CHATARTH (Migration)

[2019] AATA 1703

CHATARTH (Migration) [2019] AATA 1703 (30 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr GAGANDEEP SINGH CHATARTH

CASE NUMBER:  1706117

HOME AFFAIRS REFERENCE(S):           BCC2017/603955

MEMBER:Lynda Young

DATE:30 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 30 May 2019 at 4:58pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – failure to attend Tribunal hearing – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of visa not fulfilled – substantial period of non-compliance – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B, 379A
Migration Regulations 1994 (Cth), Schedule 8, Conditions 8202, 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made on 21 March 2017 by a delegate of the Minister for Immigration and Border Protection under s.116(1)(b) of the Migration Act 1958 (the Act), to cancel the applicant’s Subclass 573 Higher Education Sector visa.

2. The applicant’s visa was subject to condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations), requiring the applicant to be enrolled in a registered course of study.

3.    The delegate cancelled the visa on the basis the applicant, in breach of visa condition 8202(2)(a), was not enrolled in a registered course of study between 1 June 2016 and 14 March 2017, and the grounds in favour of cancellation outweighed the grounds against cancellation. The issues in the present case are whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

4.    By letter emailed to the applicant on 14 March 2019, the Tribunal invited the applicant to give evidence and present arguments relating to the issues in his case at a hearing on 5 April 2019 at 9:30am. The invitation advised the applicant the Tribunal may, if he did not attend the hearing and an adjournment was not granted, make a decision on the case without taking any further action to allow or enable the applicant to appear before it.

5.    On 29 March 2019 and again on 4 April 2019, the Tribunal sent the applicant reminders by SMS about the hearing and by SMS on 5 April 2019.

6.    No response to the hearing invitation was received by the Tribunal, and no transmission or delivery failure notices were received in response to the Tribunal’s email and SMS messages.

7.    The applicant failed to appear before the Tribunal at the scheduled hearing on 5 April 2019. Neither the applicant or anyone on his behalf provided any explanation for his non-attendance or any documents including medical certificates, submissions, written responses to the hearing invitation or any requests for postponements to the Tribunal, at any time prior to the time of making this decision.

8.    The Tribunal is satisfied the applicant was properly invited to a hearing in accordance with s.379A(5) of the Act. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

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

11.      On 27 March 2017, the applicant filed with the Tribunal, his application for review of the delegate’s decision attaching, in support of his application, copies of the Notice of Cancellation, the Decision Record and his passport.

12.      By letter emailed to the applicant on 29 March 2017, the Tribunal acknowledged receipt of his application and requested he provide, as soon as possible, a statement explaining why he disagreed with the decision, and any supporting material or written arguments he wished the Tribunal to consider.

13.      In addition to inviting the applicant to give evidence and present arguments relating to the issues in his case at the hearing, the Tribunal’s hearing invitation of 14 March 2019 also requested the applicant provide within seven days, that is by 21 March 2019, all documents on which he intended relying in support of his case.

14.      The applicant did not appear before the Tribunal at the scheduled hearing to give evidence and present arguments and, despite the Tribunal’s requests, did not provide the Tribunal with any documents or material additional to that provided with his application, and did not provide any submissions in support of his application or in relation to the grounds for cancellation or why his visa should not be cancelled, or at all. As a result, the Tribunal must determine the application on the limited evidence before it, comprised of:

a.the review application and attached documents (the notice of cancellation, the decision and passport);

b.the Tribunal’s correspondence with the applicant and movement records for the applicant in the Tribunal’s file; and

c.emails from the applicant to the Department on 6 and 7 March 2017 and a Notice of Intention to Consider Cancellation (NOICC) dated 10 March 2017 in the Department's file.

Did the applicant comply with Condition 8202?

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

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

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

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

16.      In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course of study between 1 June 2016 and 14 March 2017.

17.      By emails sent to the Department’s on 6 and 7 March 2017, the applicant provided his current residential address and consented to email communication with the Department.

