Aliminati (Migration)

[2019] AATA 1010

Aliminati (Migration) [2019] AATA 1010 (28 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Krishna Chaithanya Aliminati

CASE NUMBER:  1703137

HOME AFFAIRS REFERENCE:                BCC2016/4297541

MEMBER:Lilly Mojsin

DATE:28 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 28 March 2019 at 4:27 pm

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 – length of non-enrolment – no compelling need to remain in Australia –decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B
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 13 February 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 had not been enrolled in a course of study.

3. The applicant appealed that decision to this Tribunal, annexing a copy of the Department decision to the application for review.

4. The applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 28 March 2019 at 9.00 am. The invitation stated that if the applicant did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.

5. The applicant acknowledged the Tribunal correspondence. The applicant did not attend the scheduled Tribunal hearing on 28 March 2019 at 9.00 am. The applicant did not contact the Tribunal to explain his non-attendance.

6. In addition, the Tribunal finds that the applicant is aware of the issues before the Tribunal, as the issues were set out in the delegate's decision provided by the applicant to the Tribunal, and the applicant has failed to take advantage of the opportunity to attend the hearing and present evidence and arguments in support of the application for review, or provide any other supporting evidence.

7. 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.

8. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present review 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.

10. Therefore if  that ground for cancellation is made out, and if so, whether the visa should be cancelled.

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

13. The applicant was notified of the intention to consider cancellation by the Department on 02 February 2017 and the notice invited the applicant to respond in writing. No response was received.  The delegate found that the applicant had not been enrolled in a registered course of study since 13 April 2016 and did not meet the requirements of condition 8202(2).

14. 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).

15. 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 also had regard to matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. These are discussed below:

16. The purpose of the student visa is to enable the visa holder to undertake study in Australia. There is no evidence before the Tribunal to suggest that the applicant’s original intention for travel to and stay in Australia was not for the purpose of study.

17. The Tribunal considers the breach of condition 8202(2) to be significant as the applicant had not been fulfilling the purpose of his travel to and stay in Australia as a holder of a student visa when he ceased studying. The Tribunal weighs this factor in favour of cancelling the visa. 

18. The applicant has not responded to the Notice of Intention to Cancel the visa. He has provided a copy of the Department decision to the Tribunal when he lodged his review application. He is aware of the discretionary factors the Tribunal must consider and he has provided no information to the Tribunal. The applicant has not provided any information to the Department or the Tribunal that he has a compelling need to remain in Australia. The Tribunal weighs this factor in favour of cancellation.

19. 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. The Tribunal weighs this factor in favour of cancellation.

20. 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. The Tribunal weighs this factor in favour of cancellation.

21. There is no evidence before the Tribunal to suggest that the applicant’s past or present behaviour towards the Department was adverse. The Tribunal weighs this factor neither in favour nor against cancelling the visa.  

22. 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 mmigration 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. The Tribunal weighs this factor neither in favour nor against cancelling the visa.  

23. There are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing before the Tribunal to suggest that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation. The Tribunal weighs this factor neither in favour nor against cancelling the visa.  

24. In regard to the purpose of the student visa to enable the visa holder to undertake study in Australia, the Tribunal places great weight on the applicant not being enrolled in a registered course since April 2016 when his enrolment was cancelled by the education providers for non-commencement of studies.

25. As nearly 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 did not engage in study for which his visa was granted and he was not fulfilling the purpose of his travel to and stay in Australia. The Tribunal weighs this factor in favour of cancellation.

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.