Singh (Migration)

[2017] AATA 2529

Singh (Migration) [2017] AATA 2529 (6 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amrinder Singh

CASE NUMBER:  1621333

DIBP REFERENCE(S):  BCC2016/3438948

MEMBER:Tigiilagi Eteuati

DATE:6 July 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 July 2017 at 1:45pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector – Requirement to be enrolled in registered higher education course – Applicant did not maintain enrolment in a higher education course – No intention to continue higher education studies

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 8 December 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 572 Vocational Education and Training 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 22 June 2017 to give evidence and present arguments.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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 since 4 August 2014 when his enrolment in a Bachelor of Information Technology degree was cancelled. 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 Bachelor of Information Technology degree was cancelled on 4 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.

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. The applicant gave evidence that after he finished his English Language course in mid-2014 he decided that he did not wish to study information technology and wanted to study automotive courses. He said that he approached a migration agent who he told of his desire to change his course of study. The applicant said that the migration agent secured the applicant enrolment in a Certificate III in Light Vehicle mechanical Technology. He said that the migration agent also informed the applicant that he needed to obtain a subclass 572 visa as he was not permitted abandon his HE courses and to undertake the automotive VET courses that the applicant wished to undertake on his subclass 573 higher education visa. The applicant said that the agent applied for a subclass 572 visa for the applicant. However, later the application was withdrawn as the applicant said that his agent told him there was a possibility that the applicant would not be granted the subclass 572 visa.

17. Nevertheless, the applicant continued on with the vocational studies and was able to complete a Certificate III a Certificate IV and a Diploma in automotive related vocational courses. The applicant had enrolled in another vocational course, a Diploma of Business in October 2016 which was to be completed in April 2017. The Tribunal notes that, had his visa not been cancelled, it would have expired on 30 August 2017. The applicant said that once he received the Notice of Intention to Consider Cancellation he enrolled in a Bachelor of Business course in order to meet the requirements of his visa. These courses were not completed as the applicant’s visa was cancelled on 8 December 2016.

18. It is clear from the applicant’s evidence at the hearing that he knew that he required a subclass 572 visa to study the vocational courses which he took and that he would be in breach of his subclass 573 visa conditions if he ceased to be enrolled in a HE course. He had previously indicated that he was unaware of this and blamed the college where he completed his automotive courses for not informing him and the Department that the applicant was in breach of his visa conditions. As mentioned, the applicant was aware that he was in breach of his visa conditions and opted not to enrol in a HE course and to continue with the VET courses.

19. The Tribunal find that the applicant wished to spend his time in Australia completing the VET courses which he undertook and had no intention of completing a HE course during the period of his visa which was to expire in August 2017. That is clear from the fact that before receiving the NOICC the applicant had enrolled in another VET course which was to be completed in April 2017. It is evident that that the applicant could not have completed a HE course between April and August 2017 and the applicant did not enrol in a HE course until after he received the NOIC. The applicant also made it clear to the Tribunal that he was interested in the automotive VET courses which he undertook and did not appear to be interested in studying a HE course.

20. 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 is satisfied that the applicant had no intention of completing a HE course during the currency of his visa, he knew he was breaching the conditions of his visa and did not rectify the breach. He studied exactly what he wished to study and his family knew that he had abandoned his HE course to study VET courses. As the applicant’s visa was cancelled for breach of condition 8516, it appears that condition 4013 would not prevent the applicant 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 expired in August 2017.

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

    DECISION

22. The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

    Tigiilagi Eteuati
    Member