SOHI (Migration)

[2017] AATA 2531

SOHI (Migration) [2017] AATA 2531 (31 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SANDEEP SINGH SOHI

CASE NUMBER:  1700159

DIBP REFERENCE(S):  BCC2016/3452794

MEMBER:Tigiilagi Eteuati

DATE:31 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 31 July 2017 at 2:10pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Requirement to be enrolled in a registered course – Applicant not enrolled in registered course – Failure to meet English requirements – Multiple vocational courses undertaken - Lack of will or ability to study a higher education course

LEGISLATION

Migration Act 1958, s 116

Migration Regulations 1994, r 1.40A, Schedule 2, cl 573.223, cl 573.231, Schedule 8, Condition 8202, 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 29 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 on 20 July 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 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 16 February 2015 when his enrolment in a Master of Business Administration degree course with Southern Cross University 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 Master of Business Administration degree was cancelled on 16 February 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. The applicant arrived in Australia in July 2014. He was to begin a Master of Business Administration (MBA) degree in October 2014 after he had completed the English language course. However, he was unable to pass the English Language course by December 2014 and gave up trying to complete the course. His MBA enrolment was cancelled on 16 February 2015 and he enrolled in various Business related vocational diplomas from. April 2015. The fact that he was not enrolled in a registered course from February 2015 to April 2015 meant that the applicant was also in breach of condition 8202. He completed Diplomas in Management and Business and was enrolled in a further Advanced Diploma of Business when his visa was cancelled on 29 December 2016. If his visa had not been cancelled it would have expired on 28 March 2017.

16. The applicant provided the Tribunal with evidence that he graduated with a Bachelor of Business Administration in India in 2013. He also provided evidence that he completed an IELTS test in 2013 in which he scored 5.5. He provided evidence that he scored 5.0 in an IELTS test in January 2017.

17. The Tribunal put to the applicant its concern that, given the applicant’s inability to pass the English Language requirements for entry into an MBA and instead being enrolled in a number of business related Diplomas, the applicant may not have the desire or the ability to study a HE course in Australia. The Tribunal also indicated that it was concerned that the applicant may not be a genuine student as he has been enrolled in Diploma level courses in business when he already held a Bachelor’s degree in business.

18. The applicant stated that he wanted a chance to enrol in a MBA program and if his visa cancellation were set aside he would apply for another visa in order to enrol in a MBA program.

19. The Tribunal finds that the applicant does not have the will or the ability to successfully study a HE course in Australia. He was unable to successfully complete the requisite English language course for entry into an MBA course and this evidences his inability to successfully undertake a HE course in Australia. The fact that the applicant gave up trying to meet the English requirements after six months and instead enrolled in a number of Diploma level vocational courses in business and management in circumstances where he already held a bachelor’s degree in business, indicates that the applicant does not have the desire to successfully undertake a HE course in Australia. In addition, before his visa was cancelled, he was enrolled in an Advanced Diploma vocational course which was to be completed in April 2017 after his visa was to expire in March 2017. There was no indication, before the cancellation of the applicant’s visa, that he was trying to enrol in an MBA course. In addition, it appeared that his English language skills were actually deteriorating as he scored a 5 in an IELTS test in 2017 whereas he has previously scored 5.5 in 2013. The applicant indicated that he needed to score 6 for admission to an MBA 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 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 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.

21. 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.

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