Singh (Migration)

Singh (Migration) [2018] AATA 1376 (10 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Tarankul Singh
CASE NUMBER:  1711351
DIBP REFERENCE(S):  BCC2017/1343124
MEMBER:Fiona Meagher
DATE:10 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 10 April 2018 at 11:51am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Course attendance – Accommodation issues – Travel time – Applied for a s 572 visa
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2 cl 573.223, 573.231

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 25 May 2017 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 has not complied with a condition of the visa, in this case 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.
The applicant appeared before the Tribunal on 23 March 2018 to give evidence and present arguments. The applicant was represented by his registered migration agent in relation to the review.
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)(a) and (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. Condition 8516 provides that “The 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”.
Subclause 573.231 requires that if subclause 573.223(1A) does not apply, amongst other things, the visa holder is enrolled in, or is the subject of a current offer of enrolment in, the course of study that is a principal course of study and that the principal course of study is of the type that was specified for the subclass 573 visa in an instrument by the Minister.
Subclause 573.223(1A) requires, amongst other things, that the visa holder at the time of application has a confirmation of enrolment in each course of study and that the stated intention of the applicant is to comply with any conditions subject to which the visa is granted, and that the applicant has sufficient funds to meet the costs and expenses required for the duration of the proposed stay in Australia. At the time of application, the delegate was satisfied that the applicant met the relevant requirements and consequently the applicant was granted the visa to which condition 8516 was attached.
At hearing the applicant acknowledged that he was not enrolled in a higher education course for some time. The Tribunal put to the applicant that he had not been enrolled in a higher education sector course since 29 May 2014, as set out in the delegate’s decision, a copy of which was placed before the Tribunal by the applicant. The applicant acknowledged that to be the case, and did not dispute that the ground for cancellation exists.
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
The applicant explained to the Tribunal why he had found it difficult to attend his initial course, in which he enrolled as part of a package to culminate in a bachelor of business at the Queensland University of technology. The reasons included difficulties commuting from his residence to the campus he was supposed to attend, inadequate advice from an officer of the original education provider, poor advice from migration officers, distraction due to his perceived need to apply for a 572 visa, and then seek review of the delegate’s decision in that regard, confusion about whether Spencer College (where the applicant was studying) was an SVP, the health of his parents including in particular that of his father who has now passed away, and his own health concerns including stress, depression and anxiety attacks.
The following documents were placed before the Tribunal:
·diploma of Management;
·diploma of business;
·advanced diploma of business;
·letter confirming the applicant’s enrolment in a diploma of project management;
·statement of attainment with respect to diploma of project management;
·submission of the applicant’s registered migration agent dated 15 March 2018;
·medical documents in relation to the applicant;
·medical document in relation to the applicant’s father;
·death certificate with respect to applicant’s father;
·medical documents with respect to applicants mother; and
·documents in relation to the applicant’s motor vehicle claim
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 purpose of the visa holder’s travel and stay in Australia
The Tribunal is satisfied that the purpose of the applicant’s travel and stay in Australia is commensurate with the objectives and requirements of the student visa he was granted. The Tribunal has given weight to this aspect however the applicant was granted a subclass 573 student visa with the expectation that he would study at the level of the visa that has been approved, which the applicant did not do for a substantial period of time.
On the evidence before it, the Tribunal is not satisfied that the purpose of the applicant’s travel and stay mean that the visa should not be cancelled.
The extent of compliance with visa conditions
The applicant gave evidence that he came to Australia to undertake a package of study culminating in a bachelor of business at QUT. The initial course was a diploma of business and commerce which he was to undertake at the GC IT for one year. The GC IT is located at the Gold Coast of Queensland. The applicant told the Tribunal that initially he found it difficult to find accommodation, and he started out living in Ipswich, which meant an extremely lengthy commute by public transport to reach the Gold Coast for his course. He then moved to accommodation in South Brisbane which reduced the commute somewhat, but it still took him two hours there and two hours back, which he found stressful and difficult. He also found the commute extremely expensive as he was at first unaware of the availability of go cards. Accordingly he found it difficult to maintain attendance.
