Khanal (Migration)

[2019] AATA 6749

Khanal (Migration) [2019] AATA 6749 (25 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Deep Khanal

CASE NUMBER:  1716909

HOME AFFAIRS REFERENCE(S):          BCC2017/2097727

MEMBER:Mark Bishop

DATE:25 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 25 September 2019 at 11:08am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – non-appearance before the Tribunal – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of visa not fulfilled – significant breach – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 379A
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 July 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 the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant provided a copy of the decision record to the Tribunal.

4. On 3 September 2019 the review applicant was invited in writing to appear before the Tribunal on 25 September 2019. The invitation stated that if he did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

5. No response to the hearing invitation was received. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A, the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. No satisfactory reason for the non-appearance has been given. In these circumstances and pursuant to the Act the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

6. Accordingly the Tribunal proceeds to resolve the review application on the material before it.

7. 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

8. 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?

9. 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).

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

11. The delegate stated the applicant was notified of the intention to consider cancellation (NOICC) on 13 July 2017 and the notice invited the applicant to respond in writing. The applicant did not respond. The applicant did not state whether he agreed or disagreed that there were grounds for cancellation.

12. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course on and from 2 November 2016. The date of decision was 24 July 2017.

13. Information from the Provider Registration and International Student Management System (PRISMS) as outlined in the delegate’s decision shows the applicant was not enrolled in a registered course of study from 2 November 2016.

14. Having regard to the information in the PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 2 November 2016. The Tribunal finds that he breached condition 8202(2)(a) of his visa.

15. 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).

16. 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

17. 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’

    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 applicant travelled to Australia to study. The Tribunal is satisfied the applicant’s purpose for travel to and stay in Australia does not constitute a reason not to cancel his visa. Therefore the Tribunal gives little weight to this consideration in the applicant’s favour.

    The extent of compliance with visa conditions

19. The applicant did not provide a submission to the Tribunal.

20. The applicant did not comply with condition 8202 when he failed to maintain enrolment in a full-time registered course of study.

21. At time of visa grant, the Department made the applicant aware of the fact that he is required to be enrolled in a registered course of study for the duration of his student visa. The Tribunal considers it was the applicant’s responsibility to be aware that any non-compliance with those conditions would adversely affect his eligibility to hold the Student visa.

22. The delegate made a finding that Information before the Department indicated the applicant had not been enrolled in a registered course of study since 2 November 2016.

23. Student visas (subclasses 570-574) are granted for the purpose of studying towards, and achieving, an educational qualification in Australia. The student visa program provides an avenue to allow non-citizens and non-permanent residents to study in Australia. In order to be granted and remain compliant with student visa obligations, the applicant’s primary intention must be to study, maintain enrolment, attendance and course progress in a CRICOS registered course.

24. Although the Tribunal notes that the applicant is being considered for cancellation due to non-compliance with condition 8202 the Tribunal has considered his compliance with all conditions subject to which his visa was granted.

25. The Tribunal therefore considers the extent of the applicant’s non-compliance to be significant and the Tribunal gives no weight to this consideration in his favour.

26. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal finds the length of the breach significant in terms of the usual time period of study.  As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

27. The applicant did not respond to the NOICC and provide any information relevant to this discretionary consideration.

28. The Tribunal is not aware of any specific hardship that may be caused to the applicant and/or his family as a result of the cancellation of this visa.

29. Whilst the Tribunal acknowledges that some hardship may be caused to the applicant should he be required to depart Australia the Tribunal notes that he will be eligible to apply for a Bridging Visa E which may allow him to remain lawfully in Australia so that he can finalise any outstanding matters.

30. If the visa is cancelled the applicant will become an unlawful non-citizen and may be liable for detention under Section 189 and removal under Section 198 of the Migration Act 1958 if he does not voluntarily depart Australia.

31. The applicant will be subject to Section 48 of the Act which means that he will have limited options to apply for further visas in Australia. The applicant will also be subject to Public Interest Criterion 4013, which results in a 3 year exclusion period. The Tribunal notes that these are the intended consequences of the legislation when a visa is cancelled under these grounds, which reflects the seriousness with which the Department takes this type of cancellation ground.

32. Therefore the Tribunal acknowledges that some hardship may be caused to the applicant if his visa is cancelled, however the Tribunal is satisfied that the potential consequences of visa cancellation in this instance do not provide significant reasons not to cancel the visa. The Tribunal give little weight to this consideration in the applicant’s favour.

    Past and present behaviour of the visa holder towards the department

33. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

34. See paragraphs 29 to 32 above.

    Whether there would be consequential cancellations under s.140

35. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

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

36. There is nothing before the Tribunal to indicate there are international obligations to consider.

37. Any other relevant matters

38. There are no other relevant matters to consider.

39. The Tribunal has considered all factors both individually and cumulatively in the context of the breach. The Tribunal finds that the applicant was not enrolled in a course of study that is the principal source of a type specified for the Subclass TU-500 visa  and that a breach  from November 2016 is significant in the context of a student’s study period

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

    DECISION

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

    Mark Bishop
    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.