Singh (Migration)

[2019] AATA 1790

Singh (Migration) [2019] AATA 1790 (18 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaswinder Singh

CASE NUMBER:  1826749

HOME AFFAIRS REFERENCE(S):           BCC2014/2892431

MEMBER:Brendan Darcy

DATE:18 March 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 18 March 2019 at 10:00am

CATCHWORDS
MIGRATION – Cancellation – Federal Circuit Court remittal – Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa – applicant did not comply with condition 8516 – applicant remained enrolled in vocational education coursework continuously– applicant genuinely tried to mitigate non-compliance–  decision under review set aside

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, cls 573.223, 573.231

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 January 2015 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 it appeared that the applicant had not continued to be a person who would satisfy either cl.573.231 or cl.573.223(1A), and therefore was not a person who would satisfy the primary criteria for the grant of the visa and therefore had not complied with condition 8516. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. This review application initially affirmed the delegate’s 13 January 2015 cancellation decision on 7 July 2015 (AAT No: 1500836).

4. On 13 September 2018, a Federal Circuit Court decision remitted the matter back to the Tribunal having found jurisdictional error regarding whether the grounds of cancellation existed in the first place.   

5. The applicant appeared before the Tribunal on 14 March 2019 to give evidence and present arguments.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages via teleconference.

7. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

8. 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

9. 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?

10. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa.

11. As explained in the scheduled hearing, condition 8516 is typically imposed on student visas when student visa applications are assessed under a streamlined visa processing arrangements with participating education providers. As a beneficiary of these arrangements, student visas are granted based on the bases of the visa holders having met lower thresholds of proof regarding their education history, English language ability and financial capacity.  If the visa holders change coursework to lower diploma-level coursework while enrolled in degree level coursework or enrol into non-streamlined education providers, the visa holders may be at a breach of condition 8516.

12. At the hearing, the Tribunal enquired into his enrolment history. At the time of the grant of the visa, the applicant explained he had been enrolled in a package of coursework that included ELICOS and a Diploma of Computing at MBIT (Melbourne Institute of Business and Technology) and a Bachelor of Information Technology at Deakin University. The applicant claimed that while he completed his coursework in English, he did not complete his course work in a diploma due to unsatisfactory academic coursework and that he successfully and voluntarily sought a letter of release from Deakin University to apply for other coursework and a Subclass 572 visa. It was this letter of release that triggered the cancellation of his Bachelor of information Technology.

13. The applicant further explained that he enrolled in new coursework – Certificate III and IV in Commercial Cookery and a Diploma of Hospitality at Holmes Institute – prior the cancellation of his earlier enrolments. The Tribunal has examined the PRISMS (Provider Registration and International Student Management System) records pertaining to the applicant and this appear to be correct.

14. However, the applicant admitted that he did not enrol any coursework for a Bachelor degree until he was given a Confirmation of Enrolment (CoE) in a Bachelor of Business for Holmes College on 15 December 2017.

15. On the basis of the evidence before it, the Tribunal finds that between approximately 10 July 2014 to 15 December 2014, the applicant did not hold a CoE or a letter of offer for a Bachelor’s or Masters course, that he therefore did not continue to be a person who would satisfy the primary criteria for the grant of the visa in this period, and therefore that the applicant did not comply with condition 8516.

16. While it is acknowledged that the applicant had been enrolled continuously, the applicant’s enrolment history does not satisfy condition 8516 as it demonstrated that he was not continuously enrolled in a course that is not relevant the requirements as a holder of a Subclass 573 student visa.

    CONSIDERATION OF THE DISCRETION TO CANCEL THE VISA

17. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

18. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

19. While his student visa was for higher education purposes, the applicant no longer advances, as he had in the earlier scheduled hearing, he wished to continue with degree level education and that he wishes to complete vocational education in catering and hospitality so as to develop a catering business in India. The Tribunal accepts this.

20. The applicant provided some evidence that when he enrolled to complete a diploma in computing, while his academic progress was unsatisfactory but he attended more than 90 per cent of classes. (He submitted a certificate of attendance from MIBT as evidence to support this claim)[1].  The Tribunal, accordingly, considers this a significant factor indicating that he is a genuine student for entry and stay temporarily. Although he was in breach of condition 8516, the applicant remained enrolled in vocational education coursework continuously before the cancellation of his student visa, indicating that he was and remains genuinely motivated to complete vocational education. 

    [1] AAT Folio 55.

