ALI (Migration)

[2019] AATA 620

ALI (Migration) [2019] AATA 620 (22 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr ATIF ALI

CASE NUMBER:  1712778

HOME AFFAIRS REFERENCE(S):           BCC2017/1196711

MEMBERS:Stephen Conwell (Presiding)

Jason Harkess

DATE:22 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 22 February 2019 at 10:50am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – failure to attend Tribunal hearing – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – serious breach – no evidence applicant has undertaken study – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B, 379A
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

CASES
Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 June 2017 made by a delegate of the Minister for Immigration and Border Protection (the delegate ) 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 was not enrolled in a registered course and therefore had breached condition 8202 of his 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. On 29 May 2017, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate considered the applicant did not comply with condition 8202 of his visa, as the applicant ceased to be enrolled in a registered course. The applicant responded to the NOICC by re-enrolling and providing a copy of a new Certificate of Enrolment (COE) to the Department, however he failed to provide any updated information about his circumstances nor did he offer any explanation concerning cessation of his enrolment.

4. Based upon the evidence before her the delegate decided to cancel the visa held by the applicant, having found that the applicant did not comply with condition 8202 of his visa. 

5. The applicant sought review of the delegate’s decision at the Tribunal and attached a copy of the delegate’s decision with his application.

6. By letter dated 12 February 2019, the Tribunal wrote to the applicant inviting him to attend today’s hearing. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. The Tribunal again wrote to the applicant on 20 February 2019, noting that he had replied to the hearing invitation however his response was blank and did not indicate whether he would attend.  The applicant responded on the same day, 20 February 2019, indicating that he would attend the scheduled hearing.

7. The Tribunal also sent the applicant telephone SMS Reminders about the hearing five business days and one business day before the scheduled hearing.  Despite his response confirming his attendance, the applicant did not appear before the Tribunal on the hearing day and at the scheduled time and place.

8. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been ‘returned to sender’, and in fact the applicant did indicate his intention to attend the hearing. The Tribunal is also satisfied that separate SMS reminders were also sent to the applicant about the hearing. In the circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to determine the review without taking any further action to enable the applicant to appear before it.

9. 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

10. 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?

11. 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).

12. The applicant is a national of Pakistan born on 4 February 1991.  He first arrived in Australia on in 8 June 2012 as the holder of a Student visa.  That visa was subject to condition 8202. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

13. Based on the evidence before the Department delegate (and the Tribunal) in the Provider Registration and International Student Management system (PRISMS), the applicant had not been enrolled in a registered course of study for the period 3 September 2016 - 4 June 2017.  The applicant was advised that it appeared he did not meet the requirements of condition 8202(2)(a). 

14. The applicant was then notified by NOICC on 29 May 2017 and invited to respond to that notice in writing.  The applicant responded to the NOICC by re-enrolling and providing a copy of a new Certificate of Enrolment (COE) to the Department, however he failed to provide any updated information about his circumstances nor did he offer any explanation concerning cessation of his enrolment. Based on the information before the delegate, she was satisfied there is a ground for cancellation of the applicant’s visa under subsection “116(1)(b), breach of condition – 8202 of the Act.”

15. The Tribunal also finds that according to the PRISMS records, the applicant was not enrolled in any registered course for the period 3 September 2016 - 4 June 2017.  The Tribunal is not satisfied the applicant meets condition 8202(2)(b). Further, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a registered course (per Liu v MIMIA [2003] FCA 1170).

16. The Tribunal finds that on the basis of the evidence, the applicant ceased to be enrolled in a registered course, and therefore has breached condition 8202 of his visa.

    Consideration of the discretion to cancel the visa

17. 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.

18. 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 the material evidence available to it, as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

19. The Tribunal notes the purpose of a Student visa is to allow for travel to and stay in Australia, in order to study. The applicant has not been enrolled in a registered course of study for the period 3 September 2016 - 4 June 2017.This is an indication the applicant was not pursuing the purpose for his travel to Australia; as he was not actively engaged in studies for some nine months.  The applicant did re-enrol in a registered course but only after being first issued with a NOICC.  

20. The Tribunal considers the breach to be significant, given the length of time in which the applicant failed to maintain enrolment.  The Tribunal also considers this to be a serious breach given the significance of enrolment in a registered course, for the visa granted.

21. Further, based on the information before it, the Tribunal is not satisfied the breach occurred in circumstances beyond the applicant’s control.  Again, based on the information before it, neither does the Tribunal consider there are extenuating or compassionate circumstances in this case.

22. The Tribunal notes that the applicant’s lack of satisfactory response to both the Department and to the Tribunal means that he had not identified any hardship that may be caused to him and/or any family member by the cancellation of his visa. However, the Tribunal accepts the applicant might be subject to some financial difficulty if the visa is cancelled. The Tribunal also accepts that if the applicant’s visa is cancelled he would become an unlawful non-citizen and liable to detention under s189 and removal under s198 of the Act. He would also have limited options to apply for further visas in Australia and may thus be required to return to his country of origin. However, this does not satisfy the Tribunal it should exercise the discretion not to cancel the visa.

23. The Tribunal notes there is no evidence that any family member/s in Australia would be negatively impacted by the cancellation of the applicant’s visa. 

24. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.  The Tribunal is also not satisfied there are persons in Australia whose visas would, or may, be cancelled under s.140.

25. Regarding Australia’s international obligations, the Tribunal is not persuaded that the circumstances of this case were such that would engage Australia’s international obligations. There is no evidence of children (or other family members) in Australia whose interests would be affected by the cancellation.  There was nothing to suggest that family violence was a relevant factor.

26. The Tribunal has therefore considered the totality of the applicant’s circumstances and has found that the applicant breached the enrolment requirement in condition 8202, and that this breach was significant.  The applicant submitted a COE to the Department in response to the NOICC being issued to him. That COE was in respect to a Diploma of Leadership and Management for the period: 9 June 2017 - ­23 March 2018. However  the Tribunal has not seen any evidence to indicate the applicant has undertaken study in Australia, in that course or in any other registered course of study, since ceasing enrolment on 3 September 2016. The applicant has not presented evidence of current or future study plans. 

27. Considering the circumstances as a whole, the Tribunal is satisfied the visa should be cancelled.

    DECISION

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

    Stephen Conwell
    Member

    Jason Harkess
    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.