18.      By Notice of Intention to Consider Cancellation (NOICC) dated 10 March 2017, the Department:

a.notified the applicant it intended considering cancellation of his visa as, based on evidence available in the Provider Registration and International Student Management System (PRISMS), he had not been enrolled in a registered course of study since 1 June 2016, in breach of condition visa condition 8202;

b.set out the matters the delegate would take into account in considering whether to cancel his visa, being the purpose of his travel to and stay in Australia , the extent of compliance with any conditions subject to which his visa was granted, the degree of hardship that may be caused to him and any family members if the visa is cancelled, the circumstances in which the ground for cancellation arose, his past and present behavior toward the Department, the legal consequences of a decision to cancel the visa, and any other matters;

c.invited the applicant to provide a written response to the NOICC within five working days, addressing the identified ground(s) for cancellation, reasons why his visa should not be cancelled, the matters the delegate would take into account in considering whether to cancel his visa, and any other matter he considered relevant;

d.notified the applicant his response would be taken into account in deciding whether to cancel his visa, and if he did not respond the decision would be made on the information then held by the Department;

e.outlined the consequences should the applicant’s student visa be cancelled.

19.      On 21 March 2017, the delegate cancelled the applicant’s visa, and a copy of the visa cancellation notice and decision record were emailed to the applicant. The decision set out the following:

a.the applicant was granted a Subclass 573 Higher Education Sector student visa on 6 December 2013, with a stay period to 15 March 2018;

b.in the visa application process, the applicant stated his intended purpose of travel to and stay in Australia was to study;

c.the applicant was notified of the intention to consider cancellation on 10 March 2017, on the basis of PRISMS evidence that he had not been enrolled in a registered course of study since 1 June 2016, in breach of condition 8202, and invited to respond in writing;

d.no response to the NOICC was received by the Department and the applicant did not provide reasons why his visa should not be cancelled;

e.on evidence obtained from PRISMS, the applicant, on 14 March 2017, obtained a Confirmation of Enrolment in an Advanced Diploma of Leadership and Management;

f.although the applicant’s visa was a TU 573 Higher Education sector visa, the Advanced Diploma of Leadership and Management the applicant enrolled into was a Vocational Education and Training course;

g.the applicant secured enrolment into a registered course of study after being issued with the NOICC;

h.on evidence obtained from PRISMS, the applicant had not been enrolled in a registered course of study between 1 June 2016 and 14 March 2017, and had breached of condition 8202 of his visa;

i.obtaining further enrolment after being issued a NOICC did not negate the applicant’s breach of condition 8202(2)(a), and his previous conduct on his student visa could not be excused simply by seeking further enrolment;

j.the delegate was unaware of any details regarding hardship that may be caused to the applicant or his family if the visa is cancelled;

k.there were no reasons before the delegate in relation to extenuating circumstances in which the ground for cancellation arose, constituting a reason not to cancel his visa;

l.there was no information before the delegate to indicate any specific matters of relevance regarding the applicant’s behaviour towards the Department;

m.there were no dependant visa holders to the applicant’s visa;

n.the circumstances of the case were not such that would engage Australia’s international obligations.

20.      The applicant had, as at the hearing date, been on notice of the ground on which his visa was cancelled for slightly more than two years and in that time, despite the Tribunal’s requests in its review application acknowledgement and hearing invitation, has failed to provide any documents or submissions supporting his application, and has not disputed the ground for cancellation existed.

21.      The Tribunal invited the applicant to give evidence and present arguments relating to the issues in his case at a hearing. As he failed to attend the hearing the applicant failed to give evidence and present arguments as invited, and the Tribunal has not had the opportunity discuss with the applicant any of the issues in his case including his studies in Australia.

22.      The evidence available to the Tribunal, set out in the decision, satisfies the Tribunal the applicant was not enrolled in a registered course of study in breach of visa condition 8202(2)(a), for the just over nine month period from 1 June 2016 until 14 March 2017, when he re-enrolled  into an Advanced Diploma of Leadership and Management course in the Vocational Education and Training sector, rather than a course in the Higher Education Sector, required by his subclass 573 higher education sector visa.

23. Accordingly, the Tribunal is satisfied the ground for cancellation in s.116(1)(b) exists.

24.      As the 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

25.      Having found the applicant had breached a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa. There are no  matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion.

26.      The Tribunal has had regard to the circumstances of this case, including matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

27.      The applicant did not respond to the NOICC or the decision or otherwise provide the Department with any reasons why his visa should not be cancelled or address any of the PAM3 matters, which were set out in the NOICC as matters the delegate would take into account.

