Aakash (Migration) - [2022] AATA 2017

Aakash (Migration) [2022] AATA 2017 (5 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Aakash
CASE NUMBER:  2202240
HOME AFFAIRS REFERENCE(S):          BCC2021/2351605
MEMBER:Brendan Darcy
DATE:5 May 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 05 May 2022 at 12:24pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – convicted of an offence – theft – attempt to obtain property by deception – make false report to police – Community Corrections Order – consideration of discretion – enrolment and academic history – seriousness of the offending – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43
STATEMENT OF DECISION AND REASONS

This is an application for review of a decision dated 7 February 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(g) on the basis that he or she was satisfied that the applicant had been convicted for a number of offences in the State of Victoria which satisfied the prescribed grounds for the cancellation under paragraph (1)(oa) of regulation 2.43. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
On 22 April 2022, the applicant indicated to the Tribunal that the applicant withdrew his previous authorisation of a person to receive correspondence on his behalf and have all correspondence to be sent to the applicant. The applicant also indicated he will not participate in the hearing and that the applicant has consented to the Tribunal making a decision on the papers without taking further steps to allow the applicant to appear.
Under these circumstances, the Tribunal has proceeded to make the following reasons in which it has concluded that the decision to cancel the applicant’s visa should be affirmed, without any further submissions or hearings.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
The prescribed grounds in the matter are located at regulation 2.43 of the Migration Regulations 1994 (the Regulations) and it is paragraph (1)(oa) applies to this applicant’s cancelled visa under review. Subregulation 2.43(1)(oa) relevantly states:
Reg 2.43
Grounds for cancellation of visa (Act, s116)
(1)
For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:
[…]
(oa) in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any));[1]
[1] reg 2.43(1)(p)(i) and (ii), inserted by Migration Amendment (Subclass 050 and Subclass 051 Visas) Regulation 2013 (Cth) (SLI 2013, No 156), with effect from 29 June 2013. In Cheryala v MIBP [2017] FCCA 2261 the Court upheld the validity of the provision, observing at [36] that ‘[w]hilst the charging of an offence is not and does not establish the commission of an offence, the regulation is part of a discretionary provision, both in respect of the power of cancellation and the power to issue the notice… the fact that a power may be exercised unreasonably does not lead to the proposition that the provision is disproportionate to the regulation making power’. It does not matter when the charge occurred; all that matters is whether the visa holder ‘has been charged’ at some time: Fattah v MHA [2019] FCAFC 31 at [20].
Background
The applicant, a citizen of the Republic of India, was born on 2 April 1998.
The applicant was granted a Class TU Subclass 500 student visa on 3 December 2018. It was set to expire on 19 February 2022.
Under section 119, the Department sent a Notice of Intention to Consider Cancellation (NOICC) letter to the applicant on 10 January 2021. The Department sent the NOICC to the applicant’s las known address in Burwood in the State of Victoria
The NOICC outlined the particular of the grounds for cancellation and the information indicating the grounds for cancellation appeared to exist under s.116(1)(g) using the prescribed ground at paragraph (1)(oa) of regulation 2.43.
It stated that on 5 December 2021, Victoria Police informed the Department that the visa holder has been convicted of the following criminal offences:

Court and Date

Conviction

Outcome/Sentence

Frankston Magistrates’ Court, 4 August 2021

Theft – From Shop (Shopsteal).

Convicted. Community Corrections Order for 12 months. Perform 120 hours of community work.

Frankston Magistrates’ Court, 4 August 2021

11. Attempt to Obtain Property By Deception;

12. Make False Report to Police;

Theft – From Shop (Shopsteal).

Convicted. Community Corrections Order for 12 months. Perform 120 hours of community work. Pay compensation $279.98.

