GUDIVADA (Migration)

[2018] AATA 1914

GUDIVADA (Migration) [2018] AATA 1914 (25 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr NAGA VENKATA SANDEEP GUDIVADA

CASE NUMBER:  1705590

HOME AFFAIRS REFERENCE(S):           BCC2016/4316452

MEMBER:Dr Colin Huntly

DATE:25 May 2018

PLACE OF DECISION:  Perth

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

Statement made on 25 May 2018 at 12:22pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) – Non-compliance – Extended period of non-enrolment – Practice and Procedure – No additional information provided – No entitlement to a hearing – Decision under review affirmed

LEGISLATION
Migration Regulations 1994, ss 116, 359C, 360, 363A

Migration Regulations 1994 Schedule 8 Condition 8202

CASES
Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 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 applicant was represented in relation to the review by his registered migration agent.

3. 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.

   Background

5. The applicant was granted a subclass 573 Student (Temporary) (class TU) Higher Education Sector visa on 20 December 2013.  He travelled to Australia on 19 January 2014, having initially enrolled in a course of study in a registered course on 28 October 2013, namely a Master of business Administration.

6. The applicant did not commence his initial course of study and, on 24 February 2014, he re-enrolled in the same course of study in a registered course, namely, a Master of Business Administration. 

7. The applicant left Australia on 24 January 2016 and returned to Australia on 24 March 2016.

8. On 24 April 2016 the applicant’s education provider notified the Department that the applicant’s enrolment in this course of study had ceased.

9. The delegate cancelled the visa on 14 March 2017 on the basis that the applicant had not been enrolled in a course of study in a registered course from 24 April 2016, thereby breaching condition 8202(2) of the grant of the visa.

10. At the time of his application for review, the applicant provided the Tribunal with a copy of the delegate’s decision record, dated 14 March 2017. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

11. By letter dated 24 January 2018, the Tribunal invited the applicant, pursuant to s.359 of the Act, to provide written information about his enrolment status in a course of study in a registered course between 24 April 2016 and 14 March 2017.  The invitation was sent to the migration agent at the last address provided in connection with the review and advised that,:

    If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information.  You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

12. As at the date of this decision, the applicant has not provided any additional information in response to the foregoing invitation or requested an extension of time. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear.[1]  Accordingly, the Tribunal has proceeded to determine the application on the basis of the available information.

    [1]         Hasran v MIAC [2010] FCAFC 40.

13. The Tribunal does note that, on 8 March 2017, the applicant responded to the Department’s notice of intention to cancel his visa (which had been issued to the applicant on 21 February 2016).  That response is referred to in the delegate’s record of decision, which was provided to the Tribunal by the applicant at the point of lodging his application for review.

14. The Delegate’s record of decision addresses the applicant’s response in the following terms:

    In summary, in [Applicant’s] response, they stated:

    -     The visa holder states that he came to Australia to study his Master of Business Administration

    -     The visa holder states that he has completed his Bachelor of technology in Electronics and Communications in 2012

    -     The visa holder states that these studies will help him further in acquiring managerial skills to run his parents company in India

    -     The visa holder states that apart from the current issue with his visa condition he is totally obedient with the rules of the Australian Visa program

    -     The visa holder states that he respects Australian society values

    -     The visa holder states that his parents have invested nearly 2million rupees providing him with an Australian education

    -     The visa holder states that if his visa is cancelled and if he has to go back to India without acquiring further skills then his family will be in dire financial hardship

    -     The visa holder states that his family would have to repay his education loan as he might not be able to support them in their business operations.

    -     The visa holder states that due to his ill health during the period of January 2016 he went home to India to get well

    -     The visa holder states that he returned to Australia in march 2016 and realized l;ater that he had not recovered very well from his ill health and it affected his studies

    -     The visa holder states that he lost track of his studies which led to the cancellation of his enrolment

    -     The visa holder states that he has the utmost respect for the Australian visa program and has not breached any of his visa condition other than the current issue

    -     The visa holder promises that he will abode by all visa conditions imposed on his visa - The visa holder states that if his visa is cancelled then he would have wasted nearly three years of time in Australia without acquiring further management skills

    -     The visa holder states that the cancellation will leave him without a visa and he will have to leave Australia abruptly without fulfilling his dreams of acquiring managerial skills

    -     The visa holder states that he is in the process of obtaining further enrolment and requests that his visa not be cancelled

    -     The visa holder states that this favour will help him further enhance his skill in an advanced education system

15. The Tribunal notes that the applicant has not addressed the specific aspect of the Delegate’s reasons for decision in response to the Tribunal’s invitation to comment dated 24 January 2018 relating to non-enrolment in a course of study in a registered course from 24 April 2016.  The Tribunal notes that the applicant indicated that he was “in the process of obtaining further enrolment”. 

16. The Tribunal further notes that enrolment in a course of study in a registered course was, at all times, a condition of the applicant’s subclass 573 Student (Temporary) (class TU) Higher Education Sector visa.  The Tribunal, therefore, finds that the applicant’s submission does not address the specific reason (disclosed in the notice of intention to consider cancellation (NOICC) of the applicants subclass 573 Student (Temporary) (class TU) Higher Education Sector visa) for the intention to cancel the applicant’s visa, namely, the applicant’s non-enrolment in a course of study in a registered course from 24 April 2016.  The only reference to non enrolment made in the applicant’s submission in response, is the suggestion that he was “in the process of obtaining further enrolment”.

17. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

    Did the applicant comply with Condition 8202?

18. 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).

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

20. The Tribunal notes that, on 24 February 2014, the applicant commenced a course of study in a registered course, namely, a Master of Business Administration.  On 24 April 2016 the applicant’s education provider notified the Department that the applicant’s enrolment in this course of study had ceased.

21. The Tribunal has had regard to the information in the delegate’s decision, namely, the applicant’s Provider Registration and International Student Management System (PRISMS) record, which confirms that the applicant was not enrolled in a course of study in a registered course between 24 April 2016 and 21 February 2017. 

22. The applicant has provided no information to suggest that, at the relevant time, he was enrolled in a course of study in a registered course.

23. The Tribunal notes that the applicant did make a submission to the Department in response to the NOICC of 21 February 2017.  In this submission, the applicant stated that he had “lost track of his studies which led to the cancellation of his enrolment” and that he “is in the process of obtaining further enrolment”.  The Tribunal finds that the applicant has provided no information to suggest that he was enrolled in a registered course of study or training between 24 April 2016 and 21 February 2017.

24. On the basis of the foregoing information, the Tribunal finds that the applicant was not enrolled in a registered course of study or training between 24 April 2016 and 21 February 2017. 

25. The Tribunal further finds that the applicant’s statement that he “lost track of his studies” amounts to an apparent claim not to know that he had an ongoing obligation to comply with condition 8202.  The Tribunal notes that this condition was applicable to the applicant’s visa from the time at which it was granted.  However, the Tribunal finds that the applicant’s apparent claim that he did not know that he had an ongoing obligation to comply with condition 8202 does not amount to a reasonable explanation for his failure to be enrolled in a enrolled in a registered course of study or training between 24 April 2016 and 21 February 2017.  

26. Accordingly, the Tribunal finds that the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

27. 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’.

28. The Tribunal notes that, according to the delegate’s decision record provided to the Tribunal by the applicant, the applicant advised the Department that he faced a period of illness in January 2016 and that “he went home to India to get well”. 

29. The Tribunal further notes that, according to the decision record, the applicant “returned to Australia in march 2016 and realized l;ater that he had not recovered very well from his ill health and it affected his studies”.  The Tribunal notes that the applicant provided no supporting evidence in response to the Tribunal’s invitation, dated 24 January 2018, to corroborate this submission.  Further, the Tribunal notes that the applicant remained enrolled in his course of study before, during and immediately after the period during which he claimed to have been ill.  

30. Accordingly, the Tribunal finds that any impact caused by illness experienced by the applicant during the period of his enrolment in a course of study in a registered course is not sufficient explanation for the significant period during which he remained in Australia without being compliant with condition 8202 of his visa. 

31. The Tribunal notes that, according to the delegate’s decision record provided to the Tribunal by the applicant, the applicant advised the Department that the following hardships that might arise from the decision to cancel his visa:

    -     The visa holder states that his parents have invested nearly 2million rupees providing him with an Australian education

    -     The visa holder states that if his visa is cancelled and if he has to go back to India without acquiring further skills then his family will be in dire financial hardship

    -     The visa holder states that his family would have to repay his education loan as he might not be able to support them in their business operations.

    And

    -     The visa holder states that the cancellation will leave him without a visa and he will have to leave Australia abruptly without fulfilling his dreams of acquiring managerial skills

32. The Tribunal notes that the payment of course fees does not guarantee the successful completion of any course of study, but merely the opportunity to enrol in such a course of study.  Given that the applicant’s enrolment cancellation occurred as a result of the applicant’s own failure to comply with the enrolment requirements in the relevant course of study, the Tribunal finds that the hardships identified by the applicant above are consequential upon his own conduct and not as a result of the decision to cancel the visa.  Accordingly, the Tribunal places no weight upon these submissions by the applicant.

33. The Tribunal notes that, on 24 February 2014, the applicant enrolled in a course of study in a registered course, namely, a Master of Business Administration.  The Tribunal finds, therefore, that the purpose of the applicant’s travel to Australia was to engage in a course of study in a registered course.  However, the Tribunal also notes that the applicant subsequently remained in Australia between 24 April 2016 and 21 February 2017 without ensuring that he continued to comply with condition 8202 of his visa.  This extended period of non-enrolment is significant, and the Tribunal places considerable weight on this failure of compliance by the applicant.

34. The Tribunal places some weight on the applicant’s compliance with his visa conditions prior to 24 April 2016, but the Tribunal finds that this compliance does not outweigh the applicant’s non-compliance with his visa conditions after 24 April 2016.

35. The Tribunal further notes that, despite the Department addressing the applicant’s submissions directly in the cancellation decision provided by the applicant with his application for review, the applicant has made no additional submissions on this or any other aspect of the circumstances of his non-compliance with his visa conditions to the Tribunal by providing further information when invited so to do.

36. The applicant has no family members attached to his visa who might be affected by a decision about whether to cancel the visa.

37. The applicant has provided no information regarding international obligations the Tribunal would need to consider if the visa is cancelled or whether there would be a breach of Australia’s nonrefoulement obligations.

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

    DECISION

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

    Dr Colin Huntly
    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.