Pasricha (Migration)

[2019] AATA 1525

Pasricha (Migration) [2019] AATA 1525 (8 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aditya Pasricha

CASE NUMBER:  1713311

HOME AFFAIRS REFERENCE(S):           BCC2017/1359170

MEMBER:Joseph Lindsay

DATE:8 February 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 08 February 2019 at 3:59pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – medical treatment – applicant resumed Higher Education studies – decision under review set aside           

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 June 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 review applicant appeared before the Tribunal on Friday 8 February 2019 at 2:00pm. The applicant was represented by his appointed agent, Mr Suraj Khatri. The applicant did not require the assistance of an interpreter.  The applicant’s friend, Mr Gaurav Jethi, attended as a witness for the applicant.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   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. It is apparent from the delegate’s decision record that the applicant had not been enrolled in a registered course of study since 3 September 2016. The applicant made no indication that these facts were not correct. Indeed, he indicated that he knew he had not been enrolled in a registered course of study and that he has breached condition 8202.

9. 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).

   Consideration of the discretion to cancel the visa

10. 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

11. In the hearing, the applicant indicted he did not receive the notice from the Department dated 25 May 2017 because he had moved addresses and he no longer used the email address. The Tribunal reminded the applicant that the obligation was on him to keep the Department informed of his current contact details.

12. The applicant then provided information to the Tribunal about his ongoing medical situation, in particular in relation to his heart. To that end, the applicant provided:

    a.a medical certificate dated 5 February 2019 from Dr Neeraj Aggawal about the applicant’s open heart surgery in India in 2011.

    b.a letter dated 8 May 2017 from Dr Sophie Riddell about the applicant’s admission to St Vincent’s Hospital following a cardiac arrest.

    c.a document detailing the applicant’s private health insurance claim for the St Vincent’s Hospital admission in 2017.

    d.a letter dated 10 August 2017 from the Department of Immigration and Border Protection to the applicant about his Bridging Visa E showing he has study rights.

    e.a current Confirmation of Enrolment with Acknowledge Education for the applicant’s enrolment in a Bachelor of Business (Accounting) from 30 July 2018 to 12 December 2019.

    f.a certificate from PAX Institute of Education stating that the applicant completed a Diploma of Accounting on 1 June 2018.

    g.a document showing the student record for the applicant indicating that he has completed three subjects of his Bachelor of Business (Accounting) in Semester 2 of 2018.

13. In summary, the applicant was able to demonstrate to the Tribunal that health issues connected to his ongoing heart problems played a substantial part in the reasons for his course enrolment lapsing in 2016 – circumstances that were beyond his control. However, the Tribunal was impressed that in 2017 the applicant applied for and received study rights from the Department, resumed his studies and was able to demonstrate that he is completing subjects at the tertiary level.

14. In these circumstances, the Tribunal is prepared to exercise its discretion to set aside the decision to cancel the applicant’s student visa.

15. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

16. The Tribunal sets aside the decision under review and substitutes a decision not 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.