Udas (Migration)

[2018] AATA 3979

Udas (Migration) [2018] AATA 3979 (22 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ajay Udas

CASE NUMBER:  1703603

HOME AFFAIRS REFERENCE(S):           BCC2017/224172

MEMBER:Michelle East

DATE:22 August 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 22 August 2018 at 12:25pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – ceased to be enrolled – enrolled in vocational courses – did not verify compliance – considerable period of non-compliance – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), r 1.40A, Schedule 2 cls 573.111, 573.231, 573.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 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).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the delegate found the applicant had breached condition 8516 which was attached to the applicant’s 573 higher education sector visa and found that the factors against cancellation did not outweigh those in favour of cancellation and cancelled the 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 15 August 2018 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(1)(b) of the Act, the Minister may cancel a visa if he or she 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. The condition specifies that the holder must continue to be a person who would satisfy the criteria for the grant of the 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?

6. The applicant provided a copy of the delegate’s decision with the application for review. It indicates 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 the present case the applicant was required to meet, among other criteria, subclauses 573.231 or 573.223(1A) of Schedule 2 to the Migration Regulations 1994.  The decision stated that on 31 July 2013 the applicant satisfied the primary criteria for the grant of the subclass 573 visa and met cl.573.231 or cl.573.223(1A) to be granted the visa. 

7. Essentially, subclause 573.231 provides that, unless a person is an eligible higher degree student as set out in 573.223(1A), that person must be enrolled or the subject of a current offer of enrolment in a principal course of a kind 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: cl.573.231.

8. 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 degree, Masters 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.

9. The primary decision record refers to PRISMS which shows that as at 2 March 2016 the applicant was no longer enrolled in a higher education course. A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 8 February 2017.  A response was provided on 14 February 2017. The delegate found that the applicant breached condition 8516 of the visa because he no longer satisfied the primary criteria as he ceased to be enrolled in a higher education course, that is, a course of study that was the principal course of a type specified for a subclass 573 visa by the Minister in an instrument made under r.1.40A.

10. On the basis of the information before it, including the applicant’s own oral evidence given at hearing as outlined below in this decision, the Tribunal is satisfied that when the applicant ceased to be enrolled in a higher education course he did not continue to satisfy cl.573.231 or cl.573.223(1A) and that he therefore did not continue 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.  The Tribunal finds therefore that he breached condition 8516 of his student visa.

11. 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

12. 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’.

13. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of any breach and any reasons for the breach.

14. The purpose of a student visa is to enable the visa holder to undertake study in Australia.  The purpose of the Higher Education visa is to enable the visa holder to undertake study at the higher education level.  The evidence before the Tribunal, including the applicant’s own oral evidence, is that he completed University Preparation Course 3 with the Murdoch Institute of Technology (MIT) in January 2014.  He then commenced a Diploma of Business at MIT but failed several units, one of which he failed 3 times.  At that time, he was told by the education provider he couldn’t continue in his studies in that course.  On the advice of an education consultant he enrolled in 2016 in Stanley College to study commercial cookery.  His consultant then advised him to enrol in Cambridge International College to study a Diploma of Business with a pathway to a Bachelor’s degree.  He said he realised accounting wasn’t for him and again on the advice of his consultant, enrolled in a Certificate III in commercial cookery in March 2016.

15. The applicant acknowledged he had not been enrolled in higher education studies as required by his visa since March 2016 and had actually been enrolled in vocational courses prior to and after that time.  He said he had received incorrect advice from his migration agent upon which he had relied.

16. The Tribunal finds the applicant’s breach of condition 8516 to be significant because he was not engaging in study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia. 

17. The Tribunal questioned the applicant whether there were any compelling reasons for him to remain in Australia and he said there were not.

18. The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

19. The Tribunal has noted the applicant’s evidence that he claims the breach arose due to circumstances beyond his control, namely, incorrect advice.  Whilst the Tribunal is sympathetic to the applicant’s situation, the applicant was the holder of a higher education visa.  By not engaging in the study for which his visa was granted, the applicant was breaching the condition upon which his visa was granted.  There is no evidence available to the Tribunal that the applicant tried to verify whether he was complying with the conditions of his visa.

20. The Tribunal is of the view that as a holder of the student visa the applicant had the responsibility to familiarise himself with the conditions of his visa and what these required of him.  The applicant would have been advised of visa conditions at the time of the visa grant.  The Tribunal is not satisfied the applicant took adequate steps to ensure he was complying with his visa conditions and requirements.

21. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control.  The Tribunal finds this weighs in favour of visa cancellation.

22. The Tribunal has considered the extent of compliance with visa conditions.  The applicant has breached condition 8516 and has done so for a considerable period.  There is no evidence that the applicant has breached any other visa conditions and therefore the Tribunal considers this factor to be neutral in deciding whether to cancel his visa.

23. The Tribunal has considered the degree of hardship that may be caused.  The applicant said he would feel shame in returning to Nepal and would find it difficult to justify what he had been doing in Australia for the last 4 years if he returned with no qualification.  He said his parents would be disappointed in him.  He said his family had invested some money in his education and the Tribunal acknowledges their possible disappointment.

24. The Tribunal accepts the applicant would suffer a degree of emotional and psychological hardship if he were to have his visa cancelled and finds this weighs in favour of the applicant.

25. The Tribunal has considered the past and present conduct of the visa holder towards the department.  Nothing adverse is known about the applicant’s past and present conduct towards the Department.  The Tribunal finds this gives some weight in the applicant’s favour.

26. The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled.

27. There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation.

28. The Tribunal is mindful that the delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act, if he does not voluntarily depart Australia.  Further, the applicant will have limited options to apply for further visas in Australia.  The Tribunal acknowledges the difficulty this would cause the applicant however finds in itself to not be sufficient to weigh in the applicant’s favour. 

29. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant breached condition 8516 of his visa.  The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant is not fulfilling the purpose of his travel to and stay in Australia as he is not undertaking study at the level for which his visa was granted.  The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa.  It will not be in breach of Australia’s international obligations.  The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.  

30. The Tribunal recognises that the cancellation of the visa is a significant matter.  However on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Michelle East
    Member