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

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
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.
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.
The applicant appeared before the Tribunal on 15 May 2019 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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
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?
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Sran (Migration) [2019] AATA 3881
Case: [2019] AATA 3881
Decision Date: 12 June 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of a Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector, held by the applicant. The dispute arose because the applicant ceased enrolment in a registered Higher Education course and subsequently changed to vocational courses, which the delegate determined breached a condition of their visa.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) existed, specifically whether the applicant had complied with condition 8516 of their visa. This condition mandates that a visa holder must continue to satisfy the primary criteria for the grant of their visa. The Tribunal also had to consider whether, in the exercise of its discretion, the visa should be cancelled, having regard to all relevant circumstances.

The Tribunal reasoned that condition 8516 required the applicant to maintain enrolment in a course that met the criteria for their Subclass 573 visa. The applicant’s visa required enrolment in a principal course within the higher education sector, which could include a Higher Education Diploma. However, the applicant enrolled in a Diploma of Hospitality with a provider not listed as an eligible education provider under the relevant instrument. Therefore, the Tribunal found that the ground for cancellation under s 116(1)(b) was established. In considering the exercise of discretion, the Tribunal noted the applicant's original purpose of study, the fundamental breach of visa conditions, and the limited hardship claims made by the applicant. While acknowledging the potential hardship, the Tribunal found no compelling reason to retain the visa, particularly given the applicant's failure to provide satisfactory reasons for the change in study and the fact that the vocational qualifications obtained could be pursued further.

Consequently, the Tribunal affirmed the decision to cancel the applicant’s Subclass 573 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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? 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. 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. 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. 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. 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. 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.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelledDECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.Wendy BanfieldMember

Ratio Decidendi

Legal Principle Established

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