Mahajan (Migration)

[2019] AATA 2282

Mahajan (Migration) [2019] AATA 2282 (18 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Karan Mahajan

CASE NUMBER:  1701316

HOME AFFAIRS REFERENCE(S):           BCC2016/4243482

MEMBER:Antoinette Younes

DATE:18 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 18 April 2019 at 4:15pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) – Subclass 573 (Higher Education Sector) – breach of conditions – not enrolled in registered course – not satisfied with reasons for non-compliance – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 359AA
Migration Regulations 1994, Schedule 2,

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 January 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 the applicant had breached condition 8202.  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 appeared before the Tribunal on 17 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from a witness.  

4. 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

5. 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?

6. 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).

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

8. The Department sent to the applicant a Notice of Intention to Consider Cancellation (NOITCC/Notice) to which the applicant responded on 22 January 2017. The applicant’s response is discussed below.

9. In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record which the applicant provided to the Tribunal in support of the application for review.  Information available in the Provider Registration and International Student Management System (PRISMS) indicates that as of the date of the delegate’s decision record of 24 January 2017, the applicant had not been enrolled in a registered course of study since 23 April 2016.  The applicant agreed with this information and provided explanations and documents as discussed in relevant parts of this Decision.

10. On the evidence, the Tribunal finds that, 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

11. 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

12. The applicant was granted the student visa in order to undertake studies in Australia.  He was enrolled in a number of courses but he did not complete any. He has now left Australia.

13. Although it is plausible that the applicant’s purpose to travel to Australia was to study, on the evidence before it, the Tribunal is satisfied that he does not have a need to travel to Australia.

14. The Tribunal gives this consideration neutral weight.

    ·the extent of compliance with visa conditions

15. The Tribunal found that the applicant has not complied with condition 8202 attached to his visa. The primary purpose of the grant of a student visa is to provide the holder with an avenue to gain qualifications in Australia.

16. The applicant breached a significant condition and the Tribunal gives this aspect weight in deciding that the visa should be cancelled.

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

17. The applicant has submitted that a decision to cancel his visa is harsh and unfair in the circumstances.  He gave evidence that he paid fees.

18. The Tribunal is mindful that the cancellation of the visa could result in the applicant having difficulties in being granted any further Australian visas. However, the Tribunal considers those difficulties to be intended consequences of the legislation and the Tribunal is satisfied that in this case, they do not mean that the visa should not be cancelled.

19. The Tribunal acknowledges that the cancellation of the visa could also mean a certain degree of financial, psychological and emotional difficulties and the Tribunal gives this aspect some weight in the applicant’s favour. 

20. Looking at the circumstances individually and cumulatively, the Tribunal is not satisfied that there is a degree of hardship that means that the visa should not be cancelled.

    ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

21. Contrary to condition 8202(2), as of the date of the delegate’s decision record of 24 January 2017, the applicant had not been enrolled in a registered course of study since 23 April 2016.  Consequently, the applicant has not complied with condition 8202(2).

22. In response to the Notice, on 22 January 2017, the applicant provided the following submissions:

    ·There was an administrative error by Holmes College (college). The college did not follow procedures; the college did not cooperate with the student to provide counselling and extra tuition and the college refused to provide an interim transcript for that period so that credits could be requested from the next education provider. The college has been harsh in relation to a full fee paying student and failed to apply due diligence.

    ·The applicant is determined to complete his studies in information technology and he is sincere about his studies. Past records demonstrate his sincerity. The applicant has a valid CoE.

    ·The applicant continued to attend classes and completed all tasks and the college has been harsh and unfair. There were circumstances beyond the applicant’s control.

    ·The applicant migrated to Sydney and he wishes to continue to live in New South Wales in the future.

23. In the statement to the Tribunal dated 26 March 2019, Mr X claimed that the applicant was a regular student until 2014 but subsequently there were a series of unfortunate events which made him miss his classes and eventually he was suspended by the university as a result. In essence, it was indicated that the applicant did not go to college because he was looking after Mr X who was injured in a car accident that occurred in February 2016, subsequent to which, as well as due to an incident relating to his mother who needed care so the applicant left to India in November 2016 which made him miss his classes.

24. The applicant and Mr X gave evidence that the applicant was for about 3 months visiting Mr X in hospital.  There is evidence before the Tribunal that Mr X has had an accident which resulted in severe injuries.

25. In support of the response and to the Tribunal, the applicant provided copies of documents including an Academic Transcript from Central Queensland University (showing results of 3 fails, 1 pass and 3 credits), COEs from Holmes Institute for the course of Graduate Diploma of Business commencing July 2015 and finishing July 2016 and Masters Degree commencing on 18/7/2016 to 31/12/2016, Bachelor of Technology Certificate from Punjab Technical University, Certificate from Punjab State Board of Technical Education and Industrial Training, Marks Statement of the Central Board of Secondary Education, various Results and Detailed Marks Cards from Punjab Technical University, Academic Transcript from Punjab State Board of Technical Education and Industrial Training, money transfer receipts, visa grant notice dated 24 November 2015, airline tickets and travel details for the applicant, medical certificate for a third party dated 26 November 2016, statement of the applicant dated 1 August 2016 relating to a car accident that took place in September 2015 during which a person (not the applicant) was injured, medical records and other documents for Mr X who was admitted to hospital due to severe injuries which occurred following a car accident.

26. The Tribunal accepts that Mr X was in hospital for some time and that the applicant visited him for about 3 months.  The Tribunal also accepts the applicant’s evidence that his mother was ill in November 2016 and that he went to India for that reason.  The Tribunal gives those aspects weight in the applicant’s favour.  However, the Tribunal is not satisfied that they were the reasons for the non-compliance.  As discussed in the course of the hearing and in accordance with s.359AA, the Tribunal advised the applicant that PRISMS’ records show that he has had 4 enrolments cancelled on 24/8/2015, 24/7/2015, and 23/4/2016 (x2) due to non-commencement of studies and the applicant’s notification of cessation of studies.  He stated that the college never told him. The Tribunal is satisfied that the applicant has had difficulties with his studies in Australia and that they were not due to the illness of his mother and/or Mr X.

27. The Tribunal gives this aspect weight in deciding that the visa should be cancelled.

    ·past and present behaviour of the visa holder towards the department

28. The applicant responded to the NOITCC and the Tribunal gives this aspect some weight in his favour.

    ·whether there would be consequential cancellations under s.140

29. There is no information before the Tribunal that there would be any consequential cancellation under s.140.  The Tribunal gives this aspect neutral weight.

    ·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

30. The applicant has departed Australia so possible consequences of detention and removal would not be applicable in this instance. As mentioned earlier, the applicant would have difficulties in obtaining further visas to Australia but this is due to intended legislative consequences.

31. The Tribunal gives this consideration neutral weight.

    ·whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

32. There is no evidence before the Tribunal that any international obligations would be breached in case of cancellation.

33. The Tribunal gives this consideration neutral weight.

    ·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

34. The student visa is not a permanent visa. The Tribunal gives this consideration neutral weight.

    ·any other relevant matters.

35. There are no other matters requiring consideration by the Tribunal.

36. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Antoinette Younes

    
    Senior 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.