Singh (Migration)

[2019] AATA 1708

Singh (Migration) [2019] AATA 1708 (27 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Karanveer Singh

CASE NUMBER:  1702700

HOME AFFAIRS REFERENCE(S):           BCC2016/3707553

MEMBER:Justin Owen

DATE:27 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 27 May 2019 at 11:31am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – continue satisfaction of primary criteria – ceased to be enrolled in a Higher Education Sector course – consideration of discretion – purpose of visa not fulfilled – substantial breach for significant period of time – responsibility of visa holder – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 1.40A; Schedule 2, cls 573.223, 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 8 February 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 is a national of India born 29 December 1995.  His Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa was granted on 5 December 2014 and was subject to condition 8516.  On 19 January 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8516 of his visa, as he was no longer enrolled in a Bachelor or Master degree course of a type specified for subclass 573 visas by the Minister in an instrument made under regulation 1.40A.  As he had not continued to be a person that would satisfy either subclauses 573.231 or 573.223(1A), the delegate considered that the applicant had not complied with condition 8516 of his visa.    The applicant responded to the NOICC on 4 February 2017.  On 8 February 2017 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8516 of his visa.      

3. The delegate cancelled the visa under s.116(1)(b) on the basis that the delegate was not satisfied that the applicant 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.

4. The applicant appeared before the Tribunal on 18 April 2019 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8516 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

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 s116(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?

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 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.

9. 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.

10. 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 24 November 2014, the relevant instrument specifying eligible education providers for this visa is IMMI 14/075.

11. 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. 

12. When making the application for review, the applicant supplied the Tribunal with a copy of the delegate’s decision of 8 February 2017. The decision record states that information before the Department from the Provider Registration and International Student Management System (PRISMS) indicated that at the time of the delegate’s decision the applicant was no longer enrolled in a Bachelor’s degree or Master’s course and 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 regulation 1.40A. 

13. The delegate’s decision states that the applicant was reported for cessation of his studies in his Bachelor of Business course on 16 June 2015 by his education provider, International College of Management.   The decision record states PRISMS records indicate that the on 19 February 2016 the applicant created a COE for a Vocational Education (VET) sector course in Certificate III in Painting and Decorating.   Before leaving this provider to enrol in another VET level course in a Diploma of Building & Construction (Management) course.  The applicant was reported for non-commencement of studies with this provider on 4 April 2016.    

14. The delegate found that after being in Australia for seven months the applicant withdrew from his higher education studies.  In the delegate’s decision supplied to the Tribunal by the applicant, according to PRISMS records, there was no evidence that the applicant had applied for any new enrolment commensurate with his Higher Education TU-573 visa since changing his courses of study to the Vocational Education (VET) sector level of study.

15. At the Tribunal hearing the applicant stated that he had enrolled in a Bachelor of Accounting course after receiving the NOICC from the Department in January 2017.  The applicant said that he had started applying for the course in early January 2017, took an admission test on 26 February 2017 and had enrolled after the NOICC.  The applicant said his enrolment was cancelled however a few months later in April-May 2017 and said it was because he didn’t have study rights.  The Tribunal asked him if his enrolment was cancelled because he hadn’t paid the fees for the course.  The applicant conceded he didn’t pay his fees.     

16. The Tribunal notes that the period between the applicant’s cessation of studies in his Bachelor of Business course on 16 June 2015 and enrolling in a Bachelor of Accounting course in February 2017 is a period of almost twenty months where the applicant was not enrolled in a Bachelor’s degree or Master’s degree course or 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 regulation 1.40A.  The Tribunal furthermore notes the applicant conceded his February 2017 enrolment in the Bachelor of Accounting course ended just a few months later.  The Tribunal notes a further two years have now elapsed where the applicant was not enrolled in a Bachelor’s degree or Master’s degree course or a course of study that is a principal course of a type specified for Subclass 573 visas

17. The Tribunal notes that the applicant is currently enrolled in a Diploma of Business at Ransford College.  The applicant provided information pertaining to his enrolment from the education provider to the Tribunal.  He commenced on 15 October 2018 and the course is due to conclude on 13 October 2019 (T1, Folio.53). The Tribunal considered on this basis if the applicant met 573.223(1A) from the time of his enrolment in this particular course.  The Tribunal found 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 14/075.  The Tribunal notes that the applicant’s enrolment at Ransford College is not in a principal course of a kind specified for that subclass by the Minister in an instrument under r.1.40A whilst Ransford College is not an eligible education provider specified by the relevant instrument. 

