Sharma (Migration)

[2018] AATA 395

Sharma (Migration) [2018] AATA 395 (20 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bibek Sharma

CASE NUMBER:  1702205

DIBP REFERENCE(S):  BCC2017/218212

MEMBER:Fiona Meagher

DATE:20 February 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 20 February 2018 at 5:46pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Non-attendance at hearing – Medical condition – Non-enrolment period

LEGISLATION
Migration Act 1958, s 116(1)(b)
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 31 January 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 the applicant had not complied with 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. A copy of the delegate’s decision was provided with the application for review

3. On 15 November 2017 the applicant was invited to attend a Tribunal hearing on 11 December 2017 in relation to his application for review. The invitation was sent to the applicant’s correct email address, however, he did not respond indicate an intention to appear before the Tribunal in relation to his review. SMS reminders were sent to his mobile phone on 4 and 8 December 2017, but the applicant did not attend the hearing at the time and place scheduled. As at the date of decision there has been no contact from the applicant.

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 delegate’s decision, a copy of which was provided to the Tribunal with the application for review, noted that the applicant had not been enrolled in any registered course since 27 May 2016, based on information obtained from the Provider Registration and International Student Management System (PRISMS). On 19 January 2017, the applicant was sent a notification of intention to consider cancellation (NOICC). On 23 January 2017 the applicant responded, relevantly, as follows:

   In response to letter received, I have outlined some of the reasons why my Visa should not be cancelled.

   First, I had a terrible accident on 14 Feb 2016. I was under treatment till first week of June 2016. I have attached the medical certificate for your perusal.

   During my recovery stage I sent an email to bITM College (currently closed) regarding my circumstances on 22 March 2016. However, they cancelled my enrolment on 27 May 2016. I was frustrated that the education provider in Australia could be a worst experience. Please find my copy of email attached to this letter which I sent to college.

   During my medical treatment, my plaster broke down and I had to change it. So, I had it done on 1 April 2016 was further advice for six weeks rest which is till first week of June 2016. Soon after I went to college and was shocked to hear that my enrolment was cancelled. I was disappointed and saddened by the act of my education provider.

   I asked AITM College if there’s any way I could start my course again, but they were not cooperative. Instead, I was neglected by college and was left alone. I was recovering from the physical pain and again I was hit by a mental trauma. I was so much distressed and could not think of my career plans. My visa expiry was coming near which is 15^th March 2017 and my enrolment was cancelled. It was a massive stress for me.

   I talked to my family and they wanted me to come to Nepal with some certificates. They advised me to at least get some completion certificates. During August 2016, I spoke to college again for academic transcript but again they did not respond my call properly. During November 2016, I heard that AITM College was closed down. I gave up hope to receive any transcripts from AITM College. I am shocked that what would happen to me if I was still a student at AITM College. A ITM College is closed down and would not done good to many students life. I was already a victim in May 2016 and many have become in November 2016 due to its closure.

   I was preparing myself to apply another provider and make a new beginning from Fed 2017. However, I received this notice. I would like to make a request not to cancel my Visa. There were circumstances where I had genuine reasons for not cancelling my enrolment at AITM College and however they did cancel it and impose me and mental stress. Hence, I believe the ground for cancellation does not exist. For some months, I was in trauma and could not decide my future perspectives and when decided to start a new college, I received this letter. I believe you will see genuineness in my letter and provide me further time to find right provider, unlike AITM College and start my new beginning.

9. On the evidence before the Tribunal, the applicant was not enrolled in a registered course from 27 May 2016. Accordingly, the applicant has not complied with condition 8202 (2) and therefore the ground for cancellation under s.116(1)(b) arises.

   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 the issues raised by the applicant in response to the NOICC  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 has had regard to the matters contained in the applicant’s response to the NOICC. The Tribunal has also considered a medical certificate provided by the applicant to the department from Dr Vishal Mehta. That medical certificate states that the medical care period was from February 2016 until April 2016. The Tribunal has also had regard to email correspondence from the applicant to his education provider dated 22 March 2016. That email correspondence related to non-payment of fees. The Tribunal has not had the opportunity to speak with the applicant in the course of the hearing so that the Tribunal could have asked the applicant for further information and details about his claims of his medical condition, the mental stress claims he suffered, and any other explanations he might’ve had in relation to non-compliance. For example, the Tribunal would have asked the applicant for further details and/or any corroborative evidence in relation to any inability to study beyond the period covered by the medical certificate referred to above, and in relation to the mental stress he claims to have suffered. The Tribunal and inviting the applicant to the hearing indicated to him that the Tribunal was unable to make a favourable decision on the basis of the available information. Without having had the opportunity to further explore with the applicant at a hearing his reasons for non-compliance and asking more questions about the circumstances that led to his non-compliance, the Tribunal is not satisfied that those circumstances mean that the visa should not be cancelled.

13. The Tribunal accepts is plausible that the applicant came to Australia to study. The Tribunal also accepts that the applicant was affected by an accident in February 2016, which consistent with the medical certificate provided, meant that he required medical care until April 2016. The Tribunal acknowledges that the cancellation of the Visa may cause the applicant a certain degree of hardship such as being unable to pursue further studies in Australia and facing difficulties in being granted any subsequent Australian visas. He could also be detained and removed from Australia. There is no evidence before the Tribunal that the applicant has failed to comply with other Visa conditions. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140, or that any in two national obligations would be breached as a result of the cancellation, or that there would be impact on any victim of domestic violence. The applicant was granted a student Visa for the purpose of studying in Australia. The non-enrolment period is significant, and on the basis of the available information, the Tribunal is not satisfied that there are any circumstances such that would mean that the visa should not be cancelled.

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

    DECISION

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