21. This is commensurate with the documentary evidence he gained a letter of release from his education provided and that he unsuccessfully applied for a Subclass 572 visa that was refused on 7 December 2015.[2] While the delegate found that the applicant was not a genuine temporary entrant on the basis of the applicant seeking a diploma level education, the Tribunal does not accept this is sufficient evidence that the applicant is not a genuine student or temporary entrant.

    [2] AAT Folio 56.

22. The Tribunal also notes that he applicant came to Australia at a relatively young age and it was the first time he was without parental supervision. It is not entirely unexpected that the young men and woman become easily distracted from their full time studies or that they discover they want to change direction in their own academic pursuits and vocational choices. While there is no indication that the applicant has not acted unconscientiously, it is accepted the applicant demonstrated a level of maturity in deciding that a career in information technology was not suitable in his circumstances.

23. The Tribunal accepts that the applicant's purpose in travelling to Australia and remaining here is to study and that he does not consider Australia his home.

24. There is no evidence before me to indicate the applicant did not comply with other conditions. The Tribunal notes, and accepts, that he has complied with all other conditions on his bridging visa including not working. There is no evidence before the Tribunal that he breached other conditions of his student visa prior to the cancellation. The Tribunal gives these factors some weight in favour of the applicant.

25. Furthermore the applicant re-enrolled in a Bachelor degree soon after his student visa application was refused so as to mitigate his non-compliance. It also notes that the applicant’s non-compliance with condition 8516 had been less than six months which is not a significant amount of time.  The Tribunal accordingly places a little weight on the relatively short length of time in which he was non-compliant with condition 8516 in favour of the visa being reinstated.

26. The Tribunal does not accept that the applicant had any extenuating circumstances beyond his control which led to the cancellation his visa. This is because it was the applicant seeking a letter of release from Deakin University which triggered his cancelled enrolment in a Bachelor’s degree in July 2014. However, the Tribunal finds the applicant did so in good faith as he sought apply for a Subclass 572 student visa commensurate with his abilities and interests. The Tribunal places some weight regarding these overall circumstances in favour of the visa not remaining cancelled.

27. As discussed in the hearing, a number of inconsistencies were identified between his evidence at an earlier hearing with the Tribunal and the most recent hearing. It is appreciated that the applicant abandoned his earlier embellishments which contributes to the Tribunal’s assessment that the applicant was a credible and reliable person capable of upholding conditions places on him if the visa were to be reinstated.

28. The Tribunal further notes that the degree of hardship to be faced by the applicant not to be grant if this visa remains cancelled, as he will be returning to a supportive family where he can continue his studies. He does not have any significant relationships or dependents. Neither did the applicant advance he will face any significant problems with the mandatory legal consequences from this cancellation or that the visa cancellation would lead to any breach of Australia’s international obligations. The Tribunal places no weight on these factors either for or against the visa being reinstated.

    Conclusion

29. The fact remains the most important factor in cancelling the applicant’s Subclass 573 student visa is his breach of condition 8516 at the time of his visa cancelled.

30. However, after weighing up all the available evidence, the Tribunal has placed considerable weight on the applicant having gained a letter of release from an education provider and having sought to apply for a Subclass 572 visa for vocational education. It is accepted that he did so in good faith and conscientiously with the reasonable expectation that the visa would be granted. While these unexpected circumstances are not extenuating, the Tribunal considers the degree of the breach not to be significant. Moreover the applicant has credibly demonstrated that he has matured since his arrival to Australia and that he has genuine academic goal in vocational education and that he has the capacity to uphold the conditions imposed on any further student visa.  

31. Accordingly, the Tribunal finds there are more factors, cumulatively considered, in favour of having his visa reinstated than in favour of the visa remaining cancelled. The correct and preferable decision given the circumstances of this case is that the visa should not be cancelled.

32. The Tribunal notes that the applicant will have to apply for a new visa in a short period if he wishes to study in Australia and that he wishes to pursue vocational education and training. Due to changes in the Migration Regulations, neither Subclass 572 nor Subclass 573 visas are available to the applicant, as the Minister has made reductant Subclasses 570 through to 576 visas. They were replaced by Class TU Subclass 500 student visas on 1 July 2016. In making this favourable decision, the Tribunal notes this is an opportunity for the applicant to ensure his granted a Subclass 500 relevant to his vocational educational ambitions as a full time student.

33. The applicant should be aware that the Tribunal only reached this decision marginally in his favour.

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

    DECISION

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

    Brendan Darcy
    Member