Candido Gomes (Migration)

[2019] AATA 6638

Candido Gomes (Migration) [2019] AATA 6638 (2 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Luis Fernando Candido Gomes

CASE NUMBER:  1711796

HOME AFFAIRS REFERENCE(S):          BCC2017/1111999

MEMBER:Lynda Young

DATE:2 December 2019

PLACE OF DECISION:  Sydney

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

Statement made on 02 December 2019 at 1:29pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 572 Vocational Education and Training Sector visa – enrolment in a registered course – applicant ceased courses – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 116, 119
Migration Regulations 1994, Schedule 2; Schedule 8; Condition 8202

CASES

COT15 v MIBP (No 1) (2015) 236 FCR 148
Ibrahim v MHA [2019] FCAFC 89     

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 25 May 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant’s visa, granted on 13 March 2015, was subject to condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations) requiring the applicant to be enrolled in a registered course of study.

3.    On 8 May 2017, the applicant was issued a Notice of Intention to Consider Cancellation (NOICC) under s.119 of the Act, on the basis it appeared he had not complied with visa condition 8202(2)(a) as, on evidence obtained from the Provider Registration and International Student Management System (PRISMS), the applicant had not been enrolled in a registered course of study since 23 May 2016.  The applicant did not respond to the NOICC.

4. On 25 May 2017, the delegate cancelled the visa under s.116(1)(b) of the Act on the basis the applicant, in breach of condition 8202(2)(a), had not been enrolled in a registered course of study since 23 May 2016, and the grounds in favour of cancellation outweighed the grounds against cancellation.

5.    The applicant applied to the Tribunal for review of the decision on 2 June 2017, and attached to his application, a copy of the Notice of Cancellation, the Decision Record and his passport bio page (application). The issues in the present case are whether the ground for cancellation in s.116(1)(b) of the Act is made out, and if so, whether the visa should be cancelled.

6.    By letter emailed to the applicant on 15 November 2019, the Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in his case at a hearing on 2 December 2019 at 12:00pm (hearing invitation). The hearing invitation advised the applicant the Tribunal may, if he did not attend the scheduled hearing and an adjournment was not granted, make a decision on review without taking any further action to allow or enable the applicant to appear before it.

7.    On each of 25 November 2019 and 29 November 2019, the Tribunal sent the applicant reminders by SMS about the scheduled hearing.

8.    No response to the hearing invitation was received by the Tribunal, and no transmission or delivery failure notices were received in response to the Tribunal’s email and SMS messages.

9.    The applicant failed to appear before the Tribunal on at the scheduled hearing on 2 December 2019 at 12:00pm. 

1. At 12:15pm on 2 December 2019, the Tribunal called the mobile telephone number provided by the applicant on his application for review filed with the Tribunal on 2 June 2017.  The call was not answered, and diverted to an automated message response advising the telephone number from which the call was made (the Tribunal’s telephone number) would be sent as an SMS message to the number being called. There was no option provided for any other message to be left.

2. Neither the applicant or anyone on his behalf provided any explanation for his non-attendance or any documents including medical certificates, submissions, written responses to the hearing invitation or any requests for postponements to the Tribunal, at any time prior to the time of making this decision.

3. The Tribunal is satisfied the applicant was properly invited to a hearing in accordance with s.379A(5) of the Act. In these circumstances, and 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.

4. 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

ISSUES

1. Under s.116 of the Act, the Minister may cancel a visa if he or he is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b).

1. Section 116(1)(b) provides for cancellation of a visa where ‘its holder has not complied with a condition of the visa.’ Visa conditions for each subclass are identified in the relevant part of Schedule 2 to the Regulations, and described in Schedule 8 to the Regulations.

2. In this case, condition 8202 was imposed on the applicant’s student visa.

3. Condition 8202, as it applies in this case, is set out in the attachment to this decision.  Relevantly, it requires the applicant:

   a.be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

   b.has not been certified by his or his education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   c.has not been certified by his or his education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

4. If satisfied the ground for cancellation in s.116(1)(b) is made out then, as the 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, having regard to matters specified in the Act or regulations that are required to be considered and all information relevant to the exercise of the discretion in the circumstances of the case, including matters raised by the applicant and matters of government policy.

