Patel (Migration)

[2018] AATA 406

Patel (Migration) [2018] AATA 406 (21 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pranav Hiteshbhai Patel

CASE NUMBER:  1703971

DIBP REFERENCE(S):  BCC2017/401532

MEMBER:Fiona Meagher

DATE:21 February 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 21 February 2018 at 8:11pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Enrolment in alternative course – Active contact with University

LEGISLATION
Migration Act 1958, s 116, 359AA
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 2 March 2017 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).

2. The delegate cancelled the visa on the basis that he had breached a condition of his Visa, namely that he had not been enrolled in a registered course continuously.  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 appeared before the Tribunal on 29 November 2017 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. 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

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. Specifically, the applicant was not enrolled in a registered course between 9 October 2016, and 20 February 2017. (Relevantly, the delegate found that the applicant only became enrolled again on 20 February 2017 after the NOICC had been issued). In any case, the requirement is that he remain continuously enrolled, and the applicant has therefore breached that condition 8202 of his Visa.

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).

   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 to exercise its discretion to cancel the visa.

11. 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. The Tribunal had before it a submission from the applicant’s registered migration agent, which annexed numerous documents, including correspondence from Griffith University a statutory declaration of the applicant, and a copy of the applicant’s diploma of engineering certificate and transcripts.

13. The applicant told the Tribunal that he came to Australia to study a package of courses, including a diploma of engineering, which was intended to lead to a bachelor of engineering. However, the applicant told the Tribunal that he had not received sufficiently high marks in the diploma course to achieve entry into the bachelor degree course. He said that he had concluded the diploma in October 2016, subsequently received notification that he would not qualify for entry into the bachelor degree in engineering, commenced researching his study alternatives, and found an alternative course to study, namely a bachelor of computer science. The applicant said that he requested the University to change his existing enrolment in the bachelor of engineering to a bachelor of computer science on 11 January 2017. The Tribunal notes that this predates the receipt of the NOICC.

14. The applicant told the Tribunal that he received a letter of offer in relation to the bachelor of computer science on 2 February 2017, made a deposit for the tuition fees in that regard on 15 February 2017, and received an email from DIBP on 16 February 2017, requesting his current contact details, and a further email from DIBP on 17 February 2017, notifying him of their intention to cancel his Visa., The applicant stated that he responded to the department explaining his circumstances, but that in hindsight that explanation had been inadequate.

15. The applicant confirmed that he had been actively corresponding with Griffith University regarding changing his subjects prior to the receipt of the NOICC, and that he seriously wished to pursue his studies. He emphasised that he wished to study at the higher education level, and actively sought a bachelor degree to pursue, when his original choice was no longer available to him, due to his results in his diploma. The Tribunal has sighted correspondence between the applicant and Griffith University which supports his oral evidence, and a statutory declaration in that regard.

    Extent of compliance with visa conditions

16. There is nothing before the Tribunal to show that the applicant has not otherwise complied with the conditions of his Visa.

    Degree of hardship caused to the visa holder, family members and others, if the Visa is cancelled

17. The applicant states that he will face difficulties pursuing and establishing a career in IT and software in India, as per his original ambitions, if he does not obtain higher education qualifications in Australia. Further, he states that his parents have made significant investment in allowing him the opportunity to achieve his higher education qualifications, including at least $75,000 alone for tuition fees to date. He says that the money will be wasted if he were to return to India without completing his higher education studies. Further, he states that his family would be disappointed and embarrassed, and he would bring great shame to them if he were to return without fulfilling his educational commitments.

    Past and present conduct to the Department

18. The applicant responded to the NOICC and provided information to the department as requested. He immediately sought and was given a bridging Visa E, upon notification of the cancellation of his 573 Visa. There is no information to indicate any other specific matters of relevance regarding the applicant’s behaviour towards the department.

    Any mandatory consequences of cancelling the Visa

19. If the applicant’s Visa is cancelled, there are limited visas he can apply for from within Australia. There is no suggestion that he would be detained or indefinitely detained if he leaves Australia within the period allowed.

    Consequential cancellations under s.140

20. There are no secondary applicants for the visa, and the consequential cancellation provisions do not apply.

    Whether Australia would breach any international obligations in cancelling the Visa

21. There is no information before the Tribunal which indicates that the cancellation would result in the breach of Australia’s international obligations

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

    DECISION

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

    Fiona Meagher
    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.