Sushant (Migration)

[2018] AATA 5460

Sushant (Migration) [2018] AATA 5460 (20 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sushant Sushant

CASE NUMBER:  1618776

HOME AFFAIRS REFERENCE(S):           BCC2016/3051942

MEMBER:Wendy Banfield

DATE:20 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 20 November 2018 at 6:21pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – genuine intention to study – degree of hardship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
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 8 November 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).

2. The delegate cancelled the visa on the basis that the applicant had not been enrolled in a registered course of study for more than 12 months and therefore, did not meet the requirements of condition 8202(2) attached to the visa. As the applicant did not comply with condition 8202, according to s.116(1)(b) of the Migration Act, the visa may be cancelled. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

3. The applicant is a citizen of India and is currently 28 years old. He came to Australia in 2014 intending to undertake a course in English and a Master of Business Administration (MBA). The applicant did not continue his enrolment leading to a gap in study of 12 months. On 25 October 2016 the Department sent the applicant a Notice of Intention to Consider Cancellation under s.116 of the Migration Act. On 1 November 2016 the applicant responded to the correspondence and submitted and explanation as well as evidence in support. The Department cancelled the visa on 8 November 2016 and the applicant applied for a review of that decision.

4. The applicant has since decided not to continue with his original plans to study an MBA and has stated he intends to work as a chef. For this reason, the applicant wishes to study a cooking course in Australia.

5. The applicant appeared before the Tribunal on 14 August 2018 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

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 applicant was originally enrolled in an MBA commencing on 12 January 2015 until 31 January 2017, however, that enrolment was cancelled. The applicant had previously completed an Academic English for Tertiary Studies course and then re-enrolled in an MBA at a later date; however, that course was also cancelled. According to the Department, the applicant was not enrolled in a course of study from 15 October 2015 until the decision was made to cancel the visa on 8 November 2016. The applicant conceded this was correct and that he was not enrolled for a period of at least 12 months. 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

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’.

    ·     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

12. The applicant travelled to Australia as the holder of a student visa which was granted on 24 July 2014 and was valid until 30 March 2017. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

13. In responding to the Department considering cancelling his visa the applicant claimed he wished to complete his studies in Australia. The applicant stated he had been offered a Graduate Certificate course which he genuinely intended to complete as well as a Master’s degree. At the time of the Tribunal hearing, the applicant no longer wanted to pursue post-graduate studies and as he is working as a chef, had decided to study cookery.

14. The Tribunal has carefully considered the evidence before it and is satisfied the applicant came to Australia to study and the given weight in favour of the applicant in this regard. However, the Tribunal is not satisfied that the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

15. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal gives this aspect some weight in the applicant’s favour.

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

16. During the course of the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. The applicant stated that due to personal difficulties, it has taken him three years to deal with his issues and if the visa is cancelled, it will be hard for him to face people in society. According to the applicant he has faced many difficulties from an early age. He said his financial problems were a result of his former wife wanting to study as well and when they decided to divorce, he then had to pay lawyer’s fees. The applicant claimed that at the time, he could not make any decisions.

17. The Tribunal acknowledges that the cancellation of the visa would mean that the applicant would not be able to continue his studies in Australia and that this may cause him a degree of financial, psychological and emotional hardship. However, the applicant has faced financial difficulties in the past in relation to his studies and he has already decided not to pursue the post-graduate course he came to Australia to do. He now intends to take a completely different career path and study at a vocational level. The Tribunal is not satisfied the degree of hardship to the applicant is such that the visa should not be cancelled.

    ·     circumstances in which 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

18. The applicant’s visa was cancelled as a result of his failure to maintain enrolment for a period of more than 12 months. The applicant gave evidence that this was due to problems in his marriage, including his wife’s desire to study at the same time as him which was difficult for the applicant to afford. The applicant said it was decided he would take a break from study and his wife would apply for a student visa, however, her application was refused. After the refusal, the applicant tried to return to study but could not continue due to his personal problems. The applicant and his wife then separated and divorced which, it was claimed, left the applicant depressed and unable to focus on study.

19. Although the applicant said his marriage eventually broke down and the parties divorced, there is no evidence the relationship breakdown was a result of family violence. The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. The applicant was aware of his responsibility to comply with the conditions attached to his visa and disagreement with his former wife over whether one or both could afford to study did not negate that responsibility.

    ·     past and present behaviour of the visa holder towards the department

20. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.

    ·     whether there would be consequential cancellations under s.140

21. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act. At the time of decision by the Department, the cancellation of the visa would have affected the applicant’s former spouse, however, the parties are now divorced and she is no longer a member of the family unit of the applicant.

    ·     whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

22. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Act as well as Public Interest Criterion (PIC) 4013 and would consequently have limited options for applying for a visa. However, those are due to the intended consequences of the legislation and in the applicant’s case, are not sufficient reason for the visa to not be cancelled.

    ·     whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

23. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

24. The Subclass 572 Student Visa is not a permanent visa.

    ·     any other relevant matters

25. There is no evidence before the Tribunal of any other relevant matters.

    Conclusion

26. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal is satisfied there are certain aspects in the applicant’s case that weigh in his favour, on balance however, the Tribunal is satisfied that the considerations weigh heavily against the applicant. The Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists and having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Wendy Banfield
    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.