SINGH (Migration)

[2018] AATA 4693

SINGH (Migration) [2018] AATA 4693 (9 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr KARANDEEP SINGH

CASE NUMBER:  1711799

HOME AFFAIRS REFERENCE(S):           BCC2017/1180968

MEMBER:Nicola Findson

DATE:9 October 2018

PLACE OF DECISION:  Perth

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

Statement made on 09 October 2018 at 10:50am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in registered course – period of breach – long and unexplained period of non-enrolment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B
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 25 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 because the applicant was not enrolled in a registered course of study.

3. The applicant was represented in relation to the review by his registered migration agent.    A copy of the delegate’s notification of cancellation was submitted to the Tribunal by the applicant for the purposes of the review.

4. On 15 August 2018, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application, but 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 3 October 2018.  The letter advised that if they did not attend the scheduled hearing, the Tribunal may proceed to make a decision on the review without taking any further action to allow or enable the applicant to appear, or may dismiss the application without further consideration of the application. No response to the hearing invitation was received and the applicant did not appear before the Tribunal on the day and at the scheduled time and place. The Tribunal sent two SMS hearing reminders to the applicant on 26 September 2018 and 2 October 2018.

5. In the 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.

6. 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

7. 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?

8. 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).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

10. The delegate’s notification of cancellation records that on 15 May 2017, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of his student visa.  In summary, that NOICC set out the statutory basis for the consideration of the cancellation of the applicant’s student visa and also indicated that it appeared from the Provider Registration and International Student Management System (PRISMS) that the applicant had not been enrolled in a registered course of study since 24 August 2016.  The applicant was invited to provide a written response to the NOICC and provide any comments as to why his visa should not be cancelled.  The applicant was informed that he had to provide his written response within five working days after he was taken to have received the notice.  The notice in summary also outlined the consequences if the applicant’s student visa was cancelled.  No response was received from the applicant in relation to the notice of intention to consider the cancellation of his student visa.  A department delegate considered the issues associated with the cancellation of the applicant’s student visa and decided to cancel the visa on 2 November 2016.  The applicant was informed by both registered post as well as email of the cancellation of his student visa.

11. On the evidence before the Tribunal, the applicant was not enrolled in a registered course after 24 August 2016. Accordingly, the Tribunal finds that he has not complied with condition 8202(2) of his visa.

12. The Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that 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

13. 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). 

14. The Tribunal observes that the applicant did not respond to the NOICC issued to him by the Department and has decided not to attend a hearing.  Because the applicant has not engaged with the process or provided any information to the delegate or the Tribunal, the Tribunal is determining the matter on the limited evidence available to it.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia   

15. The applicant was granted his visa to undertake higher education sector studies in Australia. 

16. Based on the evidence before it, the Tribunal finds the applicant’s breach of condition 8202 of his visa to be significant because he was not engaging in study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.

17. The Tribunal gives this factor weight in favour of cancelling the applicant’s visa.  

    The extent of compliance with visa conditions

18. The Tribunal considers condition 8202 to be important, because one of the primary reasons for holding a student visa is to be enrolled and to study, and on the evidence before it the applicant has done neither since 24 August 2016.  When the Tribunal weighs its views against the long and unexplained period of non-enrolment, the Tribunal has significant concerns about the period of breach which leads it to give this factor some weight towards the visa being cancelled.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

19. The applicant has not provided any information in relation to the hardship that may be caused to him if the visa is cancelled.  The Tribunal is not satisfied that any hardship caused by the cancellation of the visa would outweigh the reasons for cancelling the visa. 

    Circumstances in which the ground of cancellation arose.  If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence.  The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

20. There is no evidence before the Tribunal as to why the applicant ceased his enrolment in a higher education sector course.

21. The Tribunal gives no weight to this consideration in determining whether to cancel the visa.

    Past and present conduct of the visa holder towards the Department

22. According to the delegate’s decision record, there is no evidence that the applicant has been uncooperative towards the Department.  The Tribunal gives this little weight towards the visa not being cancelled.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

23. The delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, s.48 of the Act means that he will have limited options to apply for further visas in Australia.

24. The Tribunal gives these consequences some limited weight in favour of not cancelling the visa.

    Whether there would be consequential cancellations under s.140

25. This is not relevant as there is no evidence before the Tribunal that there would be consequential cancellations under s.140.

    Whether any international obligations would be breached as a result of the cancellation

26. There is no evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations in this case.  The Tribunal gives no weight to this consideration.

    Any other relevant matters

27. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation

    CONCLUSIONS

28. Having regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.

    DECISION

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

    Nicola Findson
    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.