PARDEEP KUMAR (Migration)

[2019] AATA 2852

PARDEEP KUMAR (Migration) [2019] AATA 2852 (5 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  PARDEEP KUMAR

CASE NUMBER:  1720140

HOME AFFAIRS REFERENCE(S):           BCC2017/2013685

MEMBER:Joseph Lindsay

DATE:5 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 05 June 2019 at 5:58pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – responsibility to maintain enrolment – length of non-enrolment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
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 23 August 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 failed to remain in a registered course of study and breached condition 8202(2)(a) of his student visa. 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 attended the hearing before the Tribunal on 21 March 2019. The applicant was not represented and was assisted by an interpreter.

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 applicant explained to the Tribunal his student history and indicated he had enrolled in a Bachelor of Sport and Recreation Management, followed by a course in Commercial Cookery and then a course in Hospitality and then finally a Bachelor of Business.

9. The Tribunal put to the applicant that what he had said in the hearing about his course enrolment history was reflected in his Provider Registration and International Student Management System (PRISMS) record.

10. In the hearing, the Tribunal referred to information in the applicant’s decision record from the Department dated 23 August 2017 indicating that he had not been enrolled in a registered course of study since 14 November 2016. In his response to the Tribunal, the applicant agreed that he had not been enrolled in a registered course of study since 14 November 2016.

11. 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)(a). The Tribunal finds that the ground for cancellation for the applicant’s student visa is established in respect to s.116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

12. 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 circumstances in which the ground for cancellation arose

13. The Tribunal put the applicant that he did not respond to the Notice from the Department, and in response he claimed he was not aware he had to give anything to the Department in writing.

14. The Tribunal indicated to the applicant that the Tribunal may place low weight on what he had said because there was clear evidence that the Department communicated the notice to him.

15. The Tribunal asked the applicant why he allowed his course enrolment to cease. The applicant indicated that he was not aware that his course provider cancelled his enrolment. The Tribunal put to the applicant that it was his responsibility to remain enrolled in his course. In response he said “that’s how it happened.”

16. The Tribunal put to the applicant the he got his visa on 13 February 2014 and it was due to expire on 30 August 2017. The Tribunal put to the applicant that he had come to Australia on a higher education visa, and that his student history indicated that it was likely he was never going to have completed a higher education degree by 30 August 2017. In response he indicated that he would do his study if allowed.

17. The Tribunal indicated that it may put low weight on what he had said because it was his responsibility to take charge of his student enrolment and to start a higher education course and complete it within the time granted to him in the visa. He indicated that he changed his course to cookery, and then now he wanted to do business.

18. In assessing the above, the Tribunal places low weight on the applicant’s submission that he was not aware that his course provider cancelled his enrolment. The Tribunal reasonably expects that it is the applicant’s responsibly to take reasonable steps to engage with his course provider in respect to his study and to maintain his course enrolment.

19. In consideration of the above, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    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

20. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

21. The Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

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

22. The only indication the applicant gave in respect to any hardship he may incur as a result of his student visa being cancelled was that his parents did not know about the situation and they would be disappointed when they found out on his return to India. He indicated he also might have to appeal to the court.

23. Whilst the Tribunal accepts that there may be some disappointment experienced on the part of the applicant and his family if his student visa was cancelled, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    Past and present behaviour of the applicant towards the Department

24. There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

25. There is no evidence that there are any dependants attached to the applicant’s student visa. The Tribunal places low weight on this information in the applicant’s favour.

    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

26. The applicant initially indicated he was not aware of the legal consequences of the cancellation of his student visa and he was not aware of the three-year exclusion period as a consequence of his student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia. The applicant indicated he is now aware. 

27. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chose not to return to India.

28. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

29. The Tribunal places low weight on this information in the applicant’s favour.

    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

30. There is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places low weight on this information in the applicant’s favour.

    Any other relevant matters

31. When the Tribunal asked the applicant whether there were any other relevant matters before the Tribunal, he indicated he wanted to finish his bachelor’s course, in particular the Bachelor of Sport course.

32. Given the applicant’s student enrolment history, in that he has not been enrolled in a registered course of study since 14 November 2016, the Tribunal places low weight on this information in the applicant’s favour.

    Conclusion

33. The Tribunal finds that the applicant received his Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 13 February 2014.

34. The Tribunal finds that the applicant has not been enrolled in a registered course of study since 14 November 2016. Accordingly, the applicant has not complied with condition 8202(2)(a).

35. The Tribunal finds that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are not exceptional circumstances. 

36. 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 Subclass 573 Higher Education Sector visa.

    Joseph Lindsay

    
    

    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.