Baboolall (Migration)

[2020] AATA 2722

Baboolall (Migration) [2020] AATA 2722 (2 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sandeep Baboolall

CASE NUMBER:  1817194

HOME AFFAIRS REFERENCE(S):          BCC2018/195120

MEMBER:Stephen Conwell

DATE:2 June 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 02 June 2020 at 11:16am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-appearance before the Tribunal – ground for cancellation – enrolment – not enrolled in a registered course – death of paternal grandmother – consideration of discretion – purpose of visa not fulfilled – serious breach – 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 7 June 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that 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. The Tribunal exercised its discretion to hold the hearing by telephone.

4. The hearing was held during the coronavirus (COVID-19) pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick. It also considered the consequences of further delay if the hearing was not to be conducted by telephone. The applicant did not raise any concerns as to conducting the review hearing by phone.

5. A copy of the delegate’s decision was provided to the Tribunal by the applicant.

6. The applicant was represented in the review hearing by his authorised migration agent (agent).

7. By letter dated 11 May 2020, the Tribunal wrote to the applicant via his agent advising that due to COVID-19 it was not conducting in-person hearings for the time being and he was therefore invited to participate in a telephone hearing on 2 June 2020. In the invitation to attend a 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.

8. At the time of decision no reply had been received by the Tribunal.

9. The Tribunal also sent the applicant telephone SMS Reminders about the hearing five business days and one business day before the scheduled hearing. The SMS reminders were sent to the applicant’s last known phone number. On the day of the hearing the Tribunal telephoned the applicant’s last known phone number four times between approximately 10:45am and 11:15am. All attempts to call the applicant were unsuccessful. The applicant did not provide the Tribunal with any other telephone numbers and he did not attend the Tribunal hearing by telephone on the day and time scheduled.

10. 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 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.

11. 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

12. 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?

13. 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).

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

15. The applicant was granted a Subclass 500 (Student) visa on 5 September 2016. By Notice of Intention to Consider Cancellation (NOICC) dated 26 March 2018, the applicant was advised by the Department of Home Affairs (Department) that information on the Provider Registration and International Student Management System (PRISMS) indicated that he had not been enrolled in a registered course of study since 14 June 2017 and as a consequence it appeared he was in breach of condition 8202(2)(a) and that his visa may be cancelled under s.116(1)(b) of the Act.

16. The applicant’s authorised agent provided a written response to the NOICC, via email on 23 April 2018, which is summarised below:

    ·      the applicant apologised for his late reply as he did not receive the NOICC “within the given time”;

    ·      the applicant admits that in in June 2017 he failed to maintain his enrolment in a registered course and he therefore does not dispute that there are grounds for cancellation;

    ·      he claims however that the circumstances leading to his non-enrolment were “out of his control”.  In particular, the death of his paternal grandmother in early 2017 affected him, making it difficult for him to focus on his studies;

    ·      the suddenness of her death and the cost of the airfare meant that the applicant was unable to return home to attend her funeral. The applicant took the loss to heart as his grandmother had lived with him and his parents as part of his extended family;

    ·      the applicant had difficulty coping with the demands of college, however he did not discuss his concerns with college staff nor seek additional support. He subsequently stopped attending his studies. He intended to re-enrol at the start of 2018 but had not done so. The  applicant’s agent submitted that she would work with him to secure an offer of enrolment, though at the time of the response, they had not been successful;

    ·      if the applicant’s visa remains cancelled it would greatly affect his education and career path. It would also affect his family who have supported him and financially sponsored him for his studies in Australia to date.

17. Neither the applicant nor his agent provided any further submissions to the Tribunal.

18. The decision record contained information from the government’s Provider Registration and International Student Management System (PRISMS) record indicating that the applicant had not been enrolled in a registered course of study since 14 June 2017. This was not disputed by the applicant in his written response to the NOICC. 

19. Having regard to the information in the PRISMS as outlined in the decision record and the applicant’s admission in the reply to the NOICC, the Tribunal finds that the applicant was not enrolled in a CRICOS registered course since 14 June 2017. The Tribunal finds that he breached condition 8202(2)(a) of his visa.

20. 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). The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA [2003] FCA 1170.

21. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

22. 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.

23. 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’.

    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

24. 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 since 14 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 a lengthy period of almost 12 months to the date of his visa cancellation.

