Nagra (Migration)

[2018] AATA 1984

Nagra (Migration) [2018] AATA 1984 (23 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Parwinder Singh Nagra

CASE NUMBER:  1700749

HOME AFFAIRS REFERENCE(S):           BCC2016/3903631

MEMBER:Dr Colin Huntly

DATE:23 May 2018

PLACE OF DECISION:  Perth

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

Statement made on 23 May 2018 at 1:00pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector visa –Not enrolled in a registered course of study – Completed two registered courses –Substantial period of non- compliance – Decision under review affirmed

LEGISLATION
Migration Act 1958, s116
Migration Regulations 1994, Schedule 8 Condition 8202

CASES
Hasran v MIAC [2010] FCAFC 40
Liu v MIMIA[2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 5 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 applicant was represented in relation to the review by his registered migration agent.

3. 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

4. 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?

5. The applicant was granted a subclass 573 Student (Temporary) (class TU) Higher Education Sector visa on 28 June 2014.  He travelled to Australia on 6 August 2014 and was initially enrolled in a course of study in a registered course, namely English for Academic Preparation (Upper Intermediate to Advanced).

6. The applicant did not commence his initial course of study and, on 21 July 2014, enrolled in an alternative course of study in a registered course, namely, a Bachelor of Information Technology.  The applicant did not commence this course of study.

7. The applicant then enrolled in a course of study in a registered course, namely a second enrolment in English for Academic Preparation (Upper Intermediate to Advanced).  The applicant completed this course of study on 7 November 2014.

8. The Tribunal further notes that the applicant enrolled in a course of study in a registered course, namely a Diploma of Management on 15 July 2015.  The applicant completed this course of study on 14 January 2016.

9. The applicant thereafter enrolled in a course of study in a registered course, namely an Advanced Diploma of Management on 15 February 2016.  The applicant’s enrolment in this course of study was cancelled on 24 February 2016.

10. The delegate cancelled the visa on 5 January 2017 on the basis that the applicant had not been enrolled in a course of study in a registered course from 24 February 2016, thereby breaching condition 8202(2) of the grant of the visa.

11. At the time of his application for review, the applicant provided the Tribunal with a copy of the delegate’s decision record, dated 5 January 2017. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

12. By letter dated 23 January 2018, the Tribunal invited the applicant, pursuant to s.359 of the Act, to provide written information about his enrolment status in a course of study in a registered course between 24 February 2016 and 16 December 2016.  The invitation was sent to the migration agent at the last address provided in connection with the review and advised that,:

    If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information.  You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

13. As at the date of this decision, the applicant has not provided any additional information in response to the foregoing invitation or requested an extension of time.  In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear.[1]  Accordingly, the Tribunal has proceeded to determine the application on the basis of the available information.

    [1]         Hasran v MIAC [2010] FCAFC 40.

14. The Tribunal also notes that, on 19 December 2016, the applicant responded to the Department’s notice of intention to cancel his visa (which had been issued to the applicant on 14 December 2016).  That response is referred to in the delegate’s record of decision, which was provided to the Tribunal by the applicant at the point of lodging his application for review.

15. The Delegate’s record of decision addresses the applicant’s response in the following terms:

    [Applicant] provided the following documents in his response:

    ·COE. PDF

    ·Offer Letter.pdf

    In his statement of response, [applicant] stated that although he was not enrolled in an Advance Diploma, he was enrolled in a Diploma and completed the course; I note that [applicant] completed a Diploma of Management on 14 January 2016, according to PRISMS). He further stated that he was not aware that he needed to re enrol in Advanced Diploma and that he is currently enrol in a similar course, Diploma in Leadership Management with United Business College, trading as MIVS. I acknowledge his response however I note that [applicant] was issued a NOICC based on non enrolment since 24 February 2016 and not the type of course he was enrolled in. While [applicant] address the difference in the type of course he was enrolled in, his enrolment is still not in the Higher Education sector level which render him in potential breach of another visa condition however this is not being considered in this decision. As [applicant] is being considered for the breach of condition 8202-non enrolment, I find his explanation provides little weight in his favour because he obtained this enrolment after he was prompted by the issuance of the NOICC.

    I have considered all the evidence before me however I have given more weight to the fact that [applicant] had not been enrolled in a registered course for more than 9 months. Despite the above claims, the fact remains that [applicant] breached the condition 8202 of his visa and I do not find his explanation outweighs the reason to cancel his visa.

16. The Tribunal notes that the applicant has not addressed the specific aspect of the Delegate’s reasons for decision in response to the Tribunal’s invitation to comment dated 23 January 2018 relating to non-enrolment in a course of study in a registered course from 24 February 2016.  The Tribunal notes that the applicant indicated that he was not aware that he had an on-going obligation to remain enrolled in a course of study in a registered course in order to comply with the requirements of his visa. 

