Singh (Migration)

[2017] AATA 2807

Singh (Migration) [2017] AATA 2807 (3 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chanvir Singh

CASE NUMBER:  1620876

DIBP REFERENCE(S):  BCC2016/3381550

MEMBER:Tigiilagi Eteuati

DATE:3 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 03 July 2017 at 1:33pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Enrolment in a Higher Education course – Enrolment cancelled – Lack of academic progress – Applicant changed into Vocational courses

LEGISLATION

Education Services for Overseas Students Act 2000

Migration Act 1958, s 116

Migration Regulations 1994, Schedule 2 cl 573.223, 573.231, r 1.40A

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 29 November 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 failed to appear at the hearing before the Tribunal on 3 July 2017.

4. 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

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 since 12 May 2015 when his enrolment in a Bachelor of Information Technology degree course with QUT was cancelled. 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 the Bachelor of Information Technology degree was cancelled on 12 May 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. Although the applicant did not attend the hearing he sent an email to the Department on 9 November 2016 in response to the Notice of Intention to Consider Cancellation (NOICC).

16. The applicant arrived in Australia in April 2014 and completed an ELICOS course that year. When he arrived, in addition to the ELICOS course, the applicant was enrolled in a Diploma of Information Technology and a Bachelor or Information Technology. He began studying a Diploma of Information Technology in 2015 and continued studying the course for two and a half months. He claimed that he found the course very difficult and was failing the course. The applicant said that he changed courses and enrolled in a Diploma of Management VET course at the New England Institute of Technology which he completed in December 2015. He was then enrolled in an Advanced Diploma of Management VET course but changed to an Advanced Diploma of Leadership and Management VET course which was due to be completed on 13 November 2016. Had the applicant’s visa not been cancelled in November 2016 it would have expired in March 2018.

17. The applicant claimed that he was unaware that he had breached the conditions of his visa by ceasing his enrolment in his HE course and undertaking VET courses.

18. The Tribunal finds that it was the applicant’s responsibility to be aware of the conditions of his visa and to comply with those conditions. When the applicant found that the IT courses he was undertaking were too difficult for him and he wanted to change courses, he had every opportunity to seek advice from a migration agent to ensure that he was complying with the conditions of his visa. The applicant did not do so and instead abandoned the courses for which his visa was approved and enrolled in VET courses in breach of his visa conditions. The applicant went on to complete a Diploma of Management VET course.

19. The fact that the applicant failed to attend the hearing of his application before the Tribunal raises the concern that the applicant does not have the desire to successfully complete a HE course in Australia.

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 registered courses in Australia. The Tribunal has also considered that, as the applicant’s visa has been cancelled, he may have to wait for some time to be granted another visa in Australia. However, these difficulties are of the applicant’s own making. The applicant had every chance to study the courses for which he was sent to study and did not do so.

21. In any event, the Tribunal finds that the applicant’s lack of desire 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.

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

    DECISION

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

    Tigiilagi Eteuati
    Member