SINGH (Migration) - [2018] AATA 1809

SINGH (Migration) [2018] AATA 1809 (23 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr HARJEET SINGH
CASE NUMBER:  1802714
DIBP REFERENCE(S):  BCC2017/4238090
MEMBER:Fiona Meagher
DATE:23 April 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Statement made on 23 April 2018 at 12:58pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Whether the applicant is a genuine student – Lack of academic progress – Significant period of time spent not enrolled - Decision affirmed
LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958 (Cth), ss 116(1)(b), 359AA
Migration Regulations 1994 (Cth), r 1.140A, Schedule 2, cl 573.223, Schedule 8, Conditions 8202, 8516
CASES
Singh v Minister for Immigration & Anor [2015] FCCA 2998

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 25 January 2018 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not comply with condition 8516 of his visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 18 April 2016 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent, hello who did not attend the hearing.
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
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?
A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa. This condition requires that a visa holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.
In the present case, the delegate found that the applicant had failed to continue to satisfy the criteria for the grant of his visa in paragraph 573.223 (1A) or the alternative criteria in paragraph 573.231 of Schedule 2 to the Migration Regulations 1994.
For a person in the applicant’s circumstances these criteria can be summarised as Smith J did at paragraph 31 of his reasons in Singh v Minister for Immigration & Anor [2015] FCCA 2998 as follows:
In summary, in order to satisfy the criteria for the grant of a class TU visa by reference to subclass 573; an applicant in this applicant’s circumstances had to either:
have had, both at the time of application and at the time of decision, confirmation of enrolment in a course of study for the award of, relevantly a bachelor’s degree, or
at the time of decision be enrolled in or be the subject of the current offer of enrolment in a course of study specified by the Minister.
The courses specified by the Minister are contained in instrument IMMI/015 made pursuant to regulation 1.40A. The courses specified for a subclass 573 visa are:
·Diploma (Higher Education)
·Advanced Diploma (Higher Education)
·Bachelor Degree Graduate Certificate (Higher Education)
·Graduate Diploma (Higher Education); and
·Associate Degree Masters by Coursework.
Education providers apply to have their courses registered as either Higher Education (HP) courses or other courses including Vocational Education and Training (VET) courses, English-Language Intensive Courses for Overseas Students (ELICOS) courses and foundation programs, under a system established under the Education Services forOverseas Students Act 2000 (ESOS Act).
Details of courses which have been registered are contained in the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) on the status of a course can be determined by examining the register. This can be done through the CRICOS website at >
The ministers delegate determined that the applicant had not met the criteria in paragraphs 573.223 (1A) or the alternative criteria in paragraph 573.231 of Schedule 2 to the MigrationRegulations 1994 when he was no longer enrolled in a Bachelors Degree or Masters Degree course and 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 1.4 0A. In his response to the NOICC the applicant’s registered migration agent conceded that and said that the applicant had to change from a degree course to a diploma course due to his concerns about his ability to undertake the work involved in the courses in which he had initially enroled, and his worry about his father’s health and the impact those factors might have on his ability to study. At hearing the fact that the applicant had not persisted with his original study, and instead enroled in a diploma course was also admitted by the applicant, and accords with records held by the department.
On the basis of the above information, the Tribunal finds that the applicant ceased to meet paragraph 573.223 (1A) when his enrolment in a Bachelor of Business Management was cancelled on 3 October 2014, and he did not meet the alternative criteria in paragraphs 573.231 as he was not enrolled in a course specified by the Minister in IMMI14/015.
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
There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.
The applicant gave evidence that he studied high school in India, and then intermediate which he said was the equivalent of year 12 in Australia. He said that the then undertook a diploma of computer studies. He said it came to Australia to undertake higher studies. He said that his family are in India and consist of his father who is a farmer and a priest, and continues to look after the family farm, his mother who is a housewife, his older brother who helps his father as a priest and with the farm, and his younger sister who is still studying.
