Kumar (Migration)

[2019] AATA 3031

Kumar (Migration) [2019] AATA 3031 (4 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anuj Kumar

CASE NUMBER:  1706963

HOME AFFAIRS REFERENCE(S):          BCC2017/403442

MEMBERS:Stephen Conwell (Presiding)
Vanessa Plain

DATE:4 March 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 04 March 2019 at 10:19am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered Higher Education course – applicant ceased enrolment – lengthy process seeking re-enrolment – decision under review affirmed         

LEGISLATION

Migration Act 1958, s 116
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 review applicant’s (applicant) 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 the applicant had not complied with a condition of his visa being that he is enrolled in a registered course. 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. On 22 January 2019 the Tribunal wrote to the applicant via his authorised representative, inviting the applicant to attend a hearing on 11 February 2019. Subsequent to sending this invitation the Tribunal noted that the authorised representative had previously advised the Tribunal by email of 14 June 2017 that he had ceased being the authorised representative of the applicant and had terminated his services to the applicant. In light of this the Tribunal sent a letter via email to both the applicant directly and to his last known authorised representative attaching a ‘Change of Contact Details – MR Division’ form and a ‘Appointment of Representative Appointment of Authorised Recipient – MR Division’  form.  The letter requested that the applicant complete and return one of the accompanying forms to the Tribunal to update his contact details and representation. 

4. On the same day, 12 February 2019 the Tribunal sent a subsequent invitation to the applicant inviting him to attend a rescheduled hearing on 28 February 2019. This subsequent invitation was sent via email to both the applicant directly and to his last known authorised representative.

5. Both Tribunal invitations advised the applicant that having considered all the material before it the Tribunal could not make a favourable decision on that information alone. The Tribunal’s subsequent invitation invited the applicant to give evidence and present arguments at a hearing on 28 February 2019. The invitation stated that if he did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent the applicant SMS reminders about the hearing five business days and one business day before the scheduled hearing.

6. No response to the subsequent hearing invitation was received. The 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 applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the applicant about the hearing. 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.

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.

9. The background to the applicant’s case can be summarised from information held on the Department’s file and the delegate’s decision record. The applicant is a 26-year-old Indian citizen who was granted a Student visa on 14 October 2014.

10. On 27 February 2017 the Department notified the applicant of its intention to consider cancellation of his visa. The notice of the intention to consider cancellation (NOICC) was sent by email to the applicant’s notified email address. The NOICC advised the applicant that the delegate had received information which appeared to be grounds for cancellation of his visa. The NOICC detailed the particulars for the grounds of cancellation to be that the applicant had not complied with condition 8202 which was imposed on his visa.

11. The NOICC explained that based on evidence available to the delegate, from Provider Registration and International Student Management System (PRISMS) data, it appeared the applicant had not been enrolled in a registered course since 11 June 2016 and so did not meet the requirement of condition 8202(2)(a). The applicant was invited to respond addressing why he thought the grounds for cancellation do not exist and why he thinks his visa should not be cancelled. The NOICC included an explanation of the process for making the decision to cancel his visa, the timeframe within which he was required to respond and the consequences of a visa cancellation.

12. The applicant responded to the NOICC on 22 March 2017 via his migration agent. The response stated that before receiving the NOICC the applicant was ‘in the process of getting enrolled” and was enrolled at the time of his response to the NOICC. No reason was submitted for the applicant’s non-enrolment prior to the issue of the NOICC.

13. After considering the applicant’s response and all of the applicant’s circumstances the delegate emailed the applicant a Notice of Cancellation of Student visa and its Decision Record on 23 March 2017. The Decision Record states the reason for the cancellation to be that the applicant had not been enrolled in a registered course since 11 June 2016. 

14. The applicant attached a copy of the delegate’s decision with his application for review made on 3 April 2017.

15. As the applicant did not attend the hearing the Tribunal has access only to the information and evidence contained on the Departmental and Tribunal files.

16. The issue in the present case is whether the applicant, as the holder of a Student visa, has complied with condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has not complied with that condition, under s.116(1) of the Act, the visa may be cancelled.

    Did the applicant comply with Condition 8202?

17. 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).

18. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course and so did not satisfy condition 8208(2).

19. The Department sent the applicant a NOICC dated 27 February 2017 stating that evidence before the Department indicated that he was not enrolled in a registered course since 11 June 2016.

20. The Tribunal has reviewed the evidence available to it including the documents provided by the applicant with his application for review. The applicant has provided no evidence or argument to suggest that he is, or has been, enrolled in a registered course since 11 June 2016.

21. On the evidence before the Tribunal finds the applicant was not enrolled in a registered course since 11 June 2016 and has not complied with condition 8202(2).

22. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As the 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

23. 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.

24. 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 the material evidence available to it as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

25. The Tribunal notes the purpose of a Student visa is to allow for travel to and stay in Australia, in order to study. The applicant has not been enrolled in a registered course of study on since 11 June 2016.This is an indication the applicant was not pursuing the purpose for his travel to Australia as he was not actively engaged in studies since that date.  At the time of the delegate’s decision this period of non-enrolment exceeded nine months. The Tribunal considers the breach to be significant, given the length of time in which the applicant failed to maintain enrolment.  The Tribunal also considers this to be a serious breach given the significance of enrolment in a registered course, for the visa granted.

26. Further, based on the information before it, the Tribunal is not satisfied the breach occurred in circumstances beyond the applicant’s control.  Again, based on the information before it, neither does the Tribunal consider there are extenuating or compassionate circumstances in this case.

27. The Tribunal notes the applicant had not identified any hardship that may be caused to him and/or any family member by the cancellation of his visa. However, the Tribunal accepts the applicant might be subject to some financial difficulty if the visa is cancelled. The Tribunal also accepts that if the applicant’s visa is cancelled he would become an unlawful non-citizen and liable to detention under s189 and removal under s198 of the Act. He would also have limited options to apply for further visas in Australia and may thus be required to return to his country of origin. However, this does not satisfy the Tribunal it should exercise the discretion not to cancel the visa.

28. The Tribunal notes there is no evidence that any family member/s in Australia would be negatively impacted by the cancellation of the applicant’s visa. 

29. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.  The Tribunal is also not satisfied there are persons in Australia whose visas would, or may, be cancelled under s.140.

30. Regarding Australia’s international obligations, the Tribunal is not persuaded that the circumstances of this case were such that would engage Australia’s international obligations. There is no evidence of children (or other family members) in Australia whose interests would be affected by the cancellation.  There was nothing to suggest that family violence was a relevant factor.

31. The Tribunal has therefore considered the totality of the applicant’s circumstances and has found that the applicant breached the enrolment requirement in condition 8202, and that this breach was significant.  The Tribunal has not seen any evidence to indicate the applicant has undertaken study in Australia, in a registered course of study, since 11 June 2016. The applicant has not presented evidence of current or future study plans. 

32. Considering the circumstances as a whole, the Tribunal is satisfied the visa should be cancelled.

    DECISION

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

    Stephen Conwell
    Member

    Vanessa Plain
    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.