Vibhor (Migration) - [2020] AATA 1143

Vibhor (Migration) [2020] AATA 1143 (30 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Vibhor Vibhor
CASE NUMBER:  1924175
HOME AFFAIRS REFERENCE(S):          BCC2019/2545343
MEMBER:Darren Renton
DATE:30 March 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 30 March 2020 at 4:46pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) – enrolment at lower level than visa requirement – reliance on agents – attempt to enrol at required level at college’s Perth campus, but offer letter was for Melbourne campus – agent’s advice to enrol in lower-level course – enrolment in original course after receiving notice of intention to consider cancellation – lengthy period of breach – no approach to department – discretion to cancel visa – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 2, cl 573.231, Schedule 8, condition 8516
CASE
Singh v MIBP [2018] FCA 29
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 21 August 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act). The applicant provided the Tribunal with a copy of the delegate’s decision.
The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant was not enrolled in the appropriate level course of study for his visa contrary to 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 22 October 2019 to give evidence and present arguments.
The applicant was assisted in relation to the review by his registered migration agent.
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 relevantly required that the applicant must continue to be a person who would satisfy the primary criteria for the grant of his visa. In the context of this case, as the applicant was on a Subclass 573 Higher Education Sector visa he was required to maintain enrolment in a course of higher education.
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, 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. ‘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 16/003.
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 14/015.
The delegate found that the applicant was not enrolled in a course of higher education between 22 September 2016 (being the date the applicant’s enrolment in a Bachelor of Business (Management) course was cancelled) and 22 July 2019 (being the date of commencement of the applicant’s Bachelor of Business course which he enrolled in on 19 July 2019) (“the period of the breach”) and consequently was in breach of condition 8516.
Evidence about the applicant’s enrolment course type may include (see e.g. Singh v MIBP [2018] FCA 29 at [31] - [37]):
·the description given by the education provider
·the course sector identified on the Commonwealth Register of Institutions and Courses for Overseas Students
·the confirmation of enrolment provided by the education provider
·the body that approved the course and the nature and purpose of that approval e.g. in Singh the relevant body was the Australian Skills Quality Authority because they were responsible for approving courses in the VET sector.
A review of the confirmation of enrolments submitted by the applicant for the courses in which he was enrolled during the period of the breach indicate that each course was at a VET level and consequently not a course of higher education.
At the commencement of his hearing, the applicant accepted that he was in breach as set out by the delegate. In such circumstances, only a brief outline of the relevant facts relevant to establishing the ground for cancellation is necessary.
The applicant originally studied in Australia pursuant to a Subclass 572 visa which permitted him to study Vocational Education and Training (VET) sector courses. Pursuant to that visa, the applicant studied two Diplomas of Maritime Operations (Watch Keeper Deck) between 2 February 2015 and 1 July 2016.
According to the applicant’s evidence, after he completed his Diplomas, he was offered a promotion on his vessel but in order to take up the opportunity, he would have to do further study at sea for a period of 18 months.
By this time the applicant had decided that he liked Australia, had made friends here, gotten married and consequently wanted to spend more time at home. He had also decided that he wanted to run a restaurant in Australia but in order to do that, felt he should learn how to run a business and study a Bachelor of Business.
Initially, the applicant claimed that he relied on his agent in India to sort out his enrolment for the Bachelor course. He claimed that he had provided information and instructions to enrol him at the Cambridge International College campus in Perth but that when his letter of offer arrived in the mail, it was for the College’s Melbourne campus. Despite repeatedly requesting his agent overseas to change his enrolment to the Perth campus (and on the applicant’s evidence, receiving assurances to that effect), his agent did not change the enrolment and eventually communication ceased.
Thereafter, the applicant claimed he used a local migration agent to assist him. Despite giving evidence to the Tribunal that he had read the conditions of his visa when he received it, the applicant claimed that he deferred to the advice he received from the local agent, even though it was contrary to the visa condition. The applicant claimed that his local agent advised him that he did not need to enrol in a higher education course straight away and should instead start with a basic course to prepare for the Bachelor course. The applicant claimed that the agent organised to enrol him at Stanley College for Diploma level courses relating to business. Subsequently, the applicant came to believe that his agent was a relative of one of the owners of Stanley College and felt he had been misled into studying there.
In essence, the applicant said that he had trusted and relied upon the advice of both his Indian and Australian agents, and had made an honest mistake about his enrolment. Having received the Notice of Intention to Consider Cancellation of his visa dated 16 July 2019, the applicant said he realised he was not correctly enrolled and took steps to enrol in the correct level course, being a Bachelor of Business, on 19 July 2019 for the period 22 July 2019 to 30 June 2022. Of relevance is that the applicant’s Subclass 573 visa was due to expire on 28 September 2019 and no application to extend that visa was made by the applicant. The visa had expired prior to the Tribunal commencing the hearing.
Based on the above, 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’.
At the applicant’s hearing, the Tribunal’s process was explained to him including that the Tribunal had the discretion to consider relevant factors in deciding whether to cancel or not cancel the visa. The Tribunal confirmed that the applicant understood the process and he provided answers to questions posed of him during the hearing.
