Chaudhry (Migration)

[2018] AATA 5263

Chaudhry (Migration) [2018] AATA 5263 (17 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rehan Mehmood Chaudhry

CASE NUMBER:  1720348

HOME AFFAIRS REFERENCE(S):           BCC2017/2390364

MEMBER:Michelle East

DATE:17 October 2018

PLACE OF DECISION:  Perth

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

Statement made on 17 October 2018 at 3:45pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – 572 Vocational Education and Training Sector visa  – breached condition 8202 – not enrolled in a registered course of study – failed to attend tribunal hearing –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 140, 189, 198, 362B, 379A
Migration Regulations 1994, Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 August 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 delegate cancelled the visa on the basis that there was a ground for cancellation for breach of condition 8202 of the Act, namely that the applicant had not been enrolled in a registered course of study since 8 December 2016. 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. A copy of the delegate’s decision was attached to the application for review.

4. On 20 September 2018 the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 17 October 2018. The invitation stated that if he did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.

5. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance s.379A(5) and the invitation has not been returned to sender. The Tribunal officer also attempted to contact the review applicant by telephone at the time of the hearing, however the calls went unanswered. 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.

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. As outlined in the delegate’s decision, information relied on from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since 8 December 2016.

11. 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).

    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’

13. On 21 August 2017 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because he was not enrolled in a registered course and therefore failed to comply with condition 8202(2) of his visa.

14. The applicant responded on 28 August 2017 stating that he went to Pakistan on 23 November 2016 for a family emergency.  He said he hadn’t been contacted by the ‘college that issued me the COE regarding any objection, payments or information regarding maintaining enrolment or cancellation of my COE’.

15. He went on to say there were only 3 months left until the expiry of his visa, the course completion deadline had passed and he didn’t want cancellation as it would affect his future applications and ‘cause immense stress on me and my family as there are some health issues are going on as well’.

16. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of any breach and any reasons for the breach.

    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

17. The purpose of the student visa is to enable the visa holder to undertake study in Australia.  As outlined in the delegate’s decision, the applicant has not been enrolled in a registered course of study since 8 December 2016.

18. The Tribunal finds the applicant’s breach of condition 8202 of his visa to be significant because he was not engaging in study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.

19. As the Tribunal was unable to speak with the applicant, the Tribunal finds there are no compelling reasons for the applicant to remain in or return to Australia.

20. The applicant’s non-engagement in study for which his visa was granted, and the absence of compelling reasons for him to return to or remain in Australia weighs in favour of visa cancellation.

    The extent of compliance with visa conditions

21. The applicant was granted the visa to undertake specified studies in Australia and has not done so since 8 December 2016.  As such, he has not complied with the primary condition of the visa granted to him.

22. The Tribunal considers the condition of his visa to be important because one of the primary reasons for holding a student visa is to be enrolled and to study and he has not done so for a significant period of time.

23. The Tribunal finds that this weighs heavily in favour of cancellation the visa.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the visa holder and any family members

24. As the Tribunal was unable to speak with the applicant it couldn’t question him as to any possible hardship he may suffer.

25. In his response to the NOICC he said cancellation would affect his future prospects and would cause stress to he and his family in the context of existing health issues.

26. The Tribunal notes this response by the applicant and finds this provides some weight in the applicant’s favour.

    Circumstances in which the ground of cancellation arose.  Were the circumstances beyond the visa holder’s control

27. The applicant in his response to the NOICC said it was the first indication he had that there were issues with his enrolment.  As outlined in the delegate’s decision he completed a Certificate IV in Frontline Management with Silver Trowel Trade Training on 17 June 2016 and was due to commence a Certificate IV in Leadership and Management with Evolution Academy Pty Ltd on 26 October 2016 but did not commence that course.  In the response he said the deadline for course completion had already passed.  No real explanation for his non-compliance is provided other than the visit to Pakistan between 23 November and 30 December 2016 for a ‘family emergency’.  No explanation was given as to the nature of the family emergency.  As the applicant did not attend the hearing the Tribunal was unable to ask him any details concerning this event.

28. The Tribunal is not convinced that the reasons for the applicant breaching the condition of his visa were reasons beyond his control.  This weighs in favour of cancellation.

    Past and present conduct of the visa holder towards the Department

29. The Tribunal was unable to question the applicant however it has no evidence to suggest the applicant has breached other conditions of his visa.

30. The Tribunal considers this factor neutral in deciding whether to cancel the applicant’s 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.

31. The delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, s.48 of the Act means that he will have limited options to apply for further visas in Australia. The Tribunal acknowledges the difficulty this would cause the applicant however finds in itself to not be sufficient to weigh in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

32. There is no evidence before the Tribunal that there would be consequential cancellations in this case.

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

33. No evidence has been provided and the Tribunal has no reason to suspect any international obligations would be breached as a result of the cancellation.

34. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant breached condition 8202 of his visa.  The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant is not fulfilling the purpose of his travel to and stay in Australia.  The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa.  It will not be in breach of Australia’s international obligations.  The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse proven about the applicant’s past and present conduct towards the Department.

35. The Tribunal recognises that the cancellation of the visa is a significant matter.  However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

36. The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

    Michelle East
    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.