Sahil (Migration)

[2019] AATA 2585

Sahil (Migration) [2019] AATA 2585 (2 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Sahil Sahil

CASE NUMBER:  1705309

HOME AFFAIRS REFERENCE(S):           BCC2016/3298246

MEMBER:Lilly Mojsin

DATE:2 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 02 May 2019 at 4:47pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Bachelor of Business Accounting – not enrolled in registered course – non-compliance occurred soon after arrival – not genuine student – mental health issues – non-appearance at hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 189, 362B
Migration Regulations 1994 (Cth), r 1.40A, Schedule 2, cls 573.223(1A), 573.231, Schedule 8, Condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 March 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 meet condition 8516 as the applicant was not a person who continued to satisfy the primary criteria for the grant of the visa.

3. The applicant appealed that decision to this Tribunal, attaching a copy of the Department decision to his application.

4. The applicant was notified that the Tribunal had considered the material before it but the Tribunal was unable to make a favourable decision on this information alone. The applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review, on 2 May 2019 at 2.00pm.

5. The applicant was advised that, if he failed to attend the scheduled hearing and an adjournment was not granted, the Tribunal might make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal.

6. The applicant did not acknowledge the Tribunal correspondence, the applicant did not attend the Tribunal on 2 May 2019 at 2.00pm and the Tribunal has received no explanation.

7. In these circumstances, pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present review is whether the applicant, as the holder of a student visa, has breached condition 8516 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 8516?

9. Condition 8516 states:

   The holder must continue to be a person who would satisfy the primary or secondary criteria as, as the case requires, for the grant of the visa

10. Condition 8516, as it applies, requires that the applicant continue to satisfy the requirements for grant of the student visa. This means, for example, that an applicant’s main course of study must continue to be a course in the education sector that matches the student visa granted, and that the applicant must continue to have sufficient financial capacity to support their study and stay in Australia.  This condition is imposed on student visas when student visa applications are assessed under a streamlined visa processing arrangements with participating education providers. As a beneficiary of these arrangements, student visas are granted based on the basis that visa holders have met lower thresholds of proof regarding their education history, English language ability and financial capacity. If the visa holders change coursework to lower diploma-level coursework while enrolled in degree level coursework or enrol into non-streamlined education providers, the visa holders may breach condition 8516.

11. In the present review, the applicant's visa was cancelled on the basis the applicant was not enrolled in a registered course that would satisfy 573.223(1A) and 573.231. These clauses require the applicant to be enrolled in a Bachelor or Master Degree course or enrolled in or the subject of a current offer of enrolment in a course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under r.1.40A.

12. On 9 May 2014, the applicant was granted a subclass 573 Higher Education visa with the condition of 8516 attached. According to the Provider Registration and International Student Management Systems (PRISMS) as stated in the Department decision, it appeared that the applicant was no longer enrolled in a Bachelor's Degree or a Master's Degree course as required by subcl.s 573.223(1A) or 573.231.

13. The Department issued Notice of Intention to Consider Cancellation (NOICC) on 21 February 2017. The applicant responded to the NOICC invitation on 3 March 2017. The applicant provided a number of reasons for difficulties experienced by the applicant during his initial studies at Victoria University. He provided a Confirmation of Enrolment to study a Bachelor of Business Accounting commencing in May 2017. The applicant did not deny that he failed to comply with visa condition 8516.

14. The Department cancelled the visa on 13 March 2017.

15. Based on the evidence before the Tribunal, the applicant had not been enrolled in any degree-level course between 19 May 2014, when he first enrolled, and the date of cancellation. Therefore the Tribunal is satisfied that the applicant failed to comply with visa condition 8516, the ground for cancellation in s.116(1)(b) exists.

    Consideration of the discretion to cancel the visa

16. 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’.

17. Addressing PAM3 criteria:

    ·The purpose of the visa holder's travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

18. The applicant’s purpose of a student visa was to enable the applicant to undertake study in Australia. Whilst the applicant claims that he intends to study a Bachelor of Business Accounting, he has not provided any information to the Department about a compelling need to travel to or remain in Australia. The Tribunal finds the applicant has not satisfactorily demonstrated that he obtained a Subclass 573 visa for the purposes of gaining a higher education degree or that he has been or will be a genuine student capable of upholding conditions placed on his 573 visa if it were to be reinstated. The applicant obtained a Confirmation of Enrolment to study Bachelor of Business Accounting 2 days after receiving a NOICC from the Department. As the applicant did not attend the Tribunal hearing, the Tribunal has been unable to explore with the applicant a compelling need to remain in Australia.

19. The Tribunal places great weight on the applicant not engaging in the study for which his visa was granted and not fulfilling the purpose of his travel to and stay in Australia. The applicant's non-engagement in study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

    ·The extent of compliance with visa conditions

20. Other than a breach of condition 8516 there is no evidence before the Tribunal that the applicant has breached any other conditions of his visa. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.  

    ·Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the visa holder and any family members

21. The applicant told the Department that he wished to complete an accounting qualification because it will give him great opportunities. The applicant did not suggest in his NOICC response that any degree of hardship would be caused to him or his family.  As the applicant did not attend the Tribunal hearing the Tribunal was unable to explore this factor.  Therefore the Tribunal weights this factor in favour of cancellation.

    ·Circumstances in which ground of cancellation arose.

22. The applicant has stated that he completed a Diploma of Business. He opines that he did not understand his studies at Victoria University, found difficulties, but did not receive any help or counselling from the university. He also states that his mother was injured in a road accident, he was mentally distressed and his studies were interrupted. As the applicant did not attend the hearing without further information from the applicant the Tribunal is unable to be satisfied that that the applicant was not assisted by his course provider or if his mother was injured in a car accident. Further the Tribunal also notes the applicant has provided no medical or psychological reports from a qualified professional to support his claims that he was depressed or suffered from another significant psychological condition that would lead him to be non-compliant with condition 8516.Therefore the Tribunal weighs this factor in favour of cancelling the visa.

    ·Past and present behaviour of the visa holder towards the department

23. There is no evidence before the Tribunal to suggest that the applicant’s past and present behaviour towards the Department has been adverse. There is no evidence before the Tribunal that the applicant has not been co-operative with the Department. There is nothing to suggest that the applicant has been other than compliant in his dealings with the Department. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.  

    ·Whether there would be consequential cancellations under s.140

24. There are no persons in Australia whose visas would, or may, be cancelled under s140. The Tribunal notes that there is no information before it to indicate that any other person currently holds a visa because the applicant held his visa. Therefore any cancellation of the applicant’s visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements any international obligations, including non-refoulement and best interests of the children, would be breached as a result of the cancellation. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.

    ·Whether there are mandatory legal consequences

25. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice regarding his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.  

26. On the evidence before the Tribunal, the circumstances in which ground of cancellation arose were not due to a relationship breakdown.

27. As the applicant did not attend the Tribunal hearing, the Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation. The Tribunal weighs this factor neither in favour nor against cancelling the visa.   

28. The non-compliance occurred very soon after his arrival. The applicant has not satisfactorily demonstrated that he is a genuine student who should have the visa reinstated because he is a genuine student interested in completing an Accounting degree. The Tribunal determines that the grounds for cancellation outweigh the reasons not to cancel the visa.

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

    DECISION

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

    Lilly Mojsin
    Member