    The extent of compliance with visa conditions

25. At time of visa grant, the Department made the applicant aware of the fact that he is required to be enrolled in a registered course of study for the duration of his Student visa. The Tribunal considers it was the applicant’s responsibility to be aware that any non-compliance with those conditions would adversely affect his eligibility to hold the Student visa.

26. The Tribunal finds that the applicant was in breach of visa condition 8202 by not being enrolled in a registered course of study for almost 12 months. The Tribunal considers the applicant’s period of non-enrolment in a registered course of study to be a serious breach of a visa condition.  The Tribunal also considers this to be a serious breach given the significance of enrolment in a registered course, for the visa granted. The Tribunal gives this factor considerable weight in favour of the visa being cancelled.

27. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. However on the basis of the foregoing evidence, the Tribunal is not satisfied the applicant achieved a reasonable degree of compliance with the study purpose and conditions of the Student visa. The foregoing considerations weigh in favour of cancellation of the visa. 

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

28. Whilst the applicant submits that cancellation of his visa would greatly affect his education and career prospects, as well as impact his family, he has not articulated any particular hardship that he or his family may suffer from cancellation of his Student visa. However the Tribunal accepts the applicant and his family invested money and time in the applicant’s travel to and stay in Australia, including fees thrown away as a consequence of the cancellation of the applicant’s enrolment and his visa. These consequences are a foreseeable result of the cancellation of the visa.

29. The Tribunal is not satisfied, on the evidence before it, that members of the applicant’s family, or the applicant himself, would suffer a degree of emotional, psychological or psychiatric hardship sufficient to persuade the Tribunal to consider exercising its discretion to set aside cancellation of the visa.

    Circumstances in which ground of cancellation arose

30. The circumstances in which the ground for cancellation arose occurred when the applicant failed to maintain enrolment in a registered course of study since 14 June 2017, which led to his non-compliance with visa condition 8202. 

31. The Tribunal has regard to the applicant’s claims set out in the written response to the NOICC. Whilst the Tribunal accepts that the applicant’s personal circumstances and issues may have played some part in his non-compliance with condition 8202(2)(a), there is no evidence before the Tribunal which demonstrates there were circumstances beyond his control which prevented him from complying with condition 8202(2)(a).

32. In addition, there is no information before the Tribunal to indicate that the applicant applied to the relevant education provider to defer his studies for extenuating or compelling reasons. On the contrary, the applicant admits that he made no effort to seek support from his college nor did he make any request for deferral of his studies. The Tribunal is satisfied there were no extenuating circumstances beyond his control for his failure to remain enrolled in a registered course for the duration of his Student visa.

33. The applicant was aware that remaining enrolled in a registered course of study was a condition of his visa and it was his responsibility to ensure that he complied with the conditions of his visa. The Tribunal therefore gives this factor considerable weight in favour of cancellation of the visa.

    Past and present behaviour of the visa holder towards the department

34. According to the decision record, there is no evidence that the applicant had been unco-operative towards the Department. The Tribunal give this some little weight in favour of its discretion to set aside cancellation of the visa.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

35. If the applicant’s visa is cancelled, he will be given a time limited period in which he may make plans to leave Australia and he will be limited in his ability to apply for another visa. The applicant has not raised concerns in regards to this. The applicant is not currently in detention and it appears unlikely that he will be detained if the cancellation occurs. The Tribunal therefore gives this factor minimal weight in favour of its discretion to set aside cancellation of the visa.

    whether there would be consequential cancellations under s.140

36. The Tribunal is satisfied there are no persons in Australia whose visas would, or may, be cancelled under s.140 of the Act as a consequence of the applicant’s visa being cancelled.

    Whether any international obligations would be breached as a result of the cancellation

37. In this case it does not appear that this consideration is relevant and the applicant has not made any claims which would relate to it.

    Any other relevant matters

38. The Tribunal finds that there are no other relevant matters.

    Summary

39. As noted above, the applicant remained not enrolled in a registered course for a period of almost 12 months and was therefore in breach of his visa conditions. The Tribunal is mindful of the lengthy period of non-compliance and having considered the evidence individually and cumulatively, the Tribunal is not persuaded that there are grounds upon which it should exercise its discretion to set aside cancellation of the visa.

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

    DECISION

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

    Stephen Conwell
    Member

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.