The purpose of the visa holder’s travel to and stay in Australia and extent of compliance with his visa conditions
As noted above, the applicant initially came to Australia to study courses associated with his maritime vocation. Having successfully completed those courses, he desired a change of direction, wanting now to run and operate a restaurant but claiming to need the necessary educational skills to do so. It was on that basis that he applied for a Subclass 573 visa to study a higher education course in the form of a Bachelor of Business.
The applicant was granted his Subclass 573 student visa on 26 July 2016 so that he could commence studying a Bachelor of Business (Management) at Cambridge International College (VIC) Pty Ltd. On 22 September 2016 that enrolment was cancelled because the provider was unable to deliver the course.
During the period of the breach, the applicant enrolled to study several VET level courses. As noted earlier, the applicant claimed that this was entirely as a result of him mistakenly trusting his agents, both overseas and local. In his evidence to the Tribunal, the applicant acknowledged that it was his obligation to comply with his visa conditions, but claimed he had made mistakes. The applicant further stated that he made no independent enquiries about his visa conditions, even after his local agent gave him advice which appeared on its face to conflict with the clear terms of his visa conditions requiring him to enrol in a higher education course.
While the Tribunal accepts that initial circumstances beyond the applicant’s control potentially contributed to him failing to comply with his visa obligations, the very lengthy period of the breach, coupled with his failure to make any independent enquiry to ensure he was complying with his obligations, leads the Tribunal to conclude that the mistaken reliance on advice does not wholly explain the failure to comply with his obligations.
During his VET level studies, the applicant applied for a RSMS Direct Entry (RN187) visa on 28 February 2018. The applicant’s sponsor was the restaurant where he was working part time as a trainee manager. The applicant told the Tribunal that his application was refused on 8 September 2019 because his sponsor was considered unsuitable due to an apparent lack of financial capacity to sponsor him in addition to other workers it sponsored. Further, as the applicant was only working 10 hours per week, the relevant decision maker was of the view that the nature of the work did not require the applicant to complete it. The applicant gave further evidence that he ceased working for the business in or about May/June 2019 and that it ceased trading shortly after his RSMS visa application was refused.
The applicant told the Tribunal that he hoped to be able to open and run a restaurant in Australia. He had become familiar with Australia, he considered it to have a friendly environment and he would like to settle his life here. When asked if he would be seeking permanent residency, the applicant replied that it was not his main intention as that was to complete his studies and gain the necessary business knowledge to open and run his restaurant. The applicant further advised the Tribunal that he was not seeking to have the decision to refuse his RSMS visa reviewed as he wanted to study. The Tribunal accepts that while the applicant may at one time have sought an alternate pathway and resultant visa, he no longer holds that view.
The Tribunal is generally satisfied that the purpose of the applicant’s stay in Australia appears to be study, albeit there were lengthy periods where the applicant either was not enrolled or actively studying, was enrolled in incorrect level courses and had several of those enrolments cancelled and is now enrolled in the correct level course. This in turn is relevant in considering whether the applicant has a compelling need to remain in Australia – the Tribunal considers that he does in the circumstances of this case. These matters weigh against exercising the discretion to cancel the applicant’s visa.
In terms of the applicant’s extent of compliance with his visa conditions, the Tribunal notes that the breach lasted for nearly 3 years. The Tribunal considers it was important for the applicant to comply with the conditions of his visa which required study at a higher level of education; one that was above his previous level of study. In circumstances where the failure to study the correct level course commenced shortly after he received his visa and was not rectified until the applicant received the Notice of Intention to Consider Cancellation of his visa, the Tribunal considers the breach of the applicant’s visa conditions to be significant.
Aside from this breach, there is no evidence before the Tribunal that the applicant has not complied with any of the other conditions of his visa.
In the circumstances, the Tribunal considers the extent of the applicant’s compliance with his visa conditions to be a matter that weighs in favour of exercising the discretion to cancel his visa.
Circumstances in which the ground of cancellation arose
Some of the matters relevant under this consideration have been outlined above.
In essence, the applicant sought to rely on the fact that he had relied in good faith on the advice of each of his agents, while also conceding he had made no independent enquiries and that he had read the visa conditions. The applicant accepted that it was his responsibility to comply with his visa conditions but said he blindly trusted his agents.
While the Tribunal accepts that people such as the applicant should be entitled to rely on the expertise of migration agents, particularly those registered in Australia, such reliance cannot otherwise absolve a visa holder from the responsibility of ensuring that they comply with their visa conditions.
The applicant presented before the Tribunal as an intelligent individual. He claimed that he had read the conditions of his visa and knew that he wanted to study a higher degree course. Rather than challenge his local agent or seek guidance after being told by him (as the applicant claims) that he did not need to register for a higher education course until after he had completed some introductory basic courses, the applicant simply decided to follow that advice.
As was accepted by the applicant in his evidence before the Tribunal, he did not contact the Department prior to significantly changing his circumstances or seek clarification in relation to any consequences that might arise as a result. As noted in the delegate’s decision, Departmental records indicated that the applicant did not contact the Department.
