Singh (Migration)

[2017] AATA 2340

Singh (Migration) [2017] AATA 2340 (8 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harmanpreet Singh

CASE NUMBER:  1621766

DIBP REFERENCE(S):  BCC2016/3438124

MEMBER:Tigiilagi Eteuati

DATE:8 November 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 08 November 2017 at 7:45pm

CATCHWORDS

Migration – Cancellation - Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Failure to comply with conditions of visa – Cancellation of enrolment – Lack of desire to maintain required enrolment

LEGISLATION

Migration Act 1958, s 116

Migration Regulations 1994, r 1.40A, Schedule 2, cl 573.223, cl 573.231, Schedule 4, PIC 4013, Schedule 8, Condition 8516

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 13 December 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 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 7 November 2017 to give evidence and present arguments.

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

5. 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

6. 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?

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 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.

8. 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).

9. 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

   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.”

10. 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

11. 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).

12. 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 20 April 2015 when his enrolment in a Bachelor of Business was cancelled. This is consistent with the records held by the Department and was conceded by the applicant. The applicant re-enrolled in a Bachelor of Business degree on 9 December 2016 after he had received the Notice of Intention to Consider Cancellation (NOICC) from the Department. A copy of the delegate’s decision was provided to the Tribunal by the applicant.

13. 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 Bachelor of Business was cancelled on 20 April 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.

14. 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

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. When the applicant arrived in Australia he was enrolled in a Certificate IV in Business to be followed by a Diploma in Business and a Bachelor of Business. He said that he was unable to complete the Certificate IV by the end of 2014 when the course was supposed to be completed. He said that he spent two weeks in India at the end of 2014 and when he returned his education provider did not let him complete his Certificate IV as he had not fully paid his tuition fees. He said that his enrolment in the Diploma and Bachelor degree courses were cancelled in consequence. His enrolment in the Bachelor degree was cancelled on 20 April 2015 and he was in breach of condition 8516 from that date.

17. The applicant said that he approached a migration agent, whose name he could not remember, who advised him that he did not need to maintain enrolment in a HE course so long as he enrolled in a HE course before his visa expired.

18. The applicant then enrolled in a Diploma and Advanced Diploma in Business and a Diploma and Advanced Diploma in Marketing at a new education provider. He said that within two weeks of starting the Diploma of Business he withdrew from all four courses as he said they were too difficult. He then enrolled in a Certificate IV in Commercial Cookery to be followed by a Diploma of Hospitality. The applicant completed the cookery course in mid-2016 and began the hospitality course in August 2016. He was sent a Notice of Intention to Consider Cancellation (NOICC) by the Department on 25 November 2016 and his visa was cancelled on 13 December 2016. He enrolled in a Bachelor of Business degree course on 9 December 2016 after he had received the NOICC.

19. The Tribunal raised its concern that, as the applicant had failed to remain enrolled in a HE course and had instead decided to fill the time he had on his visa by undertaking VET courses, the applicant may not have the will or desire to successfully undertake HE course in Australia. The applicant said that he always had the intention of enrolling in a bachelor’s degree course after he had completed the hospitality course and that he had been misled by the unnamed migration agent into believing that he was not required to maintain enrolment in a HE course.

20. The Tribunal raised its concern that because the applicant had been unable to complete a Certificate IV in Business and then withdrew from a Diploma of Business after less than two weeks because he found it too difficult, the applicant may not have the ability to successfully undertake a HE course in Australia. The applicant said that he had not really applied himself in the past and that he was now confident that he would be able to successfully complete a degree course.

21. The applicant indicated that he would suffer hardship if his visa was cancelled because he would be prevented from applying for a visa for three years. The Tribunal indicated that it did not appear that PIC 4013 applied to visas cancelled under section 116 for a breach of condition 8516.

22. The Tribunal finds that the applicant’s breach of condition 8516 is a serious one and that this weighs in favour of cancellation of his visa.

23. The Tribunal finds that the applicant does not have the desire or the ability to successfully undertake a HE course in Australia. His lack of desire to undertake a degree course is evidenced by his failure to remain enrolment in a HE course and that he instead decided to fill the time he had on his visa by undertaking VET courses. The applicant’s inability to successfully undertake a HE course is evidenced by his inability to complete a Certificate IV in Business and then his withdrawal from a Diploma of Business after less than two weeks because he found it too difficult.

24. The Tribunal is willing to accept that the applicant and his family members may experience minor disappointment that the applicant’s visa was cancelled before he was able to complete a course in Australia. However, even if his visa had not been cancelled it would have expired in August 2017 and his student visa will not be restored whether or not the cancellation decision is set aside. The only apparent benefit to the cancellation decision being set aside is that the applicant would be able to apply for another visa onshore, whereas if the decision is affirmed he will have to apply offshore. It does not appear that the applicant would be subject to any bar on applying for another visa offshore.  The Tribunal notes that, even if the applicant was prevented by PIC 4013 from reapplying for another visa for three years, the Tribunal would have still affirmed the decision.

25. The Tribunal finds that the applicant’s serious breach of conditions 8516 and the applicant’s lack of desire and ability to successfully undertake HE courses in Australia heavily outweighs any hardship that he or his family members may face because of the cancellation of the applicant’s visa.

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

    DECISION

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

    Tigiilagi Eteuati
    Member