28.      The applicant did not appear and give evidence or provide submissions at the hearing and, despite the Tribunal’s request in its application acknowledgement and hearing invitation, has not provided any documents or submissions in respect of any of the PAM3 matters or other circumstances for the Tribunal’s consideration in its exercise of the discretion to cancel the visa.

29.      The PAM 3 matters are addressed in the decision. The applicant has not disputed any of the information or conclusions set out in respect of the PAM3 matters in the decision.

The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

30.      There is no evidence before the Tribunal to suggest that the applicant’s original intention for his travel to and stay in Australia was not for the purpose of study.

31.      On the Tribunal’s findings in respect of the applicant’s enrolment set out in paragraph 22 above, the applicant was not enrolled in a registered course of study for a period of just over nine months from 1 June 2016 by the time the NOICC was issued to him on 10 March 2017. The course into which he enrolled on 14 March 2017, two business days after the NOICC issued, was a Vocational Education and Training sector course, and not a course in the Higher Education Sector as required by his subclass 573 higher education sector visa.

32.      The decision states the applicant was still enrolled in the Vocational Education and Training sector course when his visa was cancelled on 21 March 2017. The available evidence satisfies the Tribunal the applicant was not enrolled in a registered course of study in the Higher Education Sector as required by his subclass 573 higher education sector visa from 1 June 2016 until cancellation on 21 March 2017.

33.      Student visas are granted for the purpose of non-citizens and non-permanent residents studying towards, and achieving, an educational qualification in Australia. That purpose cannot be achieved unless the visa holder is enrolled in a registered course of study. Higher Education Sector visas are granted for the purpose of the visa holder studying towards, and achieving, an educational qualification in Australia at the higher education level. That purpose cannot be achieved unless the visa holder is enrolled in a registered course of study in the higher education sector. Considered in that context, the Tribunal finds each of the applicant’s failure to be enrolled in a registered course of study for over nine months between 1 June 2016 and 14 March 2017, and his failure to be enrolled in a registered course of study in the higher education sector for over nine months between 1 June 2016 and 21 March 2017, are significant and weigh heavily in favour of cancellation.

34.      The Tribunal is not satisfied the applicant’s intended purpose of travel to and stay in Australia provides a compelling need to travel to and remain in Australia. Neither failing to remedy his non-enrolment until after the NOICC issued or then obtaining enrolment into a course in a sector other than as required by his visa subclass, are consistent with such compelling need. Similarly, if he genuinely had compelling need, it would be reasonable to expect the applicant to have participated meaningfully in his review application, rather than not attending the hearing without explanation. The Tribunal gives this consideration substantial weight in favour of cancelling the visa.

Extent of non-compliance with any conditions subject to which the visa was granted: whether the visa holder has otherwise complied with the visa conditions now and on previous occasions

35.      Two instances of non-compliance are identified in the decision: the applicant’s failure to be enrolled in a registered course of study from 1 June 2016 until 14 March 2017, and failure to be enrolled in a registered course of study in the higher education sector from 1 June 2016 until 21 March 2017.

36.      The applicant was not enrolled at all in breach of visa condition 8202 for over nine months, without explanation, and re-enrolled only after being contacted by the Department by way of the NOICC about the possibility of his student visa being cancelled. Obtaining further enrolment neither excuses nor negates the applicant’s breach of visa condition 8202.

37.      Although his re-enrolment on 14 March 2017 satisfied the requirement to be enrolled in a registered course of study imposed by visa condition 8202, maintaining enrolment in a higher education sector course was necessary for the applicant to comply with another condition of his visa, condition 8516. The Tribunal is satisfied the applicant was not enrolled in a registered course of study in the higher education sector course from 1 June 2016 until 21 March 2017, in breach of visa condition 8516. 

38.      The evidence does not satisfy the Tribunal the applicant breached any visa conditions other than conditions 8202 and 8516.

39.      The Tribunal considers the applicant’s non-compliance with visa conditions 8202 and 8516, simultaneously for over nine months until 14 March 2017 after which his breach of condition 8516 continued for a further week until cancellation, is non-compliance of significant extent, weighing heavily in favor of cancellation of the visa.

Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

40.      The Tribunal is satisfied the available evidence does not disclose any specific hardship may be caused to the applicant or his family if his visa is cancelled, and considers this factor weighs slightly in favour of cancellation.

