Domingues Madureira (Migration)

[2019] AATA 3990

Domingues Madureira (Migration) [2019] AATA 3990 (18 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jeferson Domingues Madureira

CASE NUMBER:  1824126

HOME AFFAIRS REFERENCE(S):           BCC2018/2324516

MEMBER:Dr Colin Huntly

DATE:18 June 2019

PLACE OF DECISION:  Perth

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

Statement made on 18 June 2019 at 1:57pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – not enrolled in course – claims of hardship – mental health – marital change – engaged in work – significant non-compliance ­– decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)
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 15 August 2018 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass TU-500 Student (Temporary) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant was not represented in relation to the review by a registered migration agent.

3. The applicant was granted a subclass Subclass TU-500 Student (Temporary) visa on 8 February 2017.  This was his second successive TU 500 visa and he had previously held two visitors visas.  The applicant had lived between Brazil and Australia from the date of his first arrival in Australia on 28 January 2014.  Movement records for the applicant suggest that he departed Australia on 24 February 2019.

4. The delegate cancelled the visa on the basis that the applicant had not been enrolled in a course of study in a registered course from 2 November 2017, thereby breaching condition 8202(2) of the grant of the visa.

5. At the time of his application for review, the applicant provided the Tribunal with a copy of the delegate’s decision record, dated 15 August 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.

6. By letter dated 30 May 2019, the Tribunal invited the applicant, pursuant to s.359 of the Act, to provide written information about his enrolment status in a course of study in a registered course between 2 November 2017 and 1 August 2018.  The invitation was sent to the applicant at the last address provided in connection with the review and advised that:

   If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information.  You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

7. The information was required to be provided before 13 June 2019.

8. As at the date of this decision, the Tribunal has received no submission from the applicant in response to its invitation dated 30 May 2019.  The Tribunal notes, however, that the applicant did provide a written response to the Notice of Intention to Consider Cancellation (NOICC) of the visa served on the applicant by the Department in accordance with s.107 of the Act on 1 August 2018.

9. In these circumstances, s.359C of the Act applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear.[1]  Accordingly, the Tribunal has proceeded to determine the application on the basis of the available information.

   [1] Hasran v MIAC [2010] FCAFC 40.

10. 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

11. 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. If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

    Does the ground for cancellation exist?

    Did the applicant comply with condition 8202?

12. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires as follows:

    (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.

13. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a course of study in a registered course between 2 November 2017 and 1 August 2018. 

14. 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 after Term 3 2017 on the basis of non-attendance. 

15. The applicant has provided no information to suggest that, at the relevant time, he was enrolled in a course of study in a registered course.  The Tribunal notes, however, that the applicant’s written response to the NOICC served on him by the Department confirms that he did not attend his registered course of study, or any other registered course of study throughout the relevant period.  As the applicant wrote at that time:

    I am completely aware that I have breached my student visa condition and I am really sorry for that.

16. On the basis of the foregoing information, the Tribunal finds, therefore, that the applicant was not enrolled in a registered course of study between 2 November 2017 and 1 August 2018.  Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

17. 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 Procedural Instruction ‘General visa cancellation powers’.

    Purpose of the visa holder’s travel and stay in Australia

18. The applicant’s visa history demonstrates that, following lawful periods in Australia as a visitor, the applicant obtained, and complied with, a prior TU-500 Student visa.  The applicant also appears to have commenced studies following the grant of his current Subclass TU-500 Student (Temporary) visa.  Accordingly, the Tribunal is satisfied that, at the time the visa was granted, the applicant was in Australia for the purposes of study. 

19. In terms of the applicant’s stated intentions in the 3 August 2018 written response to the NOICC served on him by the Department, these were:

    My high priority now is to regain my life back and that includes continuing the purpose that brought me here in the first place, my studies.  I know I can do this, down there in my heart I know I will be committed to continue what I have started.  I am happy to enrolled myself in a registered course again and therefore finish what I have started in the past.

