KC (Migration)

[2018] AATA 5279

KC (Migration) [2018] AATA 5279 (30 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SANOD KC

CASE NUMBER:  1620870

HOME AFFAIRS REFERENCE(S):           BCC2016/3352525

MEMBER:Mr S Norman

DATE:30 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.  

Statement made on 30 October 2018 at 3:00pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered Higher Education course – applicant’s poor academic progress – failure to inform education provider or Department – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 48, 116, 189, 198
Migration Regulations 1994, Schedule 2 cls 573.111, 573.223, 573.231, Condition 8516, r 1.40

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 November 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 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa under s.116(1)(b) of the Act on the basis that the applicant had not complied with a condition of the visa. 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. The applicant appeared before the Tribunal on 30 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The applicant was represented in relation to the review by his registered migration agent.

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. 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. Relevantly, to this case, these include the ground set out in s.116(1)(b) of the Act. 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?

6. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa. This condition requires:

   The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

7. On 11 June 2014, the applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa (the Student visa). One criteria for the grant of the Student visa was that the applicant meet cl.573.231 and cl.573.223(1A). Clause 573.231 stated:

   573.231

   If subclause 573.223(1A) does not apply:

   (a)      the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and
   (b)      the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:

   (i)      made under regulation 1.40A; and
   (ii)      in force at the time the application was made

8. Another criteria, Clause 573.223(1A), stated: 

   (1A) If the applicant is, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

   (a)      the applicant gives the Minister evidence that the applicant has:

   (i)      a level of English language proficiency that satisfies the applicant’s eligible education provider; and
   (ii)      educational qualifications required by the eligible education provider; and

   (b)      the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (i)      the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
   (ii)      any other relevant matter; and

   (c)      the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

   (i)      the costs and expenses required to support the applicant during the proposed stay in Australia; and
   (ii)      the costs and expenses required to support each member (if any) of the applicant’s family unit.

   and:  

   573.111
   …..

   eligible higher degree student means an applicant for a Subclass 573 visa in relation to whom the following apply:

   (a)      the applicant is enrolled in a principal course of study for the award of:

   (i)      a bachelor’s degree; or
   (ii)      a masters degree by coursework;

   (b)      the principal course of study is provided by an eligible education provider;
   (c)      if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study:

   (i)      the applicant is also enrolled in that course; and
   (ii)      that course is provided by the eligible education provider or an educational business partner of the eligible education provider.

9. By Notice of Intention to Consider Cancellation (NOICC) of the Student visa dated 7 November 2016,[1] the applicant was advised that information on the Provider Registration and International Student Management Systems (PRISMS) indicated that he was no longer enrolled in a Bachelors degree or Masters degree course, and that he was therefore not enrolled in a course of study that was a principal course of study of the type specified for Subclass 573 Student visas by the Minister in an instrument made under r.1.40A (fail to maintain enrolment between 25 November 2014 and 11 November 2016). The applicant was further advised that it therefore appeared he had not continued to be a person who would satisfy either cl.573.231 or cl.573.223(1A). Therefore, it appeared he had not continued to be a person who would satisfy the primary criteria for the grant of the visa and that he had not complied with condition 8516. Also, that there appeared to be a ground for cancelling his Student visa under s.116(1)(b) of the Act (breach of condition).

   [1] Department – folio 12.

10. In the responses to the NOICC letter, it was claimed that any breach was not intentional and the applicant had enrolled in a bachelor degree;[2] and that he had failed to comply with the conditions for his Student visa.[3] The delegate proceeded to cancel the applicant’s Student visa on 30 November 2016.

    [2] Department – folio 31.

    [3] Department – folio 28.

11. When discussed at hearing, the applicant conceded he had failed to maintain enrolment in a registered course of study at least between 25 November 2014 and 11 November 2016.  

12. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

13. 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’.

