DEOL (Migration)

[2019] AATA 4336

DEOL (Migration) [2019] AATA 4336 (23 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gurbageech Singh Deol

CASE NUMBER:  1801735

HOME AFFAIRS REFERENCE(S):     BCC2017/3896762

MEMBERS:Dr Jason Harkess

DATE:23 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 573) visa

Statement made on 23 September 2019 at 1:56pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – did not attend hearing – non-payment of fees – explanation not satisfactory – no evidence of deferral – 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. The Applicant is a citizen of India and is 24 years of age. He seeks review of a decision made by a delegate of the Minister for Immigration and Border Protection (‘the delegate’) on 16 January 2018 cancelling his Subclass 573 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant’s student visa was granted on 1 July 2014 with an original expiry date of 1 March 2018, providing for more than 3 years 8 months during which the Applicant would be permitted to reside in Australia for the purposes of full-time study. The Applicant’s visa was granted on the basis that he was enrolled in and would successfully complete a number of courses.

3. The delegate cancelled the Applicant’s visa on the basis that he had breached that condition of the visa which required him to continue to be enrolled in a registered course of study.

4. The issue in the present case is whether the ground for cancelling the Applicant’s visa is made out, and if so, whether the visa should be cancelled.

DETERMINATION OF APPLICATION WITHOUT HEARING

1. The Applicant was invited to attend a hearing scheduled for 23 September 2019 by written invitation from the Tribunal dated 6 September 2019. The invitation was sent to the Applicant’s registered migration agent. On 13 September 2019, the Tribunal received an email from the Applicant’s registered migration agent in response to the invitation, requesting that the hearing scheduled for 23 September 2019 be postponed because the Applicant was unable to attend the hearing on 23 September 2019 ‘due to [the Applicant’s] personal circumstances.’ No further elaboration upon these circumstances was provided to the Tribunal.

2. The Tribunal notes that the rescheduling or adjournment of a scheduled hearing at a review applicant’s request will only occur where there are cogent reasons for the granting of an adjournment.[1] Requests for adjournment of a scheduled hearing will not be granted simply on the basis of the convenience of the review applicant or their representative.[2] The Tribunal is mindful that a request for an adjournment must be carefully considered and the decision to grant or not grant an adjournment must be made in a manner which is reasonable with genuine consideration of the facts and circumstances of the case.[3]

   [1] Administrative Appeals Tribunal, President’s Direction: Conducting Migration and Refugee Reviews (Administrative Appeals Tribunal, 1 August 2018) cl 5.1.

   [2] Ibid cl 5.2.

   [3] Ibid.

3. In the absence of further information, the Tribunal did not consider the request for a postponement to have a reasonable basis. Accordingly, by letter dated 16 September 2019, the Tribunal advised the Applicant that the request for a postponement of the hearing was refused and that the hearing would proceed as originally scheduled for 1:30 pm on 23 September 2019.

4. The Tribunal convened a hearing to consider the merits of the Applicant’s case on 23 September 2019 at the scheduled time of 1:30 pm. Neither the Applicant nor his registered migration agent attended the hearing at the scheduled time and place.

5. In the circumstances, the Tribunal has decided to make a decision on the review without taking any further action to allow or enable the Applicant to appear before it.[4]

   [4] Section 362B(1A)(a) of the Migration Act 1958 (Cth) permits the Tribunal to proceed to make a decision in such circumstances.

6. For the following reasons, the Tribunal has decided to affirm the decision to cancel the visa.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’) as they then were, when the visa was granted. In the present case, the issue is whether the Applicant has breached condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

Did the Applicant Breach Condition 8202?

1. Condition 8202(2)(a) of the Applicant’s visa required that he remain enrolled in a full-time registered course. In the delegate’s decision record, the delegate identified the period from 6 April 2017 to 16 January 2018 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to more than 9 months during which the Applicant was alleged to be in continuous breach of the visa.

2. The delegate’s finding in this respect was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[5] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database allows registered course providers to report changes in relation to a student’s enrolment status and to notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s enrolment in a course for which they had previously been enrolled and the reasons for doing so. The PRISMS report obtained by the delegate indicated that the Applicant had not been enrolled in a registered course of study since 6 April 2017. As the delegate’s decision record notes, the Applicant’s enrolment in a Diploma of Business course had been cancelled by the course provider on 6 April 2017 due to the non-payment of fees.

