SINGH (Migration)

[2018] AATA 1567

SINGH (Migration) [2018] AATA 1567 (1 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr RAVINDER PAL SINGH

CASE NUMBER:  1704999

DIBP REFERENCE(S):  BCC2017/320238

MEMBER:Tigiilagi Eteuati

DATE:1 March 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 01 March 2018 at 1:47pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Breach of condition 8516 – Continue to meet visa grant requirements – Genuine intention to complete studies

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, r1.40A, Schedule 2, cl 573.231, 573.223 Schedule 8, Visa condition 8516
Education Services for Overseas Students Act 2000 (ESOS Act)

CASES
Singh v Minister for Immigration & Anor [2015] FCCA 2998

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 March 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).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not meet the condition of his visa to continue to satisfy primary and secondary criteria for the grant 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.

3. The applicant appeared before the Tribunal on 16 January 2018 to give evidence and present arguments.

4. 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

5. 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?

6. 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.

7. 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 (regulations).

8. 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, a confirmation of enrolment in a course of study for the award of, relevantly a bachelor’s degree [or in the present case Master of Business 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.”

9. The courses currently specified by the Minister are contained in instrument IMMI14/015 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);

   ·      Associate Degree; and

   ·     Masters by Coursework

10. Education providers apply to have their courses registered as either Higher Education (HE) 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 for Overseas Students Act 2000 (ESOS Act).

11. Details of courses which have been registered are contained in the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and the status of a course, for example whether a course is a HE or VET course can be determined by examining the register. This can be done through the CRICOS website at >

    The Minister’s 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 regulations since 19 October 2015 when his enrolment in a Master of Business was cancelled. This is consistent with the records held by the Department and was conceded by the applicant. A copy of the delegate’s decision was provided to the Tribunal by the applicant.

12. On the basis of the above information, the Tribunal finds that the applicant ceased to meet paragraph 573.223(1A) when his enrolment in the Master of Business was cancelled on 19 October 2015 and he did not meet the alternative criteria in paragraph 573.231 as he was not enrolled in a course specified by the Minister in IMMI14/015.

13. 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

14. 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 Tribunal has also carefully considered both the Department and Tribunal files including the information that the applicant provided to the Department and the Tribunal in relation to the cancellation of his visa.

15. When the applicant arrived in Australia in July 2015 he said that he was enrolled in a basic English language course, to be followed by a English for Academic Purposes course and then a Master of Business degree at QUT.

16. He said that he found the basic English course too difficult. The Tribunal indicated that it found this difficult to believe as the applicant appeared to speak English well, he gave evidence that he had an IELTS score of 6 before he arrived in Australia and he told the Tribunal that he had completed a bachelor’s degree at Panjab University in English literature.

17. The applicant said that the learning environment and the practical focus of the course made it too difficult for him to complete the basic English course.

18. The applicant said that he failed the course and that his enrolment in the EAP course and the Master’s degree were consequently cancelled on 19 October 2015.

19. The applicant said that the QUT informed him that because he had failed the basic English course he could not progress to the other courses. In his written statement he suggested that QUT had advised him to enrol with another education provider in a HE course. However, he admitted at the hearing that QUT did not prevent him from undertaking the basic English language course again.

20. The applicant said that he then enrolled in a Certificate IV in commercial cookery at the New England Institute of Technology (NE). The applicant suggested that he did not want to study commercial cookery but that NE told him that he would be given a package of courses which included a commercial cookery course and a Master of Business course.

21. The applicant claimed that he always knew that he was required to maintain enrolment in a HE course in order to meet the conditions of his visa. He said that he repeatedly asked NE about the confirmation of enrolment (COE) for a master’s degree and was repeatedly brushed off with assurances that the applicant would soon receive the COE. The applicant said that he also independently sought enrolment in master’s degree programs at other institutions but had no luck being accepted. He said that he was eventually offered a COE for a Master of Business course at Holmes College but that the offer was conditional on him providing evidence of his progress at NE. The applicant appeared to indicate that the COE was never confirmed because of delays by NE in providing him with relevant documentation about his progress there. The Tribunal notes that the evidence provided by the applicant indicates that he received the Notice of Intention to Consider Cancellation (NOICC) on 21 February 2017 and received the conditional COE offer from Holmes on 23 February 2017.

22. The Tribunal asked the applicant whether he or any members of his family would suffer hardship if his visa remained cancelled and he said “no.”

