SINGH (Migration)

[2017] AATA 1257

SINGH (Migration) [2017] AATA 1257 (6 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MANBIR SINGH

CASE NUMBER:  1615917

DIBP REFERENCE(S):  BCC2016/2461505

MEMBER:Tigiilagi Eteuati

DATE:6 August 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 06 August 2017 at 6:21pm

CATCHWORDS

Migration – Cancellation – Subclass 573 Higher Education Sector visa – Enrolment in registered course – Enrolment in higher education course cancelled – Enrolment in VET course – Car accident – Attempts to re-enrol in higher education course

LEGISLATION

Education Services for Overseas Students Act 2000

Migration Act 1958, s 116

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

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 26 September 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 11 May 2017 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 set aside.

   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.

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

   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 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); and

   ·      Associate Degree 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 Migration Regulations 1994 when his enrolment in a Bachelor of Information Technology degree with QUT was cancelled on 11 August 2014. This was admitted by the applicant and accords with records held by the Department.

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 Bachelor of Information Technology degree with QUT was cancelled on 11 August 2014 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. The applicant arrived in Australia on 28 January 2014. When he arrived he was enrolled in an English course followed by a Diploma of Information Technology and a Bachelor of Information Technology. He completed the English course in June 2014. He decided he did not want to study information technology (IT) and abandoned his IT courses. His enrolment in his Diploma of IT was cancelled in July 2014 and his enrolment in the Bachelor of IT was consequently cancelled on 11 August 2014.

16. The applicant knew that in order to meet the criteria for his subclass 573 visa he was required to be enrolled in a HE course. However, he abandoned his enrolment in a Bachelor of IT and on 12 August 2014 he enrolled in four VET level diploma courses with the New England Institute of Technology (NEIT); a Diploma of Management; Diploma of Business; Advanced Diploma of Management; and Advanced Diploma of Business. He abandoned all of these courses and the COEs were cancelled in September 2014. He then enrolled in two further VET courses at American College, a Diploma of Business and an Advanced Diploma of Business. He completed the Diploma course in May 2015 and the Advanced Diploma in January 2016.

17. The applicant then commenced a Bachelor of Business degree  with Alphacrucis College at the end of February 2016. He said that in April 2016 he had travelled to Tasmania to visit family friends. He said that he was injured in a car accident on 11 April 2016. He provided the Tribunal with a medical certificate which indicated that he was unfit to work from 19 April to 29 April 2016. The applicant claimed that he attempted unsuccessfully to have his study deferred for 3 months. He said that he also attempted to transfer to the Tasmanian campus of Alphacrusis but they did not allow him to do so and he decided to withdraw his enrolment.

18. The applicant then sought representation from a migration agent and enrolled in a Diploma of Leadership and Management with Gurkhas Institute of Technology. The applicant provided evidence of communications between him and his migration agent which indicated that the applicant had tasked the migration agent to enrol him in a Bachelor degree course.

19. The Tribunal considers that the applicant was responsible for meeting the conditions of his visa and remaining enrolled in a HE course. That the applicant failed to remain enrolled in a HE course from August 2014 until February 2015, especially when the applicant knew that he was required to remain enrolled in a HE course weighs in favour of the exercise of the discretion to affirm the cancellation of his visa.

20. However, the applicant has not remained idle in Australia. He completed his English language course and then completed a Diploma and Advanced Diploma in Management. He then began a Bachelor of Business Degree. It appears that if he had not been injured in a car accident he would have been likely to have finished that course. After his enrolment in the Bachelor degree course was cancelled, the applicant enrolled in further studies and it is clear that he was trying to re-enrol in a HE course before he received the Notice of Intention to Consider Cancellation (NOICC) in September 2016. In these circumstances, the Tribunal considers that the applicant should be given the opportunity to undertake a HE course. The Tribunal notes that, should the applicant be granted another subclass 473 visa, he is now clearly on notice that he is required to remain enrolled in a HE course and a failure to do so is likely to result in the cancellation of his visa.

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

    Tigiilagi Eteuati
    Member