Pannu (Migration)

[2018] AATA 2604

Pannu (Migration) [2018] AATA 2604 (14 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amritraj Singh Pannu

CASE NUMBER:  1615751

DIBP REFERENCE(S):  BCC2016/2789132

MEMBER:Mr S Norman

DATE:14 June 2018

PLACE OF DECISION:  Sydney

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

Statement made on 14 June 2018 at 12:30pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Breach of Condition 8202 – Enrolment in a registered course – Failure to maintain enrolment – Substantial breach – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 September 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act). The applicant lodged the delegate’s decision with the Tribunal.

2. The delegate cancelled the visa on the basis that the applicant had breached condition 8202(2) (enrolment). 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. By letter dated 24 April 2018 (dispatched by email to the applicant’s migration agent/authorised recipient), the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 14 June 2018. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.  Two SMS hearing reminder texts were sent to the applicant shortly prior to the hearing; however, both were listed as having ‘failed’ to be delivered.

4. The applicant did not appear before the Tribunal on the day and at the time and place at which his hearing was scheduled. Neither did he otherwise reply to the Tribunal’s hearing invitation letter (as he was requested). 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.

5. 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

6. 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?

7. 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).

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 28 June 2014. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 8 September 2016, the applicant was advised that based on the evidence available on the Provider Registration and International Student Management System (PRISMS), it appeared he had not been enrolled in a registered course of study since 19 September 2015. The applicant was advised it therefore appeared he was in breach of condition 8202(2)(a) – and that his visa may be cancelled under s.116(1)(b) of the Act. The applicant did not respond to the NOICC letter (though an email was sent to the Department after the delegate’s decision); and the delegate cancelled the visa on 20 September 2016.

9. Based on the evidence before the Tribunal, I am satisfied the applicant was not enrolled in a registered course for around 12 months at the time of the NOICC letter.

10. Therefore, the Tribunal is satisfied 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 to exercise its discretion to cancel the visa. 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 matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

12. Regarding the purpose of the applicant’s travel to and stay in Australia, there is no evidence to indicate the applicant’s original intention in travelling to and staying in Australia was not for the purposes of study.

13. Regarding the extent of the applicant’s compliance with any conditions to which his visa was subject, the Tribunal notes that condition 8202 is a mandatory condition and required the applicant to have remain enrolled in a registered course of study. This condition has been breached.

14. Regarding the degree of hardship that may be caused to the applicant or his family if his visa is cancelled, the Tribunal will accept the applicant may be subject to some financial hardship if his visa is cancelled. He may also be detained under s.189 and removed under s.198 of the Act. However, and based on all the information before me, I am not satisfied the applicant will be subject to indefinite detention. I am also satisfied he may hold/apply for a Bridging visa to remain in the community while he organises his affairs prior to departure.

15. If the applicant’s visa is cancelled, he will also be subject to s.48 of the Act (which means he would have limited options for applying for a visa in Australia); and PIC 4013 (which means he may not be granted a temporary visa for three years from the date of the cancellation).

16. Regarding the circumstances in which the ground cancellation arose, same arose due to the applicant failing to maintain enrolment in a registered course of study. The Tribunal believes the breach to have been substantial.

17. That said, in an email to the Department dated 4 October 2016 (after the Department delegate had finalised their decision), the applicant said he had many problems; he was depressed because of family problems in India; he was home sick and lonely; his maternal grandmother had died; his family was close to him; he now wishes to be given a second chance to overcome his depression and continue his studies in Australia.[1] The Tribunal understands it is not required to accept uncritically any and all the allegations made by an applicant. However, and without further clarification, the Tribunal was not satisfied this evidence should prevent it from exercising its discretion to cancel the Student visa.

    [1] DIBP – folio 25.

18. The Tribunal has no evidence the applicant has been uncooperative with the Department or the Tribunal. Regarding whether there is a person is in Australia whose visa would or may be cancelled under s.140, there is no evidence that any other person currently holds a visa as a result of the applicant being granted a visa. Regarding whether Australia’s international obligations would or may be breached as a result of cancelling the applicant’s visa, there is no information before the Tribunal which indicates Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

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

    DECISION

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

    Mr S Norman
    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.