KIAKO (Migration) - [2020] AATA 876

KIAKO (Migration) [2020] AATA 876 (2 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr CHRISTAKI KIAKO
Mrs VERA KIAKO
CASE NUMBER:  1906207
HOME AFFAIRS REFERENCE(S):          BCC2018/5378375
MEMBER:Vanessa Plain
DATE:2 January 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 02 January 2020 at 7:35pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased enrolment – family troubles and difficulties – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 140, 348
Migration Regulations 1994, Schedule 8; Condition 8202
CASES
Singh v MIBP [2016] FCA 679
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 8 March 2019 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant failed to maintain enrolment in a registered course of study. 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 purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visa, held by Mrs Vera Kiako, was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant, Mrs Vera Kiako.
The applicants appeared before the Tribunal on 15 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Elvis Kiako, the applicants’ son.
The Tribunal hearing was conducted with the assistance of an interpreter in the Greek and English languages.
The applicants were represented in relation to the review by their registered migration agent.
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, relevantly 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:…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: KIAKO (Migration) [2020] AATA 876
Case: [2020] AATA 876
Decision Date: 2 January 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of KIAKO, who held a Student (Temporary) (Class TU) visa (subclass 500). The dispute arose from the cancellation of KIAKO's visa by the Department of Home Affairs, which KIAKO sought to have reviewed. The primary issue before the Tribunal was whether KIAKO had breached a condition of his visa, thereby providing grounds for its cancellation.

The Tribunal was required to determine if KIAKO had complied with condition 8202 of the Migration Regulations 1994. This condition mandates that a student visa holder must be enrolled in a registered course and maintain satisfactory course progress and attendance. Specifically, the Tribunal needed to ascertain if KIAKO was enrolled in a registered course as required.

The Tribunal found that KIAKO had breached condition 8202(2) because he was not enrolled in a registered course from 23 February 2018 onwards, following the cancellation of his enrolment by the Lonsdale Institute. While acknowledging KIAKO's stated family troubles and difficulties as reasons for his cessation of studies, the Tribunal noted the significant lapse of time, over 1 ¾ years, between the enrolment cancellation and the hearing date. Despite a minor degree of potential emotional and financial hardship for KIAKO, the Tribunal concluded that these factors did not outweigh the breach of the visa condition.

Consequently, the Tribunal affirmed the decision to cancel KIAKO's visa. The Tribunal noted it had no jurisdiction concerning any other applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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, relevantly 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. An examination of the Delegate’s Decision Record reveals that the applicant was granted a Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa on 12 January 2017 for the purpose of undertaking an approved course of study, including:·Spoken and Written English at Bridge College and subsequently Lonsdale Institute; and ·A Certificate IV in Business The applicant gave evidence that he came to Australia on a tourist visa on 4 October 2014 and subsequently enrolled in the aforementioned courses. He gave evidence that he struggled as a student due to various family troubles and difficulties he was experiencing in his life and as a result, he ceased to be enrolled in his English course on 23 February 2019, when the Lonsdale Institute cancelled his enrolment. The applicant acknowledged receiving an email in February 2018 from the Lonsdale Institute which informed the applicant of his cancelled enrolment. He gave evidence that he attempted to re-enrol, but the Institute would not agree to do so. A Notice of Intention to Consider Cancellation (NOICC) of the visa was issued to the applicant on 11 February 2019. At the hearing, the applicant candidly made the following admissions: ·His enrolment was cancelled;·He was not enrolled in a registered course from 23 February 2018 onwards;·He is not enrolled in a registered course presently, but after he completes therapy, the Lonsdale Institute has offered him a place to recommence his studies;·He did not respond to the NOICC and does not recall receiving it, it was sent to an address at which he was not living at the time. The applicant gave reasons in his evidence, as the circumstances that led to the cessation of his studies, which are set out in detail below. On the evidence before the Tribunal as set out above, the Tribunal is satisfied that the applicant was not enrolled in a registered course as at 23 February 2018. Accordingly, the Tribunal finds that the applicant has not complied with condition 8202(2).Consideration of the discretion to cancel the visa

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa. The Tribunal has no jurisdiction with respect to the other applicant.Vanessa PlainMember

Ratio Decidendi

Legal Principle Established

On the evidence before the Tribunal as set out above, the Tribunal is satisfied that the applicant was not enrolled in a registered course as at 23 February 2018. Accordingly, the Tribunal finds that the applicant has not complied with condition 8202(2).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’.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 visa (subclass 500) for the purpose of studying an overall qualification of Certification IV in Business and Certificates II and III in spoken and written English. There is no evidence before the Tribunal that the applicant’s original intention for travel and stay in Australia was for a purpose other than study. However, that purpose ended upon the cancellation of the applicant’s enrolment in February 2018. The Tribunal gives the abovementioned matters minor weight towards the visa not being cancelled. The extent of compliance with visa conditions The applicant has not complied with condition 8202(2). The applicant did not respond to the NOICC however the Tribunal accepts that he applicant did not receive the NOICC and therefore makes no finding against him on account of his non response. The applicant has provided detailed reasons to the Tribunal that speak to the circumstances giving rise to the breach of the visa condition. The applicant’s reasons are set out below. There is no evidence before the Tribunal of any other breaches of visa conditions by the applicant. However, the Tribunal has serious concerns about the lapse of time between the period of cancellation of enrolment, being February 2018 and today’s hearing date, being 15 November 2019, which is over 1 ¾ years in duration. On the basis of the above, the Tribunal gives these matters a little weight in favour of the visa not being cancelled. Degree of hardship that may be caused (financial, psychological, emotional or other hardship) The applicant did not give specific evidence of hardship at the hearing. However, the Tribunal acknowledges that a minor degree of hardship might befall the applicant if his visa remains cancelled, by way of some emotional and financial hardship. However, there is no evidence before the Tribunal that the applicant would be separated from his wife if his visa were to remain cancelled. Nor did the applicant’s wife give any evidence that she would not return home with her husband as a result of his visa cancellation.