Sran (Migration)

[2019] AATA 3881

Sran (Migration) [2019] AATA 3881 (12 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harwinder Singh Sran

CASE NUMBER:  1703001

HOME AFFAIRS REFERENCE(S):           BCC2016/4299970

MEMBER:Wendy Banfield

DATE:12 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 12 June 2019 at 3:59pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered Higher Education course – applicant ceased enrolment – applicant changed to Vocational courses – decision under review affirmed     

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2 cls 573.111, 573.231; Schedule 8; Condition 8516

CASES

Singh v MIBP [2016] FCA 679          

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 February 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

   Background

2. The applicant is a citizen of India and is currently 25 years old. He came to Australia in 2014 to undertake a course of study leading to a Bachelor degree. The applicant discontinued his enrolment in an eligible course of study and decided to pursue vocational qualifications instead. He applied to change his visa type to allow for the changed of directions but withdrew the application. The applicant did not comply with the terms of his original Student Visa by failing to maintain enrolment at the required level. 

3. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with condition 8516. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 15 May 2019 to give evidence and present arguments.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

6. 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

7. 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?

8. A visa may be cancelled under s.116(1)(b) if the Minister 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 the visa holder to continue to be a person who would satisfy the primary criteria for the grant of the visa.

9. The applicant’s representative claimed in a written submission dated 10 May 2019 that the applicant had not breached condition 8516 because the Diploma of Hospitality he was completed on 4 September 2017 met the criteria of a higher education course in accordance with the relevant instrument.

   Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

10. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant met cl.573.231 if they were not an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student.

11. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a bachelor’s degree, master’s degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. The relevant instrument specifying education providers as eligible education providers for this visa was IMMI 13/124.

12. To satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application. ‘Principal course’ is defined in r.1.40. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 12/037.

13. The applicant was required to study in the higher education sector which in accordance with the relevant instrument could include a ‘Higher Education Diploma.’ However, the applicant enrolled in a vocational Diploma of Hospitality with Australian Academy of Management and Science. This provider is not an eligible education provider or eligible business partner listed in IMMI 13/124.

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 visa should be cancelled.

    Consideration of discretion

15. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    ·     the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

16. The Tribunal is satisfied that the applicant’s original purpose in travelling to and staying in Australia was to study.

17. The applicant did not make specific claims regarding any compelling need to remain in Australia in writing or at the hearing, however, he advised he has now enrolled in a Bachelor of Accounting and has four semesters remaining. He said after that he plans to return to his home country and wants to get a white collar job which will be good for his future.

18. The Tribunal assessed this evidence in considering whether the discretion to cancel the visa should be exercised. The applicant’s submissions refer to his current enrolment which he started despite having obtained qualifications in cookery and hospitality. While the applicant is now undertaking studies in higher education, he did not provide any satisfactory reason for this apart from deciding he now wants a white collar job. The applicant’s evidence does not demonstrate a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia. 

    ·     the extent of compliance with visa conditions

    The applicant failed to maintain enrolment at study at the level required by the conditions of his Student Visa which is a fundamental breach of a student visa and weighs against the applicant in this case.

    ·     degree of hardship that may be caused (financial, psychological, emotional or other hardship)

19. During the course of the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. In response the applicant said only that he would lose his future and it would be hard. The Tribunal acknowledges the cancellation of the visa may cause a degree of hardship and would mean that the applicant would not be able to continue to study in Australia. The Tribunal has given some weight in favour of the applicant in this regard, however, the Tribunal notes the applicant has completed vocational skills in hospitality that he could pursue further if he chose to.

20. The Tribunal is takes into account that the cancellation of the visa means the applicant would have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, this is an intended consequence of the legislation and does not weigh in favour of the applicant in the Tribunal’s discretion to cancel the applicant’s visa.

    ·     circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

21. The applicant’s visa was cancelled because he did not continue to be a person who would satisfy the primary criteria for the grant of the visa. The applicant claimed he had been enrolled in courses at TAFE leading to a Bachelor degree at the University of Western Sydney. He said he did not start the course because he was new in Australia and did not know about studying in Australia. The applicant said he enrolled in different courses instead. According to the applicant he did begin with an English course but he found it hard and did not go on with his studies at TAFE. The applicant said he applied for a Subclass 572 visa but because there was an issue with funds being in his mother’s name, he withdrew it. 

22. The applicant went ahead and enrolled in a Certificate III and IV in Commercial Cookery and a Diploma of Hospitality in 2015 despite still holding a Subclass 573 visa, completing them in 2017. The applicant claimed the courses were full-time and met the criteria of higher education. The Tribunal explained to the applicant that they were vocational courses and did not meet the requirements of his visa subclass.  The applicant said he enrolled in a Bachelor degree again in 2017, after finishing his Diploma of Hospitality but his visa had been cancelled by that time.   

23. The Tribunal has considered the circumstances in which the grounds for cancellation arose and finds that by seeking to change his study program and visa class, the applicant demonstrated he was aware the courses he planned to enrol in may not meet the requirements of the visa he held. After withdrawing his application for a Subclass 572 visa which would have allowed him to study at a lower level, the applicant proceeded to undertake vocational and training courses anyway. It was only after his visa was cancelled that the applicant re-enrolled in higher education.

    For these reasons, the Tribunal finds the circumstances in which the cancellation arose as submitted by the applicant weigh against him in relation to the Tribunal exercising its discretion to cancel the applicant’s visa.

    ·     past and present behaviour of the visa holder towards the department

    There is no evidence to indicate the applicant has not cooperated with the Department and the Tribunal has given this some weight in favour of the applicant.

    ·     whether there would be consequential cancellations under s.140

24. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

25. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequence of the legislation and do not weigh in favour of the applicant in the Tribunal’s discretion to cancel the applicant’s visa.

    ·     whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

26. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations including non-refoulement and the best interests of children.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

27. The Subclass 573 Student Visa is not a permanent visa.

    ·     any other relevant matters

    The student visa program in Australia enables people who are not Australian citizens or permanent residents to undertake study in Australia. The applicant remained onshore for an extended period without being enrolled in an approved higher educational course of study which was the purpose for which the visa was granted. The applicant enrolled in vocational courses in breach of visa conditions for an extended period. The Tribunal finds this weighs against the applicant in the Tribunal’s assessment of whether to exercise the discretion to cancel the visa.

    Conclusion

28. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh heavily against the applicant. The Tribunal finds the length of time the applicant has spent in Australia having breached his visa conditions to be significant. The Tribunal considers it appropriate in this case to exercise the discretion to cancel the visa.

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

    DECISION

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

    Wendy Banfield
    Member