Thomas (Migration)

[2018] AATA 810

Thomas (Migration) [2018] AATA 810 (21 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaison Thomas

CASE NUMBER:  1708537

DIBP REFERENCE(S):  BCC2016/4313766

MEMBER:Christine Kannis

DATE:21 February 2018

PLACE OF DECISION:  Perth

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

Statement made on 21 February 2018 at 6:59 am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) –Withdrew from Masters course – Enrolled in Diploma courses – Financial hardship – Wife and child – Ceased to be enrolled in a higher education sector course – Members of the same family unit

LEGISLATION
Migration Act 1958, ss 116, 140, 359AA
Migration Regulations 1994 r 140A Schedule 2 cl 573.231 Schedule 8 Condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 April 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 issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 13 February 2018 to give evidence and present arguments. The Tribunal also received evidence from the applicant’s wife, Ms Neema Ittiaira.

4. The Tribunal was assisted by an interpreter (by telephone) in the Malayalam and English languages.

5. 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

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. 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?

7. On 17 February 2016 the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8516 attached. 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 this case it was a criterion for the grant of the applicant’s visa that he was enrolled in, or the subject of a current offer or enrolment in a principal course of a kind specified for that subclass by the Minister in an instrument under r.140A that was in effect at the time of the visa application: cl 573.231.

8. Information from the Provided Registration and International Student Management System (PRISMS) shows that the applicant’s enrolment in a Master of Public Health course was cancelled on 24 October 2016. The reason was stated to be “Student Notifies Cessation of Studies”.

9. On 4 April 2017 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) on the basis that the delegate considered that the applicant did not comply with condition 8516 of his visa, because he ceased to be enrolled in a higher education sector course. The applicant provided an undated written response to the NOICC in which he advised that he had enrolled in a Bachelor course and that it was his principal course of study. The applicant enrolled in a Bachelor of Business on 10 April 2017 and a Confirmation of Enrolment (CoE) from Christian Heritage College was provided when he responded to the NOICC. The course is due to commence on 19 July 2018.

10. The applicant was not enrolled in a higher education sector course for a period of six months and 17 days, from 24 October 2016 until 10 April 2017.

11. Condition 8516 contains a temporal requirement in the words ‘continue to be’.  Although there has been no judicial consideration of condition 8516 and the meaning of this wording, in the context of a visa condition which applied at all times while the visa is held, the Tribunal is of the view that this condition must be met at all times.  The use of the term ‘would satisfy’ the criteria, suggests that it applied as if the criteria were being assessed as the time compliance with the condition is required, that is, at any time during the period of the visa.  Therefore, if the applicant ceases to be enrolled in a principal course of a kind specified for the particular subclass, in this case, a higher education course, the applicant breaches condition 8516 of the visa. 

12. The Tribunal acknowledges that the applicant was approved to enrol in a higher education sector course on 10 April 2017.  However, in the Tribunal’s view, a breach is established once the applicant ceased to be enrolled in the relevant course, despite the subsequent re-enrolment.

13. The Tribunal finds that when the applicant ceased to be enrolled, or to be the subject of an offer of enrolment, in a higher education sector course, he ceased to be a person who would satisfy the primary criteria for the grant of the visa.  There is no evidence before the Tribunal to indicate that the applicant satisfied the secondary criteria for the grant of the visa.  As such, the Tribunal finds that the applicant breached condition 8516 of his visa. 

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 power to cancel the visa should be exercised.

    Consideration of discretion

15. 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’.

16. The applicant told the Tribunal that he came to Australia to study a Master of Public Health. He had completed Social Work studies in India and believed a Master of Public Health would assist him in obtaining higher paid employment in India.  He found the course very difficult and withdrew after one semester.

17. The applicant told the Tribunal he then enrolled in Cookery courses. He said they were Diploma courses. The Tribunal noted that the PRISMS indicates that the applicant was previously enrolled in Certificates III and IV in Commercial Cookery and Diploma of Hospitality courses, all of which have been cancelled. The Tribunal put this information to him under s.359AA of the Act. The Tribunal told him that subject to his comment or response, the information would be the reason or part of the reason for it affirming the decision under review.

18. The applicant said he was not aware that his enrolment in the courses had been cancelled. The Tribunal asked him the reason for enrolling in these courses. He said he thought the qualifications would assist him to run a hotel or a restaurant in India.

19. The applicant and his wife told the Tribunal that they were not aware that a CoE in a Diploma course would not meet the requirements of the applicant’s visa to be enrolled in a higher education sector course.  The applicant told the Tribunal he did not seek the services of a migration agent when he decided to withdraw from the Master of Public Health course and enrol in the Cookery and Hospitality courses. He said he studied Cookery for five or six months. He did not provide an explanation for ceasing those studies and said he was not aware that his enrolment had been cancelled

20. Noting that the applicant enrolled in the Bachelor of Business course six days after receiving the NOICC, the Tribunal asked him the reason he enrolled in this course. He said it would help him focus on creating a good environment for customers in his business. When asked about the nature of the business he said he wanted to start a boating business because his family lived near the seaside and the riverside.