5. There are no matters specified in the Act or the Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa.  Matters to which the Tribunal has regard in considering whether to exercise its discretion to cancel the applicant’s visa include matters raised by the applicant and the matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, including:

   a.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;

   b.the extent of compliance with visa conditions;

   c.degree of hardship that may be caused (financial, psychological, emotional or other hardship);

   d.circumstances in which ground of cancellation arose.  If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control;

   e.past and present behaviour of the visa holder towards the department;

   f.whether there would be consequential cancellations under s.140;

   g.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;

   h.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;

   i.if it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia;

   j.any other relevant matters.

6. The issues for the Tribunal’s determination in this case are:

   a.does the ground for cancellation in s.116(1)(b) of the Act exist?

   b.if the ground for cancellation in s.116(1)(b) of the Act exists, should the discretion to cancel the visa be exercised?

EVIDENCE ON THE APPLICATION

1. On 2 June 2017, the applicant filed with the Tribunal, his application for review of the  decision attaching, in support of his application, copies of the Notice of Cancellation and the Decision Record.

2. The Tribunal, in its ‘Acknowledgement of Application’ letter emailed to the applicant’s representative on 6 June 2017 (application acknowledgment), requested the applicant provide, as soon as possible, material or written arguments he wished the Tribunal to consider, or any other material he believed supported his application, including a statement explaining why he disagreed with the Department's decision.

3. The Tribunal’s hearing invitation also requested the applicant provide, within seven days, all documents on which he intended to rely in support of his case, and for any documents or written arguments to be sent to the Tribunal to be in, or translated into, English.

4. The applicant did not appear at the scheduled hearing to give evidence and present arguments as invited and despite the Tribunal requesting he do so, did not provide the Tribunal with any statement explaining why he disagreed with the decision, and other than those provided with his application, did not provide any documents or other material supporting his application or any submissions or written arguments relating to the issues in his case, or the grounds for cancellation or why his visa should not be cancelled, or at all. That is, the applicant has not provided the Tribunal with any further information than was provided to the Department.

5. As a result, the evidence before the Tribunal on this review application comprises:

   a.the application, including the attached Notice of Cancellation and the Decision Record; and

   b.the Department’s Notice of Intention to Consider Cancellation (NOICC), dated 8 May 2017.

The NOICC

1. The Department’s NOICC issued 8 May 2017, notified the applicant it intended considering cancellation of his visa based on PRISMS evidence from which it appeared he had not been enrolled in a registered course of study since 23 May 2016, possibly breaching visa condition 8202(2)(a). The applicant was invited to provide his written response to the NOICC within five working days, addressing the identified ground(s) for cancellation, reasons why his visa should not be cancelled, the matters the delegate would take into account in considering whether to cancel his visa, being those matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, and any other matter he considered relevant.

Decision Record

1. The Decision Record set out, relevantly:

   a.the applicant was granted a Student (Temporary) (Class TU) Subclass 572 Vocational Education and Training Sector (Subclass 572) visa on 13 March 2015, with a stay period to 20 December 2017;

   b.the Department’s NOICC issued on 8 May 2017 on the basis of PRISMS evidence that the applicant was not enrolled in a registered course of study since 23 May 2016. The applicant did not respond to the NOICC;

   c.on evidence obtained from PRISMS, the applicant had not been enrolled in a registered course of study since 23 May 2016, in breach of visa condition 8202(2)(a);

   d.in his visa application, the applicant stated his intended purpose of travel to and stay in Australia was study;

   e.the failure to be enrolled since 23 May 2016 was the only identified breach of visa conditions. At cancellation, the applicant had not been enrolled in registered course of study for in excess of 12 months;

   f.as the applicant had not responded to the NOICC, the delegate was unaware of any specific hardship consequent upon cancellation;

   g.the delegate accepted the applicant may be caused some hardship should he be required to depart Australia as a result of visa cancellation but he would be eligible for a Bridging Visa E, providing time for him to finalise outstanding matters. He would, upon cancellation, become an unlawful non-citizen and be liable for detention under s189 of the Act and removal under s198 of the Act if he did not voluntarily depart Australia. Additionally, he would be subject to s.48 of the Act, meaning he would have limited options to apply for further visas in Australia, and may be required to return to his home country. He would also be subject to Public Interest Criterion 4013;

   h.the applicant’s did not provide a response to the NOICC, and the delegate was satisfied there was no reason in relation to the ground cancellation which arose providing reason not to cancel the Visa;

   i.there was no information indicating any specific matters of relevance guarding the applicant’s behavior toward Department;

   j.cancellation of the Visa would not result in any consequential cancellations of any dependent Visa holders under section 140 of the Act;

   k.there was no information indicating cancellation would result in the breach of Australia’s international obligations;

   l.the delegate was satisfied the grounds for cancelling the Visa outweighed the grounds for not cancelling the Visa.