The applicant was invited to respond to the NOICC in writing within seven days; however, the Department did not receive a response with any reasons as the reasons this visa should not be cancelled, either from the applicant or on his behalf.
A delegate acting on behalf of the Minister notified the applicant on 7 February 2022 that it had cancel the applicant’s student visa on 7 February 2022.
The applicant applied to have the cancellation decision reviewed by the Tribunal on 19 February 2022 with the cancellation decision attached as well as the notification letter.
On 7 April 2022, the applicant was invited to a scheduled hearing to provide evidence and present arguments as to the reasons the visa should remain cancelled. The hearing was scheduled for 5 May 2022 at 10.00 am to be conducted by video conference using MS Teams.
On 11 April 2022, the applicant’s then appointed migration agent or representative required a postponed hearing on the basis that the representative was overseas, was scheduled to return to Australia on 30 April 2022 and would not be prepared for the hearing. On the same day, the Tribunal emailed the representative to inform the applicant that the request for a postponement, after carefully considering the request’s reasons, was refused.
On 22 April 2022, the applicant, via his representative, forwarded a change of contact details form and response to the hearing invitation. Both were signed and dated by the applicant. The change of contact details form indicated the applicant withdrew his previous authorisation of a person to receive correspondence on his behalf and have all correspondence to be sent to the applicant. The response to the hearing invitation indicated that the applicant will not participate in the hearing and that the applicant has consented to the Tribunal making a decision on the papers without taking further steps to allow the applicant to appear. It also indicated the representative will not be participating. The document was signed by the applicant and dated 14 April 2022.
On 26 April 2022, the Tribunal emailed both applicant and the representative seeking confirmation that the applicant wishing to cancel his current representative. On the same day, the Tribunal received an email indicating the representative withdrew representation of the applicant.
The scheduled hearing was subsequentially cancelled and the applicant was notified of the cancelled hearing on 28 April by email.
The Tribunal took internal checks to compare the signature on this response to the hearing invitation was the closely similar to the applicant’s earlier submitted signature. The Tribunal is satisfied the signatures are not substantially different to consider the signature had been forged.
At no stage did the applicant or any one on the applicant’s behalf provide any written submissions to the Tribunal to consider prior to the cancellation of the hearing.
At no stage did the applicant claim to have not received the NOICC or that its notification was defective.
Given the applicant’s correspondence to the Tribunal has clearly demonstrated its preference for it to proceed without a hearing and that the applicant has consented to making a decision ‘on the papers’, it the Tribunal has proceeded to make the following findings about the grounds for cancellation.
Does the ground for cancellation exist?
s 116(1)(g) - prescribed ground
A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in subregualtion. 2.43(1)(oa) is relevant.
The Tribunal notes that applicant has not advanced any reasons, either to the Department or the Tribunal, as to the reasons the grounds for cancellation does not exist.
Based on the overall information set out in the NOICC and in the decision record and with no evidence to the contrary, the Tribunal is satisfied that the applicant was been convicted of three offences against a law of an Australian State, namely the State of Victoria, pursuant to paragraph (1)(oa) of regulation 2.43.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
CONSIDERATION OF DISCRETION
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’.
In exercising the Tribunal’s discretion, it is noted that applicant has not advanced any reasons, either to the Department or the Tribunal, as to the reasons why this visa should not be cancelled.
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
According to the decision recon the purpose of the applicant’s travel to Australia and the grant of the student visa in December 2018 was to participate in a full-time course of study at an Australian education institution.
The decision recorded states that Provider Registration and International Students Management Systems (PRISMS) records indicated that the applicant had been enrolled in a Bachelor of Digital Media. (PRISMS records the enrolments and academic progress records of international students in Australia). However, this enrolment had been cancelled on 2 August 2019 due unsatisfactory academic progress. PRISMS further indicated the applicant enrolled in a Certificate II in Light vehicle Mechanical Technology, but that enrolment was cancelled on 15 April 2020 for non-payment of tuition fees.
More positively, the same document indicated the applicant completed a Certificate III in Painting and Decorating on 22 November 2021 and commenced a Certificate IV in Building and Construction on 17 January 2022. The delegate noted these qualifications were below the level of a bachelor’s degree for which the visa was granted.
Given the grant of the visa was for the purpose to purse a bachelor’s degree and that applicant had enrolled in such a coursework since 2 August 2019, then it is reasonable to surmise that the purpose of the student visa has not been fulfilled. It is noted the applicant did not provide any explanations for his lack of academic progress in this regard.
