Christopher (Migration)

Christopher (Migration) [2019] AATA 6711 (25 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Nathan Christopher
CASE NUMBER:  1909697
HOME AFFAIRS REFERENCE(S):          BCC2019/186629
MEMBER:Mark Bishop
DATE:25 September 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 25 September 2019 at 9:10am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of visa not fulfilled – significant period of non-enrolment – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202
CASES
Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 11 April 2019 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).
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant requested an adjournment of the original scheduled hearing of 3 September 2019 on medical grounds. The Tribunal granted the adjournment. The applicant appeared before the Tribunal on 25 September 2019.
The applicant provided a copy of the decision record to the Tribunal. He provided a second copy of the decision record to the Tribunal immediately prior to the hearing.
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
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?
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
The delegate stated the applicant was notified of the intention to consider cancellation (NOICC) on 13 March 2019 by registered post and the notice invited the applicant to respond in writing. The applicant did not respond. The applicant did not state whether he agreed or disagreed that there were grounds for cancellation. In a submission to the Tribunal the applicant advised his sister responded to the NOICC from the applicant’s email address. She was not the authorised recipient to respond on his behalf. After completion of courses in English he lost interest in IT. He thought he could stay in Australia until the end of his visa. He worked as a caravan builder from August 2017. He enrolled in a Certificate III in Carpentry in March 2019. He provided a copy of a reference and pay slips. He currently resides in Australia as the holder of a Bridging visa. He provided a copy of His Bridging visa E to the Tribunal. It has condition 8207 (No Study) attached. He provided a copy of the cancellation decision to the Tribunal.
Does the ground for cancellation exist?
On 19 December 2016 the applicant was granted a Student (subclass 500) Vocational Educational and Training Sector visa. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA [2003] FCA 1170.
Adverse Information
Adopting the procedure in section 359AA of the Act, the Tribunal provided adverse information in the form of relevant source documentation to the applicant in writing. The Tribunal explained the adverse information was derived from the PRISMS record of the applicant. The Tribunal explained the meaning of PRISMS record. The Tribunal provided a copy of the PRISMS record dated 5 March 2019 to the applicant.
The Tribunal outlined particulars of the information, explained its relevance, advised the information would be a reason, or part of a reason for the Presiding Member to affirm the decision of the Department in this case and refuse the application for a visa.
The adverse information was as follows:
1.The applicant has not been enrolled in a registered course of study from 16 April 2018. All enrolments in courses of study (excluding Certificates in English) up to and including enrolment in a Diploma of Information Technology (COE number 85302214) on 16 April 2018 were cancelled by the education provider.
The Tribunal asked the applicant if he sought additional time to consider the information provided to him in writing and outlined in paragraph 13 above. The applicant advised he did not seek additional time.
The Tribunal asked the applicant to comment on the material summarised in paragraph 13 above. The applicant advised he enrolled in IT courses at the request of his parents. In Australia he lost interest and discontinued his studies. He decided to remain in Australia and worked part time jobs in carpentry and caravans.
Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study from 16 April 2018 to 18 February 2019. All enrolments in courses of study (excluding enrolments in English at Certificate level) up to and including enrolment in a Diploma of Information Technology (COE number 85302214) on 16 April 2018 were cancelled by the education provider.
Having regard to the information in the PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 16 April 2018. The Tribunal finds that he breached condition 8202(2)(a) of his visa.
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).
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that 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
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’
Consideration of discretion
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 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 applicant was granted a Student (subclass 500) Vocational Education & Training Sector visa on 19 December 2016 on the basis he was enrolled in full-time CRICOS registered courses of study.
He ceased his studies in the Certificate IV in Information Technology course on 16 April 2018. He did not re-commence his studies in a CRICOS registered course until 11 March 2019 when he commenced his studies in the Certificate III in Carpentry course. The applicant advised he wished to resume his studies and remain in Australia until August 2022 at least and then return home to Fiji.
In evidence the applicant advised the Tribunal he is currently studying in a registered course and provided appropriate supporting documentation. The Tribunal give this minimal consideration due to the applicant’s past non-compliance in relation to studying in Australia. The applicant remained onshore for an extended period of time, for purposes other than to undertake study and achieve an educational qualification. This is not consistent with the Student visa program.
The Tribunal gives this consideration minimal weight in the visa holder’s favour.
The extent of compliance with visa conditions
The applicant did not provide a submission to the Tribunal.
The applicant did not comply with condition 8202 when he failed to maintain enrolment in a full-time registered course of study. In evidence the applicant advised the Tribunal he did not contact the Department with a view to rectifying his status of non-enrolment. He did not advise of seeking to enrol in an alternate course prior to March 2019.
At time of visa grant, the Department made the applicant aware of the fact that he is required to be enrolled in a registered course of study for the duration of his student visa. The Tribunal considers it was the applicant’s responsibility to be aware that any non-compliance with those conditions would adversely affect his eligibility to hold the Student visa.
Whilst the Tribunal acknowledges the visa holder is currently enrolled in a registered course of study, the Tribunal is satisfied the ground for cancellation under section 116(1)(b) still exists because:
·s116(1)(b) states the Minister has the power to cancel a visa if satisfied that its holder has not complied with a condition of the visa. This means the visa holder is subject to a discretionary cancellation (not mandatory cancellation) in which their circumstances are taken into assessing non-compliance with a visa condition;
·This refers to previous non-compliance on the current visa. If a student visa holder was not enrolled in a registered course of study for any period of time while on their current Student visa, they have not complied with condition 8202(2)(a);
