SINGH (Migration)

[2017] AATA 2691

SINGH (Migration) [2017] AATA 2691 (5 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr GAGANDEEP SINGH

CASE NUMBER:  1618907

DIBP REFERENCE(S):  BCC2016/3036798

MEMBER:Nicola Findson

DATE:5 December 2017

PLACE OF DECISION:  Perth

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 05 December 2017 at 10:44am

CATCHWORDS
Migration – Cancellation – Student visa – Subclass 573 Higher Education Sector – Ceased to be enrolled in a higher education course – Hardship – Medical condition – Suffered psychological difficulties – Difficulty with adapting to Australian life – Has not breached other conditions – Genuine intention of pursuing the higher education course

LEGISLATION
Migration Act 1958 ss 65, 116, 116(1)(b), 116(3)
Migration Regulations 1994 Schedule 2 cl 573.231 Schedule 8 Condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 4 November 2016 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 delegate found the applicant had breached condition 8516 which was attached to the applicant’s 573 higher education sector visa, and found that the factors against cancellation did not outweigh those in favour of cancellation and cancelled the 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 30 November 2016 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent.

5. Prior to his hearing the applicant, through his migration agent, provided a submission and accompanying documents in support of his review application.  The Tribunal also observes that although the Departmental file does not reflect any response to the Notice of Intention to Consider Cancellation (NOICC) issued by the Department on 27 October 2016, the applicant’s representative provided a copy of an email sent by his office to the Department on 3 November 2016.  That email indicated that the applicant had engaged the representative to act on his behalf (a Form 956 was attached) and requested an extension of time (5 days) to respond to the NOICC.

6. 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

7. 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 specifies that the holder must continue to be a person who would satisfy the criteria for the grant of the visa.

   Does the ground for cancellation exist?

8. The applicant provided a copy of the delegate’s decision with the application for review. It indicates that the applicant was granted a visa in subclass 573 Higher Education Sector on the basis of his enrolment in a higher education course. The applicant’s oral evidence to the Tribunal is that he was granted the visa on the basis of his enrolment in a Bachelor of Information Technology at Edith Cowan University. The primary decision record refers to PRISMS, which shows that as at 12 October 2015 the applicant was no longer enrolled in a higher education course. The delegate found that the applicant breached condition 8516 of the visa because he no longer satisfied the primary criteria as he ceased to be enrolled in a higher education course, that is, a course of study that was the principal course required by cl.573.231.

9. The Tribunal finds that courses specified for subclass 573 visas are, relevantly, higher education sector courses.  The Tribunal finds that the applicant ceased to be a person who satisfied the primary criteria because he ceased to be enrolled in, or to be the subject of an offer of enrolment in, an eligible course and he was not an eligible higher degree student.

10. The Tribunal acknowledges that the applicant was approved to enrol in a higher education sector course on 4 November 2016.  However, in the Tribunal’s view, a breach is established once the applicant ceased to be enrolled in the relevant course, despite the subsequent re-enrolment.

11. Condition 8516 requires that the visa holder must ‘continue to be a person who would satisfy the primary or secondary criteria … for the grant of the visa’. The reference to ’the visa’ in this context is to the visa which was granted and to which the condition attaches. If the applicant was granted a subclass 573 visa, the grant of the visa has been done pursuant to s.65 on the basis of the Minister’s satisfaction that the visa applicant satisfies the criteria for grant of a subclass 573 visa. The relevant criteria to be considered in relation to compliance with condition 8516 are the criteria applicable to the subclass 573 visa at the time it was granted. Clause 573.231 is relevant.

12. Condition 8516 contains a temporal requirement in the words ‘continue to be’.  Although there has been no judicial consideration of condition 8516 and the meaning of this wording, in the context of a visa condition which applied at all times while the visa is held, the tribunal is of the view that this condition must be met at all times.  The use of the term ‘would satisfy’ the criteria, suggests that it applied as if the criteria were being assessed as the time compliance with the condition is required, that is, at any time during the period of the visa.  Therefore, if the applicant ceases to be enrolled in a principal course of a kind specified for the particular subclass, in this case, a higher education course, the applicant breaches condition 8516 of the visa. 

