DUDA (Migration)

[2019] AATA 5475

DUDA (Migration) [2019] AATA 5475 (27 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Akhil DUDA

CASE NUMBER:  1807129

HOME AFFAIRS REFERENCE(S):          BCC2018/8335

MEMBER:L. Symons

DATE:27 November 2019

PLACE OF DECISION:  Sydney

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

Statement made on 27 November 2019 at 8:57am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – non-appearance before the Tribunal – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – no compelling need to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116
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 8 March 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector 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 was not enrolled in a registered course from 14 June 2017 to 6 March 2018 in breach of condition 8202(2). On 16 March 2018, he applied to the Tribunal for a review of that decision.

3. On 18 October 2019, the Tribunal wrote to the applicant and informed him that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited him to appear before it on 26 November 2019 at 10.30am to give evidence and present arguments relating to the issues arising in his case. The letter informed him that if he did not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable him to appear before it or may dismiss his application for review without any further consideration of the application or the information before it.

4. The letter dated 18 October 2019 was sent to the applicant’s migration agent to his email address on that date. The Tribunal did not receive any notification that the email had not been delivered. The Tribunal did not receive the response to hearing invitation form as requested.

5. On 19 November 2019, the Tribunal sent the applicant an SMS message to his mobile telephone reminding him of the hearing on 26 November 2019. On 25 November 2019, the Tribunal sent him another SMS message to his mobile telephone reminding him of the hearing on 26 November 2019.

6. The applicant did not attend the hearing scheduled on 26 November 2019 at 10.30am. Neither he nor his migration agent contacted the Tribunal to explain his non-attendance at the hearing or to seek a postponement of the hearing. In these circumstances, the Tribunal has decided to proceed to make a decision on the review.

7. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. 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 AND FINDINGS

8. 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 breach Condition 8202?

9. 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).

10. In the present case, the applicant was granted a Student visa on 16 June 2016. This visa was subject to a number of conditions including condition 8202. On 8 March 2018, the Department of Immigration (the Department) sent him a Notice of Intention to Consider Cancellation (NOITCC) of his Student visa on the basis that he did not comply with condition 8202(2) because he was not enrolled in a registered course of study since 19 July 2017. He was given an opportunity to comment on the ground for cancellation identified in the NOITCC and give reasons why his Student visa should not be cancelled. He did not respond to the NOITCC. The delegate cancelled his Student visa on 8 March 2018.

11. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 8 March 2018 and a copy of the bio data page of his Indian passport issued on 21 September 2015. He has not lodged any statements or submissions in support of his application.

12. The Department’s Decision Record refers to records of the Department of Education which indicate that the applicant was not enrolled in a registered course from 19 July 2017 to 19 February 2018. He has not lodged any documents with the Department or the Tribunal disputing this.

13. On the evidence before it, the Tribunal is satisfied that the applicant was not enrolled in a registered course between 19 July 2017 and 19 February 2018 and finds accordingly. Therefore, the Tribunal finds that he has breached condition 8202(2)(a) of his Student visa.

    Consideration of the discretion to cancel the visa

14. Having found that the applicant has not complied with a condition of his Student 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’.

    Purpose of the visa holder’s travel and stay in Australia. Did the visa holder have a          compelling need to travel to or remain in Australia?

15. The applicant was granted a subclass 573 Student visa for the purpose of undertaking a Master of Engineering degree in Australia. The purpose of his travel and stay in Australia was therefore to study.

16. The applicant did not respond to the NOITCC or file any evidence with the Tribunal indicating that he had a compelling need to travel to or remain in Australia. As he did not attend the hearing, the Tribunal was unable to discuss this with him or ascertain whether he is currently studying in Australia.

17. The Tribunal is of the view that the applicant has not demonstrated a compelling need to remain in Australia. The Tribunal does not give this consideration any weight in his favour.  

The extent of compliance with visa conditions

1. The applicant was not enrolled in a registered course between 19 July 2017 and 19 February 2018. The Tribunal is of the view that this is a substantial period of time. As he did not attend the hearing, the Tribunal was unable to discuss with him whether he is currently enrolled in a registered course and whether he has complied with his other visa conditions.

2. There is no evidence before the Tribunal to indicate that the applicant has not complied with the other conditions of his Student visa. The Tribunal does not give this consideration any weight in his favour.   

   Degree of hardship that may be caused

3. The applicant did not respond to the NOITCC or file any evidence with the Tribunal indicating that hardship may be caused to him if his Student visa is cancelled. As he did not attend the hearing, the Tribunal was unable to discuss this with him.

4. Although there is no evidence before the Tribunal that hardship may be caused to the applicant if his Student visa is cancelled, the Tribunal is of the view that he may suffer some economic and emotional hardship in these circumstances and that it may also have a negative impact on his family. The Tribunal gives this consideration some weight in his favour. 

   Circumstances in which the ground for cancellation arose

5. The applicant did not respond to the NOITCC or file any evidence with the Tribunal in relation to the circumstances in which the ground for cancellation arose. As he did not attend the hearing, the Tribunal was unable to discuss this with him.

6. In the absence of any evidence, the Tribunal does not give this consideration any weight in his favour.

   Past and present behaviour of the applicant towards the Department

7. There is no evidence before the Tribunal to indicate that the applicant has not co-operated with the Department or that he has engaged in unfavourable behaviour towards the Department. The Tribunal gives this consideration some weight in his favour.   

   Whether there would be consequential cancellations under s.140 of the Act

8. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in a consequential cancellation of another person’s visa under s.140 of the Act. The Tribunal does not give this consideration any weight in his favour.

   Legal consequences of a decision to cancel the visa

9. If the applicant’s Student visa is cancelled, he will become an unlawful non-citizen and may be liable to detention under s.189 of the Act and removal under s.198 of the Act if he does not voluntarily depart Australia or resolve his immigration status. However, he may be eligible for a Bridging visa that would allow his lawful presence in Australia for a short period of time so that he can finalize his affairs in Australia before departing.

10. If the applicant’s Student visa is cancelled, he will be subject to s.48 of the Act which means he will have limited options when applying for further visas while in Australia and Public Interest Criterion 4012 which may prevent him from being granted particular temporary visas for a period of three years from the date of cancellation. The Tribunal gives this consideration little weight in his favour.   

    Australia’s international obligations

11. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in the breach of Australia’s international obligations. The Tribunal does not give this consideration any weight in his favour.

    Any other relevant matter

12. There is no evidence before the Tribunal to indicate that there are any other relevant matters. The Tribunal does not give this consideration any weight in the applicant’s favour.

    CONCLUSION

13. Having considered all the evidence cumulatively, the Tribunal is of the view that the grounds for cancelling the applicant’s Student visa outweigh the grounds for not cancelling his Student visa. Therefore, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    L. Symons
    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.