Ifrahim (Migration)

[2018] AATA 1550

Ifrahim (Migration) [2018] AATA 1550 (19 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nawab Muhammad Ifrahim

CASE NUMBER:  1618304

DIBP REFERENCE(S):  BCC2016/2890539

MEMBER:Mr S Norman

DATE:19 April 2018

PLACE OF DECISION:  Sydney

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

Statement made on 19 April 2018 at 12:10pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Enrolment in a registered course – Suspension of studies – Health issues – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 362B
Migration Regulations 1994, Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 October 2016 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). 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.

2. By letter of 6 February 2018 (dispatched by email to the address authorised for service), the Tribunal sent the applicant a hearing invitation letter advising that it had considered all the material before it relating to his application but 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 19 April 2018. Two SMS (hearing reminder) texts were also sent to the applicant’s claimed mobile phone number (at the time of this decision, the first SMS text was listed as “Delivery of SMS hearing reminder failed”).

3. In its abovementioned letter of 6 February 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. The applicant did not appear before the Tribunal on the day and at the time and place at which his hearing was scheduled. 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.

4. 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

5. 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?

6. 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).

7. 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 2 June 2014. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 20 September 2016, the applicant was advised that information on the Provider Registration and International Student Management System indicated he had not been enrolled in a registered course of study since 15 September 2015. It therefore appeared he did not meet the requirement of condition 8202(2)(a); and that his visa may be cancelled pursuant to s.116(b) of the Act.

8. By email of 20 September 2016 (responding to the NOICC letter[1]), the applicant said he had been enrolled at TAFE in a “Technical Diploma of Engineering”; “for some reason his records were not updated”; he claimed to have transcripts for the “September session 2015”; he had deferred his “February 2016 … due to his bad condition”; he is enrolled in the July 2016 “session and continuing his studies as a full-time student and this is his last semester in TAFE”; he said he would commence University “next semester”; and he requested further time to respond.

   [1] Department – folio 29.

9. The delegate noted the NOICC had been issued at 9:38am on 20 September 2016; that at 15.56pm on the same day, a COE extension was created on PRISMS to reflect the actual finish date of 30 December 2015 (and not 15 September 2015 as had been stated in the NOICC letter). The Tribunal accepts the correct date when the applicant’s enrolment ceased was 30 December 2015.

10. However, after considering the evidence, the Tribunal is satisfied 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

11. 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. 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).

12. Regarding the purpose of the applicant’s travel to and stay in Australia, the applicant did not specifically refer to this when responding to the NOICC letter. However, the Tribunal notes the purpose of the grant of a Student visa is to allow non-citizens to travel to and reside in Australia for the purposes of studying in a registered course. The Tribunal proposes to accept the applicant’s initial intention in travelling to and residing in Australia was for the purposes of study, however, based on the evidence before the Tribunal, I am not satisfied his present intention in residing in Australia is for the purposes of study.

13. Regarding the extent of the applicant’s compliance with any conditions to which his visa was granted, apart from the breach identified herein, the Tribunal has no evidence that he had breached any other visa condition. Regarding the circumstances in which the ground for cancellation arose, based on the evidence before it, the applicant failed to maintain enrolment in a registered course of study.

14. Regarding any hardship to which the applicant or his family may be subject if his visa is cancelled, for the purposes of this decision, the Tribunal will accept that if his visa is cancelled, the applicant or his family may be subject to some hardship.

15. Regarding mandatory legal consequences that will arise if the applicant’s visa is cancelled, the Tribunal notes that if his visa is cancelled he will be subject to detention under s.189 and removal under s.198 of the Act. However, given the evidence before the Tribunal, I am not satisfied he would be subject to indefinite detention. Based on the evidence before the Tribunal, I am also satisfied he could apply for a Bridging visa and be allowed to remain in the community in order to finalise his affairs prior to departing.

16. If the applicant’s visa is cancelled, he would also be subject to s.48 of the Act and would have limited options to apply for further visas in Australia.  He would also be subject to PIC 4013 in the Regulations (meaning he could not be granted a temporary visa for three years from the date of cancellation).  However, these are intended consequences which may arise when an applicant’s visa is cancelled.

17. The Tribunal has no evidence the applicant has been uncooperative with either the Department of the Tribunal.

18. In his response to the NOICC letter, the applicant said he was granted a Suspension of Studies due to health issues and he returned to Pakistan in April 2016 (no corroborating evidence about ‘health issues’ was lodged). The applicant subsequently returned to Australia on 7 June 2016. The delegate noted there was no record of the approval on PRISMS, nor were the dates covered by the suspension provided. The delegate had referred to an email of 26 September 2016[2] from the Student Coordinator of Sydney Institute TAFE, Ultimo College (and issued to the applicant). It was claimed therein that “due to a misunderstanding he [the applicant] returned to complete his course in semester one 2016, but due to health issues, he applied for a Suspension of Studies which was approved and he returned home to Pakistan in April. He returned to complete his course with TAFE in July [2016]. He [the applicant] claimed he had been attending class since then but there is no formal record of this. His claims can only be verified by the Head Teacher.” It was then noted the Head Teacher was on leave.

    [2] Department – from folio 31.

19. The delegate noted the applicant claimed he was enrolled in studying since July 2016, however there was no COE in PRISMS to show that the applicant was currently enrolled. However, on 4 October 2016,[3] the above-mentioned Student Coordinator issued a further email to the Department. In that email he advised that the Head Teacher confirmed that the “record showed the applicant only attended one class in week seven of this semester”. Notwithstanding he was aware of same, the applicant did not comment about this to either the Department or the Tribunal. 

    [3] Department – from folio 33.

20. Regarding whether there is any person in Australia whose visa would or may be cancelled if the applicant’s visa is cancelled, the Tribunal is not aware that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. Regarding whether Australia’s international obligations would or may be breached as a result of cancelling the applicant’s visa, based on the evidence before the Tribunal, including the applicant’s prior return to his home country of Pakistan, I am not satisfied that Australia’s international obligations would or may be breached as a result of cancelling the applicant’s visa.

21. After considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

22. 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.