The applicant said that he came to Australia on 28 January 2014 on the student visa to study a Certificate IV in business, a Diploma in Business and a Bachelor of Business. He said he started the Certificate IV at Southbank TAFE, but failed because he could not adjust to studying in Australia in the Australian study patterns. He said that he was also feeling homesick, and wanted to go home but his family persuaded him not to do so.
The applicant told the Tribunal that a friend offerred to help him study, and that offer together with his family’s persuasion is what made him change his decision, and he stayed in Australia to study. The applicant said that he then decided to undertake a Certificate IV in Business at ANIB College, and he said that because the teachers and his friends were helpful he was able to pass that time. He said that he then undertook a diploma of business, and advanced diploma of leadership and management. The Tribunal put the cancellation of the certificate of enrolment as contained in the Department’s Provider Registration and Identification Student Management System to the applicant pursuant to section 359AA of the Act.
The applicant confirmed that his certificate of enrolment was cancelled, but stated that he was unaware of the need to change his visa at the time. He said that he went to the College and they gave him an admission and allowed him to study there. The applicant said that he thinks the College should have told him about the potential problems with his visa. The Tribunal put to the applicant that he should have been responsible for compliance with the conditions of his visa, and the applicant responded that he was not familiar with Australian laws and did not realise that he had to start a higher education pathway for a higher education visa. He said that he now knows he was in breach of the conditions of the visa.
The applicant told the Tribunal that his current intentions are to start a bachelor’s degree – he said that he would start a bachelor of business immediately this application for review was resolved. The applicant said that he had been to Central Queensland University, and they are waiting to see what happens with his visa. The applicant said that if his visa is cancelled he will definitely leave the country within the designated time frames. He said however that he has been here for four years, and is now familiar with the systems and would be very grateful if he were able to continue his education.
The applicant said that he had told his parents about his visa predicament and they are happy to help. He said his father was sick, but is now “a little bit normal” and can help with the fees. The applicant said that he works as a cleaner in the taxation office. The applicant said that if he stays and is allowed to continue studying, his plan is to start his own business in transportation in India. When asked further about that by the Tribunal, he responded that one of his cousins/brothers has started a small business in that field, and wants him to join that business.
The applicant then told the Tribunal that while he was studying at ANIB one teacher, who was also migration agent obtained a bachelors Confirmation of Enrolment for him (in respect of a bachelor’s degree), but when he looked at the time periods on the Confirmations of Enrolment, he saw that they clashed. When he asked for a further batch of Confirmations of Enrolment, the college refused him. He said that the Confirmations of Enrolment were from a college in Melbourne, and he had not originally realised that.
The Tribunal asked the applicant about his response to the NOICC. Eventually he conceded that he was currently studying a Certificate IV in Commercial Cookery (as referred to in his response to the NOICC), and then intends to do an Advanced Diploma of Hospitality. The Tribunal asked the applicant why he had pursued this pathway, given he was seeking to have the decision to cancel his subclass 573 higher education sector visa set aside. The applicant responded that he had undertaken these courses in the hope of being able to obtain a subclass 500 visa, so that he could do the rest of his study. He said that his subclass 500 application had already been refused. He said therefore he has not been studying between January and now. The applicant said that he does not have any certificates of enrolment, as they have been cancelled, but he is still going to college and doing assessment.
The applicant told the Tribunal that he will study a bachelor degree “if it is really necessary”, however he is doing cookery because he has a little bit of interest in cookery, and is fond of it.
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
The Tribunal considers that the applicant’s original purpose of travel and stay in Australia was to study. The Tribunal places some weight upon that factor.