23. The Tribunal raised with the applicant its concern that, as the applicant failed to complete even a basic English language course in Australia after completing a Bachelor of Arts degree in English literature, attaining an overall score of 6 in an IELTS test before coming to Australia, failing to re-enrol in the Basic English course, and enrolling in a commercial cookery course and then a Diploma of Hospitality Management, the applicant may not have the desire to undertake a HE course in Australia.

24. The applicant said that he did want to complete a Master of Business degree course in Australia. He said that doing so would help him grow his family’s business in India. The applicant re-iterated that, despite his best efforts, he had been unable to complete the basic English course and had been misled by NE who indicated that they would enrol him in a Master of Business degree as part of a package with his commercial cookery course. The applicant at first claimed that he had planned to complete the Diploma of Hospitality if his visa had not been cancelled. He later changed his evidence to indicate that he only enrolled in the Diploma of Hospitality course in order to meet his enrolment requirement and had only wished to complete the Master of Business course.

25. The Tribunal indicated that if it accepted the applicant’s submission that he had tried his hardest to complete the basic English course and had been unsuccessful, the Tribunal was concerned that the applicant may not have the ability to successfully undertake a Master of Business course. The applicant said that he would complete a Master of business degree if given the opportunity to do so.

26. The Tribunal has decided to affirm the decision to cancel the applicant’s visa.

27. The Tribunal finds that, as the applicant failed to complete even a basic English language course in Australia after completing a Bachelor of Arts degree in English literature, attaining an overall score of 6 in an IELTS test before coming to Australia, failing to re-enrol in the Basic English course, and enrolling in a commercial cookery course and then a Diploma of Hospitality Management, the applicant does not have the desire to undertake a HE course in Australia.

28. The Tribunal does not accept the applicant’s submission that, despite his best efforts, he could not complete a basic English course. The applicant’s English language skills displayed at the hearing, his having scored an overall score of 6 on an IELTS test before he came to Australia and his having completed a Bachelor of Arts degree in English literature in India, when considered together, strongly indicate that the applicant could have passed a basic English Language course in Australia if he had the desire to do so.

29. At the hearing the applicant admitted that QUT did not prevent him from re-enrolling in the basic English language course and he gave no explanation at the hearing as to why he did not do so. Instead, the applicant decided to undertake a Certificate IV course in commercial cookery at a college. He asserted that NE college mislead him by telling him that he would be enrolled in a package of courses leading to a Master of Business course. The Tribunal rejects this claim. First, he has produced no documentary evidence to support his claim. Secondly, the applicant said that he always knew that he needed to remain enrolled in a HE course in order to meet his visa requirements. Thirdly, it is unclear why the applicant would believe that he was required to undertake a certificate IV in commercial cookery to be able to undertake a Master of Business degree, or why any institution would package these courses together. As mentioned above, the applicant held a Bachelor degree before arriving in Australia.

30. Similarly, the Tribunal does not accept the applicant’s claim in his written statement that QUT had advised him to enrol with another education provider in a HE course. First, he provided no documentary evidence of this. Secondly, there is no apparent reason why QUT would have told the applicant to enrol with a different provider, foregoing the high fees that it would have been paid if the applicant continued with his education in QUT. As mentioned above, the applicant admitted at the hearing that QUT did not prevent him from re-enrolling in the basic English language course.

31. The visa was granted to the applicant for a certain period of time to study the courses which he had nominated to study, that is, English courses leading to a Master of Business degree. The applicant was not permitted to undertake only vocational courses and any difficulties which the applicant now faces are of the applicant’s own making. It was the applicant’s responsibility to comply with the conditions of his visa and to inform himself of those conditions. The applicant had every chance to study the courses for which he came to Australia to study but instead decided to enrol in 2 vocational courses which do not appear to be directly related to the Master of Business degree in which he was enrolled.

32. The Tribunal is willing to accept that the applicant and his family members may experience disappointment and shame that the applicant’s visa was cancelled before he was able to complete a HE course in Australia. However, if his visa was not cancelled it would have expired in March 2018 and there is no bar on the applicant applying for another visa. It appears the applicant would simply have to return to India and apply for a further visa. 

33. As his visa was to expire on 15 March 2018 if his visa were not cancelled, even if the applicant is successful before the Tribunal, he will not hold a student visa for any substantive period and will have to apply for another student visa. 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.

34. The Tribunal finds that the applicant’s lack of will to successfully undertake HE courses in Australia heavily outweighs all other considerations including any hardship that he or his family members may face because of the cancellation of the applicant’s visa.

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

    DECISION

36. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.