·According to PRISMS as stated by the delegate and confirmed by the applicant in evidence before the Tribunal, on 19 February 2019, the visa holder obtained enrolment in a Certificate III in Carpentry and Diploma of Building Construction (Building) a registered course to study at Orange International College during the period 11 March 2019 and 18 April 2021;
·While the applicant held his Student visa, he was not enrolled in a registered course between the dates 16 April 2018 and 19 February 2019;
·Therefore, between these dates he was not complying with condition 8202(2)(a).
The applicant was not enrolled in a registered course of study for approximately 10 months. The Tribunal considers this a significant period of time to either take action to remedy the situation or make alternative plans to depart Australia.
The Tribunal gives this consideration a little weight in the visa holder’s favour.
There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal finds the length of the breach significant in terms of the usual time period of study. As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant did not respond to the NOICC and provide any information relevant to this discretionary consideration. His reasons for not responding are outlined above in paragraph 9.
The Tribunal asked the applicant to address the degree of hardship that may be caused if his visa was cancelled. The applicant advised he might suffer financial hardship if he returned to his home country as living in Fiji was expensive.
In a written submission to the Tribunal the applicant provided an explanation of his non-response to the NOICC. See paragraph 9 above.
The applicant advised he would undergo financial hardship as living in Fiji was expensive. He would live with his parents. His father is a carpenter. The Tribunal acknowledges the cancellation of the Student visa, and subsequently departing Australia, may result in the visa holder experiencing hardship (financial, psychological, emotional or other hardship) if he was required to depart Australia and return to his country of origin. The applicant did not make the Tribunal aware of the possible impact on his family members, however the Tribunal accepts there may be some hardship for family members should the visa be cancelled.
The applicant advised the Tribunal he was currently enrolled in a Certificate III in Carpentry. This enrolment commenced 11 March 2019 and this course was scheduled to conclude on 8 March 2020. He advised he was enrolled in a further course in Building and Construction scheduled to conclude August 2022.
In response to the applicant’s current enrolment in a registered course, the visa holder may not be able to continue his studies in Australia for a period of three years. The Tribunal does not regard this as significant hardship due to the extent of the non-compliance and the fact the applicant had remained in Australia on the student visa for over 11 months without studying, which is a significant period of time.
The Tribunal gives this consideration a little weight in the visa holder’s favour.
Circumstances in which ground of cancellation arose
The delegate outlined the circumstances in which the ground for cancellation arose as follows:
·The applicant failed to maintain enrolment in a full-time registered course of study which led to his non-compliance with visa condition 8202;
·The applicant did not respond to the NOICC to provide any information relevant to this consideration;
·According to PRISMS on 16 April 2018 the education provider reported the cancellation of the applicant’s enrolment in a Certificate of Information Technology registered course and he was not enrolled in a registered course of study until 19 February 2019 when he enrolled in a Certificate III in Carpentry and Diploma of Building and Construction (Building) courses.
The grounds are summarised at paragraph 9 above.
There is no information in PRISMS to indicate the applicant sought with the relevant education provider to defer a course during the period of non-enrolment for compassionate and compelling circumstances reasons. The applicant has not outlined any extenuating circumstances beyond his control for his failure to remain enrolled in a registered course for the duration of his Student visa. In response to questions of the Tribunal the applicant advised he did not attempt to contact the Department
The Tribunal gives this consideration a little weight in the visa holder’s favour.
Past and present behaviour of the visa holder towards the department
There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach
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
The applicant will immediately become an unlawful non-citizen. The Tribunal has considered visa cancellation may result in the applicant being detained under section 189 and removed from Australia under section 198 of the Migration Act 1958 if he does not resolve his immigration status or voluntarily depart Australia.
The Tribunal has considered whether as a consequence of a cancellation decision, the applicant may be subject to indefinite detention. As he is a citizen of Fiji and holds a passport for that country, it would be open to him to return to that country to mitigate the possibility of being placed in immigration detention. The Tribunal therefore does not consider he would potentially face indefinite detention.
The Tribunal has also considered he may be subject to section 48 of the Migration Act 1958 that may restrict him from applying for further visas while in Australia.
The applicant may not be permitted to work in Australia following a visa cancellation and may be held in immigration detention until his removal from Australia. Immigration detention could be mitigated by voluntarily departing Australia.
Cancellation under this ground means he may be unable to meet Public Interest Criterion 4013 in relation to being granted certain temporary visas he may lodge for a period of three years from the date of the cancellation.
These are serious consequences that directly relate from the failure of the applicant to maintain enrolment in a registered course for a significant period of time. The Tribunal gives this consideration a little weight in the applicant’s favour.
Whether there would be consequential cancellations under s.140
There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.
Whether any international obligations would be breached as a result of the cancellation
There is nothing before the Tribunal to indicate there are international obligations to consider.
Any other relevant matters
The migration agent for the applicant advised the applicant had not been aware of consequences of non-enrolment and non-adherence to visa conditions. He has an interest in carpentry.
There are no other relevant matters to consider.
The Tribunal has considered all factors both individually and cumulatively in the context of the breach. The Tribunal finds that the applicant was not enrolled in a course of study that is the principal source of a type specified for the Subclass TU-500 visa and that a breach of almost 12 months is significant in the context of a student’s study period.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 Higher Education Sector visa.
Mark Bishop
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.

[2019] AATA 6711

25 September 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice