SHARMA (Migration)

[2018] AATA 5213

SHARMA (Migration) [2018] AATA 5213 (13 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr RITESH SHARMA

CASE NUMBER:  1622180

HOME AFFAIRS REFERENCE(S):           BCC2016/3805921

MEMBER:Mr S Norman

DATE:13 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 13 December 2018 at 11:25am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa  – Subclass 573 Higher Education Sector – Cancellation – failed to maintain enrolment in a registered course – mother’s health issues – no response to tribunal communication – decision under review affirmed

LEGISLATION
Migration Act 1958, s 116(1)(b)

Migration Regulations 1994, Schedule 2, condition 8202(2), PIC 4013

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 December 2016 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). The Department delegate’s decision was lodged with the Tribunal. The delegate cancelled the visa on the basis that the applicant breached condition 8202(2) – 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. On 12 November 2018, the Tribunal sent the applicant a hearing invitation letter (dispatched by email) advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing at 9.00am on 13 December 2018. By email of 20 November 2018, the applicant advised he would attend the hearing. The Tribunal also issued two SMS hearing reminder texts to the applicant shortly prior to the scheduled hearing (6/12/2018 & 12/12/2018).

3. In its abovementioned letter of 12 November 2018, the applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.  That being said, the applicant did not appear before the Tribunal on the day and at the time and place at which his hearing was scheduled. Neither did he otherwise provide to the Tribunal any further evidence or submissions about his case (as he had been invited[1]).

   [1] Tribunal – folio 22 (reverse side); and folio 11.

4. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking further action to enable the applicant to appear before it.

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. 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?

7. 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).

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 11 September 2015. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 5 December 2016, the applicant was advised that information on the Provider Registration and International Student Management System (PRISMS) indicated he had not been enrolled in a registered course of study since 16 February 2016. The applicant was then advised it appeared he had breached condition 8202(2)(a); and that his visa may be cancelled under s.116(1)(b) of the Act.

9. The applicant responded to the Department NOICC letter but he did not dispute that he had breached a condition which had been attached to the grant of his visa.

10. On the evidence before the Tribunal, I am satisfied 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 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’.

12. In his Student visa application process, the applicant had said his intention in travelling to and residing in Australia was for the purposes of study. However, given his apparent lack of ongoing studies, the Tribunal is not satisfied the present intention of the applicant is to stay in Australia for the purposes of study.

13. Regarding the extent of compliance with visa conditions, the Tribunal notes the applicant had failed to maintain enrolment in a registered course of study for approximately nine months at the time of the NOICC.

14. Next, the Tribunal accepts that if the applicant’s visa is cancelled he or his family may suffer some limited financial or other hardship. He would also then become an unlawful noncitizen and liable to detention under s.189 and removal under s.198 of the Act. However, based on the evidence before the Tribunal I am not satisfied he would be subject to indefinite detention. Further, I believe the applicant would be able to retain his Bridging visa (temporarily) in order to finalise his affairs prior to departing Australia.

15. Next, in his response to the NOICC,[2] the applicant said his mother suffered “serious health issues” (being a heart attack – a doctor’s certificate dated 10 December 2016, referring to diabetes and hypertension was lodged[3]). The applicant said he was very “disturbed” by this news as he was close to his mother. He wished to return to his home country (India) but his family “did not allow him to go back”. He then felt “depressed, downhearted and this affected him physically and mentally”. He then “got completely out of his studies during this period time”. However, his mother’s condition is now “stable” and he is “continually in touch with her by phone”. Both the applicant and his mother now want him to continue with his “commercial cookery course before he” returns to India. He said he had completed a Certificate III in commercial Cookery and a Diploma of Hospitality. Now he wants to complete his Certificate IV in Commercial Cookery. The applicant also lodged an Enrolment Acceptance Agreement with Duke College date 12 December 2016.[4] That was for a Certificate IV in Commercial Cookery.

    [2] Department – folio 6.

    [3] Department – folio 13.

    [4] Department – folio 10.

16. The Tribunal has no evidence the applicant sought to defer his course, or seek any assistance to counter his claimed depression. Be that as it may, the Tribunal does accept that if the applicant’s visa is cancelled, he may not be able to study in Australia, and he may have to engage in studies offshore.

17. 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 impacted if the applicant’s visa is cancelled. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

18. Next, the Tribunal 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 might not be granted a temporary visa for three years from the date of cancellation. 

19. That being said, based on the accepted evidence herein, the Tribunal concludes that the visa should be cancelled.

    DECISION

20. 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.