VANGA (Migration)

[2017] AATA 2546

VANGA (Migration) [2017] AATA 2546 (31 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SIDDHANTH REDDY VANGA

CASE NUMBER:  1615009

DIBP REFERENCE(S):  BCC2016/2630736

MEMBER:Mr S Norman

DATE:31 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 31 October 2017 at 12:02pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Enrolment in a registered course – Applicant ceased enrolment for over 12 months – Intention to change to Vocational courses – Family financial difficulties

LEGISLATION

Migration Act 1958, ss 48, 116, 189, 198, 362B

Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 September 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 Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa on the basis that the applicant was determined to have breached condition 8202(2) – 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.

3. By letter dated 25 August 2017, the Tribunal wrote to the applicant (by email to his migration agent), 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 31 October 2017. 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.  Two SMS hearing reminder texts were also sent to the applicant (on 24/10/2017 & 30/10/2017) – however, both texts have been recorded as having failed to be delivered.

4. The applicant did not appear before the Tribunal on the day and at the time and place at which his hearing was scheduled. Neither did he otherwise reply to the Tribunal’s hearing invitation letter (as he was requested). 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. 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 granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 17 December 2014. By Notice of Intention to Consider Cancellation (NOICC) of that Student visa dated 30 August 2016, the applicant was advised that based on the information on the Provider Registration and International Student Management System, it appeared that he was not enrolled in a registered course of study since 7 August 2015. In their decision record, the delegate noted that since the NOICC letter was issued, the applicant had enrolled in a course dated 6 September 2016. However, in the NOICC letter, the applicant was also advised it appeared he did not meet condition 8202(2)(a); and that he was in breach of s.116(1)(b) of the Act.

11. In an undated letter in response,[1] it was claimed the applicant had “tried hard but struggled” in Australia; the Master’s course was too difficult to handle; he wanted to commence a Diploma course; this would be more achievable; he believed he would have “excellent employment opportunities upon return to India if he held this qualification”; he enrolled in a course, however at the same time his family in India was suffering from financial difficulties; he could “not afford to pay for the course of his interest”; “luckily [his] parent’s financial issues were resolved”; now they are in a “strong financial position”; the applicant now wants to complete his Diploma in Management in Australia; and the applicant was said to be proposing to provide a Statutory Declaration.[2]

    [1] DIBP – folio 10.

    [2] DIBP – folio 10 (reverse side).

12. The Department delegate cancelled the Student visa on 12 September 2016.

13. 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

14. 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).

15. Regarding the purpose of the applicant’s travel to and stay in Australia, the applicant had said he wished to study a Master of Information Systems at USQ - Sydney Education Centre. However, he had not maintained enrolment in a registered course of study for over one year at the time of the NOICC letter.

16. Regarding the applicant’s compliance with any condition to which his visa was subject, as stated herein the PRISMS records indicated the applicant had not maintained enrolment in a registered course of study for over one year at the time of the NOICC letter.

17. Regarding the degree of hardship that may be caused to the applicant or his family members if his visa is cancelled, the applicant said if his visa is cancelled he would suffer a great deal of emotional hardship and this would put a severe strain on his relationship with his parents. However, as did the delegate, the Tribunal notes the applicant would understand the criteria to which his visa was subject. He therefore would have understood the consequences of failing to meet such criteria. Be that as it may, the Tribunal presumes the applicant may suffer some limited hardship if his visa is cancelled.

18. The Tribunal notes that if the applicant’s visa is cancelled he would become an unlawful noncitizen and liable to detention under s.189 and removal under s.198 of the Act. However, based on the information before the Tribunal, I am not satisfied the applicant would be subject to indefinite detention. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 of the Act (meaning he would have limited options to apply for further visas in Australia); and he would also be subject to PIC 4013.

19. Regarding the circumstances in which the visa cancellation arose, the applicant had not been enrolled in a registered course of study for over one year at the time of the NOICC letter. It was also claimed the applicant had “tried hard but struggled” in Australia; the Master’s course was ‘too difficult to handle’; he wanted to commence a Diploma course; this would be more achievable; he believed he would have “excellent employment opportunities upon return to India if he held this qualification”; he enrolled in a course, however at the same time his family in India was suffering from financial difficulties; he could “not afford to pay for the course of his interest”; “luckily [his] parent’s financial issues were resolved”; now they are in a “strong financial position”; the applicant now wants to complete his Diploma in Management in Australia; and the applicant was said to be proposing to provide a Statutory Declaration[3]; and if his visa was cancelled, this would put a severe strain on his relationship with his parents.

    [3] DIBP – folio 10 (reverse side).

20. However, the Tribunal notes the applicant was not enrolled in a registered course of study for over 12 months at the time of the NOICC letter. Neither did the applicant attend the Tribunal hearing. Also, based on the evidence before the Tribunal, I am not satisfied the applicant’s claimed mental health would have prevented him from seeking a deferral from his course, returning to his home country of India until he was fit to continue his studies (or until his parents’ financial position improved), or that he was not otherwise able to maintain enrolment in a registered course of study as he was required to do by the conditions of his visa.

21. Regarding the applicant’s past and present behaviour towards the Department, based on the evidence before the Tribunal, I am not satisfied the applicant has been uncooperative towards the Department or the Tribunal. Based on the evidence before the Tribunal, I am not satisfied that any other person’s visa would be impacted if the applicant’s visa is cancelled.

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

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

    DECISION

24. 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.