Sigdel (Migration)

[2018] AATA 391

Sigdel (Migration) [2018] AATA 391 (12 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sagar Sigdel

CASE NUMBER:  1617396

DIBP REFERENCE(S):  BCC2016/2804362

MEMBER:Mr S Norman

DATE:12 February 2018  

PLACE OF DECISION:  Sydney

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

Statement made on 12 February 2018 at 12:45pm

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 registered course – Consideration of discretion – Extended period of non-enrolment – Degree of hardship does not outweigh grounds for cancellation

LEGISLATION
Migration Act 1958, ss 48, 116(1)(b), 189, 198, 362B
Migration Regulations 1994, Schedule 4, PIC 4013, Schedule 8, Condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 October 2016 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). The delegate cancelled the visa on the basis that the applicant breached condition 8202(2)(a) - (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 5 January 2018, the Tribunal sent the applicant (to the email address authorised for service) a hearing invitation letter 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 on 12 February 2018. No response to the Tribunal’s hearing invitation letter was received. Two SMS (hearing reminder) texts were sent to the applicant’s claimed mobile phone (5/02/2018 & 9/02/2018); however, both were noted as having failed to be delivered. That being said, the applicant has made no contact with the Tribunal since lodging his merits review application.  

3. In its abovementioned letter of 5 January 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.

4. The applicant did not appear before the Tribunal on the day and at the time and place at which his hearing was scheduled. 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 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.

9. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 9 October 2013. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 23 September 2016, the applicant was advised that information in the Provider Registration and International Student Management System (PRISMS), indicated the applicant had not been enrolled in a registered course of study since 20 July 2015. Further, that it therefore appeared the applicant’s visa may be cancelled pursuant to s.116(1)(b) of the Act. The applicant responded to the NOICC letter on 7 October 2016. However, it was not disputed that grounds for cancellation of the visa existed.

10. 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)(a).

    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 to exercise its discretion to cancel the visa. 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).

12. Regarding the purpose of the applicant’s travel to and stay in Australia, in his response to the NOICC letter the applicant said he changed his mind about which degree he wished to study after arriving in Australia. He initially wanted to study in the IT field but now wished to study in hospitality. He therefore enrolled in a Certificate IV course in commercial cookery and a Diploma of Hospitality. He said he now wished to complete a degree. However as noted herein the applicant had not been enrolled in a registered course of study for almost 15 months at the time of the NOICC letter. 

13. Regarding the extent of the applicant’s compliance with any conditions to which the grant of his visa was subject, the applicant had claimed that due to health conditions he couldn’t focus on his study since July 2015, he was hospitalised in late August 2015, he was alone in Sydney and had no family support. However, as at the time of the NOICC letter (23 September 2016), the applicant had not been enrolled in registered course of study for almost 15 months. The Tribunal believes this breach to be significant.

14. Regarding the degree of hardship that may be caused to the applicant or his family if his visa is cancelled, I accept the applicant may suffer some financial hardship if his visa is cancelled. He would also then be liable to be detained under s.189 and removed under s.198 of the Act. However, and based on the evidence, the Tribunal is not satisfied he would be subject to indefinite detention. The applicant might also apply for a Bridging visa in order to remain in the community to finalise his affairs prior to departing.

15. Next, there is no evidence before the Tribunal that any family member or persons in Australia would have their own visas impacted by the cancellation of the applicant’s visa. Regarding the circumstances in which the ground for cancellation arose, this was due to the applicant failing to maintain enrolment in a registered course of study for almost 15 months at the time of the Department’s NOICC letter. Regarding the applicant’s past and present behaviour towards the Department, there is no evidence that he has been uncooperative with either the Department or the Tribunal.

16. Regarding any legal consequences arising from a decision to cancel the visa, the Tribunal notes the applicant would be subject to s.48 of the Act which means he would have limited options for applying for further visas in Australia. He would also be subject to Public Interest Criterion 4013, meaning he may not be granted a temporary visa for three years from the date of cancellation.

17. Regarding whether Australia’s international obligations would or may be breached if the applicant’s visa is cancelled, based on the evidence before the Tribunal, I am not satisfied that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

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

    DECISION

19. 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.