Chan (Migration)

[2019] AATA 6576

Chan (Migration) [2019] AATA 6576 (2 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kah Weng Chan

CASE NUMBER:  1812912

HOME AFFAIRS REFERENCE(S):          BCC2018/168067

MEMBER:Joseph Lindsay

DATE:2 December 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 02 December 2019 at 1:47pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered course ceased – family health issues – further enrolments after visa cancellation – decision under review affirmed

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 April 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 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 applicant was invited to attend the Tribunal on 2 December 2019 at 12:30pm but he failed to attend the hearing.

4. If the applicant had attended the Tribunal, the Tribunal would have had an opportunity to seek further information from him but despite receiving email notification of the hearing from the Tribunal he failed to attend the hearing or provide any communication to the Tribunal whatsoever.

5. Accordingly the Tribunal has decided to make a decision on the available evidence.

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. If the applicant had attended the hearing the Tribunal would have asked the applicant whether he agreed, as he appeared to in his response to the Notice of Intent to Consider Cancellation (NOICC) dated 24 March 2018, and subject to any process in accordance with s 359AA of the Act, that he had not been enrolled in a registered course of study since 11 July 2017.

11. On the evidence before the Tribunal, the Tribunal finds that the applicant has not been enrolled in a registered course of study since 11 July 2017. Accordingly, the applicant was not enrolled in a registered course and the applicant has not complied with condition 8202(2)(a). The Tribunal finds that the ground for cancellation of the applicant’s student visa is established in respect to s.116(1)(b) of the Act.

    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 circumstances in which the ground for cancellation arose

13. In his response to the NOICC, the applicant indicated that the circumstances in which the ground for cancellation arose were that his grandmother in Malaysia became ill and that he had severe depression.

14. If the applicant had attended the hearing the Tribunal would have asked the applicant about his claim that his grandmother experienced ill health, and that he himself had experienced depression.

15. These are all key unanswered questions that lead the Tribunal not to be satisfied that any of these events occurred as claimed.

16. The Tribunal has serious concerns with the applicant’s claims in terms of their generality and lack of specificity. 

17. Had he attended a hearing, given the broad nature of his claims, the Tribunal would have sought further information from him on a range of details relevant to his claims.  The Tribunal finds that the details provided about the claimed events which are alleged to have occurred, are sketchy and do not provide the kind of detail that would lead the Tribunal to be satisfied that any of these events have actually occurred.  The Tribunal has many questions it would have asked the applicant at a hearing about the sweeping claims he has made.

18. In his response to the NOICC, the applicant provided no documentary evidence in support of his claims that his grandmother in Malaysia became ill and that he had severe depression.

19. Accordingly, the Tribunal does not accept the applicant’s claims that his grandmother in Malaysia became ill and that he had severe depression.

20. The Tribunal notes the applicant’s claims that he had re-enrolled in other courses, and he provided copies of Confirmation of Enrolments dated 22 March 2018 in a Diploma of Website Development and a Certificate IV in Information Technology. However, the Tribunal gives no weight to this information in the applicant’s favour because he obtained these enrolments after he received the NOICC on 14 March 2018 – information that the Tribunal would have put to the applicant in accordance with s359AA of the Act had he attended the hearing.

21. In consideration of the above circumstances, the Tribunal finds that these circumstances are not exceptional circumstances and they are not at all beyond the applicant’s control. Accordingly, the Tribunal gives no weight to this information in the applicant’s favour.

    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

22. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

23. The Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

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

24. In his response to the NOICC, the applicant did not specifically address the issue of any hardship he may face if his student visa was cancelled. Had the applicant attended the hearing, the Tribunal could have discussed this issue with him.

25. In his response to the NOICC, the applicant indicated that he wanted to obtain a “special professional skill” so he can receive a “better job offer” when he returns to Malaysia. He indicated that he wanted to work as an IT specialist in an IT company in Malaysia.

26. The Tribunal accepts that the applicant would face some personal disappointment if his visa was cancelled and gives this some weight.

    Past and present behaviour of the applicant towards the Department

27. There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

28. The applicant does not have any dependents on his student visa who would be affected if his student visa was cancelled.

29. Accordingly, the Tribunal places no weight on this information in the applicant’s favour.

    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

30. Had he attended the hearing, the Tribunal would have been able to discuss with the applicant the legal consequences of the cancellation of his student visa.

31. The Tribunal accepts that the applicant is reasonably aware of the three-year exclusion period as a consequence of his student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

32. The Tribunal accepts that the applicant is reasonably aware that he will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chooses not to return to Malaysia.

33. The Tribunal places low weight on this information in the applicant’s favour.

    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

34. Based on the information in the NOICC, the Tribunal does not accept that there is any indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places low weight on this information in the applicant’s favour.

    Any other relevant matters

35. There are no other relevant matters for the Tribunal to consider.

    Conclusion

36. The Tribunal finds that the applicant has not been enrolled in a registered course of study since 11 July 2017. Accordingly, the applicant has not complied with condition 8202(2)(a).

37. The Tribunal finds that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are not exceptional circumstances.

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

    DECISION

39. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Joseph Lindsay

    
    

    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.