Aulakh (Migration)

[2017] AATA 2528

Aulakh (Migration) [2017] AATA 2528 (4 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Karanbir Singh Aulakh

CASE NUMBER:  1621032

DIBP REFERENCE(S):  BCC2016/3104955

MEMBER:Tigiilagi Eteuati

DATE:4 July 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 04 July 2017 at 10:58am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Failure to remain enrolled in a registered course – Failure to attend hearing – Insufficient evidence – Lack of desire to study

LEGISLATION
Migration Act 1958, ss 116(1), 116(1)(b)
Migration Regulations 1994, Conditions 8202(2) – (3)(b)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 5 December 2016 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 delegate cancelled the visa on the basis that the applicant breached the condition of his visa to be enrolled in a registered course. 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 failed to appear before the Tribunal on 4 July 2017 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. 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?

6. 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).

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

8. The Minister’s delegate found that the applicant ceased to be enrolled in a registered course on 4 November 2015, this accords with records held by the Department and was not disputed by the applicant.

9. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

   Consideration of the discretion to cancel the visa

10. 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.

11. 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).

12. In an email response to the Notice of Intention to Consider Cancellation (NOICC), the applicant stated:

    “I want to inform you that I couldn’t continue with my studies because I was deep stressed because of the INDO-PAK BORDER TRAGEDY. As my home comes in BORDER AREA so our villages are all evacuated. So my parents had to live in a room allotted by the state government in government schools. So I was worried and was planning to return to my family but they didn’t wanted me to come to India because they thought at least one is safe outside so I was in stress and was worried for my family. And another reason was that my grandmother died and I couldn’t even go for the final preparations due to all this. All our land was occupied by militaries and we couldn’t even sell it so my family and was in deep trouble not only me but several families was going through same. To assure you this I have attached all the documents with Notary and all are attested by government officials.”

13. The applicant did not provide any evidence or details of the “INDO-PAK BORDER TRAGEDY” he referred to or explain when this occurred. The applicant had provided to the Department a “Border Area Certificate” which indicated that a Kashmir Singh, who the Tribunal assumes is claimed to be the father of the applicant, is a permanent resident of Kohala village in Ferozepur district of Punjab state in India. The certificate indicates that Kohala is situated within 16 km of the “Indo-Pak Border Line.”

14. The Tribunal is willing to accept that the applicant’s father is a resident of Kohala and that Kohala is 16 km from the India/Pakistan border. However, the Tribunal does not have sufficient evidence to be satisfied that the applicant’s family’s land has been occupied by “militaries”, that Kohala has been evacuated, or that the applicant’s family are living in a government school. Similarly, the Tribunal has been provided no documentary evidence of the death of the applicant’s grandmother and is unable to be satisfied of this claim. The applicant’s failure to attend the Tribunal and provide further evidence of these claims also causes the Tribunal to doubt the truth of the claims. The Tribunal also notes that there is no clear evidence from the applicant about why these claimed circumstances prevented him from being enrolled in a registered course from November 2015.

15. The Tribunal considers that the applicant’s failure to remain enrolled in a registered course from November 2015 and his failure to attend the hearing before the Tribunal support the Tribunal’s finding that the applicant does not have the desire to study a higher education course in Australia.

16. The Tribunal is willing to accept that the applicant and his family members may experience disappointment that the applicant’s visa was cancelled before he was able to complete any higher education courses in Australia. The Tribunal has also considered that, as the applicant’s visa has been cancelled, he may have to wait for some time to be granted another student visa for Australia. However, the applicant has not been enrolled in a registered course of study since 2015 and even if his visa was not cancelled it would have expired in August 2017. It was the applicant’s responsibility to abide by the conditions of his visa and to understand the consequences of failing to abide by the conditions of his visa.

17. In the response to the NOICC the applicant suggested that he it was unsafe for him to return to India. However, the Tribunal does not consider that the cancellation of the applicant’s visa, or the affirmation of that cancellation by the Tribunal would have any effect on Australia’s international obligations relating to non-refoulement. First, the Tribunal has found that there is insufficient evidence for the Tribunal to be satisfied of the applicant’s claims relating to the .“INDO-PAK BORDER TRAGEDY” as it relates to Kohala in the Punjab. Therefore, the Tribunal does not accept that there is a real chance that the applicant would suffer serious harm by reason of the “INDO-PAK BORDER TRAGEDY” if he returned to India.

18. Secondly, and significantly, while the applicant may be prevented from being granted another student visa for three years if the delegate’s decision is affirmed, condition 4013 does not attach to protection visas and there is nothing stopping the applicant from lodging a protection visa application which would provide for an assessment of the applicant’s claims to be a refugee and also an assessment of whether the applicant met the criteria for “complementary protection” which are designed to protect individuals in line with other international obligations.

19. The Tribunal finds that the applicant’s lack of desire to study successfully in Australia heavily outweighs all other considerations and in particular, any hardship that he or his family members may face because of the cancellation of the applicant’s visa.

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

    DECISION

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

    Tigiilagi Eteuati
    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.