18. On the evidence the applicant had not been enrolled in a course at the Higher Education Sector – apart from the brief few months in 2017 at the Bachelor of Accounting course – since 16 June 2015.  The Tribunal also considered whether the applicant met cl.573.231 based upon his current enrolment in Diploma course at Ransford College Pty Ltd: he does not.  The applicant has not complied with condition 8516.  On the facts before the Tribunal he fails to meet cl.573.231.            

19. 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

20. 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’.

21. 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.

22. The Tribunal considers that the purpose of a student visa is to enable the visa holder 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 16 June 2015.  The applicant writes he received his student visa little more than six months earlier on 5 December 2014.   Apart from a brief period the applicant was enrolled in a Bachelor of Accounting– between January 2017 and April 2017 – he has failed to remain enrolled in a principal course of study at the higher education level.  The Tribunal considers the breach of condition 8516 to be significant and that the applicant had not been fulfilling the purpose of his travel to and stay in Australia as a holder of a student visa. 

23. The Tribunal notes that the applicant has twice enrolled in a principal course of study at the higher education level: the original Bachelor of Business Management course in 2014 at the International College of Management followed by the Bachelor of Accounting course in early 2017.  He failed to progress further than six months at both courses.  The applicant claimed he had problems understanding and managing his studies at the Bachelor of Business Management course and failed to pay his fees at the Bachelor of Accounting course.   The applicant, based on the information he has provided in his written submission to the Tribunal, has enrolled in a range of vocational level courses and has claimed he wished to utilise these as a ‘pathway’ to the higher education program.  The Tribunal is of the opinion that if the applicant found higher education principal courses of study too challenging then he should have applied for a VET level visa.

24. The Tribunal notes the applicant’s oral and written evidence concerning his current enrolment in a Diploma of Business at Ransford College.  The Tribunal accepts he has studied the Diploma full-time since commencing on 15 October 2018 and he has successfully completed two terms.  The Tribunal notes however that this is not a principal course of a kind specified for a 573 Higher Education visa. 

25. Based upon the evidence of his significant period of non-enrolment, the Tribunal is of the view that the applicant was not in Australia for a significant period of time in accordance with the original purpose of his visa: the undertaking and completion of a course of study at the higher education level.   The Tribunal finds that despite arriving in Australia in December 2014 – almost four and a half years ago – he has significantly spent less than a year studying a principal course of a kind specified for a 573 Higher Education visa.  The Tribunal notes the applicant’s various (mostly cancelled or failed) efforts to study VET level courses and acknowledges his claim that he wished to study a pathway (via Certificate and Diploma level courses) to higher education study.  The Tribunal also gives some positive weight to the fact that the applicant did apply to have study rights added to his Bridging Visa in March 2018.  Nevertheless the Tribunal notes the applicant’s very limited achievements in his studies at the higher education level over a significant period of time and his consistently poor enrolment history until enrolling in his current VET level course of study.        

26. The Tribunal notes the various claims the applicant has made as to why he chose to study in Australia and his view that graduates with qualifications from the Anglosphere are in high demand in India (T1, Folio.47-52).  He claims entrance to good quality universities in India is difficult doe to the admissions process.  The applicant claims a diploma and bachelor degree will set himself up for success with a major employer back in India.  The Tribunal is of the opinion that the applicant’s enthusiastic claims concerning why he wishes to study in Australia are not backed up by his academic performance or indeed efforts.  The Tribunal gives his claims as to why he wishes to study in Australia little positive weight.   

27. The Tribunal notes that the applicant’s enrolment was terminated not only in higher education courses of study.  The Tribunal notes from the delegate’s decision record that on 4 June 2016 the applicant’s then education provider Della International College reported the applicant for non-commencement of studies and the subsequent cancellation of courses in that study pathway which was at the VET level.  

28. The Tribunal appreciates the applicant has enrolled in a number of courses but notes he has not on the evidence before it successfully completed any Higher Education courses in well over four and a half years since arriving in Australia with a higher education student visa.     

29. Based upon the evidence before it the Tribunal finds the applicant was not fulfilling the purpose of his travel to and stay in Australia as the holder of a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa.  The Tribunal recognises the two semesters the applicant has completed in his current Diploma course but notes that this is not a Higher Education level course of study.  The Tribunal does not consider that this study represents a compelling need for the applicant to remain in Australia.   Given the applicant’s actions in failing to fulfil the purpose of his visa for a very significant period of time, the Tribunal weighs this factor in favour of cancelling the visa.  On the evidence before concerning 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, the Tribunal weighs this factor strongly in favour of cancelling the visa.

