Al-Shawabkeh (Migration)

[2019] AATA 2919

Al-Shawabkeh (Migration) [2019] AATA 2919 (26 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdullah Salem Al-Shawabkeh

CASE NUMBER:  1730524

HOME AFFAIRS REFERENCE(S):           BCC2017/3516484

MEMBER:Joseph Lindsay

DATE:26 June 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 26 June 2019 at 4:50pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – failure to attend scheduled hearing – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – no information before the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
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 24 November 2017 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 delegate cancelled the visa on the basis that the applicant failed to remain in a registered course of study and breached condition 8202(2)(a) of his student visa. 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. The applicant and their representative attended the Tribunal on 2 April 2019. After some discussion, the representative requested an adjournment until 16 April 2019. The hearing was adjourned.

4. On 16 April 2019, the applicant did not attend the hearing. As at the time of this decision, no further information has been forthcoming from the applicant. No information has been provided in respect to the failure to attend the hearing. Accordingly, the Tribunal will make a decision on the available information.

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. In his decision record, the Department found the applicant had not been enrolled in a registered course of study since 26 April 2017. If the applicant had attended the hearing, the Tribunal would have been able to ask the applicant about this issue.

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)(a). The Tribunal finds that the ground for cancellation for the applicant’s student visa is established in respect to s.116(1)(b) of the Act.

    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.’

12. The applicant did not respond to the Notice of Intent to Consider Cancellation. Accordingly, the Tribunal has no information in which to assess the applicant in respect to and of the discretionary matters. If the applicant had attended the hearing, the Tribunal would have been able to ask the applicant about these issues but the Tribunal was not able to do so.

    Conclusion

13. The Tribunal finds that the applicant received his Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 16 February 2015.

14. The Tribunal finds that the applicant has not been enrolled in a registered course of study since 26 April 2017. Accordingly, the applicant has not complied with condition 8202(2)(a).

15. There is no information that indicates that the circumstances that led to the applicant’s course enrolment being cancelled are exceptional circumstances. 

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

    DECISION

17. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Joseph Lindsay

    
    

    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.