Singh (Migration)

[2017] AATA 2330

Singh (Migration) [2017] AATA 2330 (6 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jassi Singh

CASE NUMBER:  1622226

DIBP REFERENCE(S):  BCC2016/3186643

MEMBER:Tigiilagi Eteuati

DATE:6 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 06 November 2017 at 10:18pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Enrolment in degree course cancelled – Not enrolled in a specified course – No intention to study degree course – Vocational course – Ability to pay higher education tuition fees

LEGISLATION

Migration Act 1958, ss 116(1)(b), 116(3)

Migration Regulations 1994, Schedule 2, cl 573.223(1A), cl 573.231, IMMI14/015, r 1.40A, PIC4014

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 20 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 by video on 6 November 2017 to give evidence and present arguments.

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

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. 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 11 August 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 6 December 2016 after he had received the Notice of Intention to Consider Cancellation (NOICC) from the Department on 1 December 2016. 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 Bachelor of Business was cancelled on 11 August 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’.

15. When the applicant arrived in Australia on 21 August 2014 he was enrolled in an English language course to be followed by Certificate IV in Business, a Diploma of Business and a Bachelor of Business. He completed the English course but failed the Certificate IV in Business. He said that the new environment and different teaching methods contributed to his failure to pass the course. His enrolment in the diploma and bachelor courses were consequently cancelled. His enrolment in the bachelor course was cancelled on 11 August 2015. The applicant was in breach of condition 8516 from that date.

16. The applicant then enrolled in a Diploma of Business and an Advanced Diploma of Business with a different education provider. He says he completed both courses, completing the Advanced Diploma in November 2016. In November 2016 the applicant enrolled in a Certificate IV in Commercial Cookery which was to be completed in February 2018. After he received the NOICC on 1 December 2016, he enrolled in a Bachelor of Business degree on 6 December 2016.

17. The applicant said that it would be hard for him to return to India without completing his Bachelor degree as his parents had moved to Spain and he had nowhere to stay. The Tribunal pointed out that it appeared that this would be the case whether or not he completed a degree in Australia and the applicant agreed. The applicant had previously indicated that his family had spent a great deal of money to support him in Australia and that he wanted to provide for them in their old age.

18. The Tribunal raised with the applicant its concern that the applicant had breached the condition of his visa to remain enrolled in a higher education course, that is his Bachelor of Business course. The applicant said that he had not realised that he was required to maintain enrolment in a degree course until he received the NOICC. He said that his friends had advised him on the courses he should take and that he knew a number of other people who held subclass 573 visas who did not maintain enrolment in degree courses.

19. The Tribunal raised with the applicant its concern that, because the applicant did not maintain enrolment in a degree course and instead enrolled in two diploma courses and after completing these courses enrolled in a cookery course instead of a degree course, the applicant may not have the desire to undertake a higher education course in Australia. The Tribunal indicated that the cookery course was to be completed in February 2018 and, if his visa was re-enlivened, it would expire in March 2018. In addition, the applicant had given evidence that he intended to complete the cookery course if his visa were re-enlivened. The Tribunal indicated that this may give further weight to the view that the applicant had no intention of studying a higher education course during the currency of his visa. The applicant said that he wished to open a restaurant in India and felt that he would be well served by completing the cookery course but that he intended to begin a degree course after he had completed the cookery course and applied for another student visa in 2018.

20. The Tribunal raised its concern that, because the applicant said that his parents had not paid his tuition fees for his previous courses, that he may not have the ability to successfully undertake a HE course in Australia as he may not be able to pay for his fees by working 20 hours a week. The applicant said that since his visa was cancelled he had been financially supported by a friend. The applicant said that he understood that a degree course would cost approximately $12,000 a semester. He said that if his visa was re-instated that he would pay for his fees by working 20 hours a week and that his parents would send money to assist. The applicant’s representative indicated that the applicant would also be assisted by the Indian community in Australia and that the applicant’s ability to source funds for tuition had been evidenced by his ability to pay for his studies in the past and his payment of $4000 towards his Bachelor of Business degree.

21. The Tribunal has found that the decision to cancel the applicant’s visa should be affirmed. The Tribunal considers that the applicant’s breach of condition 8516 is significant and weighs in favour of cancellation. The Tribunal understands the applicant’s claim that he was not aware that he was required to maintain enrolment in a degree course until he received the NOICC. However, this does not excuse the breach of the condition.  It was the applicant’s responsibility to know the conditions of his visa and to ensure that he met those conditions.

22. Secondly, the Tribunal finds that the applicant’s failure to enrol in another degree course from August 2015 until after he received the NOICC and to instead enrol in a number of vocational courses which would have filled the entire period of his visa, strongly indicate that the applicant had no intention of undertaking a degree course during the currency of his visa and suggest that he does not have the desire to successfully undertake a degree course in the future.

23. Thirdly, the Tribunal considers that there is real doubt as to whether the applicant will be able to pay for his tuition fees for a degree course by working 20 hours a week and receiving money from his parents. He said that his parents did not pay for his tuition fees for previous courses and that they are not currently supporting him. Rather, a friend is financially supporting the applicant. The serious doubt that the applicant will be able to pay for his tuition fees weighs in favour of cancellation of his visa.

24. The Tribunal is willing to accept that the applicant and his family members will feel disappointment that the applicant’s visa was cancelled before he could complete any degree courses. The Tribunal also accepts that the applicant may not be able to apply for another visa for 3 years because of PIC 4014. However, the applicant decided to spend his time in Australia undertaking vocational courses on a visa which was issued so that he could undertake a degree course. He has completed 2 vocational courses. In addition, it is not immediately apparent why the applicant needs a Bachelor of Business degree to open a restaurant business in India. He has 2 business diplomas and could learn the practical aspects of the business in India. In addition, no compelling reason was proffered as to why the applicant could not continue his studies in India if he chose to do so.

25. In any event, the Tribunal considers that the considerations outlined above which support cancellation of the applicant’s visa outweigh any hardship to the applicant and any other considerations against cancellation.

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 Subclass 573 Higher Education Sector visa.

    Tigiilagi Eteuati
    Member