RAHUL (Migration)

[2018] AATA 794

RAHUL (Migration) [2018] AATA 794 (20 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr RAHUL RAHUL

CASE NUMBER:  1616031

DIBP REFERENCE(S):  BCC2016/2703861

MEMBER:Mr S Norman

DATE:20 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 20 March 2018 at 2:20pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Ceased studies – Affordability of studies – Death of applicant’s family – Property dispute

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8 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 delegate cancelled the visa on the basis that the applicant was in breach of condition 8202(2)(a) – 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.

2. The applicant lodged the “Notification of Cancellation of Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa under section 116 (General Power) of the Migration Act 1958” letter, dated 20 September 2016, with the Tribunal.

3. The applicant appeared before the Tribunal on 19 March 2018 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

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 was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 6 November 2014. By Notice of Intention to Consider Cancellation (NOICC) of that visit dated 2 September 2016,[1] the applicant was advised that information available to the Department delegate on the Provider Registration and International Student Management System (PRISMS), indicated that he had not been enrolled in a registered course of study since 5 August 2015. Further that it therefore appeared the applicant was in breach of condition 8202(2)(a); and that his visa may be cancelled under s.116(1)(b) of the Act.

   [1] Department – folio 12.

9. The applicant then lodged a Confirmation of Enrolment (COE) for a Bachelor of Business degree with “Group Colleges Australia”,[2] which course was to commence 24 October 2016. The Tribunal notes this COE was approved on 14 September 2016, being almost two weeks after the NOICC letter. However, in his response to the NOICC letter, the applicant did not dispute there were grounds for cancelling the visa.

   [2] Department – folio 30.

10. 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

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. There is no evidence to suggest the applicant’s initial intention for their travel to and stay in Australia was not the purpose of study.

13. Regarding the extent of the applicant’s compliance with the conditions of his Student visa, the applicant failed to maintain enrolment in a registered course of study between 5 August 2015 and 2 September 2016 (13 months). His agent said the applicant passed his first semester, but then had ceased attending his College in the second semester of 2015. This was confirmed by the applicant at hearing.

14. Next, and when discussed at hearing, the applicant said he married his wife (a permanent resident of Australia) in May 2017; and that if he returned to India, his wife would follow him. Though pressed he did not claim he would suffer financially on return to India. He did say that his future in India would be assisted if he completed his studies in Australia; though he also conceded that he ceased all studies in Australia around May 2015.

15. That said, regarding the degree of hardship that may be caused to the applicant or his family if his Student visa is cancelled, the Tribunal accepts the applicant or his family may be subject to some financial hardship if his visa is cancelled. The applicant may also be denied an opportunity to continue his studies in Australia. Further, based on the evidence before the Tribunal, I am not satisfied the applicant would be subject to indefinite detention. He may also apply for a Bridging visa in order to remain in the community to finalise his affairs prior to departing Australia.

16. The applicant did say that he wished to study in Australia, and that if he did not he could have pursued a visa based on his Australian permanent resident partner in Australia - though the Tribunal advised this was not something it could advise him on.

17. Next, if the applicant’s visa is cancelled he would become an unlawful noncitizen and liable to detention under s.189 and removal under s.198 of the Act. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 and would have limited options to apply for further visas in Australia. He would also be subject to PIC 4013 (meaning he could not be granted a temporary visa for three years from the date of cancellation).

18. The Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. There is no evidence before the Tribunal that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

19. Regarding the circumstances in which the ground for cancellation arose, it was claimed the applicant’s father had passed away (on 18 May 2015) and his family members were then in a dispute about “property matters”. The applicant lodged a ‘Death Certificate’ dated 4 June 2016, referring to the death of a named person (the applicant’s father) on 18 May 2015.[3] He also lodged evidence of prior academic attainments. His consultant claimed that the applicant was devastated due to the death of his father and that “all his financial help was suddenly gone”.[4] It was then claimed that other family members were disputing “property matters” with the applicant’s mother; the applicant then ceased attending his College in the second semester of 2015;  but that he is a “bright student” and with the “property disputes resolved in the month of July [though at hearing the applicant said it was resolved in February 2017], coupled with his mother’s possibilities to sponsor him further education” the applicant had attempted to obtain a COE but no one would provide him with one. Eventually the applicant did obtain the COE referred to herein (after the NOICC was issued). Documents were provided and have also been taken into account.

    [3] Department – folio 32.

    [4] Department – folio 36.

20. At hearing, when discussing whether he had sought a deferment from the College after the death of his father in May 2015, the Tribunal understood the applicant eventually conceded that one month after the commencement of his second semester, and at which time he had already paid his student fees for the second semester, the College did not agree to refund him his semester fees, and the applicant thought this to mean he could not defer his studies. Therefore, he had not studied since that time.

21. Regarding the applicant’s mother, when discussed at hearing the applicant said the property dispute (after the death of his father) was finalised around February 2017. He also said his mother would ‘occasionally’ send him money. He also said that after finishing studies in Australia around May 2015, he did not work until around November 2016. In that time he was supported by his then girlfriend (and now wife). Since November 2016, he worked as a chef. It was claimed, and the applicant confirmed at hearing, that he was devastated by the death of his father and that his financial support had been taken from him. However, this did not prevent him from delaying then seeking work in Australia in November 2016; and this did not prevent him from attending holidays on two occasions (one week and again for two weeks) when his partner visited her family in Queensland. Also, the applicant did not seek any medical treatment in Australia (though he did say his mother sent him some medicine ‘once or twice’ from India; and that he practises yoga at his home). That being said, the Tribunal is not satisfied the death of the applicant’s father prevented him from studying in Australia (including in the second semester in 2015, which had already been paid for).

22. Second, the applicant ceased studying around May 2015 (though his enrolment ceased around August 2015); the aforementioned property dispute was only finalised in February 2017; however, he then obtained an approved COE around 14 September 2016, which the Tribunal notes was after the NOICC was issued. Therefore, even though the applicant allegedly was unable to afford to study until the property dispute was settled in February 2017, he sought a COE in October 2016; at which time he allegedly understood he was unable to afford to study. After considering the evidence, the Tribunal is not satisfied the accepted evidence should prevent it from exercising its discretion in this case.

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

    DECISION

24. 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.