14. The applicant had initially stated his intention in travelling to and staying in Australia was to study a course at a higher education sector level, being a Bachelor of Commerce at Curtin University of Technology. However, at hearing the applicant explained he had found study at the higher education level ‘hard’ and he had ceased being enrolled in a higher education level course since 25 November 2014 (being around five months after he arrived in Australia in June 2014). Based on all the evidence herein, the Tribunal is not satisfied the applicant currently wishes to remain in Australia to study at the higher education level.

15. Next, as noted elsewhere, the applicant had not been enrolled in a registered course of study that was a type specified for subclass 573 visas, between 25 November 2014 and 11 November 2016. The delegate noted that the evidence before them indicated the applicant had enrolled in a registered course of study but only after the NOICC letter was issued. Prior to this he had not been enrolled in a registered course of study for almost 24 months (at the time of the NOICC). The delegate was not satisfied this belated enrolment negated the lengthy period of non-compliance. At the Tribunal hearing, the applicant conceded he had ceased all studies in Australia since January/February 2017. In the circumstances, the Tribunal believes this breach is significant.

16. Next, at hearing and when discussed what would happen to him on return to Nepal, the applicant said ‘nothing’. Be that as it may, the Tribunal proposes to accept the applicant or his family (including a cousin in Australia) may suffer some limited hardship if his visa is cancelled. He would also be liable to detention under s.189 and removal under s.198 of the Act. However, and again based on all evidence before the Tribunal, I am not satisfied the applicant would be subject to indefinite detention. Further, he may temporarily retain his Bridging visa in order to remain in the community to finalise his affairs prior to departing.

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 could not be granted a temporary visa for three years from the date of cancellation.

18. Next, and regarding the circumstances for the breach, the applicant had lodged a number of documents in support of his case. These included, but were not limited to, a Diploma of Commerce from Curtin College, an unofficial Curtain Transcript, a COE for a Cert IV course, and a Holmes Bachelor COE (and as it was submitted by the applicant, the Tribunal accepts the applicant completed courses up to the Diploma level in Australia). On the applicant’s behalf it was claimed he was not properly advised about his migration obligations by a prior education agent; that he had requested Curtin University provide him with a release document and refund his fees after his poor academic results; but they neglected to provide this to him.

19. Regarding the applicant’s claim he was unable to obtain a release letter from his education provider, at hearing the Tribunal said (words to the effect), he may have appealed the decision of Curtin University not to grant him a release (the Education Services for Overseas Students National Code allows applicants who do not complete six months of the principal course, to obtain permission from the education provider in order to transfer to another education provider – and as noted at hearing, there was no evidence before the Tribunal the applicant had sought review of the decision of Curtin University). Further, the Tribunal advised there was no evidence the applicant had contacted the Department in order to attempt to remedy his issues. The applicant said he found studying at Curtin University ‘hard’, he had attended an education consultant, he was advised to enrol in a Certificate then a Diploma course, and he did not know he would be in breach of the conditions attached to his Student visa by failing to maintain enrolment in an appropriate course (though the applicant was enrolled in courses, these were not Higher Education level courses).

20. However, as stated at hearing, the Tribunal said that it may not (and now does not) accept the applicant would not know the ongoing criteria he needed to meet to retain his visa, as same was advised inter alia in the letter granting the visa.

21. The applicant also advised that the City campus of the University had been closed. However, it was also advised the education provider (Navitas) would provide the same programs from an alternative campus.

22. At the Tribunal hearing, the applicant said he found study at Curtin University ‘hard’ and that (words to the effect) the expectations on students in Australia was different to Nepal. In their decision, the delegate noted the applicant’s academic history was said to be “characterised by poor academic performance and inability to achieve the necessary qualifications to progress”. Though the applicant now claims he intends to continue studying in Australia, he had not undertaken any study since January/February 2017. He also said his education would be ruined if he ceased studying in Australia. However and when asked at hearing, he was not sure whether he would continue to study if he returned to Nepal, though he conceded he could study in Nepal if he decided to on return. Based on the evidence, the Tribunal is not satisfied the applicant intends to remain in Australia for the purpose of studying at the higher education level.

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

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

    DECISION

25. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Mr S Norman
    Member