Chaudhari (Migration)

[2018] AATA 222

Chaudhari (Migration) [2018] AATA 222 (6 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Divyang Sanjaybhai Chaudhari

CASE NUMBER:  1617190

DIBP REFERENCE(S):  BCC2016/2942966

MEMBER:Antoinette Younes

DATE:6 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 06 February 2018 at 12:39pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Enrolment in a Higher Education course – Enrolment cancelled – Change to Vocational courses – Limited academic progress – Applicant left Australia

LEGISLATION

Migration Act 1958, s 116

Migration Regulations 1994, Schedule 8 Condition 8202

CASES

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 October 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 had breached condition 8202. 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 following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   HEARING INVITATION

4. On 15 January 2018, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled at 11.30am on 5 March 2018. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on the case without taking any further action to allow or enable the applicant to appear before the Tribunal or may dismiss the application for review without any further consideration. On 23 January 2018, the applicant advised the Tribunal that “unfortunately due to some circumstances”, he has left Australia. He indicated that he was not able to explain all the circumstances relating to his situation and that he would not be attending the scheduled hearing.

5. In those circumstances, the Tribunal has decided to make its decision on the review without taking any further action.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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?

7. 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).

8. In support of the application for review, the applicant provided to the Tribunal a copy of the delegate’s decision record in which it is noted that information available to the Department in the Provider Registration and International Student Management System (PRISMS) indicated that at the date of the delegate’s decision record of 12 October 2016, the applicant had not been enrolled in a registered course from 9 October 2015 to 22 September 2016. 

9. On 19 September 2016, the Department sent to the applicant a notice of intention to consider cancellation to which the applicant replied on 23 September 2016. In his response, a copy of which was provided to the Tribunal, the applicant indicated that:

   a.He created for himself a very unfortunate situation; he came to Australia for a better future and he enrolled in a Bachelor of Electrical Engineering (BEE). He started a four week English language course which he could not pass so the course was extended for another six weeks.

   b.Subsequent to completion of the English course, he commenced the BEE course and faced difficulties in coping with his studies. He received assistance from tutors and students’ support but he failed the subjects. He tried his best for a year and a half but subsequently lost hope and stopped studying. There is no other reason for his inability to continue with his studies.

   c.He has paid a lot of fees and he genuinely wanted to complete his studies. He has now enrolled in a one-year Diploma of Business course. He intends to complete this course and pursue a bachelor’s degree in business. From a cultural perspective, there are times when one is forced to undertake studies of no interest or capacity.

10. The applicant provided to the Department and to the Tribunal a copy of a Confirmation of Enrolment (CoE) in the diploma of business course at Oz Star Academy, commencing on 26 September 2016 and finishing on 17 September 2017.

11. On the basis of the available information, the Tribunal finds that the applicant has not been enrolled in a registered course of study from 9 October 2015 to 22 September 2016. Accordingly, the applicant has not complied with condition 8202(2) and therefore the ground for cancellation in s.116(1)(b) arises.

12. 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.  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). The Tribunal has carefully considered the applicant’s explanations and the fact that he had obtained a CoE in the diploma of business course at Oz Star Academy, commencing on 26 September 2016 and finishing on 17 September 2017. The Tribunal has given some weight to the applicant’s explanations.  However, the Tribunal notes that the CoE was obtained subsequent to the notice of intention to consider cancellation and that the diploma of business course is not commensurate with a course of study contemplated for a subclass 573 visa.  The applicant did not dispute that he had not been enrolled in a registered course from 9 October 2015 to 22 September 2016, which the Tribunal considers to be a significant period of time.

13. In response to the hearing invitation, the applicant advised the Tribunal that “unfortunately due to some circumstances”, he has left Australia.  He did not provide any details about those circumstances. The Tribunal has not had the opportunity to speak with the applicant in the course of a hearing so that the Tribunal could have asked the applicant for further information and details about the non-compliance. The Tribunal would have asked the applicant about any other circumstances that led to the cancellation of the visa and any relevant factors that might have impacted on his ability to enrol and comply with condition 8202. The Tribunal would have asked the applicant about his current circumstances and would have obtained a comprehensive understanding relevant to the considerations relating to the guidelines in PAM3.

14. The Tribunal when inviting the applicant to the hearing had indicated to him that the Tribunal was unable to make a favourable decision on the basis of the available information.  Without having had the opportunity to further explore with the applicant at a hearing his reasons for non-compliance and ask him about any other circumstances that led to the non-compliance, the Tribunal is not satisfied that there are any circumstances in this case that mean that the visa should not be cancelled. 

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

    DECISION

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

    Antoinette Younes

    
    Senior 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.