Notwithstanding the applicant has completed some vocational coursework, the overall information about the applicant’s enrolment and academic history indicates the applicant has not travelled to Australia to be a full-time student of a bachelor’s degree on a full-time basis and that he does not have a compelling reason to have this student visa reinstated.
the extent of compliance with visa conditions
According to the decision record there is no information that the applicant has been non-compliant with any of the conditions impose on his student visa. The Tribunal places some weight on this history of compliance in favour of the visa not being cancelled.
degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant has not advanced any specific reasons as to why he faces financial, emotional, psychological hardship, should this visa remain cancelled. He has not provided any third-party statements or medical documents. The Tribunal concurs with the delegate that the cancellation will lead the applicant to experience some hardship; however, there is insufficient evidence for the Tribunal to assess that the hardship, cumulatively considered, will amount to be notable or severe, considerable or significant. Given common sense would anticipate some hardship arising from an adverse decision, the Tribunal places only a small amount of weight on the hardships arising from the visa’s cancellation in favour of the visa not being cancelled.
circumstances in which ground of cancellation arose.
The grounds for cancellation include two convictions for shopsteal; one conviction for attempts to obtaining property by deception; and one conviction for making false report to the police. At no stage has the applicant submitted any extenuating circumstances for these convictions, either to the Department or to the Tribunal. There is no evidence of significant severe mental illness or a dramatic personal or family event to explain the offending. Accordingly, the Tribunal finds there are no extenuating or compelling circumstance in which the grounds for cancellation arose or that he had experienced any relevant circumstances that were beyond the applicant’s control at the time of the offending.
past and present behaviour of the visa holder towards the department
The applicant has not provided any response to the NOICC, including within the prescribed period. While the applicant has not cooperated with the cancellation processes, he has otherwise been cooperative. The Tribunal accordingly places some wight on this consideration in favour of the visa being cancelled.
whether there would be consequential cancellations under s 140
The applicant did not travel to Australia on his student visa with any family members, the Tribunal places no weight on this consideration either in favour or against the cancellation of the decision.
whether there are mandatory legal consequences
Should the visa remain cancelled, the applicant would have limited migration options and risks becoming an unlawful non-citizen in Australia. Should the applicant be detained under s.189 of the Act, he will be liable to detention and forcible removal. Public Interest Criterion 4013 may also prevent the applicant from being granted a visa for a period of up to three years from the date of the visa cancellation. The applicant has not provided submissions relevant to the mandatory legal consequences arising from the cancellation of this visa. The Tribunal places some weight on these mandatory legal consequences in favour off the visa being reinstated.
whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation
There is no evidence the applicant has any children or dependants at all. He has not provided any reasons he will face a real chance of serious harm for a Refugees Convention or nexus reasons or that there are substantial reasons to believe he faces a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to his country of origin. The Tribunal also notes the applicant is eligible for a protection visa. Given this, the Tribunal places no weight on the cancellation leading to a breach on Australis’s international obligations, either in favour or against the visa being reinstated.
if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
This consideration is not relevant to the cancellation of a temporary student visa.
any other relevant matters
There are no other matters to consider arising from any submission by the applicant as it has not received any.
However, the Tribunal notes that that grounds for cancellation involve convictions stealing and making false reports to the authorities. These were not trivial offences. They demonstrate the applicant towards a propensity towards purloining and dishonesty. Nonetheless the convictions are not at the most serious end of such offending. The penalties for the offending do not include imprisonment or severe financial penalties. The overall seriousness of the offending, cumulatively considered, has invited the Tribunal to place a notable, but not a significant or considerable amount of weight on them in favour of the visa being cancelled.
Conclusion
In this matter, the Tribunal is satisfied that the grounds for cancellation under s.116(1)(g) exist.
The Tribunal has not advanced any extenuating circumstances for the offending in which the grounds for the cancellation arose. Neither has he provided any hardships or breaches of the international laws arising from the cancellation of this visa. Nor has the applicant provided an explanation for his limited academic progress or explained any purpose, educational or otherwise, of having his student visa restored.
As the Tribunal is unable to find any compelling or urgent need to have this visa reinstated, it has placed more weight on those factors in favour of the visa being cancelled over those countervailing factors against the visa being cancelled.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Brendan Darcy
Member