Jyotpal Singh (Migration)

[2018] AATA 1983

Jyotpal Singh (Migration) [2018] AATA 1983 (21 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Jyotpal Singh

CASE NUMBER:  1618347

DIBP REFERENCE(S):  BCC2016/3151480

MEMBER:Mr S Norman

DATE:21 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 21 May 2018 at 12:35pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector visa – Not enrolled in a registered course of study – Substantial period of non- compliance – No medical evidence provided to the Department or Tribunal – Decision made on review – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 189, 198, 116, 362B
Migration Regulations 1994, Schedule 8 Condition 8202

CASES
Hasran v MIAC [2010] FCAFC 40
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 26 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 Department delegate’s decision was lodged with the Tribunal. The delegate cancelled the visa on the basis that the applicant was found to have breached condition 8202(2)(a) – 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 dated 28 February 2018, the Tribunal wrote to the applicant (by email) advising that it had considered all the material before it relating to his application. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 21 May 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 hearing reminder SMS texts were sent to the applicant; though both were listed as “Delivery of SMS hearing reminder failed”.

3. 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.

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 3 November 2015. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 7 October 2016, the applicant was advised that information on the Provider Registration and International Student Management System (PRISMS) indicated that he had not been enrolled in a registered course of study since 11 November 2015. The applicant was also advised he may therefore be in breach of condition 8202(2)(a), and that his visa may therefore be cancelled pursuant to s.116(1)(b) of the Act.

8. In his response to the NOICC letter, on more than one occasion, the applicant requested further time to respond and that he was seeking a psychologist report.[1] The delegate eventually declined to allow a further extension of time to respond, and the delegate cancelled the applicant’s Student visa on 26 October 2016.

   [1] Department file – folio 19.

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 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).

11. Regarding the purpose of the applicant’s travel to and stay in Australia, when applying for the Student visa the applicant said his purpose was to study. However, after having been granted the visa on 3 November 2015, the applicant had not been enrolled in a registered course of study since 11 November 2015 (at the time of the delegate’s decision).  

12. Regarding the extent of the applicant’s compliance with any conditions attached to the grant of his Student visa, as noted herein the applicant had not been enrolled in a registered course of study since 11 November 2015. The Tribunal believes this to be significant.

13. Regarding the degree of hardship that may be caused to the applicant or his family if his Student visa is cancelled, the Tribunal accepts the applicant or his family may be subject to some hardship if his visa is cancelled. Further if his visa is cancelled and he becomes an unlawful noncitizen he would be liable to be detained under s.189 and removed under s.198 of the Act. However based on the evidence before the Tribunal, I am not satisfied he would be subject to indefinite detention. I also note he would temporarily retain his Bridging visa which would allow him to remain in the community in order to finalise his affairs prior to departing.

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

15. Regarding the circumstances in which the ground for cancellation arose, as noted above, in the applicant’s response to the NOICC letter, on more than one occasion, the applicant requested further time to respond and that he was seeking to obtain a psychologist report.[2] However, no medical evidence had been lodged with either the Department or the Tribunal.

    [2] Department file – folio 19.

16. The Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence that there are other persons in Australia whose visa would or may be cancelled as a result of cancelling the applicant’s Student visa. Based on the evidence before the Tribunal, I am not satisfied that Australia’s international obligations would or may be breached as a result of cancelling the applicant’s Student visa.

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

    DECISION

18. 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.