DOES THE GROUND FOR CANCELLATION IN S.116(1)(B) OF THE ACT EXIST?

Did the applicant comply with Condition 8202?

1. The applicant had, as at the hearing date, been on notice of the ground on which his visa was cancelled for more than two and a half years and in that time, despite the Tribunal’s requests in its review application acknowledgement and hearing invitation, has not provided any documents or submissions supporting his application and has not disputed the ground for cancellation existed or provided reasons why his visa should not be cancelled.

2. The applicant failed to attend the hearing, and failed to give any evidence at hearing and present arguments or to provide details of his past studies in Australia as invited. As the Tribunal has not had the opportunity to take evidence at a hearing from the applicant about his studies in Australia or the issues in his case or in relation to the ground for cancellation or why his visa should not be cancelled, or at all, and as the applicant has failed to respond to Tribunal correspondence seeking documents or submissions supporting his application, the Tribunal is unable to be satisfied that the applicant was enrolled in any course of study since 23 May 2016.

3. Accordingly, the Tribunal is satisfied the applicant was not enrolled in a registered course of study since 23 May 2016, in breach of visa condition 8202(2)(a).

4. The Tribunal is accordingly satisfied the ground for cancellation in s.116(1)(b) exists.

5. As the 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.

SHOULD THE DISCRETION TO CANCEL THE VISA BE EXERCISED?

Consideration of the discretion to cancel the visa

1. 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.

2. 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’

3. The PAM 3 matters are addressed in the Decision Record. The applicant has not provided any material to the Tribunal or given any evidence at a hearing before the Tribunal disputing any of the information or conclusions set out in the Decision Record in respect of the PAM3 matters, or otherwise addressing the PAM3 matters or other circumstances for the Tribunal’s consideration in deciding whether to exercise its discretion to cancel the visa.

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

1. The decision record states the applicant’s initially stated intended purpose of travel to and stay to Australia was to study.  No contrary evidence is before the Tribunal. Accordingly, the evidence satisfies the Tribunal the applicant’s original intention for his travel to, and stay in, Australia was for the purpose of study.

2. On the evidence before the Tribunal, the applicant was not enrolled in any course of study since 23 May 2016.  He had not been enrolled for a period exceeding 12 months prior to cancellation, and by the hearing date, had not been enrolled for in excess of three and half years.

3. Student visas are granted for the purpose of non-citizens and non-permanent residents studying towards, and achieving, an educational qualification in Australia. That purpose cannot be achieved unless the visa holder is enrolled in a registered course of study. Taken in that context, the Tribunal finds the applicant’s failure to be enrolled in a registered course of study for a period exceeding 12 months prior to cancellation is significant, and weighs this factor in favour of cancellation.

4. The Tribunal is not satisfied the applicant’s originally intended purpose for his travel to and stay in Australia provides a compelling need to travel to and remain in Australia. Failing to be enrolled for more than 12 months pre-cancellation is inconsistent with such need. Similarly, if he genuinely had compelling need, it would be reasonable to expect the applicant to have participated meaningfully in his review application, rather than not providing any of the material requested by the Tribunal and failing to attend the hearing without explanation. The Tribunal gives this consideration weight in favour of cancelling the visa.

5. Nothing in the evidence before the Tribunal suggests the applicant has a compelling need to remain in Australia or that he had a compelling need to travel to Australia. His non-engagement in study for which purpose his visa was granted for more than three and a half years together with his failure to participate meaningfully in his review application or the hearing satisfy the Tribunal the applicant does not have a compelling need to remain in Australia.

6. The Tribunal gives this consideration weight in favour of cancelling the visa.

The extent of any non-compliance with visa conditions

1. The only instance of non-compliance identified in the decision is the applicant’s failure to remain enrolled as required to comply with visa condition 8202(2)(a). Although the evidence does not satisfy the Tribunal the applicant breached any other condition imposed on his visa, he was not enrolled for more than 12 months pre-cancellation. The non-compliance is significant.  The Tribunal weighs this factor in favour of cancelling the visa.

2. Other than his non-compliance with condition 8202, there is no evidence before the Tribunal of any non-compliance with any other conditions of his visa. The Tribunal weighs this factor in favour of not cancelling the visa.

