour of the applicant in the Tribunal's discretion to cancel his visa.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

17. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

18. “Non-refoulement obligations” is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Migration Act 1958 to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

19. The applicant stated at hearing that his only reason for not wanting to return to India was so he could remain in Australia temporarily to complete a Bachelor degree and to continue to spend time with his nephew and support his sister.  He confirmed that otherwise he would be able to return to India.

20. There is no indication that the applicant would face serious or significant harm or any harm in India of a type that would attract non-refoulement obligations.

21. The Tribunal finds that in the circumstances of this case, cancellation would not lead to removal in breach of non-refoulement obligations. The Tribunal therefore considers that this factor does not weigh against the Tribunal exercising its discretion to cancel the applicant’s visa.

22. The applicant has stated he has a bond and some responsibility for his young nephew in Australia. The Tribunal accepts that the applicant’s nephew would be distressed at the departure of his uncle and would be deprived of his uncle’s occasional care.  The Tribunal accepts that it would be in the child’s interests for the applicant to be present in Australia, at least in the short term.  The Tribunal therefore gives this factor some weight in the applicant’s favour.

    If a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

23. The applicant’s Subclass 573 visa is not a permanent visa.

    Any other relevant matters

24. The applicant’s visa was due to expire in 15 March 2019.  That date has passed. If the Tribunal sets aside the cancellation it will therefore not result in the applicant automatically possessing a visa again.  He would need to apply for another visa and be able to satisfy the Minister of all the requirements and conditions attaching to the visa.  If he applies for a Student visa he will then have to satisfy the Minister of the genuineness of his intention to study temporarily in Australia.

    Conclusion

25. The Tribunal considers the applicant’s breach a serious one and one which he bears substantial responsibility for.  However there are also factors that weigh in favour of giving the applicant the chance to establish his ability, capacity and willingness to study successfully in Australia. These include his continued efforts to study and be enrolled in courses and to complete a Diploma course, his family bonds and responsibilities within his sister’s family unit, and his otherwise responsible behaviour and compliance in Australia.  

26. Therefore, 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.

    Melissa McAdam
    Member