Abdul Malik (Migration)

[2019] AATA 6050

Abdul Malik (Migration) [2019] AATA 6050 (8 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Hanzalah Bin Abdul Malik

CASE NUMBER:  1827413

HOME AFFAIRS REFERENCE(S):           BCC2018/1584372

MEMBER:P. O'Farrell

DATE:8 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 08 October 2019 at 3:44pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – not enrolled in registered course – discretion to cancel visa – factors for and against cancellation – employment, financial and family issues – future study plans and career goals – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

CASES

Gong v MIBP [2016] FCCA 561

Tien v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 September 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 572 Vocational Education and Training 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 has not been enrolled in a full-time registered course and does not meet the requirements of conditions 8202(2)(a) of his visa.

3. 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 applicant appeared before the Tribunal on 8 October 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

5. 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

6. 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?

7. 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).

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

9. At the hearing, the applicant agreed that there were grounds for cancellation on the basis that he had breached the enrolment condition of his visa as he had not been enrolled in a registered course since 18 October 2017.

10. 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

1. The applicant was born on 5 May 1993.

2. The Department issued a NOICC on 17 August 2018.  The applicant did not provide a response to the NOICC.  The visa was cancelled on 6 September 2018.  The delegate decision records that the visa holder had not been enrolled in a registered course of study since 18 October 2017.

3. At the hearing, the applicant gave evidence that he first came to Australia in March 2016 for a holiday and went to do some sightseeing.  He gave evidence that he met some friends in Australia and his friends asked him to study here.  He then went on to do some studies.

4. Since being in Australia, he has completed a Diploma of Leadership and Management in June 2017.  He gave evidence that he also started an Advanced Diploma of Leadership and Manager but did not complete that course.

5. He stated that he likes it in Australia and that he wants to work here to gain experience in studying English so that he can speak it fluently.  He stated that he wants to study in Australia and take what he learns back to his country of origin.  He stated that his did not know when he would return to his home country and also gave evidence that if the visa was not cancelled, that he would like to study a culinary course at RMIT.

6. The Tribunal finds that the evidence demonstrates that the applicant purpose of travel to Australia was for a holiday and that he subsequently decided to undertake studies.  The applicant gave evidence that he seeks to study a culinary course but the Tribunal finds that the failure of the applicant to maintain enrolment is not consistent with the purpose of the applicant’s travel and stay in Australia for the purpose of study.  The Tribunal gives weight to this factor in favour of cancellation of the visa.

7. The Tribunal finds that the applicant does not have a compelling need to remain here in Australia on a student visa.

   ·the extent of compliance with visa conditions

8. The applicant was granted a visa for the purpose of study.  The study visa program provides an avenue to allow non-citizens and non-permanent residents to study in Australia.  In order to be granted and remain compliant with student visa obligations, the visa holder must maintain enrolment.

9. The applicant has not complied with the condition attached to his visa as he has was not enrolled in a full-time registered course of study since 18 October 2017.

10. The Tribunal considers that the breach of condition 8202(2) here is significant, and give this weight as a factor towards the visa being cancelled.

11. The Tribunal finds that the applicant appears to have complied with his visa conditions apart from 8202.  The Tribunal gives some weight towards the visa not being cancelled in this respect.

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

1. The applicant gave evidence that is difficult to work because a student is only allowed to work 20 hours per week and that as he does not have a visa at the moment, it is difficult for him to work.  He gave evidence that he uses his own money to study here in Australia.  The Tribunal understood this evidence to be an expression of financial hardship associated with not being able to work the limited amount of hours that are permissible for a student.

2. He gave evidence that it is difficult for him here in Australia and that he has been cheated by several people in Australia and that he has had family problems in Malaysia that he has brought over to Australia with him.  The Tribunal asked him whether there would be any hardship associated with these matters if the visa remained cancelled.  The applicant gave evidence that there is no reason for hardship associated with these matters.

3. The applicant gave no other evidence in relation to any hardship that may be caused.

4. The Tribunal finds on the basis of the evidence of the applicant and the information before it, that whilst there may be some financial hardship to the applicant, the degree of hardship that would be caused if the visa remained cancelled is not significant.  The Tribunal gives this only little weight towards the visa not being 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

1. The grounds for cancellation arose because the applicant failed to maintain enrolment in a full-time registered course of study.

2. In support of an application to adjourn an earlier listing of this hearing in July 2019, the applicant submitted a report from a psychologist dated 15 July 2019.  That report states that the applicant first referred himself to the psychologist on 12 July 2019.  That report stated that ‘due to time constraints I am not able to provide a full-length psychological report for the said hearing in a timely manner.’  The Tribunal asked the applicant whether there were any subsequent medical or psychologists reports.  The applicant advised that there were none.  The applicant gave evidence that he is not receiving psychological treatment.

3. The Tribunal asked whether there were any medical reports pointing to his medical state during 2017 as a reason as to why he failed to observe his enrolment visa condition.  The applicant gave evidence that there are no such reports.

4. The Tribunal finds that the applicant has not presented any medical evidence to suggest that there was a medical reason as to why the applicant failed to maintain enrolment in a registered course of study. 

5. The applicant gave evidence that he has a brother who had problems with drugs and that he brought his brother to Australia.  He gave evidence that he left his studies because he was taking his brother to look for jobs to help him.  There was no evidence to suggest for example that the applicant sought to defer his studies for personal reasons.

6. The Tribunal finds that the applicant has not presented any evidence to suggest that the circumstances in which the ground for cancellation arose were beyond his control.  The Tribunal gives weight to this consideration in favour of the cancellation.

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

1. There is nothing to suggest that the behaviour of the visa holder towards the department has been problematic.  The Tribunal gives this some weight in favour of the visa not being cancelled.

• whether there would be consequential cancellations under s.140

1. The applicant gave evidence that there would be no consequential cancellations.  The Tribunal gives this matter weight towards cancellation.

• 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

1. The Tribunal is mindful that the applicant could become an unlawful noncitizen and detained and removed from Australia, and it may be difficult to be granted further visas, and he may be subject to a three-year exclusion period unless relevant Public Interest Criterion is met.

2. It is unlikely however that the visa applicant will be detained but rather provided with a time-limited period in which he can leave the country or apply for review of the decision.

• 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

1. The circumstances of this matter are not such that would engage Australia’s international obligations.

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

1. Not relevant.

• any other relevant matters.

1. The applicant was asked if there were any other relevant matters.  He stated that he did not prepare anything for the hearing other than to present himself and that he had not broken any laws nor had he ‘gone underground’ and vanished.  The Tribunal finds that it is apparent that the applicant breached the enrolment condition of his visa and that there is no evidence to suggest that the applicant had otherwise breached the conditions or his visa or acted otherwise other than in accordance with the laws of Australia.  The Tribunal gives limited weight to this in favour of the visa not being cancelled.

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

   DECISION  

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

   P. O'Farrell
   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.