30. The Tribunal has considered the extent of the applicant’s compliance with visa conditions.  The Tribunal considers the applicant’s failure, as outlined in the decision record, to comply with the condition 8516 of his visa by not being enrolled at a Higher Education Sector level for a significant period of time to be substantial.  The Tribunal considers the applicant’s non-compliance with his visa conditions, notwithstanding his enrolment and study in a number of non-higher education courses to be considerable.  The Tribunal notes that the applicant was granted a higher education level visa but only months later shifted to vocational education level study.  There is no evidence before the Tribunal that he contacted the Department or made efforts to seek permission to make these changes to the conditions attached to his visa.  The applicant’s decision to give up on his Bachelor of Business Management course in 2015 precipitated a situation where the applicant was not enrolled in a principal course of study at the higher education level for a period of over eighteen months.  The applicant only enrolled again in such a course just prior to the cancellation of his visa by the delegate. The Tribunal notes that the applicant again ended his studies here after just a few months in early 2017 and has failed to re-enrol in a further principal course of study at the higher education level since this time around two years ago.   

31. The Tribunal notes the applicant’s written claims whereby he states he does not believe he breached Condition 8202 of his visa.  The Tribunal notes the applicant’s visa was cancelled due to his breach of Condition 8516, not Condition 8202 so gives the claim little weight. 

32. The Tribunal considers the applicant’s non-compliance with condition 8516 has been substantial.   There is no evidence before the Tribunal that the applicant has been non-compliant with any other visa conditions.  On the evidence before it the Tribunal weighs this factor in favour of cancelling the visa.

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.

34. In relation to hardship caused to himself, the applicant stated at the hearing that he had already spent almost five years in Australia.  He said he needed to complete his studies so he could obtain for himself a successful future.  He also bemoaned the fact he would have to essentially ‘start again.’ The Tribunal gives this claim of hardship little positive weight.  The Tribunal notes that the applicant has had ample opportunity to recommence a course of study at the higher education level.  The applicant can make further attempts either in India or apply elsewhere offshore.  The Tribunal accepts that the applicant may feel as though he has wasted five years by not gaining a higher education qualification but in the Tribunal’s opinion that is a question for himself to ponder.  The Tribunal gives this claim no positive weight.    

35. The Tribunal noted that the applicant had previously raised claims that he suffered from mental stress and anxiety after a motor vehicle accident.  The accident occurred in 2015.  The Tribunal noted a letter from his GP Dr Manmit Madan dated 20 November 2015 that stated since the accident the applicant had become ‘very stressed and depressed’ due to monetary and family issues and was unable to concentrate on his studies (D1, Folio.21).  Correspondence was also submitted from a psychologist Mr Bulent Bill Ada dated 1 February 2017 who stated that the applicant had described his stressful circumstances for the two years since the accident. 

1. The Tribunal notes that there is no evidence or claim made of any medical treatment for depression or anxiety over the last few years.  The applicant confirmed he does not have a mental health plan.  The Tribunal notes that the applicant consulted his psychologist two years after his motor vehicle accident and just days after the Department issued him with his NOICC.  The Tribunal furthermore notes that the psychologist noted that the applicant was coping much better’ with the distressing circumstances he claimed and recommended no further treatment at that time.  The Tribunal gives the applicant’s claims of any hardship emanating from anxiety and stress as a result of his 2015 motor vehicle accident no positive weight.

2. The Tribunal recognises that the applicant is currently studying a VET course and has successfully completed two semesters.  The Tribunal notes he is due to complete the course in October 2019.  The Tribunal accepts that cancellation of the applicant’s visa will cause him some disappointment in relation to completing his Diploma of Business studies as well as a loss of the money he has invested in the course.  Nevertheless the Tribunal notes that the applicant was granted a 573 visa for the purposes of undertaking a principal course of study at the higher education level.  The Tribunal recognises the applicant’s claim he was using VET courses as a pathway to higher education study but is of the opinion that is not, particularly after four and half years, the purpose of a higher education visa.  The Tribunal gives the claim no positive weight.

3. In relation to hardship caused to his family, the applicant stated that his family would be disappointed should he be compelled to return to India.  He said his mother, a school teacher due to retire next year, would be particularly disappointed as she had encouraged him to study in Australia and has provided him with support.  The applicant said he also has one brother in India.  The Tribunal accepts that the applicant’s family may feel some disappointment if the applicant’s visa is cancelled and he is required to depart Australia.  That is a natural reaction for any family to feel.  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, notwithstanding the concerns the applicant expressed in his written submission about access to quality education and his desire to attend an Anglosphere institution due to the alleged increased employability and job prospects for graduates in India.