The extent of compliance with visa conditions
As the applicant has breached condition 8516 for the visa, it follows that he has also breached condition 8202. Other than that, the Tribunal is not aware of any other non-compliance with visa conditions. The Tribunal places some limited weight upon that factor.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant said that hardship that would be caused is that he would be disappointed if his visa is cancelled because he has plans to have his own business. He also said that while his father had been unwell, the family had spent a lot of money on him which will be lost if he does not complete his higher education, and his father will be hurt. The applicant said that he cannot really imagine what his future would be like if he went back without completing his higher education. He said that it would give him pleasure and pride to hold an Australian degree because the education system in Australia is held in high regard. The applicant said that he is now aware that he gets chance he will not make the same mistake. He said that when he arrived in Australia he found it difficult to use computers for study, or do assignments, as neither of those were part of the education system in India. He said he was also homesick. The Tribunal places some weight upon the degree of hardship which may be caused if the visa is cancelled
Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
Set out above are the circumstances the applicant claims led to the cancellation of his visa. The Tribunal has concerns regarding the applicant’s credibility, as his response to the NOICC, and accompanying documentation, including medical reports from India with respect to his father, and a letter of support from his friend Andrea point strongly to his father’s ill-health, and his own concerns about his ability to study, as being the circumstances in which the ground for cancellation arose. However, at hearing, the applicant made no mention of his father’s health, and instead said that the circumstances were that he was unfamiliar with the Australian education system and patterns of study (leading to him questioning whether he could study successfully at the required level), and he was home sick. The Tribunal places little weight upon the circumstances in which the grant of cancellation arose, particularly given its concerns in relation to the applicant’s credibility.
Past and present behaviour of the visa holder towards the department
The Tribunal notes that the applicant responded to the NOICC. There was no other information before the Tribunal regarding the behaviour of the visa holder towards the department. The Tribunal places some weight upon that factor.
Whether there would be consequential cancellations under s.140
There are no consequential cancellations under s.140.
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
There is no material before the Tribunal to indicate there are mandatory legal consequences to the applicant.
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
There is nothing before the Tribunal to suggest that any international obligations would be breached as a result of the cancellation.
Any other relevant matters.
As set out above, the Tribunal has some concerns about the credibility of the applicant. As well as making no mention of his father’s ill-health as constituting a circumstance in which the grant of cancellation arose, until prompted to do so by the Tribunal, by reference to the response to the NOICC, the Tribunal was concerned that the applicant failed, again until prompted to do so by the Tribunal, by reference to his response to the NOICC to mention his enrolment in commercial cookery, with an intention to go on to hospitality, both of which courses are within the VET sector rather than the HE sector. Another concern of the Tribunal is whether the applicant has the will or intention to study at a HE level, given he told the Tribunal more than once that he would undertake a Bachelor’s course “if he had to”. The Tribunal does not consider that that demonstrates the requisite level of commitment to higher education study. In any case, the applicant does not have, and for a great deal of his time in Australia has not had a Certificate of Enrolment.
The Tribunal is willing to accept that the applicant and his family members may experience disappointment if his visa is cancelled before he completes a higher education course in Australia. The Tribunal is also willing to accept that the applicant’s family has spent a lot of money on him, and will be disappointed if he does not make the best of that expenditure by completing his bachelor’s degree. However, the Tribunal notes that the applicant has completed three vocational courses and may apply for another student visa at any time. Accordingly the Tribunal places little weight on the degree of hardship that may be caused.
The Tribunal also considers that it was the applicant’s responsibility to comply with conditions of his visa and to inform himself of those conditions. The Tribunal does not accept that it is the responsibility of his education provider, or that the excuse that he was new to Australia and did not understand the law to be adequate. The Tribunal’s view is that it is the responsibility of the visa holder to make him or herself cognisant of any conditions which attach to that visa.
Further the Tribunal observes that had the applicant’s visa not been cancelled, it would have expired on 30 August 2018, which leaves less than sufficient time to complete a higher education course. There is no bar on the applicant reapplying for a visa, and other than having to leave Australia to apply for another visa, it is unclear what possible effect the outcome of these proceedings would have on the applicant. Whether or not he is successful before the Tribunal, he would soon cease to hold a student visa and will have to apply for another one. Whether or not the decision is set aside on a discretionary basis does not change the fact that the applicant breached condition 8516 and any future student visa decision-maker will not be compelled to grant the applicant a visa if the Tribunal sets aside the cancellation decision.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Fiona Meagher
Member