   [5] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

3. The Department of Immigration and Border Protection (‘the Department’) wrote to the Applicant on 1 December 2017, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). That notice set out particulars of the alleged breach by the Applicant of Condition 8202. The Applicant was invited to comment on these allegations before the Department moved to cancel his visa.

4. The Applicant responded to the NOICC by email dated 4 December 2017 (‘the Applicant’s NOICC response’). He did not dispute that he had been in breach of Condition 8202 for the period alleged.

5. Accordingly, based on the evidence the Tribunal is satisfied that the delegate was correct in finding that the Applicant had breached condition 8202(2)(a) of his student visa for the period of time that was alleged.

Consideration of Discretion to Cancel Visa

1. 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 the Regulations that must be considered in the exercise of this discretion. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (‘PAM3’, ‘General Visa Cancellation Powers’). The matters that ought to be considered are specifically listed in PAM3 as follows:

   ·the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant’s control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);

   ·the purpose of the Applicant’s travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;

   ·the extent of the Applicant’s compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;

   ·the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;

   ·the Applicant’s past and present behaviour towards the Department (eg, whether they have been truthful and co-operative in their dealings with the Department);

   ·whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;

   ·whether there are mandatory legal consequences arising from a decision to cancel the visa;

   ·whether Australia has obligations under any relevant international agreements that would be breached as a result.

Circumstances Giving Rise to Breach of Condition 8202

1. In the Applicant’s NOICC response, the Applicant stated that he was unable to remain enrolled in a registered course of study because he was short of funds and that he was unaware that his course provider had cancelled his enrolment. The Applicant was, however, apologetic for his non-compliance with his visa conditions.

2. The Tribunal notes that it is a requirement for all international students studying in Australia to maintain a sufficient level of personal finance to meet their tuition costs and living expenses while they remain in Australia. In the absence of further elaboration by the Applicant, the Tribunal is of the view that the Applicant’s explanation for being short of funds does not provide a satisfactory explanation for his breach of Condition 8202. The Tribunal also does not accept the Applicant’s suggested excuse that he was unaware that his course provider had cancelled his enrolment. If the Applicant had not paid his fees when the fell due, from any reasonable person’s point of view it would inevitable that the course provider would then take steps to terminate his enrolment.

3. The Tribunal further notes that there is no evidence before it suggesting that the Applicant took any steps to seek a formal deferral of his studies or to negotiate a payment plan with his course provider. In these circumstances, the Tribunal is not satisfied that there were any extenuating circumstances which justified the Applicant remaining in breach of Condition 8202 for more than 9 months.

Purpose of Applicant’s Stay in Australia

1. The purpose of the Applicant’s stay in Australia, as reflected in the essential purpose of a student visa, was to study on a full-time basis. That purpose was effectively defeated when the Applicant ceased studying. That purpose was not served for more than 9 months. It represents a significant proportion of the total visa period.

2. There is no compelling need for the Applicant to remain in Australia. By their nature, student visas are meant to provide non-Australian citizens with temporary residence only. If the Applicant’s visa had been left to operate, without being cancelled, it would have now expired.

Extent of Applicant’s Compliance with Visa Conditions

1. Beyond the Applicant’s non-compliance with Condition 8202, being the subject of the present application for review, there is no material before the Tribunal that indicates the Applicant has not complied with his visa conditions on any other occasions. The Tribunal accepts that the Applicant has otherwise been compliant with conditions attaching to visas that he has been issued by the Australian government.

Hardship

1. The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia, as stated in his NOICC response. The Applicant clearly likes Australia. The Tribunal accepts that it would be difficult for him were he not allowed to complete successfully an Australian qualification. However, that desire must be tempered with the extent of his non-compliance with the conditions of the visa. It was a student visa which obliged him to prioritise studying in Australia the entire time he has been here. In the Tribunal’s view, he has not provided a satisfactory explanation for not complying with that fundamental condition.

Applicant’s Behaviour towards Department

1. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department. There is no adverse evidence before the Tribunal in that regard.

Other Visa Holders

1. There do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

Legal Consequences

1. The Tribunal notes that if his visa is cancelled, the Applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. They reflect the seriousness of the breach of visa conditions.

2. The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements to depart Australia. He is a citizen of India and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia.

International Obligations

1. The Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

Conclusion

1. In all the circumstances, the Tribunal is satisfied that the Applicant’s visa ought to be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 573) visa.

Dr Jason Harkess
Member