Cheak (Migration)

[2019] AATA 2888

Cheak (Migration) [2019] AATA 2888 (3 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yong Feng Cheak

CASE NUMBER:  1817518

HOME AFFAIRS REFERENCE(S):           BCC2018/192759

MEMBER:Vanessa Plain

DATE:3 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 03 June 2019 at 11:13am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – failure to attend scheduled hearing – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – significant breach – length of non-enrolment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B, 379A
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 29 May 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 delegate cancelled the visa on the basis that the applicant did not comply with a condition of the visa, namely, that the applicant was not enrolled in a full time registered course of study for the period 4 August 2017 to 9 February 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. On 17 May 2019 the Tribunal wrote to the applicant and invited the applicant to give evidence and present arguments at a hearing on 3 June 2019. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.

4. By notification in writing dated 22 May 2019 signed by the applicant, the applicant indicated that he would take part in the hearing on 3 June 2019.  The applicant did not appear before the Tribunal on the day and at the scheduled time and place.  The hearing was scheduled to commence at 10:00am.  At 10:20am the applicant had still not appeared before the Tribunal. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5) and the invitation has not been returned to sender.  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.

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 of study for the period 4 August 2017 to 9 February 2018.

9. The background to the applicant’s case can be summarised from information held on the Department’s file and the delegate’s decision record. The applicant is a 22-year-old citizen of Malaysia who was granted a Student visa on 5 May 2017.

10. On 14 March 2018 the Department notified the applicant of its intention to consider cancellation of his visa. The notice of the intention to consider cancellation (NOICC) was sent by email to the applicant’s notified email address and by registered post. The NOICC advised the applicant that the delegate had received information which appeared to be grounds for cancellation of his visa. The NOICC detailed the particulars for the grounds of cancellation to be that the applicant had not complied with condition 8202 which was imposed on his visa.

11. The NOICC explained that based on evidence available to the delegate, from Provider Registration and International Student Management System data, it appeared the applicant had not been enrolled in a registered course of study between 4 August 2017 and 8 February 2018 and so did not meet the requirement of condition 8202(2)(a). The applicant was invited to respond and to address why he thought the grounds for cancellation do not exist and why he thinks his visa should not be cancelled. The NOICC included an explanation of the process for making the decision to cancel his visa, the timeframe within which he was required to respond and the consequences of a visa cancellation.

12. The applicant responded to the NOICC by email on 21 March 2018. The response states that the applicant did not know he was not enrolled with South Pacific Institute (SPI) since 4 August 2017 until receipt of the NOICC.  The applicant states further that he was informed that SPI’s registration had been cancelled at January 2018, he had paid tuition fees on 4 August 2019 and kept paying tuition fees and attending classes.  He says the last email he received from SPI was on 14 August 2017 and he attended the school the next day, where the trainer asked him to remain in the same class and send out assignments as usual.  The applicant says further that he kept paying fees until he completed the Certificate IV in Business and was unaware his enrolment was cancelled by SPI.  He says further that he was not enrolled due to the improper management of the education provider SPI and on that basis, these are the reasons why his student visa ought not be cancelled. 

13. After considering the applicant’s response and all of the applicant’s circumstances the delegate emailed the applicant a Notice of Cancellation of Student visa and its Decision Record on 29 May 2019. The Decision Record stated the reason for the cancellation to be that the applicant had not been enrolled in a registered course for the period 4 August 2017 to 9 February 2018. 

14. The applicant attached a copy of the delegate’s decision with his application for review.

15. As the applicant did not attend the hearing the Tribunal has access only to the information and evidence contained on the Departmental and Tribunal files.

16. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course and so did not satisfy condition 8208(2).

17. The Department sent the applicant a NOICC dated 14 March 2018 stating that evidence before the Department indicated that he was not enrolled in a registered course for the period 4 August 2017 to 9 February 2018.

18. The Tribunal has had regard to the information in the delegate’s decision, namely, the applicant’s Provider Registration and International Student Management System (PRISMS) record, which confirms that the applicant was not enrolled in a course of study in a registered course for the period 4 August 2017 to 9 February 2018.  

19. The Tribunal has reviewed the evidence available to it including the documents provided by the applicant with his application for review.  The Tribunal has had particular regard to the statements made by the applicant in response to the NOICC.  In the absence of any supporting evidence or documentation such as payment receipts and/or submitted assignments, the Tribunal is unable to accept the applicant’s assertions as plausible, namely, that he was attending classes and paying tuition fees in circumstances where his enrolment was cancelled.

20. On the evidence before it the Tribunal finds the applicant was not enrolled in a registered course for the period 4 August 2017 to 9 February 2018 and has not complied with condition 8202(2). 

21. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. 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.

    Consideration of the discretion to cancel the visa

22. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

23. 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’

24. The Tribunal notes the purpose of a Student visa is to allow for travel to and stay in Australia, in order to study. The applicant has not been enrolled in a registered course of study for the period 4 August 2017 to 9 February 2018.This is an indication the applicant was not pursuing the purpose for his travel to Australia as he was not actively engaged in studies between those dates.  At the time of the delegate’s decision this period of non-enrolment exceeded 6 months. The Tribunal considers the breach to be significant, given the length of time in which the applicant failed to maintain enrolment.  The Tribunal also considers this to be a serious breach given the significance of enrolment in a registered course, for the visa granted.

25. Further, based on the information before it, the Tribunal is not satisfied the breach occurred in circumstances beyond the applicant’s control.  Again, based on the information before it, neither does the Tribunal consider there are extenuating or compassionate circumstances in this case.

26. The Tribunal notes that there is no information before it to suggest that the applicant would face any particular hardship (such as financial, psychological, emotional or other hardship) as a consequence of the visa being cancelled.  Accordingly, the Tribunal accords no weight to this factor in favour of the applicant. 

27. The applicant has provided no further information about the circumstances of his non-compliance with his visa conditions, other than his initial response to the NOICC as set out above.  The applicant did not appear at the Tribunal hearing on 3 June 2019 and provide further evidence, despite being invited to do so.  The Tribunal accords some weight to the fact that the applicant did not appear at the hearing on 3 June 2019 in favour of affirming the delegate’s decision. 

28. There is no evidence before the Tribunal that the applicant has family members attached to his visa who might be affected by a decision to cancel the visa.  Therefore, the Tribunal accords no weight to this factor in favour of the applicant.

29. There is no evidence before the Tribunal regarding international obligations that the Tribunal would need to consider should the visa be cancelled or whether there would be a breach of Australia’s non-refoulement obligations.  Therefore, the Tribunal accords no weight to this factor in favour of the applicant.

30. The Tribunal notes that the decision to cancel a visa pursuant to s.116 of the Act is discretionary.  On the basis of the foregoing analysis and findings, the Tribunal finds that the considerations in favour of cancelling the visa are not outweighed by the considerations in favour of allowing the visa to stand.

31. Considering the circumstances as a whole, the Tribunal is satisfied the visa should be cancelled.

    DECISION

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

    Vanessa Plain
    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.