17. The Tribunal further notes that enrolment in a course of study in a registered course was, in fact, a condition of the applicant’s subclass 573 Student (Temporary) (class TU) Higher Education Sector visa.  The Tribunal, therefore, finds that the applicant’s submission does not address the specific reason (disclosed in the notice of intention to consider cancellation (NOICC) of the applicants subclass 573 Student (Temporary) (class TU) Higher Education Sector visa) for the intention to cancel the applicant’s visa, namely, the applicant’s non-enrolment in a course of study in a registered course from 24 February 2016.  The only reference to non enrolment made in the applicant’s submission in response, is the suggestion that the applicant failed to fully appreciate the lawful conditions of his visa.

18. 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

19. 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?

20. 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).

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

22. On 7 November 2014 the applicant completed a course of study in English for Academic Preparation (Upper Intermediate to Advanced), having commenced this course of study on 1 September 2014.  The applicant then enrolled in a course of study being a Diploma of Management on 15 July 2015.  The applicant completed this course of study on 14 January 2016.

23. The Tribunal has had regard to the information in the delegate’s decision, namely, the applicant’s Provider Registration and International Student Management System (PRISMS) record, which confirms that the applicant was not enrolled in a course of study in a registered course between 24 February 2016 and 16 December 2016. 

24. The applicant has provided no information to suggest that, at the relevant time, he was enrolled in a course of study in a registered course.

25. The Tribunal notes that the applicant did make a submission to the Department in response to the NOICC of 14 December 2016.  In this submission, the applicant stated that he had enrolled in a course of study in a registered course (namely, a Diploma in Leadership Management) on 15 December 2016, being the day following the delivery of the Departmental NOICC.  While this may amount to enrolment in a course of study in a registered course for the purposes of condition 8202 of the applicant’s visa, the Tribunal finds that the applicant has provided no information to suggest that he was enrolled in a registered course of study or training between 24 February 2016 and 16 December 2016.

26. On the basis of the foregoing information, the Tribunal finds that the applicant was not enrolled in a registered course of study or training between 24 February 2016 and 16 December 2016.  

27. The Tribunal further finds that the applicant’s apparent claim not to know that he had an ongoing obligation to comply with condition 8202 which was applicable to his visa from the time at which it was granted, does not amount to a reasonable explanation for his failure to be enrolled in a enrolled in a registered course of study or training between 24 February 2016 and 16 December 2016.  

28. Accordingly, the Tribunal finds that the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

29. 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’.

30. There is no information before the Tribunal that the applicant faced any illness or hardship that might be the reason why the breach of the applicant’s visa conditions referred to above has occurred.

31. The Tribunal notes that, on 7 November 2014 the applicant completed a course of study in English for Academic Preparation (Upper Intermediate to Advanced), having commenced this course of study on 1 September 2014.  The applicant then enrolled in a course of study being a Diploma of Management on 15 July 2015.  The applicant completed this course of study on 14 January 2016.  The Tribunal finds, therefore, that the purpose of the applicant’s travel to Australia was to engage in a course of study in a registered course.  However, the Tribunal also notes that the applicant subsequently remained in Australia without ensuring that he continued to comply with the conditions of his visa until his apparent non-compliance was brought to his attention by means of a NOICC.  The Tribunal, therefore, finds that the applicant did not demonstrate a compelling need to remain in Australia between 24 February 2016 and 16 December 2016.

32. The Tribunal notes that the applicant did complete two courses of study in registered courses while in Australia prior to 24 February 2016.  However, the Tribunal also notes that the applicant’s subsequent period of non-compliance with his visa conditions was substantial and the breach is, therefore, significant.

33. The Tribunal places some weight on the applicant’s compliance with his visa conditions prior to 24 February 2016, but the Tribunal finds that this compliance does not outweigh the applicant’s non-compliance with his visa conditions after 24 February 2016.

34. As the applicant has provided no information to either the Department or the Tribunal to suggest that the applicant would face any particular hardship (such as financial, psychological, emotional or other hardship) as a consequence of the visa being cancelled.  Accordingly, the Tribunal finds that the applicant would not face any particular hardship as a consequence of the visa being cancelled.

35. The applicant has provided no information about the circumstances of his non-compliance with his visa conditions, and has not addressed these circumstances beyond indicating a lack of awareness of the conditions of his visa when originally granted when making submissions to the Department.  The Tribunal further notes that, despite the Department addressing the applicant’s submissions directly in the cancellation decision provided by the applicant with his application for review, the applicant has made no additional submissions on this or any other aspect of the circumstances of his non-compliance with his visa conditions to the Tribunal by providing further information when invited so to do.

36. The applicant has no family members attached to his visa who might be affected by a decision about whether to cancel the visa.

37. The applicant has provided no information regarding international obligations the Tribunal would need to consider if the visa is cancelled or whether there would be a breach of Australia’s nonrefoulement obligations.

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

    DECISION

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

    Dr Colin Huntly
    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.