1504399 (Migration)

[2015] AATA 3244

1504399 (Migration) [2015] AATA 3244 (11 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Japan Desai
Mrs Khushbuben Desai

MRT CASE NUMBER:  1504399

DIBP REFERENCE(S):  BCC2014/1486061

TRIBUNAL MEMBER:  Bruce MacCarthy

DATE:11 August 2015

PLACE OF DECISION:  Sydney

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

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 11 August 2015 at 7:50am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 July 2014 made by a delegate of the Minister for Immigration to cancel the first named applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the first named applicant (the applicant) had not complied with Condition 8202 attached to that 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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the applicant.  The other applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act.  As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.

4. The applicant sought review of the delegate’s decision and the Migration Review Tribunal (MRT), differently constituted (“T1”), affirmed the delegate’s decision on 6 February 2015 (see MRT File 1413408).  The applicant sought review of T1’s decision by the Federal Circuit Court and, on 26 March 2015, the Court (by consent) set aside the decision and remitted the matter to the Tribunal to be determined according to law.

5. The applicants appeared before the Tribunal on 10 August 2015 to give evidence and present arguments.  The applicants were represented in relation to the review by their registered migration agent.

6. 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

7. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

   Did the applicant comply with Condition 8202?

8. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

   be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

   has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

9. When he applied to the MRT in August 2014, the applicant provided copies of the visa grant notice, the notice of cancellation and the delegate’s decision record.  The decision record indicates that his visa was cancelled on the basis that he was not enrolled in a registered course and had therefore not complied with Condition 8202.  The decision record also indicates that, on 7 July 2014 the Department had sent to the applicant, by email, a notice of its intention to consider cancellation of his Subclass 572 visa (the notice).  The notice referred to the fact that PRISMS records indicated that he had not been enrolled in a registered course of study since 21 February 2014 and that this indicated that he may not have complied with the requirements of Condition 8202(2)(a). 

10. The decision record states further that, on 7 July 2014, in a phone conversation between the applicant and the delegate, the applicant said that he had every intention of studying, having been in Australia for 7 years, that his mother’s health condition made it difficult for him to study and that he was currently in the process of obtaining a confirmation of enrolment (CoE).  The applicant formally responded to the notice on 10 July 2014 and provided further information in a phone conversation on 23 July 2014.  Details of these responses are set out on pages 2 and 3 of the delegate’s decision record. 

11. At the hearing on 5 February 2015, the applicant told T1 that the delegate’s summary of those responses was generally accurate but there were 2 qualifications.  First, he said that in the conversation on 23 July 2014, he had not mentioned his mother’s illness.  Second, he said that, in that conversation he had asked for further time to submit further documents saying that he was still trying to obtain a confirmation of enrolment (CoE). 

12. He also told T2 that he had not been enrolled in any registered course since 21 February 2014.  At the hearing on 10 August 2015 he confirmed that evidence and said that he had not enrolled in any registered course since 5 February 2015, though at one stage he had an offer of enrolment in a Diploma of Business Management course.  He had not taken up that offer and it has since expired.

13. At the hearing, the applicant confirmed that the only student visas he had were Subclass 572 visa or Subclass 573 visas when.  This means he has never held a Subclass 560 visa, a Subclass 571 visa or a Subclass 576 visa.  In these circumstances, in order to comply with Condition 8202 of his last student visa, he had to satisfy, among other things, Condition 8202(2)(a).  This required him to maintain enrolment in a registered course of a kind specified for Subclass 572. 

14. On the evidence before the Tribunal, the applicant was not enrolled in any registered course from 21 February 2014 until his visa was cancelled on 28 July 2014.  Accordingly, the applicant has not complied with Condition 8202(2)(a) and thus with Condition 8202 as a whole. 

    Consideration of the discretion to cancel the visa

15. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

16. 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).

    Migration history

17. The applicant was granted a Subclass 573 Student visa in September 2006 and arrived in Australia on 5 October 2006.  He was granted further a Subclass 573 visas in October 2006 and May 2008.  The last of these visas was valid until 31 December 2008.  He was then granted Subclass 676 visitor visas on 31 December 2008 and 5 March 2009.  The second visitor visa was valid until 30 April 2009. 

18. After this he held a series of bridging visas until March 2010 when he was granted a subclass 572 Student visa, valid until 18 June 2011.  He then applied for a Subclass 485 skilled visa which was granted on 24 April 2012.  That visa was valid until 24 October 2013.  He then applied for a subclass 572 visa which was granted on 18 December 2013.  This last visa is the visa that was cancelled on 28 July 2014.

19. He told the Tribunal that he had held a visitor visas between December 2008 and March 2009.  He said that, in late 2008, he did not have enough time to organise for a further student visa so had applied for, and had been granted a visitor visa to allow him time for this purpose.  He said that he had held a subclass 485 visa between April 2012 and October 2013. 

20. The Department’s records indicate that, since first arriving in Australia, the applicant has travelled abroad on 6 occasions, for periods ranging between a few days and approximately 2 months and totalling approximately 5 to 6 months.

    The purpose of the applicant’s travel to Australia

21. The applicant initially came to Australia to study.  The evidence before the Tribunal indicates that he obtained a Master of Professional Accounting qualification from Southern Cross University, in 2009.  He later completed a Diploma of Business Administration course in October 2010.  The applicant has not completed any studies successfully since then.  As set out in the decision under review (which he provided to the Tribunal) and as confirmed by him at the hearing in August 2015, though he had a number of enrolments in various courses in the Vocational Education and Training sector between late 2010 and early 2014, all of these enrolments were cancelled either because you failed to pay his fees or because he did not commence study.  As noted above, he has not been enrolled in any course study since February 2014.

