Khan (Migration)

[2018] AATA 1917

Khan (Migration) [2018] AATA 1917 (17 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rana Muhammad Haris Khan

CASE NUMBER:  1706526

HOME AFFAIRS REFERENCE(S):           BCC2017/519912

MEMBER:Michelle East

DATE:17 May 2018

PLACE OF DECISION:  Perth

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

Statement made on 17 May 2018 at 2:48pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector visa – Not enrolled in a registered course of study – Practice and Procedure – Additional information not provided – No entitlement to a hearing – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48,116, 140, 189, 198, 359, 359C, 360
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 23 March 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 delegate cancelled the visa on the basis that there was a ground for cancellation for breach of condition 8202 of the Act, namely that the applicant had not been enrolled in a registered course of study since 20 June 2016.  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 Tribunal wrote to the authorised recipient of the applicant on 24 January 2018 under section 359(2) of the Act inviting the applicant to provide further information in writing by 7 February 2018.  No information was provided and accordingly the applicant has lost his right to appear before the Tribunal to give evidence and present arguments relating to the review application: section 360(3) of the Act.

4. The Tribunal may now make a decision on the review without taking any further action to obtain information: subsection 359C(1) of the Act.  The Tribunal has decided to proceed to make a decision on this review without taking any further action to obtain the information given that the Tribunal is satisfied the applicant has been given a reasonable opportunity to provide information and has not done so.

5. The applicant was represented in relation to the review by his registered migration agent.

6. 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

7. 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?

8. 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).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

10. Information provided to the Department from the Provider Registration and International Student Management System (PRISMS) as recorded in the delegate’s decision shows the applicant has not been enrolled in a registered course of study since 20 June 2016.  No evidence has been provided to contradict this finding.

11. 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

12. Having found that 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’.

13. On 7 March 2017 the applicant was issued with a  Notice of Intention to Consider Cancellation (NOICC) because he was not enrolled in a registered course and therefore failed to comply with condition 8202(2)(a) of his visa. 

14. On 14 March 2017 the applicant contacted the Department and requested a further 5 days within which to respond.  This request was granted and a further 5 days was provided with a new due date of 21 March 2017.  No response was received from the applicant.

15. As the applicant’s right to a hearing has been lost and he has not provided any written submission the Tribunal has conducted its review based on information contained in the Department’s file.

16. The Delegate has referred to the PRISMS record which states the applicant has not enrolled in a registered course of study since 20 June 2016.

17. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of any breach and any reasons for the breach.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

18. The purpose of the student visa is to enable the visa holder to undertake study in Australia.  The applicant did not enrol in a registered course and over 12 months have elapsed since the NOICC was issued.

19. 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.

20. The Tribunal finds there are no compelling reasons for the applicant to remain in Australia.

21. The applicant’s non-engagement in study for which his visa was granted and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

    The extent of compliance with visa conditions

22. The applicant was granted the visa to undertake specified studies in Australia and he has not done so.  He has not complied with the primary condition of the visa granted to him.

23. The Tribunal considers that this weighs heavily in favour of cancellation of the visa.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the visa holder and any family members

24. There is no evidence to suggest that any hardship would be caused to the visa holder and/or any family members if the visa is cancelled.  Given there is no evidence before the Tribunal in this regard, the Tribunal considers this factor neutral in terms of exercise of the discretion to cancel the visa.

    Circumstances in which the ground of cancellation arose.  Were the circumstances beyond the visa holder’s control

25. There is no evidence before the Tribunal as to whether the applicant’s non-compliance with his visa was beyond his control.  The Tribunal cannot be satisfied that the non-compliance was due to factors beyond his control

    Past and present conduct of the visa holder towards the Department

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

    Whether there are mandatory legal consequences such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

27. The delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, s.48 of the Act means that he will have limited options to apply for further visas in Australia. Additionally the applicant will be subject to Public Interest Criterion 4013.

28. The Tribunal is not satisfied that there are consequences of the cancellation which would impact the applicant.  The Tribunal affords little weight to this consideration in determining whether to cancel the visa.

    Whether there would be consequential cancellations under s.140

29. There is no evidence before the Tribunal that there would be consequential cancellations in this case.

    Whether any international obligations would be breached as a result of the cancellation

30. There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation.

    Any other relevant matters

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

32. The Tribunal recognises that the cancellation of the visa is a significant matter.  However, on balance and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Michelle East
    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.