1503317 (Migration)

[2016] AATA 3342

1503317 (Migration) [2016] AATA 3342 (1 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Raghavendra Rao Nama

CASE NUMBER:  1503317

DIBP REFERENCE(S):  BCC2014/2865268

MEMBER:Christine Kannis

DATE:1 March 2016

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 01 March 2016 at 1:28pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 February 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) 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. On 8 February 2016 the Tribunal sent the applicant an invitation to attend a hearing on 1 March 2016.

4. On 22 February 2016 the applicant provided medical evidence in support of his application to the Tribunal.

5. On 26 February 2016 the Tribunal receive the applicant’s response to the hearing invitation in which he indicated that he would be taking part in the hearing scheduled for 1 March 2016.

6. On 23 and 29 February 2016 the Tribunal sent the applicant SMS hearing reminders.

7. The applicant failed to attend the hearing on 1 March 2016.

8. The Tribunal decided to hear the application on the basis of the information contained in the papers.

9. 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

10. 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. Relevant to this case, these include the ground set out in s.116 (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?

11. On 14 October 2013 the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202 (2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

12. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant completed an English for Academic Preparation course on 11 July 2014 and has not been enrolled in another registered course since that date.

13. Having regard to the information on PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 11 July 2014. The Tribunal finds that he breached condition8202(2)(a) 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 to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

15. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

16. On 23 December  2014 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he was considered to have not complied with condition 8202 (2)(a) of his visa, as he ceased to be enrolled in a registered course. 

17. In his response to the NOICC dated 7 January 2015 the applicant said that after he completed the first semester of his Masters of Information Technology course he was depressed because his father had been unwell and had not been working since the first week in February 2014. The applicant said he was unable to enrol in the second semester on 4 April 2014 because of his depression. He said he completed three subjects in the first semester for which he received grades of two credits and one pass.

18. In his response the applicant said he explained his depression to the college and submitted a medical report. He said the college gave him “five weeks ELICOS to continue next semester” and said he completed that course on 9 June 2014. He said that in the meantime his father had been admitted to hospital and he underwent surgery on 8 July 2014 which he said was very expensive. The applicant said he was depressed and could not afford to continue his studies.

19. Prior to the hearing the applicant provided the Tribunal with medical reports from the Krishna Institute of Medical Sciences, all dated July 2014 save for one report which referred to a date of 12 January 2015. The patient the subject of the report was Mr Nama Venkata Rao.

20. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of the breach and reasons for the breach as set out in the applicant’s response to the NOICC.

21. The purpose of the student visa is to enable the visa holder to undertake study in Australia. The Tribunal had regard to the fact that at the date of the delegate’s decision on 20 February 2015, a PRISMS search showed the applicant had not been enrolled in a registered course since 11 July 2014. The Tribunal noted that the applicant’s visa was granted for the purpose of undertaking his principal course of study being a Masters of Networking and that PRISMS shows his enrolment in that course was cancelled on 7 April 2014.

22. The Tribunal finds that the applicant is not fulfilling the purpose of his travel to and his stay in Australia because he is not studying and has not been enrolled in a registered course since 11 July 2014 and that more than five months elapsed between the applicant ceasing study and being sent the NOICC. The Tribunal considers the breach to be significant, given the central importance of enrolment to a student visa.

23. The Tribunal had regard to the applicant’s contention in his response to the NOICC that he “couldn’t afford” to continue his studies after his father became unwell. As pointed out by the delegate, when applying for a subclass 573 visa an applicant is required to satisfy the Department that he or she has available funds to support themselves during their stay in Australian and sufficient funds for tuition and course fees prior to the grant of the visa.

24. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. Notwithstanding the limited medical evidence provided, the Tribunal finds that there are no extenuating or compassionate circumstances in this case.

25. No evidence was provided by the applicant prior to the hearing with respect to the degree of hardship which would be caused by cancellation of his visa.

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

27. There are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing to suggest, and the applicant does no claim, that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

28. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition8202 of his visa because he ceased to be enrolled in a registered course on 11 July 2014 and has found the breach to be significant. The Tribunal has found that the breach did not occur in circumstances beyond the applicant’s control. The Tribunal has found there are no extenuating or compassionate circumstances in this case. There was no evidence before the Tribunal that hardship would be caused by the cancellation. No other person’s visa would be cancelled and the cancellation would not be in breach of Australia’s international obligations.

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

    DECISION

30. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

    Christine Kannis
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.