Kumar (Migration)

[2017] AATA 1534

Kumar (Migration) [2017] AATA 1534 (5 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ravinder Kumar

CASE NUMBER:  1613085

DIBP REFERENCE(S):  BCC2016/1635818

MEMBER:David McCulloch

DATE:5 September 2017

PLACE OF DECISION:  Sydney

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

Statement made on 05 September 2017 at 10:20am

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector visa – Applicant ceased enrolment in a registered course – Brief period overseas without course leave – No further course enrolment

LEGISLATION

Migration Act 1958, ss 116(1)(b), 140

Migration Regulation 1994, Schedule 2, cl 573.223, cl 573.231, Schedule 8, Condition 8202, Condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 August 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).

2. The applicant is a national of India born on 20 December 1989. The visa that has been cancelled was granted on 6 May 2014 for a stay period until 30 August 2018. That visa was subject to condition 8202.

3. On 19 July 2016 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he ceased to be enrolled in a registered course from 29 April 2015. The applicant provided no response to the NOICC.  On 9 August 2016, the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa. The applicant seeks review of the delegate’s decision.

4. The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 18 August 2017 to give evidence and present arguments.

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 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. There is nothing before the Tribunal to suggest that the applicant was a holder of a subclass 560 or 571 (School Sector) visa as a secondary exchange student, thus the applicant’s obligation under condition 8202(2) is to be enrolled in a registered course.

11. The delegate’s decision and the Provider Registration International Student Management System (PRISMS), to which the Tribunal has access, indicate that the applicant has not been enrolled in a registered course of study since 29 April 2015.  This was when the applicant’s enrolment in a Bachelor of Business was cancelled for non-commencement of studies.

12. In the Tribunal hearing the applicant acknowledged that he had ceased to be enrolled in a registered course on 29 April 2015.

13. 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

14. 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.

15. 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). These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose - whether there are extenuating circumstances beyond the visa holder’s control; the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (ie. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulment obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non-refoulement obligations; and any other relevant matters.

16. The Tribunal discussed with the applicant in the hearing his study history in Australia. The applicant commenced a Certificate IV in Business at TAFE on 21 July 2014. PRISMS indicates that this course was finished, ending on 19 December 2014. The applicant indicated that he did not hand in all of his assignments for this course or complete it. The applicant indicated that his attendance was around 75 per cent (less than required attendance of 80 per cent).

17. The applicant was due to commence a Diploma of Business at TAFE on 2 February 2015. In the hearing, the applicant indicated that he needed to complete the Certificate IV in Business before he was in a position to commence this course. The applicant indicated that he was homesick and want to return to India. He discussed this with TAFE.  The applicant told the Tribunal that TAFE declined to provide the applicant with a deferral for reason of homesickness. The applicant returned to India in any event from around February 2015 until April 2015.

18. PRISMS indicates that the applicant’s enrolment in the Diploma of Business was cancelled on 29 January 2015 for non-payment of fees. As indicated above, the applicant’s enrolment thereafter in the Bachelor of Business was cancelled on 29 April 2015 for non-commencement of studies.

19. The applicant indicated in the hearing that he returned from India to find that his enrolments had been cancelled. The applicant indicated that he has not since sought to enrol in a registered course or make enquiries into enrolment and study. The applicant did not provide any substantial reason for his failure to take action in these respects other than waiting for the outcome of the review process before the Tribunal.

20. The Tribunal put to the applicant in the hearing that it was unlikely to be satisfied that there were extenuating circumstances beyond the applicant’s control for the breach. The applicant had an obligation to ensure compliance with his visa obligation to be enrolled in a registered course. Whilst the Tribunal might make some allowances for a temporary gap in enrolment due to a short return home due to homesickness, the period of this failure to be enrolled is extensive (15 months).

21. In the circumstances, the Tribunal does not consider that there are extenuating circumstances beyond the applicant’s control for the breach of condition 8202.

22. The Tribunal discussed with the applicant in the hearing a possible breach of condition 8516, which attached to his visa.

23. Condition 8516 states that: ‘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’. The criteria for the grant of the Student visa include, among other criteria, subclauses 573.231 and 573.223(1A).

24. Essentially, subclause 573.231 provides that, unless a person is an eligible higher degree student as set out in 573.223(1A), that person must be enrolled or the subject of a current offer of enrolment in a course of study that is the principal course of the type specified in an instrument for the subclass 573 visa.

