Virinder Singh (Migration)

[2019] AATA 650

Virinder Singh (Migration) [2019] AATA 650 (26 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Virinder Singh

CASE NUMBER:  1731853

HOME AFFAIRS REFERENCE(S):           BCC2017/3097189

MEMBER:Christine Kannis

DATE:26 February 2019

PLACE OF DECISION:  Perth

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

Statement made on 26 February 2019 at 10:58am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – failure to attend Tribunal hearing – ground for cancellation – eligible higher degree student – enrolment cancelled – consideration of discretion – insufficient funds – significant breach ­– not fulfilling purpose of study – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 1.40A; Schedule 2, cls 573.111, 573.223, 573.231; Schedule 8, Condition 8516

CASES
Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 December 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 issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. On 8 February 2019 the Tribunal sent the applicant’s representative an Invitation to Attend a Hearing letter (by email) which advised that a hearing had been listed for 26 February 2019 at 9.00 am. The letter informed the applicant that if he was unable to attend the hearing then he should advise the Tribunal as soon as possible. The letter advised that if he did not attend the hearing a decision may be made on the review without taking any further action to allow or enable him to appear before the Tribunal or that his application for review may be dismissed without any further consideration on the application and based on the information before the Tribunal.

5. On 18 February 2019 the applicant’s representative requested and was given access to written material under s.362A of the Act.

6. On 19 February 2019 the Tribunal sent the applicant a SMS hearing reminder to the phone number provided in the Application for review. 

7. On 21 February 2019 the following Casenote was entered on the applicant’s record:

   The PRA's agent advised the Tribunal on 21/2/19, that as of 10:00 21/2/19, they are no longer acting for the applicant. The applicant has not responded to their calls and has failed to attend appointments. They have previously forwarded the hearing invite to the applicant.

8. On 25 February 2019 the Tribunal sent the applicant a SMS hearing reminder to the phone number provided in the Application for review. 

9. The applicant did not respond to the Invitation to Attend a Hearing.

10. The applicant failed to appear at the hearing and did not contact the Tribunal prior to the scheduled hearing to advise of an inability to attend.

11. The Tribunal is satisfied that the applicant has been given an opportunity to attend the hearing.

12. The Tribunal proceeds to make a decision in this case without taking any further action to allow or enable the applicant to appear before it as it is empowered to do under s.362B of the Act.

13. 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

14. 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?

15. On 6 May 2014 the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8516 attached. Condition 8516 requires that the 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. In respect of a criterion requiring the visa holder to be enrolled, it has been held that this requires the visa holder to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

16. In the present case the applicant was required to meet, among other criteria, cl.573.231 or cl.573.223(1A) of Schedule 2 to the Migration Regulations 1994.  The delegate’s decision stated the applicant met cl. 573.231 or cl.573.223(1A) on 4 November 2015. The Tribunal requested the Department clarify the date the applicant met cl. 573.231 or cl.573.223(1A). The Department advised that the reference to 4 November 2015 was a typographical error and the correct date was 6 May 2014.

17. Essentially, cl.573.231 provides that, unless a person is an eligible higher degree student as set out in cl. 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. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI14/015.

18. 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.

19. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant’s enrolment in a Bachelor of Business (Management) was cancelled on 1 March 2017. The reason for cancellation was indicated to be “Non-commencement of studies”.

20. On 13 October 2017 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) on the basis that he had failed to comply with condition 8516.  On 20 October 2017 the applicant responded and said he had applied for a Bachelor’s Degree course and said the education provider needed extra time to issue the CoE. The applicant subsequently provided a CoE for a Bachelor of Business (Management) created on 26 October 2017. This enrolment was cancelled on 11 December 2018.

21. 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 Sector course, the applicant breaches condition 8516 of the visa. 

22. The applicant’s enrolment in a Bachelor of Business (Management) was cancelled on 1 March 2017 and he was not enrolled in a principal course of a kind specified for a Subclass 573 visa until his subsequent enrolment in a Bachelor of Business (Management) on 26 October 2017.

23. The Tribunal acknowledges that the applicant obtained a CoE for a Bachelor degree course following receipt of the NOICC.  This was created more than seven months after his enrolment was cancelled on 1 March 2017. However, in the Tribunal’s view, a breach is established once the applicant ceased to be enrolled in the relevant course, despite any subsequent re-enrolment.

24. On the basis of the information before it, the Tribunal is satisfied that when the applicant’s enrolment in a Bachelor of Business (Management) was cancelled on 1 March 2017 he did not continue to satisfy cl.573.231 or cl.573.223(1A) and therefore did not continue to be a person who would satisfy the primary criteria for the grant of the visa. There was 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 visa.  

25. 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

26. 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 with the Department and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

27. As the applicant did not attend the hearing or provide written submissions prior to the hearing, the Tribunal relied on the information contained in the Department’s files including the Decision Record.

28. The Tribunal noted the delegate’s decision referred to a phone conversation on 12 October 2017 during which the applicant advised that he was not enrolled in a Bachelor course from 1 March 2017 because he could not afford the enrolment.

29. The applicant’s visa was granted under Streamlined Visa Processing arrangements which meant he had to declare he had access to sufficient funds to cover the duration of his stay in Australia. The Tribunal noted that at the time of applying for the Subclass 573 visa the applicant and his father provided affidavits stating that the applicant had access to sufficient funds to meet the course fees and living expenses for his period of stay in Australia.

30. 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 reason and extent of the breach.

31. The purpose of the Higher Education Sector visa is to enable the student to undertake study at a higher education level.

32. The applicant was not enrolled on a Higher Education Sector course from the date of cancellation of his enrolment in the Bachelor of Business (Management) on 1 March 2017 until, following receipt of the NOICC, he obtained a CoE created on 26 October 2017.

33. The Tribunal noted the reason provided by the applicant for his non-enrolment in a Higher Education Sector course however considers it reasonable to expect that if the applicant faced financial difficulties he would depart Australia temporarily until his financial circumstances improved rather than remain in Australia in breach of his visa conditions.  There was nothing before the Tribunal to indicate that the applicant sought a deferral of his studies on the basis of financial hardship.

34. 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. The Tribunal noted that more than seven months elapsed between the cancellation of his enrolment and the issuing of the NOICC.

35. Given the applicant’s failure to attend the hearing, the Tribunal is not aware of compelling reasons for him to remain in Australia.

36. 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.

37. There was no evidence before the Tribunal to indicate that the applicant’s non-compliance with the visa condition was due to circumstances beyond his control or that there are any extenuating circumstances in this case.  

38. Given the applicant’s failure to attend the hearing, the Tribunal is not aware of any hardship which will result from cancellation of his visa.

39. Nothing adverse is known about the applicant’s past and present conduct towards the Department. The Tribunal gives this some weight in the applicant’s favour.

40. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice pertaining to his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. 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. 

41. The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled. There is nothing to suggest that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

42. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

43. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant has breached condition 8516 of his visa.  The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant was not fulfilling the purpose of his travel to and stay in Australia as he was not undertaking study at the level for which is visa was granted.  The Tribunal has found that the cancellation will not affect any other person’s visa and will not breach of Australia’s international obligations.  The Tribunal is prepared to accept that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

44. 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

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

    Christine Kannis
    Member