Tanveer Singh (Migration)

[2017] AATA 2430

Tanveer Singh (Migration) [2017] AATA 2430 (30 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tanveer Singh

CASE NUMBER:  1701219

DIBP REFERENCE(S):  BCC2016/4220827

MEMBER:Tigiilagi Eteuati

DATE:30 October 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 30 October 2017 at 10:54am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (TU) visa – Subclass 573 Higher Education Sector – Enrolment for study cancelled – Lack of will to successfully undertake HE courses – No evidence provided – Did not appear at hearing

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2, cl 573.223(1A), cl 573.231, IMMI14/015, 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 19 January 2017 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. A hearing for this matter was listed at 10 am on 30 October 2017 but the applicant failed to attend the hearing.

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 (regulations).

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 [comment: or in the present case a Masters 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 currently 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);

   ·      Associate Degree; and

   ·     Masters by Coursework

10. 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 regulations since 11 August 2015 when his enrolment in a Bachelor of Business Studies with Kaplan Business School (Kaplan) was cancelled. A copy of the delegate’s decision was provided to the Tribunal by the applicant.

11. The date of cancellation of enrolment in a course at Kaplan is consistent with the records held by the Department although it is noted that the applicant was enrolled in a Master of Business Administration degree at Kaplan that was cancelled on 11 August 2015, not a Bachelor degree.

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 11 August 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. Since the applicant did not appear at the hearing, there is very little information from the applicant. This is especially so seeing that the applicant provided no substantive response to the Notice of Intention to Consider Cancellation (NOICC) provided to him on 4 January 2017. On 10 January 2017, the applicant sent an email to the Department requesting further time to respond to the NOICC. The applicant was granted additional time to respond with any response due on 18 January 2017. No further response was received from the applicant.

16. Tribunal finds that the applicant’s failure be enrolled in an acceptable subclass 573 visa course since 11 August 2015, his failure to provide a substantive response to the NOICC and his failure to attend the hearing before the Tribunal evidence a lack of will or desire to study an acceptable subclass 573 visa course in Australia.

17. The Tribunal is willing to accept that when the applicant originally came to Australia on his subclass 573 visa that he intended to study a higher education course in Australia. 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 his courses in Australia. The Tribunal has also considered that, as the applicant’s visa has been cancelled, he will have to depart Australia before being able to make another application for a student visa. The Tribunal notes that it does not appear that any exclusion period for making an application applies to the applicant.

18. The Tribunal finds that the applicant’s lack of will to successfully undertake HE courses in Australia heavily outweighs any hardship that he or his family members may face because of the cancellation of the applicant’s visa.

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

    DECISION

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

    Tigiilagi Eteuati
    Member