Sidhu (Migration)

[2018] AATA 4239

Sidhu (Migration) [2018] AATA 4239 (18 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Banty Singh Sidhu

CASE NUMBER:  1711387

HOME AFFAIRS REFERENCE(S):           BCC2017/1113741

MEMBER:P. Maishman

DATE:18 September 2018

PLACE OF DECISION:  Perth

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

Statement made on 18 September 2018 at 10:43am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – ceased enrolment – physical injury – medical evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s116

Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision dated 23 May 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 had not complied with a condition of his visa being that he is 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.On 24 August 2018 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 1 September 2018. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

4.No response to the hearing invitation was received. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any 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 background to the applicant’s case can be summarised from information held on the Department’s file and the delegate’s decision record. The applicant is a 24-year-old Indian citizen and was granted a Student visa on 30 October 2014.

7.On 15 May 2017 the Department notified the applicant of its intention to consider cancellation of his visa. The notice of the intention to consider cancellation (NOICC) was sent by email to the applicant’s notified email address. The NOICC advised the applicant that the delegate had received information which appeared to be grounds for cancellation of his visa. The NOICC detailed the particulars for the grounds of cancellation to be that the applicant had not complied with condition 8202 which was imposed on his visa. The NOICC explained that based on evidence available to the delegate, from Provider Registration and International Student Management System data, it appeared the applicant had not been enrolled in a registered course since 12 August 2016 and so did not meet the requirement of condition 8202(2)(a). The applicant was invited to respond addressing why he thought the grounds for cancellation do not exist and why he thinks his visa should not be cancelled. The NOICC included an explanation of the process for making the decision to cancel his visa, the timeframe within which he was required respond and the consequences of a visa cancellation. The applicant did not provide any response to the Department.

8.On 23 May 2017 the delegate emailed the applicant a Notice of Cancellation of Student visa and it’s Decision Record. The Decision Record detailed evidence held by the Department stated the reason for the cancellation to be that the applicant had not been enrolled in a registered course since 12 August 2016.  

9.The applicant provided the Tribunal a copy of the delegate’s decision record with his application for review on 30 May 2018. He also provided two handwritten documents signed on 26 May 2017; a transaction listing for a CSB account for the period 21 March 2017 to 27 May 2017 and medical reports.

10.As the applicant did not attend the hearing the Tribunal has access only to the information and evidence contained on the Departmental and Tribunal files.

11.The issue in the present case is whether the applicant, as the holder of a student visa, has complied with condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has not complied with that condition, under s.116(1) of the Act, the visa may be cancelled.

Did the applicant comply with Condition 8202?

12.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).

13.In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course and so did not satisfy condition 8208(2).

14.The Department’s delegate sent notices dated 15 May 2017 and 23 May 2017 that evidence before the Department indicated that he was not enrolled in a registered course since 12 August 2016.

15.The Tribunal has reviewed the evidence available to it including the documents provided by the applicant with his application for review. The applicant has provided no evidence or argument to suggest that he is, or has been, enrolled in a registered course since 12 August 2016.

16.On the evidence before the Tribunal finds the applicant was not enrolled in a registered course since 12 August 2016 and has not complied with condition 8202(2).

17.For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As the 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

18.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 Procedural Instructions (previously known as the Procedures Advice Manual (PAM3)) ‘General visa cancellation powers’.

19.On 15 May 2017 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. The applicant was given the opportunity to comment on the grounds of cancellation and to give reasons why his visa should not be cancelled. The applicant provided no response to the Department.

20.The handwritten documents provided by the applicant with his review application and purportedly signed by him on 26 May 2017 say that he broke his left collarbone in February 2017 and lost his wallet. He says he lives in a share house and pays $100 per week including for bills. One of the letters is annotated by someone described as his friend who says he helped him when he got injured. The other document is annotated by someone who purports to be the owner of the premises in which the applicant lives.

21.The applicant’s evidence contained in the handwritten letter dated 26 May 2017 is that he pays $100 per week including bills and has been unable to pay his rent for seven or eight weeks. The evidence of the applicant’s landlord says the applicant pays him $110 a week rent but not in the last six weeks because of his injury. The applicant provided no further explanation about why the Tribunal should consider this a reason not to cancel his visa. The Tribunal attributes this evidence no weight in deciding if the discretion to cancel should be exercised.

22.The Tribunal accepts the medical evidence that the applicant broke his clavicle in February 2017 and has been supported by his friends. The Tribunal is not persuaded that the applicant’s broken clavicle, or the assistance provided by his friends is a reason not to the exercise of the discretion to cancel the applicant’s visa because of his failure to comply with a visa condition since 12 August 2016.

23.The applicant successfully completed a number of courses between November 2014 and December 2015. The Tribunal finds that the initial purpose of the applicant’s travel to Australia was to study. There is no evidence before the Tribunal that suggests the applicant has a compelling need to remain in Australia.

24.There is no evidence before the Tribunal that the applicant has been non-compliant with any other conditions on his visa.

25.The applicant asked the Tribunal to pay a reduced Tribunal application fee. He indicated on the request that he received no financial support from his partner, friend or relative but that once his visa was granted again he could do 20 hours work and his parents would help him with his costs. There is no evidence before the Tribunal of any psychological, emotional or other hardship that may be caused to the applicant because of the cancellation of his visa. The Tribunal is not persuaded the exercise of the discretion to cancel the applicant’s visa would cause him financial, psychological, emotional or other hardship.

26.The Tribunal notes the concerns of the Departmental delegate that the applicant, upon visa cancellation, would become an unlawful non-citizen and liable to detention and removal under the Act. The delegate further notes that there may be only limited options for the applicant to apply onshore for another visa and may have to return to his country of origin.

27.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. The applicant would need to seek advice pertaining to his immigration status.

28.The Tribunal is also mindful that visa cancellation could mean that the applicant is prevented from making further visas applications in Australia and that he could be subject to a three-year preclusion period unless he meets the relevant public interest criterion.

29.There is no evidence before the Tribunal that the applicant has any family members in Australia that would be negatively impacted by the exercise of the discretion to cancel the applicant’s visa.

30.There is no evidence that any other person in Australia would, or may, be cancelled under s.140.

31.The Tribunal is not persuaded that a decision to cancel the applicant’s visa would have any legal consequences that would be a reason not to cancel the applicant’s visa.

32.The departmental delegate noted that there was no evidence of the applicant being uncooperative with the Department. The Tribunal accepts this evidence and considers it to be in his favour and is taken into account.

33.The Tribunal has considered the Procedural Instruction ‘General visa cancellation powers’ policy matters.

34.The Tribunal is not aware of any other matters to be taken into consideration in relation to the cancellation.

35.The purpose of the higher education student visa is to enable the student to undertake study at a higher education level. The applicant was not enrolled in a registered course since 12 August 2016 and was not enrolled in a registered course when the Department sent its Notice of Intention to Consider Cancellation in May 2017.

36.The Tribunal accepts that the applicant broke his clavicle in February 2017 but does not consider that this is a circumstance beyond his control in respect of being enrolled in a course of education.

37.The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively. The Tribunal recognises that the cancellation of the visa is a significant matter. On balance and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

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

P. Maishman
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.