Koirala (Migration)

[2018] AATA 1664

Koirala (Migration) [2018] AATA 1664 (27 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Safar Koirala

CASE NUMBER:  1615799

DIBP REFERENCE(S):  BCC2016/2438352

MEMBER:Mr S Norman

DATE:27 April 2018

PLACE OF DECISION:  Sydney

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

Statement made on 27 April 2018 at 12:30pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Enrolment in a registered course – Period of non-compliance – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 362B
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 12 September 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 applicant lodged the delegate’s decision with the Tribunal. The delegate cancelled the visa on the basis that the applicant had breached condition 8202(2) (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. The applicant was represented in relation to the review by his registered migration agent.

3. By letter dated 7 December 2017 (dispatched by email to his authorised recipient), the Tribunal wrote to the applicant 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 27 April 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 SMS hearing reminder texts were sent to the applicant immediately prior to the hearing (though the mobile phone number used was that which was provided by the applicant, both text messages were listed as ‘failed to deliver’).

4. 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.

5. 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

6. 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?

7. 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).

8. 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 12 December 2013. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 23 August 2016, the applicant was advised that information on the Provider Registration and International Student Management System (PRISMS) indicated he had not been enrolled in a registered course of study since 21 April 2015. Further, that it therefore appeared the applicant did not meet the requirement in condition 8202(2)(a) – and that there may be a ground for the cancellation of his visa under s.116(1)(b) of the Act. No response was received from the applicant and on 12 September 2016 the delegate cancelled the Student visa.

9. Based 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, during the visa application process, he said his intention in travelling to and residing in Australia was for the purpose of study. However, he had not been enrolled in a registered course of study for approximately 16 months at the time of the NOICC letter. Regarding the extent of the applicant’s non-compliance with any conditions subject which is visa was granted, as stated above, the evidence included that the applicant failed to maintain enrolment in a registered course of study for 16 months at the time of the NOICC letter.

12. Regarding the degree of hardship that may be caused to the applicant or his family if his visa is cancelled, though no material evidence was provided, the Tribunal accepts that if the applicant’s visa is cancelled, he or his family may be subject to some financial hardship. If his visa is cancelled he would also be subject to detention under s.189 and removal under s.198 of the Act. However, I am not satisfied he would be subject to indefinite detention. I am also satisfied that he could apply for a Bridging visa in order to remain in the community to finalise his affairs prior to departing. Further, if his visa is cancelled, he will be subject to s.48 (which means he would have limited options for applying for a visa in Australia); and PIC 4013 (he may not be granted a temporary visa for three years from the date of the cancellation).

13. Regarding the circumstances in which the ground cancellation arose, same arose due to the applicant failing to maintain enrolment in a registered course of study. Regarding the applicant’s past and present behaviour towards the Department, based on the evidence before the Tribunal, I’m not satisfied the applicant has been uncooperative with the Department or the Tribunal. Regarding whether a person is in Australia whose visa would or may be cancelled under s.140, there is no evidence that any other person currently holds a visa as a result of the applicant being granted a visa. Regarding whether Australia’s international obligations would or may be breached as a result of cancelling the applicant’s visa, there is no information before the Tribunal which indicates same would be breached if the applicant’s visa is cancelled.

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

    DECISION

15. 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.