Pathak (Migration)

[2017] AATA 2697

Pathak (Migration) [2017] AATA 2697 (23 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dhiraj PATHAK

CASE NUMBER:  1615352

DIBP REFERENCE(S):  BCC2016/2630142

MEMBER:Antoinette Younes

DATE:23 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 23 October 2017 at 12:50pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Enrolment in a registered course – Applicant ceased enrolment for over 2 years – Unsatisfactory course progress – Applicant working rather than studying

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 19 September 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 572 Vocational Education and Training 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 had breached condition 8202 attached to his 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 appeared before the Tribunal on 19 October 2017 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The representative did not attend the Tribunal hearing.

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. In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record which the applicant provided to the Tribunal in support of the application for review. Specifically, the Tribunal indicated to the applicant that information available to the Department in the Provider Registration and International Student Management System (PRISMS) shows that at the date of the delegate’s decision record of 13 September 2016, the applicant has not been enrolled in a registered course since 11 October 2014.

9. In accordance with s.359AA, the Tribunal discussed with the applicant information available in PRISMS indicating that although he has completed in October 2014 an English language course, his enrolments in two bachelor of accounting courses were cancelled on 26 July 2013 and 11 September 2014 for unsatisfactory course progress and change to CoE/student details confirming that he had not been enrolled in a registered course since 11 October 2014 and suggesting that he has had difficulties in achieving his study goals. The applicant agreed with the correctness of this information and provided explanations as discussed below.

10. The evidence before the Tribunal and the Tribunal finds that the applicant has not complied with condition 8202(2) and it follows that the ground for cancellation under s.116(1)(b) arises.

    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).

    The purpose of the applicant’s travel to and stay in Australia - whether the applicant has a compelling need to travel to or remain in Australia

12. The applicant has claimed that the purpose of his travels and stay in Australia was to study and he was granted the visa for that purpose.

13. Since his arrival in Australia in 2013, the applicant has only completed an English course and he has had two enrolments cancelled. He has not studied since October 2014. The applicant told the Tribunal that he has been working and continues to work part-time in Australia. The Tribunal suggested that it appears that he is in Australia to work rather than study and the applicant replied “it does seem that way”.

14. On the evidence before it, the Tribunal does not accept that the applicant travelled to Australia to study, or that he has remained in Australia for the purpose of studying or that he has a compelling need to remain in Australia. The Tribunal gives this aspect significant weight in deciding that the visa should be cancelled.

    The extent of compliance with visa conditions - whether the applicant has otherwise complied with visa conditions now and on previous occasions

15. Apart from non-compliance with condition 8202, there is no evidence before the Tribunal that the applicant has not complied with other visa conditions. The Tribunal gives this aspect some weight however the Tribunal considers the non-compliance with condition 8202 to be significant and means that the visa should be cancelled.

    The degree of hardship that may be caused to the applicant and any family members - whether the applicant is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision

16. The applicant gave evidence that his parents have expectations and that they have recently discovered that his visa had been cancelled. The Tribunal appreciates that the applicant’s parents have expectations and the Tribunal has given this aspect some weight, however this does not mean that the visa should not be cancelled.

17. The Tribunal is mindful that the applicant could become unlawful and may be subject to detention but these are consequences of the legislation and the Tribunal is satisfied that in this case, they do not mean that the visa should not be cancelled.

18. Looking at the applicant’s circumstances individually and cumulatively, the Tribunal is not satisfied that there is a degree of hardship that means that the visa should not be cancelled.

    The Circumstances in which ground of cancellation arose - whether there were any extenuating circumstances beyond the applicant’s control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, whether the relationship has broken down as a result of family violence.

19. In the course of the hearing, the applicant gave evidence that he thought it would be easy to study in Australia and that he has wanted to do accounting. He stated that he knows that he has “lost” his way.

20. As outlined above, the applicant has not enrolled in a course for a substantial period, contrary to a condition attached to his visa. The applicant’s personal circumstances as accepted by the Tribunal and for the reasons explained do not mean that the visa should not be cancelled.

    The applicant’s past and present behaviour towards the department - whether the applicant has been truthful and cooperative in their dealings with the department.

21. The applicant did not respond to the notice of intention to consider cancellation and the Tribunal is concerned.  The Tribunal asked the applicant in the course of the hearing about the lack of response.  He stated that his representative advised him not to respond. The Tribunal is not persuaded by that explanation; the Tribunal is of the view that the lack of response is consistent with the applicant’s overall conduct in relation to his student visa and the non-compliance. The Tribunal has given this aspect weight in deciding that the visa should be cancelled.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s140.

22. There is no evidence before the Tribunal and the applicant is not claiming that there would be any consequential cancellations under s.140.

    Whether there are mandatory legal consequences to a cancellation decision

23. As discussed earlier, the applicant could become unlawful and may be subject to detention but these are consequences of the legislation and the Tribunal is satisfied that in this case, they do not mean that the visa should not be cancelled.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

24. On the evidence before it, the Tribunal is not satisfied that any international obligations would be breached as a result of the cancellation. 

    Any other relevant matters raised by the applicant

25. There are no other matters requiring consideration by the Tribunal.

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

    DECISION

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

    Antoinette Younes

    
    Senior 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.