Pal (Migration)

[2017] AATA 2431

Pal (Migration) [2017] AATA 2431 (1 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nitish Pal

CASE NUMBER:  1702797

DIBP REFERENCE(S):  BCC2017/131298 CLD2017/3655973

MEMBER:Susan Trotter

DATE:1 November 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 01 November 2017 at 6:10pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – No longer enrolled in course – No current offer of enrolment – Reasons unknown – Failed to appear at hearing

LEGISLATION

Migration Act 1958, ss 116, 116(1)(b), 362B
Migration Regulations 1994, Schedule 2, cl 573.231, cl 573.223(1A),

Condition 8516

CASES

Kaur v Minister for Immigration & Anor [2014] FCCA 2845

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 February 2017 made by a delegate of the Minister for Immigration to cancel the applicant, Mr Nitish Pal’s, Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. Following sending a Notice of Intention to Consider Cancellation (NOICC) on 2 February 2017, with no response received, the delegate cancelled the visa. This visa was cancelled under s.116(1)(b) of the Act on the basis that Mr Pal had not complied with a condition of the visa, namely he had not continued to satisfy the primary or secondary criteria for the grant of the visa (condition 8516). Specifically, the delegate found that Mr Pal’s enrolment in a Bachelor of Commerce at Griffith University was cancelled on 3 May 2015 and he was therefore no long enrolled in a course of study that is a principal course of a type specified for the visa.

3. Mr Pal lodged an application for review of the delegate’s decision with the Tribunal on 17 February 2017.

4. On 11 September 2017, the Tribunal wrote to Mr Pal, via his registered migration agent’s email addressed provided when his application was lodged with the Tribunal, advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited Mr Pal to give oral evidence and present arguments at a hearing on 26 October 2017 and advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal.

5. On 19 and 25 October 2017, SMS hearing reminder messages were sent to the mobile telephone number provided in Mr Pal’s application lodged with the Tribunal.

6. No response was received to the Tribunal’s letter of 11 September May 2017 and Mr Pal did not appear at the scheduled hearing before the Tribunal at the time and place at which he was scheduled to appear.

7. The Tribunal is satisfied that Mr Pal was notified of the hearing by the 11 September 2017 letter being dispatched to the last address for service provided to the Tribunal by Mr Pal in connection with the review, and as such was invited to appear before the Tribunal in accordance with the statutory requirements. Pursuant to s.362B of the Act, the Tribunal decided to make its decision on the review without taking any further steps to enable Mr Pal to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

8. The Tribunal has considered the material provided by Mr Pal to the Department, including the visa application.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   ISSUES

10. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(b) which applies if a visa holder has not complied with a condition of the visa. In this instance condition 8516 attached to Mr Pal’s. Condition 8516 provides 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”.

11. Subclause 573.231 requires that if subclause 573.223(1A) does not apply, amongst other things, the visa holder is enrolled in, or is the subject of a current offer of enrolment in, the course of study that is a principle course of study and that the principle course of study is of a type that was specified for the subclass 573 visa in an instrument by the Minister.

12. Subclause 573.223(1A) requires, amongst other things, that the visa holder at the time of application has a confirmation of enrolment in each course of study and that the stated intention of the applicant is to comply with any conditions subject to which the visa is granted, and that the applicant has sufficient funds to meet the costs and expenses required for the duration of the proposed stay in Australia.

13. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

14. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual (PAM3), ‘General visa cancellation powers’ including:

    (a)  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;

    (b)  The extent of compliance with visa conditions;

    (c)  Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the visa holder and any family members;

    (d)  Circumstances in which 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;

    (e)  Past and present conduct of the visa holder towards the department;

    (f)    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;

    (g)  Whether there would be consequential cancellations under s.140;

    (h)  Whether any international obligations would be breached as a result of the cancellation; and

    (i)    Any other relevant matters.

15. It follows that the issues to be determined by the Tribunal are:

    (a)  Does the ground for cancellation exist?; and, if so,

    (b)  Should the discretion to cancel the visa be exercised having regard to all the relevant circumstances?

    CONSIDERATION

    Issue 1 - Does the ground for cancellation exist?

16. As noted in the delegate’s decision, which was provided to the Tribunal by Mr Pal when he applied to the Tribunal, Mr Pal was notified of the intention to consider cancellation of the visa on 2 February 2017. It was noted in that letter that it had come to the Department’s attention that Mr Pal had not complied with Condition 8516 imposed on his visa which required him to satisfy the primary criteria for the grant of the visa because he no longer continued to be enrolled or subject to an offer of enrolment in a course of study that is a principal course as required by Regulation 573.231.

