Chaudhary (Migration)

[2021] AATA 2222

Chaudhary (Migration) [2021] AATA 2222 (12 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Raj Kumar Chaudhary
Mrs Sushila Kumari Mahato

CASE NUMBER:  1929021

HOME AFFAIRS REFERENCE(S):          CLF2013/111518

MEMBER:Joseph Lindsay

DATE:12 May 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the first named applicant's (Mr Raj Kumar Chaudhary) Class TU visa. The Tribunal has no jurisdiction in respect of the other applicant (Mrs Sushila Kumari Mahato).

Statement made on 12 May 2021 at 2:39pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Federal Circuit Court remittal – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – non-participation in Tribunal’s hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348

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 6 November 2013 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s Subclass 572 Vocational Education and Training Sector 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. As indicated in the first paragraph, the delegate’s decision to cancel the applicant’s student visa was made on 6 November 2013 – now well over seven years ago. The Tribunal notes that on 7 November 2013, the applicant made application for review of the delegate’s decision to the then Migration Review Tribunal as it existed at that time. On 15 March 2015, the Tribunal made a decision to affirm the delegate’s decision to cancel the student visa for Mr Raj Kumar Chaudhary. As well, the Tribunal decided that it had no jurisdiction in respect to the decision to cancel the student visa for Mrs Sushila Kumari Mahato, who was then listed as a dependent on the applicant’s student visa. A corrigendum amending the Tribunal’s decision was produced on 23 April 2015. By a decision of the Federal Circuit Court on 23 September 2019, the matter was directed back to the Tribunal to be re-heard.

4. On 5 October 2020, the Tribunal invited the applicant and his appointed representative to attend a hearing before the Tribunal on 21 October 2020. However, on 19 October 2020, the applicant’s representative wrote to the Tribunal advising that the applicant would not be attending the hearing and he had no further documents to provide to the Tribunal. The applicant’s representative requested that the Tribunal proceed to make a decision based on the information at hand.

5. 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

6. 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?

7. 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).

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

9. The Tribunal is aware that the applicant departed Australia on 1 November 2019 and accepts that the applicant departed Australia on 1 November 2019.

10. Based on the evidence available to the Tribunal, it is clear that the applicant is not enrolled in a registered course in Australia and has departed Australia some time ago.

11. On the evidence before the Tribunal, the applicant is not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2) 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 Procedural Instruction ‘General visa cancellation powers’.

    The circumstances in which the ground for cancellation arose

13. If the applicant had participated in the hearing, the Tribunal would have had the opportunity to ask the applicant about relevant factors, including matters raised by the applicant and the departmental guidelines which cover matters such as:

    ·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;

    ·the extent of compliance with visa conditions;

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

    ·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;

    ·past and present behaviour of the visa holder towards the department;

    ·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;

    ·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; and

    ·any other relevant matters.

14. Regretfully, because the applicant did not participate in the hearing, the Tribunal was not able to reasonably ascertain this information. Given that the only information available to the Tribunal is now some eight years old and no longer accurate, the Tribunal gives these factors as stated above no weight.  

15. In regard to whether there would be consequential cancellations under s.140, it appears that the applicant did have a dependent on the visa, Mrs Sushila Kumari Mahato. In this regard, the Tribunal accepts that should the applicant’s visa be cancelled then Mrs Mahato’s visa would also be cancelled and the Tribunal gives this factor some weight.  In any event, for the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is that in respect of the first named applicant (Mr Raj Kumar Chaudhary). The other visa in respect to Mrs Sushila Kumari Mahato 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 Mrs Sushila Kumari Mahato.

    Conclusion

16. In balancing the overall circumstances above, the Tribunal concludes that the visa should be cancelled.

    DECISION

17. The Tribunal affirms the decision to cancel the first named applicant's (Mr Raj Kumar Chaudhary) Class TU visa. The Tribunal has no jurisdiction in respect of the other applicant (Mrs Sushila Kumari Mahato).

    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.