4. The Tribunal also notes there is no evidence before the Tribunal or claim made that the applicant has any immediate family members in Australia so any cancellation and his departure will not create hardship for them.   The Tribunal weights this factor pertaining to hardship to the applicant’s family in favour of cancelling the visa. 

5. The Tribunal on the evidence before it is not satisfied the applicant nor his family will face any significant degree of hardship should his visa be cancelled.  On the evidence before it concerning the degree of hardship, the Tribunal weighs this factor in favour of cancelling the visa.  

6. The Tribunal has considered the circumstances in which the ground for cancellation arose.  The Tribunal notes that the grounds for cancellation arose when the applicant failed to maintain his eligibility for his visa by maintaining his enrolment in a registered course of study commensurate with the 573 higher education visa he had been granted.

7. The applicant at the hearing spoke of the challenges he had with his Bachelor of Business Management course in 2015 and how he found it hard to understand elements of the course.  The applicant claims in his written submission he passed 50% of his subjects but nevertheless found it very difficult as he was unfamiliar with the Australian education system and the level of study expected was higher than he expected before commencing the Bachelor course.  The applicant claims he did not receive any counselling and the situation was beyond his control.  The applicant’s argument is that he failed to maintain his enrolment due to these unexpected challenges in his study programme and his lack of awareness as to the level of academic performance required by him. 

8. The Tribunal is not satisfied with the applicant’s explanation.  The applicant applied for a higher education sector visa.  The applicant applied on the basis he would be able to meet the requirements for the visa which included the level of study.  Any reasonable amount of due diligence by the applicant and/or his education adviser could have been undertaken to ensure he had a degree of familiarity with his course and visa expectations and the Australian education system before he commended his course.  The applicant has complained that he did not receive counselling and claims to have made a request as such to the university but there is no corroborative evidence before the Tribunal of any efforts or approach undertaken by the applicant at the time to obtain any counselling.  There is furthermore no evidence before the Tribunal of the applicant seeking a deferral to allow him to seek educational assistance or counselling prior to recommencing his studies. The Tribunal acknowledges that the applicant in oral evidence concedes he shouldn’t have breached the conditions of his visa in relation to his enrolment.   The Tribunal does not consider the academic challenges the applicant faced in continuing to meet the demands of his Bachelor of Business Management and his course of study in higher education – the circumstances in which the ground for the cancellation of the visa arose - constitute a valid explanation for the applicant’s inability to meet the requirements of his visa. 

9. As discussed in paragraphs 38 and 39, the applicant claimed that his anxiety and stress had increased as a result of a motor vehicle accident in early 2015.  He said the accident had been a shock to him.  The suggestion is that the anxiety and depression generated by the motor vehicle accident contributed to the applicant’s inability to meet his study commitments: the circumstances in which the ground for cancellation arose.  The Tribunal noted a letter from his GP Dr Manmit Madan dated 20 November 2015 that stated since the accident the applicant had become ‘very stressed and depressed’ due to monetary and family issues and was unable to concentrate on his studies (D1, Folio.21).  The applicant claims he is still in touch with his GP.  The inference is that this caused even greater challenges for the applicant in being able to successfully meet his study obligations and resulted in him failing to meet the requirements of his Bachelor of Business Management course and his obligation to study a principal course at the higher education level.  The Tribunal accepts the accident was financially costly for the applicant and that caused some anxiety for the applicant.  The Tribunal does not however consider on the evidence before it that the applicant has suffered any significant degree of mental health challenges that have impacted adversely upon his ability to study and meet his obligations I relation to his course of study.  The Tribunal notes that there is no evidence or claim made of any medical treatment for depression or anxiety over the last few years.  The applicant confirmed he does not have a mental health plan.  The Tribunal notes that the applicant consulted his psychologist two years after his motor vehicle accident and just days after the Department issued him with his NOICC.  The applicant said he had made just one visit to the psychologist.  The Tribunal furthermore notes that the psychologist Mr Bulent Bill Ada noted that the applicant was ‘coping much better’ with the distressing circumstances he claimed and recommended no further treatment at that time.  In its consideration as to the circumstances in which the grounds for cancellation arose, the Tribunal gives the applicant’s claims concerning the adverse impact of the 2015 motor vehicle accident no positive weight.