Further, as also noted in the delegate’s decision, Departmental records did not indicate the applicant’s visa being lodged by an agent (be that a migration or an education agent). In addition, the visa grant notice provided to the applicant at the time of his visa approval, contained reference to the need to notify the Department of any changes in his circumstance and that the online VEVO facility was available to check visa conditions.
In light of the above and [27], the Tribunal accepts that initial circumstances beyond the applicant’s control may have contributed to him failing to comply with his visa obligations, but that the very lengthy period of the breach, coupled with the applicant’s failure to make any independent enquiry during that time to ensure he was complying with his obligations, leads the Tribunal to conclude that the circumstances in which the breach occurred were not wholly beyond his control. There is no evidence before the Tribunal that the applicant was unable or incapable of making independent enquiries, he simply claimed to be unaware of the need to make any.
Accordingly, the Tribunal considers that the circumstances in which the breach occurred should be given weight in favour of exercising the discretion to cancel his visa.
Degree of Hardship that may be caused
The applicant has a wife in Australia but she is not listed as a secondary applicant nor was there any evidence presented that indicated her visa was connected with the applicant’s visa. The Tribunal was not presented with any evidence in relation to the applicant’s wife and he did not seek to call her as a witness at the hearing despite having the opportunity to indicate he wished to in his response to the hearing invitation issued by the Tribunal. Further, the Tribunal enquired of the applicant during the hearing if he wished to call any witnesses and he indicated he did not. The applicant gave no evidence of any specific impact on his wife arising from the cancellation of his visa.
In the absence of evidence regarding the impact of any decision not to set aside the cancellation of the applicant’s visa on his spouse, the Tribunal gives any such impact no weight for, or against, the exercise of discretion to cancel the applicant’s visa.
The Tribunal asked the applicant what hardship would be caused by any decision not to set aside the cancellation of his visa. He told the Tribunal that he would suffer “a lot” if his visa remained cancelled. He claimed that his dream to open and run his own business would be harmed because he would not have the knowledge to do so and at the age of 29, he would have wasted his time and that his hopes (and those of his family) for him to achieve something of himself would be lost.
The applicant said without the knowledge he needed from the Bachelor of Business course, if he tried to open and run his business it would fail and he would not have the knowledge to avoid people potentially cheating him. He told the Tribunal that he was currently learning about accounting and finding it very useful.
The Tribunal accepts that the cancelation of the applicant’s visa will be disappointing for him. The Tribunal further accepts that there may be hardship felt by the applicant and his family through not completing his degree in Australia and the consequential closing of the pathway the applicant claimed completion of that degree would provide him to open a restaurant.

The weight of these hardships against an exercise of discretion to cancel the applicant’s visa must be balanced against the applicant’s breach of not complying with a condition of his visa for nearly 3 years. Accordingly, the Tribunal only gives limited weight against the exercise of discretion to cancel the applicant’s visa under this factor.
There is no evidence before the Tribunal of any other visa holder being at risk of having their visa cancelled under s.140.
Past and present conduct of the visa holder towards the Department
There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such, the Tribunal gives this matter no weight in the exercise of discretion to cancel the visa.
Whether there are mandatory legal consequences to a cancellation decision
If the visa is cancelled the applicant will become an unlawful non-citizen and liable to detention and removal as his student visa has expired and his RSMA visa application was refused and is not subject to review. There is no evidence before the Tribunal to indicate that indefinite detention is a possible consequence of the decision to cancel the applicant’s visa.
The Tribunal notes that there is a level of uncertainty arising from the current COVID-19 pandemic and that the applicant may not be able to leave Australia to return home due to travel restrictions and/or the availability of means of travel. In such circumstances there is the likelihood that he may be detained pending arrangements being made for his removal. There is no evidence before the Tribunal that any such detention would be lengthy, let alone indefinite.
The applicant would be prevented from making a valid onshore visa application due to the operation of s.48.
The Tribunal has also considered whether the applicant might be affected by PIC 4014. The applicant would be subject to PIC 4014 if he were to apply for a visa which was subject to this consideration pursuant to Schedule 2 of the Regulations. PIC 4014 would apply to the applicant if he were to leave Australia as an unlawful non-citizen, or subject to a bridging visa C, D or E (other than one granted within twenty eight days after the cancellation of his student visa). As the applicant was granted a bridging visa E on 26 September 2019 (and thus not within twenty eight days of the cancelation of his student visa on 21 August 2019), PIC 4014 potentially applies.
The Tribunal accepts that being precluded from being granted another visa for a period of time, together with the other potential consequences of cancellation including possible detention, are factors in favour of the exercise of discretion not to cancel the visa.
Australia’s international obligations
There is nothing before the Tribunal to suggest that the cancellation of the applicant’s visa would breach any international obligation. The Tribunal gives the matter no weight in the exercise of discretion to cancel the visa.
Any other relevant matter
There are no other relevant matters before the Tribunal.
Considering the circumstances as a whole, particularly the circumstances in which the ground for cancellation arose; the Tribunal considers that on balance, the factors favouring the exercise of discretion to cancel the visa are not outweighed by those against exercising such discretion. Accordingly the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Darren Renton
Member