Afzaal (Migration)

[2018] AATA 4776

Afzaal (Migration) [2018] AATA 4776 (11 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Zuhair Afzaal

CASE NUMBER:  1618403

HOME AFFAIRS REFERENCE:                BCC2016/2971288

MEMBER:Lilly Mojsin

DATE:11 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 11 October 2018 at 3:00pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – unable to pay enrolment fees – cheated financially by flatmates – significant period of non-enrolment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 116, 362B, 441G
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 25 October 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 applicant arrived in Australia on 17 January 2015 as the holder of a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act). 

3. The delegate of the Department cancelled the visa on the basis that the applicant was not enrolled in a registered course and therefore had breached condition 8202 of his visa.

4. The issue in the present review is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. By letter dated 17 July 2018 and posted to the applicant in accordance with section 441G of the Migration Act 1958, the applicant was notified that the Tribunal had considered the material before it but the Tribunal was unable to make a favourable decision on this information alone. The applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review, at a hearing to be held on 11 October 2018.

6. The applicant was advised that, if he failed to attend the scheduled hearing and an adjournment was not granted, the Tribunal might make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal.

7. The applicant did not acknowledge the Tribunal correspondence, he did not attend the Tribunal hearing on 11 October 2018 and the Tribunal has received no explanation.

8. In these circumstances, 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present review is whether the applicant, when 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 review, 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).

11. The applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course since 13 August 2015.

12. A notice of intention to consider cancellation [NOICC] was sent by the Department to the applicant[1] on 4 October 2016 and the notice invited the applicant to respond in writing.  The applicant responded on 18 October 2016[2]. He agreed that he had not fulfilled his study commitment. He said that due to being financially cheated by his flat mates he did not complete the first semester of his Bachelor degree course and he did not enroll for the second semester. He subsequently changed his study plan, went to another college and his flat mate did not pay his enrolment fees on his behalf and cheated him out of his fees. He decided to apply for the next study intake at the Holmes College, in November 2016 and he requested that his appeal be considered on compassionate grounds.

    [1] BCC2016/2971288  Folio  15

    [2] BCC2016/2971288  Folio  23

13. In light of the above statement made by the applicant, the Tribunal is satisfied that 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 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.

15. As the applicant did not attend the hearing or to provide written submissions prior to the hearing, the Tribunal has had regard to the information contained in the Department's file and in his response to the NOICC.

16. The Tribunal has also had regard to matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. These are as follows:

17. The purpose of the student visa is to enable the visa holder to undertake study in Australia. The applicant has not been enrolled in a registered course since 13 August 2015 and over 13 months elapsed from that date until the NOICC was issued on 4 October 2016.

18. The applicant has not provided any information to the Department or the Tribunal that he has a compelling need to remain in Australia.

19. The applicant claims that his family had high expectations for him successfully completing his studies in Australia. He stated that he felt a great deal of pressure coping with these expectations and that this impacted on his ability to study. The Tribunal accepts that the applicant was young and without family in Australia when he arrived. His poor judgement regarding his friends and being cheated financially by his flat mates does not provide adequate reason to explain that he has not been enrolled in a registered course of study since 13 August 2015.

20. There is no evidence before the Tribunal to indicate that the applicant's non-compliance with the visa condition was due to circumstances beyond his control.

21. Given the applicant's failure to attend the hearing, the Tribunal is not aware of any hardship which will result from cancellation of his visa.

22. There is no evidence before the Tribunal to suggest that the applicant’s past or present behaviour towards the Department was adverse.

23. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice regarding his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion.

24. There are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

25. As 3 years have passed since the applicant was last enrolled, the Tribunal finds the applicant's breach of condition 8202 of his visa to be significant because he was not engaging in study for which his visa was granted and he was not fulfilling the purpose of his travel to and stay in Australia.

26. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

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

    DECISION

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

    Lilly Mojsin
    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.