Sharma (Migration)

[2018] AATA 389

Sharma (Migration) [2018] AATA 389 (10 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Deepanshu Sharma

CASE NUMBER:  1701778

DIBP REFERENCE(S):  BCC2017/218836

MEMBER:Tigiilagi Eteuati

DATE:10 February 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 10 February 2018 at 5:21pm

CATCHWORDS
Migration – Cancellation - Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Requirement to be enrolled in a registered course – Applicant not enrolled in a registered course – Consideration of discretion – Poor academic performance – Inability to pay fees – Degree of hardship does not outweigh grounds for cancellation

LEGISLATION
Migration Act 1958, s 116(1)(b)
Migration Regulations 1994, Schedule 8, Conditions 8202(2), 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 February 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 breached the condition of his visa to remain enrolled in a registered course. 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 31 October 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

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 found that the applicant had not been enrolled in a registered course between 21 March 2016 and 29 January 2017. This was admitted by the applicant and accords with records held by the Department. 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

9. 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.

10. 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 Tribunal has also carefully considered all of the material and submissions provided by the applicant

11. When the applicant arrived in Australia in December 2013 he was enrolled in a Diploma of Commerce to be followed by a Bachelor of Business degree. He said that he found the Diploma course difficult and was unable to pass the course. He withdrew from the course in November 2014 and, in consequence, his enrolment in the Bachelor of Business degree was cancelled on 1 December 2014. The Tribunal notes that the applicant was in breach of condition 8516 when his enrolment in the Bachelor of Business degree was cancelled.

12. On 2 April 2015 the applicant enrolled in a Certificate IV in Business to be followed by a Diploma of Management and then a Bachelor of Business. He was not enrolled in any course from December 2014 to April 2015 in breach of condition 8202.

13. The applicant said that his English language skills were poor and he found the Certificate IV in Business too difficult and he was failing the course. He stopped attending the course after two or three months. His enrolment in the Diploma of Management and the Bachelor of Business were consequently cancelled on 15 October 2015. He was again not enrolled in any courses between 15 October 2015 and 17 November 2015.

14. On 17 November 2015 the applicant enrolled in the same courses in which he had previously been enrolled, namely a Certificate IV in Business to be followed by a Diploma of Management and then a Bachelor of Business. His enrolment in the Certificate IV was cancelled on 21 March 2016 for non-payment of fees and his enrolment in the Diploma and Bachelor courses were consequentially cancelled on the same day.

15. The applicant explained that he was unable to pay the fees for these courses because his father’s business in India was performing poorly from late 2015 and his father was unable to send the applicant money for tuition fees. He said that, to this day, his father’s business is performing poorly. He said that before his enrolment in the Certificate IV course was cancelled he was performing poorly in the course and was not passing.

16. The applicant said that he enrolled in a Certificate IV in Commercial Cookery and a Diploma of Hospitality on 30 January 2017 after he received the Notice of Intention to Consider Cancellation (NOICC) from the Department on 23 January 2017. He said at this time his parents still could not assist with his fees and this is why he did not enrol in a Bachelor degree course. His visa was cancelled on 1 February 2017.

17. The applicant was asked whether he or any member of his family would suffer hardship if his visa remained cancelled. The applicant said that it was his parents’ dream from him to complete his tertiary education in Australia and that they would be disappointed if he was unable to do so. He said that his mother was frail and her condition may worsen if she discovered that the applicant was unable to finish his tertiary studies ion Australia.

18. The Tribunal raised with the applicant its concern that because of his poor academic performance in the past and his parent’s inability to pay his fees in the past that the applicant may not have the ability to successfully undertake a higher education course in Australia.

19. The applicant indicated that if given a chance he would make sure that he was successful with his studies and that he would fund his study by working for 20 hours a week and from some money from his parents. The applicant also suggested that in the past he had not applied himself fully to his studies.

20. The Tribunal finds that the applicant does not have the ability to successfully undertake a higher education course in Australia. The applicant’s lack of ability is evidenced by his poor academic performance and his parent’s inability to pay his fees. Given that the applicant was unable to pass certificate and diploma level courses, the Tribunal does not accept that the applicant would be able to successfully undertake a bachelor degree if he were given another opportunity to do so. Additionally, because, as recently as 2017, the applicant’s family were unable to assist with his fees, the Tribunal finds that the applicant will not be able to pay for fees for a higher education course.

21. The Tribunal is willing to accept that the applicant and his family members may experience disappointment and shame that the applicant’s visa was cancelled before he was able to complete a higher education course in Australia. The Tribunal has also considered that, as the applicant’s visa has been cancelled, he may have to wait for some time to be granted another visa in Australia.

22. The Tribunal finds that the applicant’s lack of ability to successfully undertake higher education courses in Australia heavily outweighs any hardship that he or his family members may face because of the cancellation of the applicant’s visa.

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.

    Tigiilagi Eteuati
    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.