10. The Tribunal notes the various VET level courses the applicant undertook after the cancellation of his Bachelor of Business Management enrolment.  The applicant told the Tribunal he had enrolled in a Certificate IV in Painting and Decorating followed by a Certificate IV in Commercial Cooking which he studied for one year.  He also studied for a Diploma of management at the Wentworth College which he said he did not complete.  The applicant told the Tribunal that he thought he could get the basics clear and then focus on higher education later.  He said that he considered these courses could be a pathway to higher education.  The applicant said he had not been totally aware of all the conditions relating to his higher education visa and admitted he had made a ‘huge’ mistake and should not have breached the conditions of his visa.  The applicant said that he had enrolled into a Bachelor of Accounting in February 2017 after his education adviser advised him to enrol in a higher education course of study.  The Tribunal recognises the applicant’s claims that these VET courses were to serve as a pathway to higher education but notes he failed to complete either of the Certificate IV courses.  He claims he left the Commercial Cooking course to enrol in the Bachelor of Accounting course after essentially realising he needed to enrol in a higher education course of study.

11. The Tribunal finds it difficult to accept that the applicant only became aware of his need to maintain enrolment in a higher education level course of study whilst studying at the VET level.  The applicant admitted that he received correspondence from the Department when granted the visa which outlined the conditions of the visa and the consequences of non-compliance.  He conceded that he was aware that not maintaining enrolment in a registered course of study would impact upon his eligibility to hold his Student visa.  The Tribunal notes that the applicant had an agent advising him in relation to his Student visa.  The Tribunal notes the applicant claims initially he did not know.  The Tribunal on the evidence before it does not accept the applicant was unaware of the consequences of his non-enrolment in a higher education course of study. 

12. The Tribunal accepts that the applicant made some effort to undertake study after the cancellation of his Bachelor of Business Management course and the cancellation of his visa by the delegate.  The applicant claims he applied five or six times for study rights after the cancellation, finally having them reinstated in 2018.  The Tribunal nevertheless notes that after the Bachelor of Accounting course in 2017 he has not enrolled in a higher education course of study.  The applicant claims after completing his current Diploma of Business at the end of the year he will apply for an Advanced Diploma and seek standing to enrol in a Bachelor degree with advanced standing at Victoria University.  Given the applicant’s failure to successfully complete numerous study commitments over multiple years, the Tribunal does not hold a great deal of confidence that the applicant will meet such an assertion.  The Tribunal furthermore does not consider the purpose of a 573 higher education visa to act as a ‘holding’ visa for over half a decade until the holder has sufficient academic ability and confidence to undertake higher education level study.         

13. The Tribunal notes that the ground for cancellation arose due to the fact the applicant ceased enrolment with a registered education provider at the higher education level and subsequently failed to rectify his enrolment status in an adequate time.  The Tribunal has taken into account the applicant’s claims concerning the challenges he faced studying; the anxiety and stress he faced after his motor vehicle accident and his claims to misunderstand the specific requirements of his visa. The Tribunal does not accept them to be extenuating circumstances beyond the applicant’s control that led to the circumstances in which the ground for cancellation arose.  Given the applicant was a direct party to his enrolment; the Tribunal is of the opinion that it is his responsibility to be aware 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.  Given the applicant was a direct party to his enrolment; the Tribunal is of the opinion that on the evidence he would have been aware that he had ceased enrolment with a registered education provider.  The Tribunal furthermore notes that visa holders are expected to be mindful of the requirements of their visa and to inform the Department of any changes to their status.  The Tribunal is of the opinion that the applicant would have been well aware that his student visa contained condition 8516 which required him to continue to satisfy the primary criteria for the visa grant including that he remain enrolled at a Higher Education Sector level.  The Tribunal is of the firm view that the applicant would reasonably have been aware that his failure to remain enrolled with an eligible higher education provider for over multiple years 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.

14. The Tribunal has considered the past and present behaviour of the applicant towards the Department.    There is no evidence before the Tribunal concerning the applicant’s previous and present behaviour towards the Department in favour or against cancelling the visa. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa. 

15. The Tribunal has considered whether there are persons in Australia whose visas would, or may be, cancelled under s140 as a result of the cancellation of the applicant’s visa. On the evidence before it the cancellation of the applicant’s visa would not result in the consequential cancellation of any dependent visa holders. The applicant in oral evidence confirmed this. Therefore any cancellation of the applicant’s student visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.  

16. The Tribunal has considered whether there are 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 of the applicant’s visa.  The applicant stated he does not have any children. There is no information before the Tribunal which indicates that ant cancellation would result in any breach of Australia’s international obligations.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.     

17. 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.

18. On the evidence before it the Tribunal considers the applicant’s breach of condition 8516 of their Student visa to be substantial.  The Tribunal considers the period that the applicant has failed to remain enrolled in a Higher Education Sector level course to be significant.  The grounds for cancellation have been made.  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.  The Tribunal has determined on the basis of the information before it that the visa should be cancelled.

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

    DECISION

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

    Justin Owen
    Senior Member