Johal (Migration)

[2018] AATA 2886

Johal (Migration) [2018] AATA 2886 (13 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurpinder Singh Johal

CASE NUMBER:  1710346

HOME AFFAIRS REFERENCE(S):           BCC2017/418652

MEMBER:Christine Kannis

DATE:13 July 2018

PLACE OF DECISION:  Perth

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

Statement made on 13 July 2018 at 2:30pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) – Enrolment in a registered course – Gap in enrolment – No evidence of how back pain impacted on ability to study – Practice and procedure – Applicant failed to attend hearing – Decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 189, 362B
Migration Regulations 1994 (Cth), Schedule 8 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 9 May 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 issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. On 21 May 2018 the Tribunal sent the applicant an Invitation to Attend a Hearing letter which advised that a hearing had been listed for 26 June 2018 at 9.00 am. The letter informed the applicant that if he was unable to attend the hearing then he should advise the Tribunal as soon as possible. The letter advised that if he did not attend the hearing a decision may be made on the review without taking any further action to allow or enable him to appear before the Tribunal or that his application for review may be dismissed without any further consideration on the application and based on the information before the Tribunal.

5. On 19 and 25 June 2018 the Tribunal sent the applicant SMS hearing reminders.

6. The applicant did not respond to the Invitation to Attend a Hearing.

7. The applicant failed to appear at the hearing and did not contact the Tribunal prior to the scheduled hearing to advise of an inability to attend.

8. The Tribunal proceeds to make a decision in this case without taking any further action to allow or enable the applicant to appear before it as it is empowered to do under section 362B of the Act.

9. 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

10. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevant to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

11. On 27 November 2014 the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

12. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since 14 June 2016. He was enrolled in a Diploma of Hospitality and Certificates III and IV in Commercial Cookery, all of which were cancelled on 14 June 2016. The variation reasons for the Diploma of Hospitality and Certificate IV were stated to be non-commencement of studies. The variation reason for the Certificate III was stated to be disciplinary reasons.

13. Having regard to the information in the PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 14 June 2016. The Tribunal finds that he breached condition8202(2)(a) of his visa.

14. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

15. 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).

16. On  17 March 2017 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of his visa. 

17. On 27 March 2017 the applicant responded to the NOICC and provided the following information:

    ·He arrived in Australia to study Business. He struggled with a few units in the Diploma of Business and he asked for additional academic support. He was not provided with additional help because his class was full and his tutors did not have time to help him.

    ·He did not want to waste his parents’ money so he asked for advice from the student centre. They guided him to enrol in a Commercial Cookery course. He believed the class sizes would be smaller and tutors would be available to provide additional assistance.

    ·The Commercial Cookery course did not make a difference and after four months he decided to enrol in Stanley College in Perth in February 2016.

    ·When he commenced studying at Stanley College he began experiencing lower back pain and did not leave his room for a few days.

    ·He returned to India in February 2016 and when he was there he continuously visited the doctor and was advised to get bed rest.

    ·He returned to Perth in April 2016 and was still experiencing pain. He told Stanley College about his medical condition but they denied his continuous appeals. 

    ·He became aware that his Cof Es were cancelled when he received the NOICC. He also became aware at that time that he was required to enrol in a Bachelor course and he contacted Kingdom College and obtained a CoE for a Diploma of Business.

18. At the time of responding to the NOICC the applicant provided copies of parts of several notes on the letterhead of Dr Rajesh Chopra. Dr Chopra appears to practice in India. The copies provided to the Tribunal consisted of notes which were incomplete, not dated and not signed. The delegate referred to four Medical Certificates completed by Dr Chopra which in combination advised that the applicant was to have complete bed rest during the period from 2 March 2016 to 30 June 2016. The delegate noted that the applicant returned to Australia on 10 April 2016 and no medical evidence had been obtained in Australia to indicate that his back pain had impacted on his ability to study or obtain enrolment after 30 June 2016.

19. As the applicant did not attend the hearing or to provide written submissions prior to the hearing, the Tribunal relied on the information contained in the Department’s file and in his response to the NOICC.

20. The Tribunal noted that the PRISMS shows the applicant has completed only two courses, both in 2015. PRISMS also showed the reason for cancellation of the Certificate III in Commercial Cookery was for disciplinary reasons.

21. The purpose of the student visa is to enable the visa holder to undertake study in Australia. The applicant has not been enrolled in a registered course since 14 June 2016 and over nine months elapsed from that date until the NOICC was issued.

22. Based on the evidence, the Tribunal finds the applicant’s breach of condition 8202 of his visa to be significant because he was not engaging in study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.

23. There was no evidence before the Tribunal to indicate that the applicant’s non-compliance with the visa condition was due to circumstances beyond his control. No medical evidence was provided in relation to the effect of the applicant’s back pain after 30 June 2016.

24. Given the applicant’s failure to attend the hearing, the Tribunal is not aware of any hardship which will result from cancellation of his visa.

25. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

26. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice pertaining to his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion.

27. There are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

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

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

    DECISION

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

    Christine Kannis
    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.