CHAUDHARY (Migration)

[2019] AATA 2355

CHAUDHARY (Migration) [2019] AATA 2355 (25 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SANJAYKUMAR BABUBHAI CHAUDHARY

CASE NUMBER:  1706626

HOME AFFAIRS REFERENCE(S):           BCC2017/116251

MEMBER:Peter Booth

DATE:25 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 25 June 2019 at 11:04am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – serious breach – gambling problem – reasonable steps to rectify situation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 March 2017 made by a delegate of the Minister for Immigration and Border Protection 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 not complied. 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 appeared before the Tribunal on 4 June 2019 to give evidence and present arguments. 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

4. 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?

5. 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).

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

7. On 22 March 2017, the applicant’s visa was cancelled on the basis that he had not been enrolled in a registered course of study since 2 March 2016. In the hearing of the applicant’s review application, he confirmed that his enrolment had been cancelled effective from 2 March 2016. 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

8. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’

9. The Tribunal now turns to consider the discretionary factors as outlined in PAM 3 in considering whether it is appropriate to cancel the applicants visa as follows:

   ·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

   The applicant arrived in Australia in 2014 as the holder of a Higher Education Student (Subclass 573) visa. It was his intention to study a Masters of Business Administration. He did not commence the course but undertook some English language courses. Shortly thereafter, he moved to Melbourne for the purposes of studying a Bachelor of Accounting in June 2015. He completed the first semester of the course which finished in about October 2015. The applicant gave no evidence at the hearing as to whether he had either a compelling need to travel to, or a compelling need to remain in Australia. Accordingly the Tribunal gives this factor no weight.

   ·The extent of compliance with visa conditions

   The applicant informed the Tribunal that he returned to India on 1 November 2015 for a period of three months, returning to Australia on 31 January 2016. Upon his return to Australia he moved to Sydney.  Accordingly, he did not complete the Masters of Business Administration in which he was initially enrolled, or the Bachelor of Accounting in which he was subsequently enrolled. The applicant has not completed any higher education course since his arrival in Australia, and prior to the cancellation of his visa on 2 March 2017. It was a condition of the applicant’s higher education visa, that he undertakes such studies. Non-compliance with visa conditions is a significant matter to which the Tribunal attributes substantial weight.

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

   The applicant did not provide any evidence or advance any argument regarding any degree of hardship that may be caused by the cancellation of the visa. However, the Tribunal accepts that there would be, in all likelihood, some financial hardship in the form of the payment of course fees; and some emotional hardship in the form of disappointment, which may result from the cancellation of the visa. The Tribunal gives these factors little weight; they are unavoidable consequences of the cancellation of such a visa.

   ·Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

   The applicant informed the Tribunal that he did not receive the notification from the course provider, of cancellation of his enrolment.  He said that that he was in Griffith, New South Wales at the time. In answer to queries from the Tribunal, he said that the Notice of Cancellation had been sent to him by email, and that his email address had never changed, but that he had never received the notification. He went on to say that he did not receive a further Notification of Cancellation until an email from the course provider was received on or about 24 November 2016.

   The Tribunal enquired whether, at that time, the applicant had contacted the course provider in order to re-enrol, or find out the circumstances of the Cancellation of Enrolment. The applicant responded by saying that he had a Confirmation of Enrolment with another institution, Cambridge International, in a Bachelor of Accounting course. However, he said that he had not attended the course for about six months.

   In response to an enquiry from the Tribunal, he said that he had a “…problem with gambling”. He said that after about six months, he had tried to enrol in a Bachelor of Accounting course in Sydney, at Elite College. He said that he could not enrol in the course because he could not pay the fees.

   The Tribunal drew the applicant’s attentions to his submission to the Department dated 10 March 2017. The Tribunal pointed out there was no mention in that document about the applicant only becoming aware of the cancellation of his enrolment in November 2016. The applicant was asked to explain why that was so. The applicant agreed that it was not mentioned, but did not proffer any explanation as to the reasons for its omission. The Tribunal also pointed out there was no mention in the document about the applicant’s lack of funds being due to a gambling problem. The applicant was asked to explain the omission. The applicant said he did not want to disclose it.

   It may be that the applicant was not aware of the cancellation of his enrolment until November 2016. However, it is apparent that the applicant took no steps to resolve any issue which gave rise to the cancellation or indeed to enquire about the basis of it. The applicant appears to assert that lack of funds was the problem, and that this was due to a gambling problem.

   The Tribunal does not accept that a gambling problem was the cause of any impecuniosity for two reasons. First, it was not mentioned by the applicant at the time of the initial visa refusal decision. Secondly, at the hearing it was a mere assertion by the applicant, unsupported by any medical or psychological evidence.

   Accordingly the Tribunal is not satisfied that the circumstances in which the ground of cancellation arose were beyond the applicant’s control. On the contrary it appears that the applicant had opportunities, at least from November 2016, to make enquiries and take steps to rectify any enrolment issue.

   ·Past and present behaviour of the visa holder towards the department

   There was no evidence at the hearing relevant to this factor accordingly the Tribunal gives it no weight.

   ·Whether there would be consequential cancellations under s.140

   The applicant gave no evidence and advanced no arguments in relation to this factor. Accordingly the Tribunal gives it no weight.

   ·Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

   The applicant advanced no evidence or argument in relation to this factor, however, the Tribunal accepts that there will be consequences pursuant to Australian law, in the event of the cancellation of the applicant’s visa. The Tribunal gives these matters no weight because they are the consequences intended by Parliament, when the relevant laws were enacted.

   ·Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

   The applicant gave no evidence and advanced no argument in relation to this factor. Accordingly the Tribunal gives it no weight.

   ·If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

   The applicant gave no evidence and advanced no argument in relation to this factor. Accordingly the Tribunal gives it no weight.

   ·Any other relevant matters.

   The applicant gave no evidence and advanced no argument in relation to this factor. Accordingly the Tribunal gives it no weight.

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

    DECISION

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

    Peter Booth
    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.