Ravindran (Migration)

[2018] AATA 657

Ravindran (Migration) [2018] AATA 657 (31 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dishon Ravindran

CASE NUMBER:  1619711

DIBP REFERENCE(S):  BCC2016/3152001

MEMBER:Christine Kannis

DATE:31 January 2018

PLACE OF DECISION:  Perth

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

Statement made on 31 January 2018 at 7:26 am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Requirement to be enrolled in registered course – Applicant not enrolled in registered course – Ground for cancellation exists – Consideration of discretion – Significant period of time spent not enrolled – Hardship does not outweigh grounds for cancellation

LEGISLATION
Migration Act 1958, s 116(1)(b)
Migration Regulations 1994, Schedule 8, Condition 8202(2)(a)

CASES
Liu v MIMIA[2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 November 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).

2. The issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal on 18 January 2018 to give evidence and present arguments. 

5. 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

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevant to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

7. On 17 April 2015 the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

8. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since 12 November 2015. He was enrolled in a Bachelor of Science which was cancelled on 12 November 2015. The reason for cancellation was stated to be “non-commencement of studies”.

9. The PRISMS shows the applicant was also previously enrolled in a Murdoch University Preparation Course. His enrolment in this course was cancelled on 22 October 2015 and the reason for cancellation was stated to be “student notifies cessation of studies”.

10. Having regard to the information in the PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 12 November 2015. The Tribunal finds that he breached condition8202(2)(a) of his visa.

11. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

12. 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).

13. On  2 November 2016 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of his visa. 

14. The applicant did not respond to the NOICC.

15. The applicant told the Tribunal he came to Australia to study Science (in a sports related field) because he has an interest in sport and in particular in kick boxing.

16. The applicant said that after he had been studying for four or five months his father ceased providing financial assistance to him and so he stopped attending university. He said his mother suffered from a spinal condition and required two surgeries and her medical expenses meant that his father had limited funds.

17. The applicant told the Tribunal that apart from a two week period following the cancellation of his visa, he has been working during his stay in Australia and has been able to support himself.

18. The Tribunal asked the applicant whether he contacted the Department when he stopped attending university.  He said he did not do so because he wasn’t sure what to do and he was stressed.

19. The applicant said that he now wishes to study a course at TAFE and said he was considering courses in Commercial Cookery or Telecommunications. Noting that these are very different fields of study the Tribunal asked him about his intentions. He said he does not want to study Science and when asked the reason for his change of mind, he said he did not know why he wanted to change from Science.

20. The Tribunal asked the applicant when he started considering the TAFE courses. He said as soon as he stopped attending university in 2015 he started researching courses offered at TAFE.  The Tribunal pointed out that more than two years has elapsed since he stopped attending university and asked him about the delay in commencing another course. He said his friends had told him that he could not study at TAFE because his visa required him to study at a higher level. He said he also discussed his situation with a migration agent who advised him that he needed to obtain a release letter from the university. 

21. Regarding the potential hardship which would result from the cancellation of his visa, the applicant said “maybe” he would suffer hardship if his visa is cancelled. He said once in a while he has sent money home to his family from his earnings in Australia. If he has to leave Australia he would not be in a position to provide financial assistance to his family.

    Conclusion

22. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of the breach and reasons for the breach as explained in the applicant’s oral evidence.

23. The purpose of the student visa is to enable the visa holder to undertake study in Australia. The applicant has not been enrolled in a registered course since 12 November 2015 and 12 months elapsed from that date until the NOICC was issued. The Tribunal finds it is a significant breach given the central importance of enrolment to a student visa and given the period of time which has elapsed.

24. The applicant’s enrolment was cancelled because he ceased studying. He told the Tribunal the reason for ceasing study was because his father was not able to continue providing financial assistance. The Tribunal noted that he said his employment during his stay in Australia has enabled him to financially support his living expenses and further that he has at times been able to send money to his family.

25. The applicant did not provide a satisfactory reason for not contacting the Department when he ceased attending university. His evidence indicated that he was aware that he should have been undertaking higher education study. Not only has he not undertaken study at the level for which he was granted a visa, he has not undertaken or taken steps to undertaken any study at all.

26. Having considered all the matters raised by the applicant at hearing the Tribunal finds that it is positively satisfied that the applicant’s non-compliance with the visa condition was not due to exceptional circumstances beyond his control. The Tribunal finds that there are no extenuating or compassionate circumstances in this case.

27. The Tribunal accepts that the applicant may suffer hardship by cancellation of his visa because he will not be able to apply for a visa to return to study in Australia in the near future.

28. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

29. There are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing to suggest, and the applicant does no claim, that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

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

    DECISION

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

    Christine Kannis
    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.