Singh (Migration)

[2018] AATA 2349

Singh (Migration) [2018] AATA 2349 (17 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Karanbir Singh

CASE NUMBER:  1705789

HOME AFFAIRS REFERENCE(S):         BCC2017/322052

MEMBER:Michelle East

DATE:17 May 2018

PLACE OF DECISION:  Perth

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

Statement made on 17 May 2018 at 1:32pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Whether grounds for cancellation exist – Applicant not enrolled in a registered course – Whether the visa should be cancelled – Significant period of time spent not enrolled – Serious illness of family member – Failure to maintain enrolment not beyond the applicant’s control – Decision affirmed

Practice and Procedure – Applicant did not respond to request for information – Applicant’s right to hearing lost

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116(1)(b), 189, 198, 359(2), 359C, 360(3), 363C
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202(2)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 March 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. A copy of the delegate’s decision was attached to the application for review.

3. The delegate cancelled the visa on the basis that there was a ground for cancellation for breach of condition 8202 of the Act, namely that the applicant had not been enrolled in a registered course of study since 15 October 2016. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The Tribunal wrote to the applicant’s authorised recipient on 24 January 2018 under section 359(2) of the Act asking him to provide further information. A request for further time in which to respond was made by the authorised recipient and a further period of fourteen days was provided with a response required by 22 February 2018. No information was provided and accordingly the applicant has lost his right to appear before the Tribunal to give evidence and present arguments relating to the review application: section 360(3) of the Act.

5. The Tribunal may now make a decision on the review without taking any further action to obtain information: subsection 359C(1) of the Act.  The Tribunal has decided to proceed to make a decision on this review without taking any further action to obtain the information given that the Tribunal is satisfied the applicant has been given a reasonable opportunity to provide information and has not done so.

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. As outlined in the delegate’s decision, information relied on from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since 15 October 2016. 

11. 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

12. 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’.

13. On 20 February 2017 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because he was not enrolled in a registered course and therefore failed to comply with condition 8202(2) of his visa.

14. On 24 February 2017 the applicant responded requesting more time within which to address the NOICC.  A further extension until 6 March 2017 was provided, although this was subsequently amended to a new due date of 15 March 2017.

15. On 6 March 2017 the applicant provided further information regarding his personal circumstances in support of his request to not have his visa cancelled.

16. The applicant completed a Diploma of Leadership and Management on 14 October 2016 from the International Institute of Management & Technology.  On 6 March 2017 he was offered a placement in a Bachelor of Business degree with the Asia Pacific International College, Melbourne Campus.  A Confirmation of Enrolment was provided via email from the applicant on 7 March 2018.  The applicant also provided substantial documentation concerning his father’s health problems.

17. As the applicant’s right to a hearing has been lost and he has not provided any written submission the Tribunal has conducted its review on information contained in the Department’s file.

18. The Delegate has referred to the PRISMS record which states the applicant has not enrolled in a registered course of study since 15 October 2016.

19. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of any breach and any reasons for the breach.

    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

20. The purpose of the student visa is to enable the visa holder to undertake study in Australia.  The applicant completed his Diploma of Leadership and Management on 14 October 2016 and as outlined in the delegate’s decision has not enrolled in a registered course of study since 15 October 2016.  Although he provided evidence of an enrolment in a Bachelor of Business degree this was after the NOICC had been issued to him.

21. 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.

22. The Tribunal finds there are no compelling reasons for the applicant to remain in Australia.

23. The applicant’s non-engagement in study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

    The extent of compliance with visa conditions

24. The applicant was granted the visa to undertake specified studies in Australia and has not done so since 15 October 2016.  The delegate further refers to a period of non-enrolment from 14 November 2014 until 24 August 2015.  The delegate appears to have referred incorrectly to another visa holder in this decision and accordingly the Tribunal has given no consideration to this other period referred to.  Nonetheless, the applicant was not enrolled from 15 October 2016 until the date of the delegate’s decision on 16 March 2017, although as noted earlier he did provide evidence of an enrolment in a Bachelor of Business after the NOICC was issued.   He has not complied with the primary condition of the visa granted to him.

25. Whilst the Tribunal notes the applicant was suffering from some personal family issues during this time it considers the condition of his visa to be important because one of the primary reasons for holding a student visa is to be enrolled and to study and he had not done so for a significant period of time.

26. The Tribunal considers that this weighs heavily in favour of cancellation of the visa.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the visa holder and any family members

27. There is no evidence to suggest that any hardship would be caused to the visa holder and/or any family members if the visa is cancelled.  Indeed, the applicant provided extensive documentation to the Department concerning the health of his father who lives in India and is undertaking treatment there.  Given there is no evidence before the Tribunal in this regard the Tribunal considers this factor neutral in terms of exercise of the discretion to cancel the visa.

    Circumstances in which the ground of cancellation arose.  Were the circumstances beyond the visa holder’s control

28. The delegate in its decision details the explanation provided by the applicant for his non-compliance namely his father’s ill health whilst visiting Australia and also after his return to India.  He talks of his guilt for not being able to help his father that left him feeling depressed and miserable.  He said he also moved from Queensland to Victoria to be with his brother and felt deeply traumatized. The Tribunal has sympathy for the applicant’s situation with his father and acknowledges the need for him to be near his brother during this difficult time for emotional support.  Nonetheless, the Tribunal is unable to accept the applicant’s explanations for why he was unable to continue his studies while his father was undertaking treatment in India between October and December 2016.  He said his brother travelled to India and it was only when he returned to Australia in December that his brother told him about his father’s situation. Whilst he has provided evidence suggesting he was deeply affected by his father’s ill health this does not satisfy the Tribunal that the non-compliance was due to factors beyond his control.

    Past and present conduct of the visa holder towards the Department

29. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

    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

30. 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.

31. The applicant in his response to the NOICC as outlined in the delegate’s decision indicates his close relationship with his family, particularly his father.  There is nothing to indicate the applicant would not be able to return to India.  The Tribunal affords little weight to this consideration in determining whether to cancel the visa.

    Whether there would be consequential cancellations under s.140

32. There is no evidence before the Tribunal that there would be consequential cancellations in this case.

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

33. There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation.

34. The Tribunal recognises that the cancellation of the visa is a significant matter.  However, on balance and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Michelle East
    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.