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

1. The delegate was unaware of any specific hardship that may be caused as a result of the cancellation of the applicant’s Visa. Given the applicant's failure to attend the hearing and provide any evidence to the Tribunal in respect of any hardship consequent upon cancellation, the Tribunal is unable to be satisfied any specific hardship may be caused to the applicant or his family if his visa is cancelled, and considers this factor weighs in favour of cancellation

1. The Tribunal accepts visa cancellation ordinarily results in the visa holder becoming unlawful and liable for detention under s.189 of the Act and removal under s.198 of the Act unless the visa holder voluntarily departs Australia or holds a bridging visa. As a review applicant before the Tribunal is eligible for a Bridging E Visa which would remain in force for 35 days after the Tribunal makes its decision on the review application or the applicant departs Australia, whichever is the earlier, the Tribunal is not satisfied the applicant would immediately become unlawful or liable to detention or removal upon cancellation, or be caused any hardship as might otherwise result.

2. The Tribunal accepts the applicant would, if his visa were cancelled, be subject to s.48 of the Act, which significantly limits the classes of visa for which he may apply onshore. The Tribunal is satisfied cancellation of the applicant’s visa would prevent his re-entering Australia for up to 3 years as he may not meet the public interest criterion 4013.

3. The Tribunal considers any hardship as may be caused by these intended consequences of cancellation weighs in favour of not cancelling the visa

Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

1. Given the applicant did not attend the hearing and has not provided any evidence or information to either the Department or the Tribunal as to the circumstances surrounding his breach of condition 8202, the Tribunal is unable to be satisfied about the circumstances in which the ground for cancellation arose, and unable to be satisfied there were any circumstances beyond his control that led to the applicant breaching his visa conditions. The Tribunal weights this factor in favour of cancelling the visa.

Past and present conduct of the visa holder towards the Department

1. There is nothing in the evidence before the Tribunal to suggest that the applicant’s past or present behaviour towards the Department was adverse. The Tribunal weighs this factor against cancelling 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

1. The Tribunal is satisfied cancellation of the applicant’s visa would, in addition to preventing his re-entering Australia for up to 3 years as he may not meet the public interest criterion 4013, limit his ability to remain in Australia but would not, whilst his Bridging Visa E remains in-force, result in his immediately becoming unlawful and liable to detention under s.189 of the Migration Act or removal under s.198 of the Migration Act.

2. The Tribunal accepts the applicant would, if his visa were cancelled, be subject to s.48 of the Migration Act, which significantly limits the classes of visa for which he may apply onshore.

3. The Tribunal gives this consideration weight in favour of not cancelling the visa. 

Whether there would be consequential cancellations under s.140

1. On the evidence before the Tribunal, cancellation of the applicant’s Visa would not result in consequential cancellation of any dependent Visa holders under s.140. The Tribunal weighs this consideration neither in favour of nor against cancellation.

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

1. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm.  Australia is a signatory to a number of international instruments, which give rise to non-refoulement obligations.  Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

2. Non-refoulement obligations' is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

3. Given the applicant did not attend the hearing and has not provided any information or evidence to either the Department or the Tribunal that he may be caused any problems upon return to his home country, the Tribunal cannot be satisfied there are any matters that would attract non-refoulement obligations.

4. The Tribunal finds, in the circumstances of this case, cancellation would not lead to removal in breach of non-refoulement obligations.  As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal.

5. There is no evidence before the Tribunal that cancellation of the applicant's visa would result in Australia breaching any obligations regarding the best interests of children.

6. The Tribunal considers these factors weigh neither in favour of nor against cancellation.

If the applicant’s visa is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia;

1. The applicant’s visa is a not a permanent visa.

Any other relevant matters.

1. The evidence before the Tribunal does not disclose any other relevant matters.

Conclusion

1. In circumstances of the applicant’s failure to take any active role in the Tribunal’s review process or provide the Tribunal with any information or supporting material against the background of failing to respond to the Department’s NOICC and failure to be enrolled for more than 12 months pre-cancellation when neither the purpose for which his visa was granted or the purpose of his travel to and stay in Australia could be achieved without enrolment, the applicant has not satisfactorily demonstrated he is a genuine student who should have his visa reinstated because he is genuinely interested in completing his studies.

2. Taken together and considered as a whole, the Tribunal is satisfied the matters weighing in favour of cancellation of the visa outweigh the matters weighing against cancellation. 

3. The Tribunal concludes the visa should be cancelled.

DECISION

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

Lynda Young
Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

1. (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.