41.      The Tribunal accepts visa cancellation ordinarily results in the visa holder becoming unlawful and liable to detention unless that person voluntarily departs Australia or holds a bridging visa. Movement records indicate the applicant was granted a Bridging Visa E on 30 March 2017, which remains in force.  Although the basis on which it was granted and when it will cease are not specified, given the three day period between the applicant lodging this review application and being granted the visa, the Tribunal is satisfied it is reasonable to infer it was granted based on this review application and accordingly would remain in force for 35 days after the Tribunal makes its decision on the review application. In those circumstances, the Tribunal is not satisfied the applicant would become unlawful or liable to detention upon cancellation or be caused any hardship as might otherwise result. The Tribunal accepts a visa holder may be prevented from being granted a further temporary visa for a period of 3 years on the basis that person may not, as a result of the cancellation, meet the public interest criterion 4013.

42.      The Tribunal considers any hardship as may be caused by these intended consequences of cancellation weighs in favor of not cancelling the visa

43.      The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing

44.      On the evidence before the Tribunal, the circumstances that led to the ground for cancellation existing were the applicant’s failure to maintain his enrolment in a registered course of study in breach of condition 8202.

45.      On the Tribunal’s findings in respect of the applicant’s enrolment set out in paragraph 22 above, the applicant was able to re-enroll within two business days after being issued the NOICC. That he was able to do so in such a short period strongly suggests his failure to be enrolled until 14 March 2017 was not, at least by the time the NOICC issued, the result of extenuating circumstances beyond his control. Had such circumstances existed, it would be reasonable to expect the applicant to have provided evidence and submissions in respect of those circumstances in support of his review application, rather than not attending the hearing without explanation.

46.      On the available evidence, the Tribunal is not satisfied there were any extenuating circumstances beyond the applicant’s control that led to the ground for cancellation existing.

47.      The Tribunal gives this consideration moderate weight in favour of cancelling the visa.

Past and present conduct of the visa holder towards the Department

48.      On the available evidence, the Tribunal is not satisfied the applicant’s conduct was, apart from the failure to respond to the NOICC, other than unremarkable. The Tribunal does not consider the applicant’s failure to respond to the NOICC weighs either in favor of or against cancellation.

49.      The Tribunal gives no weight either for or against cancellation for this consideration.

If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

50.      Not relevant. The Tribunal gives this consideration no weight.

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

51. The Tribunal is satisfied cancellation of the applicant’s visa would, in addition to preventing him re-entering Australia for up to 3 years as he may not meet the public interest criterion 4013, limit his ability to remain in Australia but would not, as he hold an in-force Bridging Visa E, result in him immediately becoming unlawful and liable to detention under s189 of the Migration Act or removal under s198 of the Migration Act.

52. The Tribunal accepts the applicant would, if his visa were cancelled, be subject to s.48 of the Migration Act, which significantly limits the classes of visa for which he may apply onshore.

53.      The Tribunal gives this consideration slight weight in favour of not cancelling the visa.

Whether there would be consequential cancellations under s.140

54.      The Tribunal is satisfied on the evidence before it that cancellation of the applicant’s visa would not result in consequential cancellation of any dependent visa holders, and gives this consideration minimal weight in favour of cancellation.

Whether any international obligations would be breached as a result of the cancellation

55.      The available evidence satisfies the Tribunal Australia’s international obligations, including in respect of non-refoulement and best interests of the children, would not or may not, as a result of cancelling the applicant’s visa, be breached. The Tribunal gives this consideration minimal weight in favour of cancelling the visa.

Other relevant considerations

56.      On the available evidence, the Tribunal is not satisfied there are any other matters to be considered in determining whether to exercise its discretion to cancel.

57.      Taken together and considered as a whole, the Tribunal is satisfied the matters weighing in favor of cancellation of the visa outweigh the matters weighting against cancellation.  In circumstances where the applicant has failed to take any active role in the Tribunal’s review process or provide any supporting material or information other than his application and attached documents, the Tribunal is satisfied, in light of the centrality of enrolment to the existence and purpose of the applicant’s visa and stated purpose for his travel to stay in Australia, the applicant’s unexplained failure to be enrolled in any registered course of study for a period in excess of 8 months and thereafter into a course of study not compliant with his subclass 573 higher education sector visa, the matters in favour of cancelling the visa outweigh those in favor of not cancelling the visa.

CONCLUSION

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

DECISION

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

Lynda Young
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.