22. The applicant said he initially came to Australia with the intention of returning to India after the completion of his studies.  However, after he was here for a while he realised he had better career opportunities in Australia and he wished to remain here.  Initially, he obtained a Subclass 485 visa, which is a temporary resident visa.  In June 2013, a few months before that visa was due to expire, he applied for a Subclass 189 visa.  However, he said that his application was rejected on the basis that a quota for the grant of such visas had already been filled. 

23. The Tribunal is aware that the Subclass 189 visa is a visa which provides permanent residence in Australia.  This is consistent with the applicant’s oral evidence that he wishes to remain in Australia on a long-term basis. 

24. The Tribunal has noted that, having received a masters qualification in accounting and a Diploma of Business Administration qualification in 2009 and 2010 respectively, he was seeking enrolment in a Diploma of Business Management qualification in early 2014 and had an offer of enrolment in such a course.  While the Tribunal accepts that the 2 diploma qualifications have different names, they are in fairly similar fields of endeavour.  The Tribunal is of the opinion that, having failed to gain permanent residence following his application for a Subclass 189 visa in 2013 he sought enrolments in further courses to justify the granting of a further student visa which would allow him to remain in Australia

    The extent of any non-compliance with conditions of his visa

25. The applicant had not been enrolled in any course of study for a period of approximately 5 months when his visa was cancelled.  The Tribunal regards this period as significant.  A further period of a year has elapsed since then during which time the applicant has not engaged in any study in Australia.  However, as the bridging visas the applicant has held since the cancellation of his student visa have had no conditions requiring him to study, this further period of a year does not involve any breach of a condition, and the Tribunal is not aware of any other instances of non-compliance with the conditions of his visa. 

    The circumstances in which the ground for cancellation arose

26. The ground for cancellation arose when the applicant’s enrolment in a course of study was cancelled because he did not pay his fees.   In submissions to the Department, the applicant said that this situation arose because his mother was very ill and he is contemplating divorce proceedings.  The Tribunal accepts that his mother was ill at the time, there is no evidence before the Tribunal, other than his own assertion, to indicate that he was so unwell at the time that he was unable to attend to his studies.  Had he been so unwell the Tribunal would have expected him to have consulted a medical and to have sought deferment from his course provider.

27. The applicant also said that his family situation was such that he had to work to earn money to send to his mother to cover her medical bills.  At the hearing, he said that that situation was now resolved and his parents were once again able to support him.  He said that he had proof that he was now in a financially viable position but that proof was in the hands of a migration agent he had engaged, but who has so far failed to do anything for him.

28. The Tribunal is prepared to accept that the applicant’s financial situation may have now improved but, if this were the case, it would have expected him to have recommenced studies if he was indeed genuinely interested in obtaining further qualifications.   However, he has still not enrolled in any course of study despite the passage of more than 12 months since his visa was cancelled.  As discussed with him at the hearing there is nothing to suggest that there are any of these conditions on his current bridging visas which would have prevented him from studying at any time since the cancellation of his student visa.

29. Given that the applicant has obtained a Master of Professional Accounting qualification in Australia, which no doubt would enable him to obtain a well-paid position on return to India, the Tribunal places some weight on the fact that the applicant has not been enrolled in any course of study for approximately 18 months.

    The applicant’s past and present behaviour towards the Department

30. The Tribunal is aware of nothing adverse in the applicant’s past and present behaviour towards the Department,

    Whether there would be consequential cancellations under s.140

31. The applicant’s wife holds a student visa as a member of his family unit.  Therefore, if the applicant’s visa is cancelled, his wife’s visa will also be cancelled under s.140.  However, as the applicant said at the hearing, his wife is only in Australia in order to be with him.  If he is required to return to his home country, the Tribunal does not consider the fact that she would be required to return with him as causing her any difficulty.

    The degree of hardship that may be caused to the applicant or his family members

32. If the applicant’s visa is cancelled, he will have only limited options to apply for other visas in Australia, and it is likely that he and his wife will be required to return to their home country.  While this will necessarily mean that he will not be able to resume his studies in courses in the Vocational Education and Training sector, the Tribunal does not regard this as a significant hardship outweighing the extent of the breach, particularly given the high level qualification he has already obtained. 

    Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

33. Cancellation of the visa may result in the applicant (and his wife) becoming unlawful unless further Bridging visas were to be 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.

    International obligations

34. There is nothing to suggest that the cancellation of the applicant’s visa would result in any of Australia’s international obligations being breached.

    The impact on any victims of family violence

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

    Other matters

36. At the hearing, the applicant said that he is his parents’ only son and that he would be expected to support them in their old age.  He indicated that he felt an obligation to do so, particularly that they had struggled in order to provide him with a good education.  The Tribunal has considered this, but is of the view that the qualifications he has already obtained are of such a level that he should be able to obtain a well remunerated position in India and support them from there. 

37. The Tribunal acknowledges that the applicant’s wish is to remain in Australia on a permanent basis.  However, this is not the purpose of the student visa program.

    Conclusion

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

    DECISION

39. The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa. The Tribunal has no jurisdiction with respect to the other applicant.

    Bruce MacCarthy
    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.