25. The relevant instrument sets out a list of relevant courses in the higher education sector.

26. In the hearing, the applicant indicated that he was aware of his obligation to be enrolled in higher education sector course. He agreed that from 29 April 2015 he had ceased to be enrolled in such a course and was in breach of condition 8516.

27. For the same reasons as applicable to the breach of condition 8202, the Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control that justify the breach of condition 8516.

28. The applicant has been in breach of both conditions 8202 and 8516 for a period of more than 15 months, which are significant breaches without extenuating circumstances beyond the applicant’s control. These factors are significantly adverse to the applicant.

29. The applicant has completed no course of study since being in Australia from mid-2014, despite being in Australia on a Student visa (until its cancellation). The Tribunal considers that the purpose of the applicant being in Australia on a Student visa has been primarily in order to study. He has not been meeting his purpose of being in Australia.

30. The applicant has also undertaken no study at all since the end of 2014, including following the cancellation of the Student visa. The Tribunal notes that there are no restrictions on the applicant’s ability to study on his Bridging visa. The Tribunal is not satisfied that the applicant’s failure to study from the end of 2014, or to be enrolled from 21 April 2015, is justified by the applicant waiting for the review process of the cancellation of the visa to be finalised. In any event, this would not explain the relevant failures up until the visa was cancelled on 9 August 2016, a significant time period from the period of the breaches of 8202 and 8516 occurring on 29 April 2015. These matters are significantly adverse to the applicant.

31. In the hearing the applicant indicated that it is his intention to seek to continue with the Certificate IV in Business ultimately leading to a Bachelor degree. The Tribunal is not satisfied that the applicant has either the inclination or ability to proceed in these respects given his failure to take any action to enrol or study following the breaches that occurred on 29 April 2015. These matters are adverse to the applicant.

32. As to hardship or compelling reasons to remain in Australia, the applicant indicated that he wishes to continue his studies in Australia. The applicant indicated that it will be difficult for him to study in India because of the three-year gap in his studies and that this will be a hardship. The Tribunal has doubts as to the extent of any hardship to the applicant in these respects given his lack of action to enrol or study since April 2015. Nevertheless, the Tribunal is prepared to accept some hardship to the applicant in needing to return to India including because the applicant has not fulfilled the expectations of himself and his family or his purpose in being of Australia.

33. The Tribunal accepts a hardship to the applicant if the visa remains cancelled in that this would impose restrictions on him applying for various visa subclasses onshore.

34. There is no evidence that the applicant has acted in an adverse way towards the Department. There is no evidence that there are third parties whose visas would be cancelled consequential upon the cancellation of the applicant’s visa.

35. In terms of mandatory legal consequences if the visa remains cancelled, in the absence of evidence to the contrary, the Tribunal is not satisfied it is likely that the applicant would be subject to mandatory detention for being an unlawful noncitizen given his ability to apply for a Bridging visa to legitimise his visa status while he makes arrangements to leave the country or pursues review or appeal processes.

36. In the hearing, the applicant indicated that he does not fear persecution or significant harm on return to India. Therefore, the Tribunal does not consider that Australia’s non-refoulement obligations are enlivened. In the hearing, the applicant indicated that there are no children in Australia whose interests would be affected by the continued cancellation of the visa. There is no evidence which make relevant any other factors.

37. In summary, matters adverse to the applicant are that he has been in breach of conditions 8202 and 8516 for more than 15 months without there being any extenuating circumstances beyond his control. The applicant has completed no course of study since arriving in Australia in mid-2014 and has not studied at all since the end of 2014.  The applicant has taken no steps following the cancellation of his visa to enrol or study when there are no restrictions in these respects on his Bridging visa. If the visa were to be reinstated the applicant would continue to be in breach of both conditions 8202 and 8516. Cumulatively considered, these matters are significantly adverse to the applicant in the exercise of the Tribunal’s discretion.

38. The Tribunal acknowledges some degree of hardship to the applicant in having to return to India, and restrictions on his ability to apply for other visa subclasses in Australia. The Tribunal is not satisfied that such hardships, or any other relevant discretionary factors,  overcome the matters adverse to the applicant. Considering all the evidence, the Tribunal is of the view that it should exercise its discretion to cancel the visa.

    DECISION

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

    David McCulloch
    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.