Barbuiani (Migration)

[2019] AATA 6624

Barbuiani (Migration) [2019] AATA 6624 (17 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Corrado Barbuiani
Mrs Yesica Oliver Berliana

CASE NUMBER:  1906360

HOME AFFAIRS REFERENCE(S):          BCC2019/185374

MEMBER:Amanda Upton

DATE:17 December 2019

PLACE OF DECISION:  Melbourne

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

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 17 December 2019 at 11:50am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – significant period of non-compliance – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140
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 7 March 2019 made by a delegate of the Minister for Home Affairs to cancel the first named 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 the delegate found that the applicant had not been enrolled in a registered course of study from 29 May 2018. 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.    For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.

4.    The matter was listed for hearing on 17 December 2019. On 15 December 2019, the applicant contacted the Tribunal by email indicating that he wanted the hearing to be cancelled. He was contacted by the Tribunal on 16 December 2019 to confirm that he no longer wished to have a hearing. He indicated that this was the case and was making preparations to leave the country.

5.    The applicant confirmed that he had no further information to provide to the Tribunal. The Tribunal therefore proceeds to make a decision without a hearing and with the information currently available.

6.    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

7. 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?

8.    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).

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

10.On 24 January 2018, the applicant was granted a Student (Higher Education Sector)(subclass 500) visa for the purpose of studying a Diploma of Civil Construction Design followed by an Advanced Diploma of Civil Construction Design with Technical and Further Education Commission.

11.On 29 May 2018, the education provider cancelled the applicant’s Confirmation of Enrolment due to the applicant failing to maintain enrolment. On the evidence before the Tribunal, the applicant has not been enrolled in a registered course from 29 May 2018. Accordingly, the applicant has not complied with condition 8202(2).

Consideration of the discretion to cancel the visa

12.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’.

The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel or to remain in Australia

13.The applicant was granted a visa for the purpose of studying 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. There is no evidence before the Tribunal of any compelling need that the applicant has to travel or remain in Australia.

The extent of compliance with visa conditions

14.The applicant has not been enrolled in a registered course of study for a period of approximately 18 months. The Tribunal considers this to be a significant period of time for non-compliance with a visa condition.

15.The applicant has not provided any evidence of being enrolled in any other registered course of study since 29 May 2018.

16.      The Tribunal considers that this weighs significantly against the applicant.

Circumstances in which the ground of cancellation arose

17.The grounds for the cancellation arose when the visa holder failed to maintain enrolment in a registered course of study. The information available to the Tribunal with respect to this is that in response to the Notification of Intention to Consider Cancellation, the applicant said that “I am in a better financial situation and I am receiving money from my family’. From this, it is reasonable for the Tribunal to infer that the applicant was unable to maintain enrolment due to being financially unable to support it.

18.No further information is available as to the circumstances under which the ground of cancellation arose has been provided to the Tribunal.

Degree of hardship that may be caused

19.The Tribunal accepts generally, that the cancellation of a visa results in opportunities lost and disappointment. It also accepts that there is potentially a financial loss for the applicant. 

20.The applicant has not provided any information relevant to consideration of this factor. The Tribunal is unable to ascertain any specific hardship that he or his family may face if his visa is cancelled.

21.The Tribunal gives this little weight in the applicant’s favour.

Past and present conduct of the visa holder toward the Department

22.

There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives this some weight in favour of the applicant.    

Whether there would be consequential cancellations under s.140

23.The applicant’s wife is a secondary applicant to the visa application. The Tribunal has no evidence as to the impact that the visa cancellation would have on her and notes that the applicant is making arrangements to return to Italy.

24.      The Tribunal affords this factor little weight in favour of the applicant.

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

25.If the visa is cancelled, the applicant becomes an unlawful non-citizen and may be liable for detention and removal if he does not voluntarily depart.

26.The applicant has indicated that he is currently making arrangements to return to Italy. Consequently it does not appear that this consideration is relevant. The applicant has not made any claims that relate to this consideration.

27.The Tribunal affords this factor little weight in favour of the applicant.

Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation.

28.The applicant has provided no reasons for being unable to return to Italy, and in fact has indicated that he is currently making arrangements to return there, as such the Tribunal affords this factor no weight.

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

DECISION

30.The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa. The Tribunal has no jurisdiction with respect to the other applicants.

Amanda Upton
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.