Mohit Kumar (Migration)

Mohit Kumar (Migration) [2018] AATA 2100 (15 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mohit Kumar
CASE NUMBER:  1703788
HOME AFFAIRS REFERENCE(S):           BCC2017/403076
MEMBER:Michelle East
DATE:15 May 2018
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 15 May 2018 at 3:44pm

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

LEGISLATION
Migration Act 1958, ss 48, 116, 189
Migration Regulations 1994, Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 2 March 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).
The delegate cancelled the visa on the basis that the applicant had not been enrolled in a registered course of study since 6 August 2016. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 15 May 2018 to give evidence and present arguments.
A copy of the delegate’s decision was attached to the application for review.
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
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?
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
Information provided to the Department from the Provider Registration and International Student Management System (PRISMS) as reflected in the delegate’s decision shows the applicant has not been enrolled in a registered course of study since 6 August 2016. At the hearing the applicant confirmed he ceased studying at that time.
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
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’.-
On 22 February 2017 the applicant was issued with a Notice on Intention to Consider Cancellation (NOICC) because he was not enrolled in a registered course of study and therefore failed to comply with condition 8202(2) of his visa.
On 24 February 2017 he responded to the NOICC and provided further information regarding his non enrolment.
The applicant stated after completing his study for a Certificate 3 and 4 in Commercial Cookery he applied for a Subclass 485 visa on 25 October 2016 which was refused on 17 December 2016. In his evidence to the Tribunal he said he acted on the advice of some friends and did not seek immigration advice. He said he realised he was in breach of the condition of his visa by not being enrolled in a registered course of study.
The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of any breach and any reasons for the breach.
The purpose the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The purpose of the student visa is to enable the visa holder to undertake study in Australia. The applicant completed a Certificate 3 and 4 in Commercial Cookery. The applicant said he also completed a Diploma of Business and Hospitality in July 2016 at the same time as he completed his courses in Commercial Cookery. He said at the time he wanted to work full time to gain experience as a chef. He said his student visa only allowed him to work a limited number of hours and he was having difficulty securing work on part-time hours.
The applicant confirmed at hearing that he had not been studying since 6 August 2016.
The Tribunal finds the applicant’s breach of condition 8202 of his visa to be significant because he was not engaging in study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.
The Tribunal finds there are no compelling reasons for the applicant to remain in Australia.
The applicant’s cessation of his study for which his visa was granted and the absence of compelling reasons for him to remain in Australia weigh in favour of visa cancellation.
The extent of compliance with visa conditions
The applicant was granted the visa to undertake specified studies in Australia which he did initially, however, for a significant period of time whilst in Australia has not done so. His reasons for doing so were that he wished to work and thought he could obtain a different visa to enable him to do so. He acknowledges he did not seek advice when pursuing the other visa. The applicant has not complied with the primary condition of the visa granted to him.
The Tribunal considers this weighs heavily in favour of cancellation of the visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the visa holder and any family members.
There is no evidence to suggest that any hardship would be caused to the visa holder and/or any family members if the visa is cancelled. The applicant did say that his life ‘would be ruined’ if his visa was cancelled. He said the qualifications that he has gained would not be sufficient for him to get a job in India. The Tribunal has no evidence as to whether the applicant would be able to obtain employment in India on the basis of the qualifications he has received here.
The Tribunal understands the applicant’s desire to stay in Australia and gives this some weight in favour of the visa not being cancelled.
Circumstances in which the ground of cancellation arose. 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
The Tribunal spoke to the visa holder in detail about the circumstances in which he ceased his enrolment in a higher education course, specifically were there any academic or personal barriers to his continuing enrolment in a course and if so, what assistance he sought and obtained to overcome any such barriers.
The Tribunal has had regard to the applicant’s explanations and responses at hearing and the evidence provided. The Tribunal has found that the applicant was not enrolled in a registered course for a period of 8 months from August 2016 until his visa was cancelled in March 2017. The applicant has said he applied for a Subclass 485 visa despite being on a Subclass 573 visa at the time.
The Tribunal is unable to be satisfied that the ground for cancellation arose as a result of circumstances beyond the visa holder’s control and affords this significant weight in favour of cancellation of the visa.
Past and present conduct of the visa holder towards the Department
There is no evidence to suggest the applicant has been unco-operative towards the Department. The Tribunal gives this some weight towards the visa not being cancelled.
Whether there would be consequential cancellations under s.140
There is no evidence before the Tribunal that there would be consequential cancellations in this case.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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
The delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could become liable for detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, s.48 of the Act means that he will have limited options to apply for further visa in Australia.
The applicant indicated that if his visa was cancelled he would return to India where he has family support. He said he only has one uncle in Australia who he sees occasionally. He said he hasn’t been able to work and his father and uncle both support him.
Given the applicant has the option of returning to his family in India the Tribunal attributes little weight to this consideration in determining whether to cancel the visa.
Whether any international obligations would be breached as a result of the cancellation
There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation. The applicant did not raise any issues with the Tribunal that would suggest that he was unable to return to India and has not made any claims which would relate to this consideration.
Any other relevant matters
The applicant was visibly upset by the prospect of his visa being cancelled and promised to do the right thing and resume studying should his visa not be cancelled. Despite this however he has not complied with a condition of his visa whilst here despite having the option to do so. He made a conscious decision to pursue another visa to gain full time employment in his chosen field of cooking whilst still holding his Subclass 485 student visa.
The Tribunal has considered the applicant’s evidence at hearing and the limited documents he has provided and finds that, considering the circumstances as a whole, the visa should be cancelled.
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Michelle East
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.

[2018] AATA 2100

15 May 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Breach

Jurisdiction

Natural Justice