The applicant said that he sought help from an officer of TAFE who was responsible for international student issues, including asking to be transferred to the Southbank campus. He said that he then went to a migration agent for advice, and was told to apply for a release letter from the TAFE and university course package so that he could undertake vocational studies on a 572 visa. He explained that he was initially refused the 572 visa due to a miscommunication regarding money, but that that was subsequently remitted by this Tribunal (differently constituted) on 15 September 2015. The applicant said that after he had obtained his 572 visa he discovered that the college where he was undertaking vocational courses was an SVP, and therefore he would be able to pursue a streamlined pathway of study there. The applicant said that he then went to a new migration agent who told him that he would be able to continue with his existing course, and go into a bachelors course after that, in effect without worrying about his visa status.
The Tribunal finds it plausible that the applicant may have been misdirected by an officer of an educational institution, or migration representatives. However, it is the applicant’s responsibility to ensure that he continues to meet the visa criteria. Further, the Tribunal considers that the applicant, in seeking and obtaining a 572 visa demonstrated an intention not to study a higher education level course as required by a 573 visa.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal accepts that the cancellation of the applicant’s visa would be disappointing to the applicant and that there are financial and emotional consequences, including that his mother may be disappointed.
The Tribunal notes the applicant’s submission that the job market is difficult in India, and that he requires further qualifications to enable him to obtain a job. The Tribunal does not accept that the applicant would be unable to obtain further qualifications in India (based on the diplomas and advanced diploma that the applicant currently holds), nor is he precluded from applying for a further visa to study in Australia, or elsewhere, should he wish to do so.
The Tribunal also accepts that the applicant is seeking treatment and compensation in relation to a car accident which occurred on 4 January 2018, and would prefer to be in Australia for the conduct of those proceedings. The Tribunal notes that the applicant would be able to obtain treatment for his injuries in India, in the event his visa is cancelled.
The Tribunal is not satisfied that there is a degree of hardship such that the visa should not be cancelled.
The circumstances in which the ground of cancellation arose
The Tribunal heard of the difficulties the applicant had in maintaining his course attendance, his ignorance regarding visa processes and the poor advice he claims to have received from migration agents and an officer of an educational institution. The Tribunal also heard the applicant’s evidence regarding his father’s ill-health, and subsequent passing away, his mother’s ill-health, and the cumulative impact all of those matters had upon the applicant, which manifested themselves as depression, stress and anxiety attacks. The Tribunal also heard evidence regarding a car accident suffered by the applicant in early 2018.
The Tribunal notes that the applicant’s enrolment in the bachelor of business course was cancelled on 29 May 2014, less than five months after his visa was granted. Accordingly, the Tribunal does not consider that many of the circumstances upon which the applicant seeks to rely, including the death of his father, his mother’s ill-health, his motor vehicle accident, and the resultant stressors were relevant to his cancellation of enrolment on 29 May 2014. To the extent that the other matters relating to ignorance, accommodation, travel time, costs of travel, and associated issues contributed to the circumstances in which the grant of cancellation arose, the Tribunal considers that it was the applicant’s responsibility to inform himself of the logistics and requirements involved in maintaining his course attendance.
The Tribunal is not satisfied that the circumstances in which the grant of cancellation arose are such that the visa should not be cancelled.
Past and present behaviour of the visa holder towards the department
The applicant responded to the notice of intention to consider cancellation and the Tribunal has given this aspect some favourable weight.
Whether there would be consequential cancellations under s.140
There is no evidence that there would be consequential cancellations in this case.
Whether there are mandatory legal consequences
The Tribunal is not satisfied that there are consequences of the cancellation which mean that the visa should not be cancelled.
Whether any international obligations would be breached as a result of the cancellation
There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation
Any other relevant matters
The Tribunal notes that the delegate’s decision acknowledges that the notice of intention to consider cancellation identified the date of cancelled enrolment in the bachelor of business course as 26 May 2014 rather than 29 May 2014. There are some circumstances in which defects in departmental procedures, that may otherwise invalidate a process, can be remedied by the Tribunal. Specifically, the Tribunal can “cure” a defect in natural justice or procedural fairness that occurred in the delegate’s decision, such as a defect in the ss.119-121 notice requirements, through their own procedural fairness mechanisms. In this instance, the review process itself enables the applicant to have his case reviewed.
The Tribunal also notes that the applicant, whether ill-advised or not has applied for and obtained (after review by this Tribunal, differently constituted) a 572 visa. The Tribunal considers that to be significant in terms of the applicant’s compliance with the conditions of his 573 visa. The Tribunal places weight upon this factor.
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

[2018] AATA 1376

10 April 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction