Kamau (Migration)

[2019] AATA 2389

Kamau (Migration) [2019] AATA 2389 (26 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Stephen Thuo Kamau

CASE NUMBER:  1903763

HOME AFFAIRS REFERENCE(S):           BCC2018/5318006

MEMBER:David Thompson

DATE:26 June 2019

PLACE OF DECISION:  Perth

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

Statement made on 26 June 2019 at 2:28pm

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

LEGISLATION
Migration Act 1958 (Cth), ss 116, 360, 362B
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 13 February 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).

2. The delegate cancelled the visa on the basis that the applicant had not complied with a condition imposed on his visa, being condition 8202, because he was not enrolled in a registered course of study between 6 February 2018 and 13 February 2019. 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. Pursuant to s.360 of the Act, on 6 June 2019 the applicant was sent a written invitation to attend a hearing of his application scheduled for 26 June 2019.  That invitation was sent by email to the address provided by the applicant in his application for review lodged 19 February 2019, which was the address of his registered migration agent. The Tribunal is satisfied that its invitation to attend hearing was received, because the Tribunal subsequently received correspondence from the applicant’s registered migration agent in relation to the application. The applicant failed to appear at the scheduled hearing on 26 June 2019, and did not apply for an adjournment of the hearing. The Tribunal has therefore decided to determine the application on the materials before it pursuant to s.362B(1A)(a).

4. The applicant was represented in relation to the review by his registered migration agent.

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.

9. The delegate based her decision in this matter on the information held in relation to the applicant in the Provider Registration and International Student Management System (PRISM). The pertinent information from the applicant’s PRISMS record was set out in the delegate’s decision record dated 13 February 2019. The applicant provided a copy of that decision record to the Tribunal with his application for review. The decision record noted that the applicant’s PRISMS record revealed that as at the date of the delegate’s decision, the applicant had not been enrolled in a registered course of study since 6 February 2016. Such a period of non-enrolment is a clear breach of condition 8202(2), and the applicant has placed no evidence before the Tribunal contradicting his PRISMS record in that respect. The applicant has not sought to contradict or correct that statement, and there is no evidence before the Tribunal suggesting that the applicant’s PRISMS record is wrong in this regard. The Tribunal finds that on the evidence before it, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2). The Tribunal finds that grounds for cancellation are made out.

   Consideration of the discretion to cancel the visa

10. Having found that the applicant has not complied with a condition of the visa and that grounds for cancellation exist, 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 the matters mentioned in the Department’s Procedural Instructions (previously known as PAM3) ‘General visa cancellation powers.’

11. The applicant provided no written evidence or submissions in support of his application to the Tribunal before the hearing, and did not appear at the hearing to give evidence. The Tribunal has considered the Departmental file, from which it is apparent that the Department received no response to its Notice of Intention to Consider Cancellation, sent to the applicant on 24 January 2019. Indeed, beyond the PRISMS record already mentioned, the Departmental file contains very little that is relevant to the Tribunal’s consideration of whether the applicant’s visa should be cancelled.

12. It may be inferred from the fact that the applicant was granted a student visa that his purpose in coming to Australia was to study. However, as the only evidence before the Tribunal indicates that applicant was last enrolled in a registered course of study, the Tribunal can place no weight on the applicant’s inferred intention as a consideration in favour of the applicant.

13. The Tribunal has already found that the applicant failed to comply with condition 8202(2) on his visa, in that he was not enrolled in a registered course of study for a period of some 12 months.  There is no evidence before the Tribunal of any other breach of visa condition, but the breach of condition 8202(2) is a substantial and serious breach, and weighs heavily against determining this application in the applicant’s favour.

14. There is no evidence before the Tribunal that:

    a.any hardship of any kind that may be caused by the cancellation of the applicant’s visa;

    b.the circumstances  surrounding the applicant’s breach of his visa conditions, and in particular of any circumstances leading to the conclusion that the applicant’s breach of condition 8202(2) was due to matters beyond his control;

    c.any cancellations under s.140 of the Act that would follow as consequences of the cancellation of the applicant’s visa;

    d.cancellation of the applicant’s visa will result in the breach of any of Australia’s international obligations, whether as to non-refoulement or otherwise.

    In the absence of such evidence, the Tribunal cannot give these factors any weight as considerations favouring the applicant.

15. The delegate noted in her decision record that she had no information as to any specific matters of relevance regarding the applicant’s behaviour towards the Department.  In the absence of any evidence to the contrary the Tribunal accepts this to be the case and (as did the delegate) accords it some weight as a factor favouring the applicant.

16. The applicant may suffer mandatory legal consequences of cancellation of his visa. Section 48 of the Act may limit the types of visa for which he is eligible to apply if he wishes to re-enter Australia, and if he is in Australia he may become liable to be detained under s.189 of the Act. He may also be prevented from applying for a further temporary visa for a period.  However, these are the intended legislative outcomes of a visa cancellation, and as such the Tribunal gives them only slight weight in the applicant’s favour.

17. There is no evidence before the Tribunal of any other matter relevant to the issue of whether the applicant’s visa should be cancelled.

18. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    David Thompson
    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.