17. The delegate’s decision continues on to note that information available to the Department in the Provider Registration and International Student Management Systems (PRISMS) indicates that Mr Pal’s enrolment in a Bachelor of Commerce at Griffith University was cancelled on 3 May 2015 and therefore it appeared that Mr Pal has not continued to be a person who would satisfy either subclause 573.231 or 573.223(1A) and therefore had not continued to be a person who would satisfy the primary criteria for grant of the visa, such that condition 8516 had not been complied with.

18. PRISMS is also accessible by the Tribunal and shows that Mr Pal was no longer enrolled in or subject to a current offer of enrolment in a principal course relevant to a higher education sector visa after his enrolment was cancelled on 3 May 2015. The Tribunal has confirmed that information. Given that that information has been provided by Mr Pal in writing, in the delegate’s decision, the Tribunal considers that such information is not subject to the requirements of section 359A of the Migration Act (in accordance with the reasoning of Judge Nicholls in Kaur v Minister for Immigration & Anor [2014] FCCA 2845).

19. Mr Pal did not respond to the Department’s letter of 2 February 2017 nor did Mr Pal attend the hearing before the Tribunal.

20. The Tribunal is satisfied that Mr Pal has not been enrolled in a higher education sector course since 3 May 2015. The Tribunal finds that in failing to remain enrolled in certificate course, Mr Pal breached Condition 8516 which required him to be a person who would continue to satisfy the primary criteria for the grant of the visa.

21. It follows that the Tribunal finds that there is a ground for cancelling Mr Pal’s visa under s.116(1)(b) of the Act. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Issue 2 - Should the discretion to cancel the visa be exercised having regard to all the relevant circumstances?

22. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in PAM3, ‘General visa cancellation powers’ as referred to earlier in these Reasons.

    The purpose of the Mr Pal’s travel and stay in Australia, whether Mr Pal has a compelling need to travel to or remain in Australia

23. Mr Pal was granted this visa to undertake higher education studies in Australia, thus his purpose for travel and stay in Australia.

24. If Mr Pal had attended the scheduled hearing, the Tribunal would have spoken with him in detail about the circumstances in which he ceased his enrolment in a higher education course. The Tribunal would have asked whether there are any academic or personal barriers to his continuing his enrolment in the higher education sector course and, if so, what assistance he sought and obtained to overcome any such barriers.

25. The evidence before the Tribunal is that Mr Pal is no longer enrolled in a higher education course. Taken in the context of the original purpose of his presence in Australia, the Tribunal is not satisfied that Mr Pal has a compelling need to remain in Australia.

26. On the evidence before it, the Tribunal is not satisfied that the purpose of Mr Pal’s travel and stay mean that the visa should not be cancelled.

    The extent of compliance with visa conditions

27. Mr Pal was granted the visa to undertake specified studies in Australia. He has not done so. He has not complied with the primary condition of the visa granted to him.

28. 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 Mr Pal and any family members

29. Had Mr Pal attended the hearing, the Tribunal would have been asked about what, if any, hardship would be caused to him or his family if the visa is cancelled. Given there is no evidence before the Tribunal in this regard, the Tribunal considers this factor neutral in terms of exercise of the discretion to cancel the visa.

    Circumstances in which 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.

30. As already noted, if Mr Pal had attended the scheduled hearing, the Tribunal would have spoken with him in detail about the circumstances in which he ceased his enrolment in a higher education course. The Tribunal would have asked whether there are any academic or personal barriers to his continuing his enrolment in the higher education sector course and, if so what assistance he sought and obtained to overcome any such barriers.

31. It was fundamental to the grant of this visa to Mr Pal that he be enrolled in a higher education sector course, and maintain enrolment in such a course in order to comply with Condition 8516. There is no evidence before the Tribunal as to why Mr Pal ceased his enrolment in a higher education sector course.

32. The Tribunal considers that the extent of the breach of the visa condition is serious as regards considering the discretion to cancel the visa.

    Past and present conduct of the visa holder towards the department’

33. Whilst there was no material before the Department to indicate that Mr Pal has been deliberately uncooperative or untruthful in his dealings with the Department, he did not respond to the NOICC (and nor has he attended the hearing before the Tribunal to which he was invited). The Tribunal gives some weight to this factor as weighing in favour of cancellation of the visa.

    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

34. If Mr Pal’s visa is cancelled, he could become an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. He would have limited options to apply for any other visas in Australia. He could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. However, these are intended legislative consequences of cancellation and they are consistent with the objectives of the migration program.

35. Accordingly, the Tribunal is not satisfied that there are consequences of the cancellation which mean that the visa should not be cancelled.

    Whether there would be consequential cancellations under s.140

36. There is no evidence that there would be consequential cancellations in this case.

    Whether any international obligations would be breached as a result of the cancellation

37. There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation.

    Any other relevant matters

38. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

39. The Tribunal recognises that the cancellation of the visa is a significant matter. However on balance and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

40. For those reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists as Mr Pal ceased to be an eligible higher education student.

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

    DECISION

42. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Susan Trotter
    Member