21. The applicant is currently enrolled in a Bachelor of Business course which is due to commence on 19 July 2018.

22. The Tribunal asked the applicant what he has been doing in Australia since cancellation of his visa. Despite being asked a number of times, he did not provide a direct answer but said his migration agent had provided incorrect advice and had told him that because he had been granted a Bridging visa E, he would not be required to attend a hearing for three years.  He said his wife had been working as a cleaner.

23. When asked about the potential hardship that may be caused to him or his family if his visa is cancelled, the applicant said he would suffer a large financial loss because he had spent a lot of money to come to Australia to study. He said if his visa is cancelled he will not be able to return to Australia for three years.

24. The applicant told the Tribunal that he and his wife and child can return to India and that there will be no problem in them doing so.

25. Ms Ittiaira told the Tribunal that they had been given false information by a migration agent. She said the migration agent had told them that because the applicant had been had been granted a Bridging visa E they would not be required to attend a hearing for three years. 

26. The Tribunal considered the information provided in response to the NOICC and by the applicant and Ms Ittiaira during the hearing.

27. The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia, the circumstances in which the ground of cancellation arose and the extent of the breach.

28. The breach of condition 8516 arose because the applicant withdrew from the Master of Public Health course and did not enrol in a higher education sector course again until after he received the NOICC. The applicant said when he enrolled in the Cookery and Hospitality courses he was not aware that these courses were not higher education sector courses. He did not consult with a migration agent.

29. The purpose of the higher education sector visa is to enable the student to undertake study at a higher education level. The applicant ceased to be enrolled in a higher education sector course for a period in excess of six months. The Tribunal finds this to be a significant breach of condition 8516.

30. The applicant and his wife both referred to receiving incorrect advice from a migration agent after receiving the NOICC.

31. The Tribunal considers it was the applicant’s responsibility to ensure he understood the conditions attached to his visa and to ensure that he complied with those conditions. The applicant’s ignorance of his visa conditions and his reliance on incorrect advice are not reasons not to cancel the visa.

32. Having considered all the matters raised by the applicant at hearing the Tribunal finds that it is positively satisfied that the applicant’s non-compliance with the visa condition was not due to extenuating circumstances beyond his control.

33. The Tribunal finds that there are no extenuating or compassionate circumstances in this case.

34. The Tribunal accepts that the applicant will suffer hardship by cancellation of his visa because he will not be able to apply for a visa to return to study in Australia in the near future. The Tribunal also accepts that the applicant may suffer some financial hardship in departing Australia without a qualification.

35. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

36. The applicant’s wife and child are both holders of visas which would be consequentially cancelled under s 140. The applicant did not make any specific reference to any issues his wife and child would face as a result of the consequential cancellation of his visa. The Tribunal notes that the visas for the applicant’s wife and child were only granted to them on the basis of being family members of the family unit of the applicant and it is not an unintended consequence of the legislation that if the applicant’s visa is cancelled then his family members’ visas are consequentially also cancelled. In this respect the consequential cancellations will not result in the separation of the applicant from his wife and child and keeps the immigration status of all family members aligned. The Tribunal therefore accords this consideration little weight.

37. Article 3.1 of the UN Convention on the Rights of the Child 1989 (CROC) requires that, in all actions concerning children, the best interests of the child shall be a primary consideration. This article is relevant to the Tribunal’s consideration given that the applicant’s child’s visa will be cancelled under s.140 of the Act if the applicant’s visa is cancelled.

38. The Tribunal has considered the matters raised by the applicant and the impact that the cancellation would have on himself, his wife and their child, particularly having regard to Australia’s obligations in terms of the United Nations Convention on the Rights of the Child, and the requirement that the Tribunal treat the best interests of the children as a primary consideration.

39. If the visa were not cancelled, the Tribunal would expect the applicant to return to his home country following the completion of his studies, and it would expect that, as secondary applicants, his wife and child would accompany him.  If the visa is to be cancelled now, the practical impact would simply be that his wife and child would return to their home country at an earlier time.  There is nothing before the Tribunal which would suggest that an earlier return to their country would be contrary to the child’s best interests.  The Tribunal is therefore satisfied that Australia’s obligations under CROC would not be breached.

40. Cancellation of the visa may result in the applicant and his family becoming unlawful unless further Bridging visas are granted.  In such hypothetical circumstances, they may become subject to detention.  However, there is no evidence before the Tribunal to suggest that, in such circumstances, they would remain indefinitely in detention.

41. There is no evidence to suggest that the cancellation of the visa would result in the breach of any of Australia’s other international obligations. 

42. There is nothing to suggest that family violence is an issue in the present case.

43. The Tribunal is not aware of any relevant matter other than those dealt with above.

44. Accordingly, the Tribunal is not satisfied that there are consequences of the cancellation which mean that the visa should not be cancelled.

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

    DECISION

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

    Christine Kannis
    Member