Habib (Migration)

[2018] AATA 5809

Habib (Migration) [2018] AATA 5809 (20 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shahriar Habib

CASE NUMBER:  1622333

HOME AFFAIRS REFERENCE(S):           BCC2016/3471270

MEMBER:Mr S Norman

DATE:20 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 20 December 2018 at 11:08am

CATCHWORDS
MIGRATION – cancellation – Higher Education Sector visa – Subclass 573 – not enrolled in registered course – family issues – lack of evidence – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 189, 198, 362
Migration Regulations 1994, Condition 8202, PIC 4013

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 December 2016 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 breached condition 8202(2) – enrolment. 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. By letter dated 13 November 2018, the Tribunal wrote to the applicant (by email) advising that it had considered all the material before it relating to his application but that 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 on 17 December 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 his case without further notice.  Two SMS hearing reminder texts were sent to the applicant shortly prior to the hearing (both had failed to be delivered).

4. The applicant did not appear before the Tribunal on the day and at the time and place at which his hearing was scheduled. Neither did he otherwise reply to the Tribunal’s hearing invitation letter (as he was requested). In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. 

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 applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 18 June 2014. By the Notice of Intention to Consider Cancellation (NOICC) of that visa dated 22 November 2016, the applicant was advised that information on the Provider Registration and International Student Management System (PRISMS) indicated he had not been enrolled in a registered course of study since 14 April 2016. The applicant was advised that it appeared he had therefore breached condition 8202(2)(a); and that his visa may be cancelled under s.116(1)(b) of the Act. The applicant responded to the NOICC, but he did not dispute there were grounds to cancel the visa.

9. 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

10. Having found 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’.

11. The applicant had said he proposed to travel to and stay in Australia for the purposes of study. He lodged evidence of completing one course (NDG Introduction to Linux 1) dated 9 September 2016. However, based on all of the applicant’s evidence set out herein, I am not satisfied his present intention in remaining in Australia, is for the purposes of study.

12. Next, with the Tribunal the applicant lodged the above advice from Linux Professional Institute dated 9 September 2016,[1] congratulating him on successfully completing the NDG Introduction to Linux 1 Course. 

    [1] Tribunal – folio 19.

13. Next, in the applicant’s email of 6 December 2016,[2] he said he was from a small family consisting of his father, mother and seven-year-old brother. He said his father had “recently undergone hardship in his business”. He also said his father had grown old and was suffering from high blood pressure due to stress and tension. He said his mother is a housewife and cannot help her husband. He said if his visa is cancelled, it would be a “big crush on his family mentally and financially”. The applicant also said his “girlfriend doesn’t have anyone except him [in Australia] living with her and when he received the NOICC she went through a mental breakdown as well thinking and stressing out about his visa being cancelled”. The applicant now wants to re-enrol to complete his studies. However, the Tribunal has no evidence the applicant has made any material efforts to further his studies in Australia; or that his parent’s continue to suffer poor health or deteriorating business problems. The Tribunal proposes to accept that if the applicant’s visa is cancelled, he may be temporarily separated from his partner.

    [2] Department – folio 23.

14. Next, in the applicant’s email of 6 December 2016,[3] he said he suffered some “personal problems that were beyond his control to be stable and think wisely”. He confirmed he was “unable to advise his education provider”. He said he was “planning to apply for a new course and change institutes as it was difficult for him to continue as he was having financial problems”. He said until then he had been “doing well in his academic reports” (evidence lodged). He then said “some of them he did bad but he was trying his best to pull it up”. He then “messed up”. He now wants to complete his education in Australia.  However, as noted above, the Tribunal has no evidence the applicant has made any material efforts to further his studies in Australia. The Tribunal also notes the applicant’s claim to have financial problems.

    [3] Department – folio 23.

15. Next, the Tribunal has no evidence the applicant has been uncooperative with the Department or the Tribunal. The Tribunal has no evidence that any other person’s visa would or may be impacted if the applicant’s visa is cancelled. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.  

16. Next, if the applicant’s visa is cancelled, he would become an unlawful non-citizen and liable to be detained under s.189 and removed under s.198 of the Act. However, I am not satisfied he would be detained indefinitely. Further, he could temporarily retain his Bridging visa in order to finalise his affairs prior to departing Australia.

17. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 and would have limited options to apply for further visas in Australia.  He would also be subject to PIC 4013; meaning he might not be granted a temporary visa for three years from the date of cancellation. 

18. That being said, after considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Mr S Norman
    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.