20. However, it is equally clear from the applicant’s written response to the NOICC served on him by the Department that, at some point, he abandoned his studies in 2017 and in his words; “I got a new job which helped immensely to be back on track.”

21. Accordingly, the Tribunal finds that it should place a neutral weighting on these considerations in determining if the discretion not to cancel the visa should be exercised.

    Circumstances under which the non-compliance arose

22. The Tribunal notes that the applicant did raise some matters relating to hardship that might be the reason why the breach of the applicant’s visa conditions referred to above occurred.  In particular, the Tribunal notes that the applicant provided information to the delegate by way of an email dated 3 August 2018 in response to the NOICC of the visa.  These relate to the breakdown of his marriage in 2017 and his subsequent mental health challenges.  He felt unable to return to Brazil due to familial pressure in that country.  Such considerations are understandable in the circumstances.

23. The Tribunal notes that the thrust of the above considerations was referred to in the delegate’s record of decision, which was provided to the Tribunal by the applicant together with his application for review.  The Tribunal further notes that this information was taken into account by the delegate when considering whether or not to exercise the discretion not to cancel the visa.

24. The Tribunal further notes that there has been a material change in the applicant’s circumstances since the making of the original decision under review.  That is to say that the applicant has, in fact, returned to Brazil and currently has no return rights under his current bridging visa.  Accordingly, it appears that the applicant’s previously expressed determination to resume his studies cannot be assumed, and his familial relationships cannot be assumed to be under continuing adverse pressure in the nature described in his response to the Departmental NOICC.

25. The Tribunal notes that the applicant’s period of non-compliance with his visa conditions was substantial and the breach is, therefore, significant.

26. The Tribunal has received no submissions from the applicant to support his evidence relating to mental health challenges impairing his ability to complete his registered course of study.  The Tribunal notes, however, that these challenges did not preclude the applicant from commencing new employment.  Accordingly, the Tribunal places minimal weight on this aspect of the applicant’s written statement requesting that the discretion not to cancel the visa should be exercised in the applicant’s favour.

    Conduct towards the Department

27. The Tribunal notes that the applicant acknowledges his non-compliance with visa conditions relating to maintaining his enrolment in a registered course.  However, there is also a statement in the applicant’s response to the Departmental NOICC about “a new job which helped immensely to be back on track”.  None of these matters was raised voluntarily by the applicant during the time at which he was non-compliant with his visa conditions.  On the other hand, the Tribunal notes that the applicant does appear to have been generally compliant with his visa conditions under prior visas granted to him.

28. Accordingly, the Tribunal finds that it should place a neutral weighting on these considerations in determining if the discretion not to cancel the visa should be exercised.

    Other considerations

29. As the applicant has not provided any additional information to either the Department or the Tribunal, there is no additional information before the Tribunal 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.  Indeed, the Tribunal notes that the applicant has subsequently returned to Brazil and currently has no return rights.

30. Accordingly, the Tribunal finds that the applicant would not face any particular hardship as a consequence of the visa being cancelled.

31. As the applicant has already departed Australia, cancellation of the visa would not result in his removal from this country.  It is accepted that cancellation of his visa would result in a bar from applying for further visas in this country for a prescribed period of time.  However, given the circumstances of his failure to comply with his visa conditions and his general compliance with earlier visa conditions, there is no reason to believe that he would be unable to obtain further visas in the future.

32. The applicant currently has no family members in Australia attached to his visa who might be affected by a decision about whether to cancel the visa.

33. The applicant has provided no information regarding international obligations the Tribunal would need to consider if the visa is cancelled or whether there would be a breach of Australia’s non-refoulement obligations.

34. The Tribunal has weighed these other considerations individually and then cumulatively and finds that it should place a neutral weighting on these other considerations in determining if the discretion not to cancel the visa should be exercised.

    Summary

35. 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.

    DECISION

36. The Tribunal affirms the decision to cancel the applicant’s Subclass TU-500 Student (Temporary) visa.

    Dr Colin Huntly
    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.