Singh (Migration)

[2017] AATA 2532

Singh (Migration) [2017] AATA 2532 (1 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mahabir Singh

CASE NUMBER:  1700501

DIBP REFERENCE(S):  BCC2016/3745299

MEMBER:Tigiilagi Eteuati

DATE:1 August 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 01 August 2017 at 4:26pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Requirement to be enrolled in registered course – Applicant not enrolled in registered course – Compassionate circumstances – Illness of family member – Death of family member – Lack of desire to study – Lack of ability to study

LEGISLATION

Migration Act 1958, s 116

Migration Regulations 1994, r 1.40A, Schedule 2, cl 573.223, 573.231, 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 3 January 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 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 18 July 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.

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 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

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 Migration Regulations 1994 between 11 March 2016 when his enrolment in a Master of Business Administration (MBA) degree with Southern Cross University was cancelled, and December 2017 when the applicant enrolled in a MBA at Holmes College. This was admitted by the applicant and accords with records held by the Department.

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 Master of Business Administration (MBA) degree with Southern Cross University was cancelled 11 March 2016 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 in September 2014 he was enrolled to study an English language course followed by a Graduate Diploma in Business and a Master of Business Administration degree. The applicant was unable to complete the English course by January 2015 as required and so re-enrolled in another English language course which he completed in May 2015. He then began his Graduate Diploma in June 2015. The applicant said that he found this course too difficult and he was depressed and stopped studying the course in late 2015. The applicant’s COE for the advanced diploma was cancelled on 9 March 2016 and his MBA COE was consequently cancelled on 11 March 2016.

17. The applicant claimed that he was unable to continue to study the graduate diploma because he was stressed because his brother was ill with alcoholism. However, the applicant said that the first that he learned that his brother had alcoholism was in mid-2016 when he was admitted to hospital. The applicant said that his brother passed away on 17 July 2016. The applicant said that before he discovered that his brother was ill he suspected from early 2016 that there were problems with his family because his mother sounded worried on the telephone. This was after the applicant had abandoned his HE course in late 2015.

18. The applicant said that he started a Certificate IV in Commercial Cookery in March or April 2016 which he completed in March 2017. Thus despite claiming that he could not successfully study because he was upset at his brother’s illness and passing in 2016, he was able to complete the commercial cookery course which he undertook between 2016 and 2017.

19. The applicant said that when he knew that he was required to maintain enrolment in HE courses when he ceased enrolment in those courses and decided to undertake the vocational cookery course. Before his visa was cancelled his visa was due to expire in March 2017 and yet the applicant did not re-enrol in an HE course until after he received the Notice of Intention to Consider Cancellation (NOICC) on 12 December 2016.

20. The Tribunal raised its concern that given the applicant’s poor academic performance in Australia he may not have the ability to successfully undertake a higher education course in Australia. The Tribunal also raised its concern that given that the applicant decided to withdraw from his HE courses before he found out about his brother’s illness and instead undertake a vocational cooking course, the applicant may not have the desire to undertake HE courses in Australia. The applicant said that he dropped out of the HE courses because he was depressed and the courses were too difficult. He said that he took the commercial cookery course because he wanted to start a restaurant in India. He said that if he were granted another visa he would enrol in an MBA because he needed to know more about business in order to run a restaurant in India.

21. The Tribunal indicated that, as his visa would have already expired had it not been cancelled and as his visa was cancelled for breach of condition 8516, the only utility of the application before the Tribunal appeared to be that if the applicant was successful, he would be able to apply for a further visa onshore whereas if he was unsuccessful, he would have to apply for a further visa offshore. The applicant’s representative conceded that this was the case. The applicant said that he did not wish to apply offshore because his parents would discover that he had been untruthful to them. He said that his parents did not know that he had abandoned his HE courses and taken the cookery course.

22. Given the applicant’s poor academic performance in the past the Tribunal finds that the applicant does not have the ability to successfully undertake higher education courses in Australia. The Tribunal finds that the applicant’s failure to seek medical assistance for his depression suggests that the applicant’s depression persists and would affect his ability to study successfully in the future. The Tribunal acknowledges that the applicant was able to complete one vocational course in commercial cookery but considers that this is insufficient to convince the Tribunal that the applicant could successfully undertake higher education courses in Australia. 

23. The Tribunal finds that, given that the applicant failed to even remain enrolled in a HE course when he knew that this was a condition of his visa, the applicant does not have the desire to study at a higher education level in Australia.

24. The Tribunal is willing to accept that the applicant and his family members may experience disappointment that the applicant’s visa was cancelled before he was able to complete any higher education courses in Australia. However, the Tribunal accepts that the applicant would not be prevented from applying for another student visa for any period of time if his visa remains cancelled. In fact, it appears that the only practical benefit of succeeding in the application before the Tribunal is that the applicant would be able to apply for a further student visa onshore whereas he would have to make the application offshore if his visa remained cancelled. Even if his visa was not cancelled it would have already expired in March 2017. It was the applicant’s responsibility to abide by the conditions of his visa and to understand the consequences of failing to abide by the conditions of his visa.

25. In any event, the Tribunal finds that the applicant’s lack of desire and ability to successfully undertake higher education 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 Subclass 573 Higher Education Sector visa.

    Tigiilagi Eteuati
    Member