DHALIWAL (Migration)

[2018] AATA 1571

DHALIWAL (Migration) [2018] AATA 1571 (27 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr TEJPAL SINGH DHALIWAL

CASE NUMBER:  1710328

DIBP REFERENCE(S):  BCC2017/1098519

MEMBER:Fiona Meagher

DATE:27 February 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 27 February 2018 at 2:33pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Requirement to be enrolled in a registered course – Whether applicant has been a genuine student

LEGISLATION
Migration Act 1958, s 116, 140
Migration Regulations 1994, Schedule 8, Visa condition 8202

CASES
Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 May 2017 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 was not enrolled in a registered course, in accordance with condition 8202 of his Visa. A copy of the delegate’s decision was provided with the application for review.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 21 February 2018 to give evidence and present arguments.   

5. 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

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 the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The requirements of condition 820 to do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA [2003] FCA 1170

9. The applicant told the Tribunal that in 2014 he had enrolled in a package of courses with a view to obtaining a degree in nursing. He said that he failed the TAFE course in nursing so decided that he would be unable to pass a nursing degree. Accordingly he changed to a Diploma of Business Management and received a Certificate IV and Diploma of Business Management from the Australian National Institute of Business. He said that the Institute then enrolled him an Advanced Diploma of Leadership in Business Management whilst he had returned to India in January 2016.

10. The applicant said that his visa was cancelled in July 2016 because he had not paid the fees for his course. He stated that he had not been enrolled since July 2016. This accords with records held by the Department. The explanation given by the applicant for not being enrolled was his inability to pay the fees because his father fell ill in India and was in hospital for three months, and the family used all their savings to pay for the father’s treatment. The applicant said he became depressed about his father, and his studies and went home to India, but his family encouraged him to come back. When asked by the Tribunal why his family encouraged him to come back if they have no money to pay the fees, he said that his father had encouraged him because he thought that the treatment would be quicker, and therefore cheaper.

11. 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

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.

13. 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).

14. On 12 May 2017 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (N0ICC) because he had ceased to be enrolled in a registered course since 8 July 2016, and was therefore failing to comply with condition 8202(2)(a) of his Visa.

15. The applicant did not respond to the NOICC. When asked by the Tribunal why he.did not respond to the NOICC he stated that he went to see a consultant who advised him that if he replied his Visa would be cancelled. The applicant then stated that he knew that his Visa would be cancelled.

    The purpose of the applicant’s travel to stay in Australia – whether the applicant has compelling need to travel to or remain in Australia

16. The applicant was granted the visa to study in Australia.

17. The Tribunal discussed with the applicant his study history, and the extent to which he had acted consistently with the purpose of his Visa. The Tribunal was concerned regarding the applicant’s commitment to his study in Australia given the range of subjects he traversed, and his failure to progress beyond a diploma of business when the purpose of his enrolment was to undertake a higher education course.

18. The Tribunal is not persuaded that the applicant has a genuine intention to study in Australia, rather he appears to wish to stay in Australia, contrary to the objectives of the student Visa. Accordingly, the Tribunal is not satisfied that the purpose of the applicant’s travel and stay mean that the visa should not be cancelled.

    The extent of compliance with visa conditions – whether the applicant has otherwise complied with these conditions now and on previous occasions

19. The applicant was granted the visa to undertake specified studies in Australia. He has not done so. He has not complied with the primary condition of the Visa granted to him.

20. The Tribunal considers this weighs heavily in favour of cancellation of the Visa.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the applicant and any family members

21. The applicant gave evidence that he had not told his family about the cancellation of his visa because it would “break their hearts”. He said he wanted to make his family proud. He said that his father was still not being properly treated – there is something wrong with his lungs, he has had an unsuccessful operation, and accordingly will need a further operation, and he has sugar diabetes. The applicant said that he did not know what would happen if he told his parents about the cancellation as they are “not strong enough” for this information. The applicant said that he can pay now - his father has promised him the money although he has not given it to him.

22. The applicant said that the only people who will be affected by his Visa cancellation are his family.

23. The Tribunal accepts that the applicant will suffer hardship by cancellation of his visa because he will not be able to apply for a visa to return to study in Australia in the near future. The Tribunal also accepts the applicant’s evidence that his family will be upset about the cancellation of his Visa, and that he thinks they are “not strong enough” for that information.

24. The Tribunal places some weight upon the applicant’s parents’ feelings, and the degree of hardship that may be caused to them and him, but on balance is not satisfied that there is a degree of hardship that means that the visa should not be cancelled.

    The circumstances in which the grant of cancellation arose – whether there were any extenuating circumstances beyond the applicant’s control that led to the grounds existing. If cancellation is being considered because of the relationship breakdown, whether the relationship has broken down as a result of family violence.

25. As set out above, the applicant gave evidence that the reason he could not study and continue to be enrolled was because he was unable to pay the fees, as the money was required to pay for his father’s medical treatment.

26. The Tribunal notes there is no corroborating documentary evidence before it with respect to the applicant’s father’s health, nor was this matter raised in a response to the NOICC, which would have been an obvious opportunity to engage with the Department in this respect.

27. On balance, in considering the applicant’s circumstances individually and cumulatively, the Tribunal is not satisfied that the applicant circumstances as accepted by the Tribunal mean that the visa should not be cancelled.

    The applicant’s past and present behaviour towards the department – whether the applicant has been truthful and cooperative in their dealings with the Department.

28. The Tribunal notes that the applicant did not respond to the NOICC, and that when questioned about his failure to respond to the NOICC he stated that he received advice from a consultant to the effect that if he responded his Visa would be cancelled. The applicant subsequently stated that he knew in any case that his Visa would be cancelled.

29. There is no other material before the Department to indicate that the applicant has been deliberately uncooperative or untruthful in his dealings with the Department.

30. The Tribunal gives some weight to the applicant’s failure to respond to the NOICC as weighing in favour of cancellation of the Visa.

    Whether there would be consequential cancellations under s.140.

31. There is no evidence that there would be consequential cancellations in this case.

    Whether there are mandatory legal consequences to a cancellation decision.

32. As set out above, the applicant could become unlawful and may be subject to detention, but those are the consequences of the legislation, and the Tribunal is satisfied that in this case that they do not mean that the visa should not be cancelled.

    Whether Australia has obligations and relevant international agreements which would be breached as a result of the Visa cancellation.

33. There is no evidence before the Tribunal that any international obligations would be breached as a result of the Visa cancellation.

    Any other relevant matters.

34. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

35. The Tribunal recognises that the cancellation of the Visa is a significant matter. However, on balance in considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

36. For those reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists as the applicant ceased to be enrolled in a registered course, in accordance with the conditions attached to his Visa.

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

    DECISION

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

    Fiona Meagher
    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.