2103088 (Migration)

[2021] AATA 1866

2103088 (Migration) [2021] AATA 1866 (26 April 2021)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  2103088

MEMBER:David McCulloch

DATE OF DECISION:  26 April 2021

DATE CORRIGENDUM SIGNED:            9 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

AMENDMENT:  The following corrections are made to the decision:

1. Paragraph 1, on Page 2 of the Decision Record reads ‘This is an application for

review of a decision made by a delegate of the Minister for Home Affairs on 11 March

2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under

s.65 of the Migration Act 1958 (the Act)’.

2. This was a typographical error, the decision record should read ‘This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 March 2021 to cancel the Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act)’.

David McCulloch

Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2103088

MEMBER:David McCulloch

DATE:26 April 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 26 April 2021 at 8:54am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – discretion to cancel visa – applicant currently in woman’s refuge after domestic violence – intention to appeal to minister and request for matter to be decided quickly and without hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 March 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 18 January 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The applicant is a national of Kenya born on [date]. The visa that has been cancelled was granted on 27 February 2018 for a stay period until 15 March 2021. That visa was subject to condition 8202.

4. On 3 March 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of her visa, as she ceased to be enrolled in a registered course from 13 August 2019. The applicant provided a written response to the NOICC. On 11 March 2021, the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of her visa. The applicant seeks review of the delegate’s decision.

5. The delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course. The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.

6. The applicant was assisted in relation to the review by their registered migration agent.

7. No hearing was held by the Tribunal at the request of the applicant as discussed in paragraph 14 below.

8. 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

9. 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?

10. Condition 8202, as it applies in this case, is set out in the attachment to this decision.

11. 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).

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

13. The applicant provided a copy of the delegate’s decision to the Tribunal which indicates that she has not been enrolled in a registered course of study since 13 August 2019.

14. The applicant’s migration agent wrote to the Tribunal on 19 March 2021 indicating the applicant is in a women’s refuge and fleeing domestic violence. It is indicated that the applicant has a child in Australia. It is stated that she is seeking to appeal directly to the Minister to access the discretionary power to grant a visa. Provided also is a letter from the applicant to the Tribunal requesting the matter be decided as soon as possible without hearing. The applicant acknowledges that her application will not succeed as her circumstances do not meet the criteria for the grant of the visa. She claims that she has compelling circumstances that will form the basis of a request for an intervention.

15. Thus, the applicant is accepting that the ground of cancellation is made out.

16. There is nothing before the Tribunal to suggest that the applicant was a holder of a Subclass 560 or 571 (Schools Sector) visa as a secondary exchange student, thus the applicant’s obligation under condition 8202(2) is to be enrolled in a registered course.

17. 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

18. 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.

19. 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). These matters include: the purpose of the visa holder’s travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non‑refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non‑citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.

20. It is clear from the submissions on behalf of and by the applicant stated in paragraph 14 above that no claims are being made by the applicant that the Tribunal not exercise its discretionary power to cancel the visa. The applicant is wanting the matter before the Tribunal quickly disposed of so she can request Ministerial intervention.

21. Accordingly, as the applicant wishes, the Tribunal exercises its discretionary power to cancel the visa.

    DECISION

22. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    David McCulloch
    Member