13. The Tribunal finds that when the applicant ceased to be enrolled, or to be the subject of an offer of enrolment, in a higher education course, he ceased to be a person who would satisfy the primary criteria for the grant of the visa.  There is no evidence before the Tribunal to indicate that the applicant satisfied the secondary criteria for the grant of the visa.  As such, the Tribunal finds that the applicant breached condition 8516 of his visa. 

14. 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

15. 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’.

16. The purpose of a student visa is to enable the visa holder to undertake study in Australia.  The purpose of the Higher Education visa is to enable the visa holder to undertake study at the higher education level.  The evidence before the Tribunal indicates that the applicant completed six months of his Bachelor of Information Technology course between January and July 2015 before ceasing that study.  Although he did not pursue a higher education course after that time, the Tribunal finds that the applicant has remained engaged in studies, albeit at a vocational level, in Australia. 

17. The Tribunal has considered the circumstances in which the breach occurred in this case.  At the outset, it concerned the Tribunal that the breach in this case was for a considerable period of time.  However, on looking at the evidence provided, the Tribunal finds that the breach is ameliorated to a significant extent by the evidence and the conduct of the applicant.  At his hearing, the applicant outlined the reasons why he chose an Information Technology course and the difficulties he experienced after he commenced the course.  The applicant also presented extensive medical evidence which indicates that he suffered problems in adjusting to life in Australia and in his studies.  The evidence reflects that his GP referred him to a psychologist, who treated him over an extended period for depression and anxiety.  The applicant told the Tribunal that he naively relied on the advice of friends and enrolled in a hospitality course while he was “not feeling normal” but he did not enjoy this and his situation deteriorated further.  He said when his mental health improved, he enrolled in a Business Diploma which he has enjoyed and almost successfully completed.  The applicant told the Tribunal that he was unaware that he was in breach of condition 8516 of his visa until he received the NOICC from the Department. The Tribunal further notes that the applicant sought study rights on his bridging visa to enable him to complete his Diploma and has made application to enrol in a Bachelor of Business course to begin next month.  The Tribunal finds that all of the evidence before it indicates that the breach in this case was not beyond his control, but that the evidence and actions of the applicant indicate that he suffered psychological difficulties, attempted to take all reasonable actions to continue studying, and has demonstrated a desire to continue studying, all of which ameliorate the breach, and the Tribunal finds that the circumstances of the breach in this case do not weigh towards the visa being cancelled.  The Tribunal gives them little weight towards the visa being cancelled in this regard.

18. The Tribunal has considered the extent of compliance with visa conditions.  It is the case that he has breached condition 8516, which has given rise to the breach, and did so for a considerable period.  However, there is no evidence that the applicant has breached other conditions of his visa, and the evidence to hand such as remaining enrolled in a course of study as well as his request to be granted study rights is indicative that he wishes to study in compliance with his relevant visa conditions.  The Tribunal therefore gives this factor little weight towards his visa remaining cancelled.

19. The Tribunal has considered the degree of hardship that may be caused.  The applicant referred to the substantial amount of money that his family has invested in him.  He said that he is deeply ashamed he has not achieved what he had hoped to in the time he has already been in Australia, and that if he returns to India without completing his study, it will be very difficult for him and his family.  

20. The Tribunal has considered the past and present conduct of the visa holder towards the department.  All indications are that he has been compliant and attempted to work within the regulations, as indicated by his attempt to gain study rights on his bridging visa.  The Tribunal gives this some weight towards the visa not being cancelled.

21. There is nothing to suggest, and the applicant does not claim, that Australia’s international obligations would be breached as a result of the cancelation. 

22. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant has breached condition 8516 of his visa.  The Tribunal finds the breach to be significant, as the applicant has not undertaken the study at the level for which this visa was granted. However, the Tribunal notes that the applicant has been undertaking study since he entered Australia.  The Tribunal has formed the view that the applicant did not take adequate steps to ensure he was aware of, and complied with, the condition of his visa.  However, the Tribunal also notes that as soon as the applicant learned about the breach, he had taken steps to enrol in a higher education course.  The Tribunal accepts that the applicant will commence a bachelor course once he completes his Diploma.  The Tribunal has formed the view that the applicant is a genuine student and that he has a genuine intention of pursuing the higher education course.

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

    DECISION

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

    E
    

    Nicola Findson
    Member