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

1. 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).

2. 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.

3. 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.

4. 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. 

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Greek and English languages.

6. The applicants were represented in relation to the review by their registered migration agent.

7. 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

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 comply with Condition 8202?

9. 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).

10. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

11. 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

12. 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. 

13. 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.   

14. A Notice of Intention to Consider Cancellation (NOICC) of the visa was issued to the applicant on 11 February 2019.

15. 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.    

16. 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.    

17. 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

18. 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.

19. 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 

20. 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. 

21. 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. 

22. The Tribunal gives the abovementioned matters minor weight towards the visa not being cancelled.     

    The extent of compliance with visa conditions

23. 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. 

24. 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. 

25. There is no evidence before the Tribunal of any other breaches of visa conditions by the applicant. 

26. 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. 

27. On the basis of the above, the Tribunal gives these matters a little weight in favour of the visa not being cancelled.

28. Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

29. 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. 

30. 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. 

31. On the basis of the above, the Tribunal accepts that the cancellation has led to some personal detriment for the applicant which would be compounded by the continuation of the cancellation and the Tribunal therefore gives this some minor weight towards the visa not being cancelled. 

    Circumstances in which ground of cancellation arose

32. The circumstances that led to the cancellation of the applicant’s visa are due to personal family and health matters the applicant was dealing with at the time.  The applicant gave evidence that he had a lot of issues inside of him.  He stated that something happened to a close relative, his brother-in-law and that this caused a lot of problems in the applicant’s life.  The brother-in-law had cancer.  The applicant stated further that when his children got married, he was suffering psychological pain and wasn’t able to go to school.  The applicant stated that he was affected emotionally and became very introverted and was suffering without speaking.  He further stated that he had recently started seeing a therapist who spoke his language, that he started seeing this therapist in November 2019 and that he was embarrassed to admit he had a psychological problem. 

33. Mrs Kiako gave evidence that she agreed with everything her husband said.  Mr Elvis Kiako said that this had been a very difficult time for the family.  That his father’s intention was not to be unlawful and that the family are supporting him. 

34. The Tribunal informed the applicant that although it has had regard to a referral from a Dr Lay Chan dated 24 November 2019 whereby the applicant was referred to a practitioner for opinion and management of depression, there is no medical evidence before the Tribunal of any clinical diagnosis of a mental disorder affecting the applicant.

35. The applicant’s migration agent asked for time to submit a medical report to the Tribunal.  The Tribunal granted that request.  The applicant was ordered to submit a medical report to the Tribunal by 1:00pm on 27 November 2019.  As at the date of this decision, no such report, nor any further evidence, has been submitted to the Tribunal.

36. The Tribunal is not persuaded that the applicant’s reasons for the breach of his visa condition, as set out above, were matters that affected him to such an extent that they caused him to breach his visa condition.  The Tribunal accepts that difficulty in families arises from time to time, but the Tribunal is not persuaded, on the basis of the applicant’s evidence, that he could not have taken steps to defer his enrolment or appeal the cancellation of his enrolment if he were suffering from circumstances beyond his control that were detrimentally affecting his capacity to study.

37. Further, there is no medical evidence before the Tribunal to support the applicant’s contention that he was suffering from a psychological condition at the relevant time.  The Tribunal therefore cannot be satisfied, on the evidence, that the applicant was suffering from a mental condition at the time of the breach of his visa condition, that supports any suggestion the breach of the visa condition was caused by matters not reasonably within his control.

38. On the basis of the above, the Tribunal finds that the reason for the breach was not reasonably outside of the control of the applicant and I therefore give this significant weight towards the visa being cancelled. 

    Past and present behaviour of the visa holder towards the Department

39. The applicant did not respond to the NOICC, however, the Tribunal accepts that he had moved address from the address to where the NOICC had been delivered.  However, it is the visa holder’s responsibility to keep the department apprised of their address for service, which the applicant has failed to do. 

40. I give this some minor weight in favour of the visa being cancelled.

    Whether there would be consequential cancellations under s.140

41. The applicant’s spouse was granted a visa on the basis of being a member of the family unit of the visa holder.  There is no evidence before the Tribunal of any independent application for a visa having been made by Mrs Kiako.  Equally however, there was no evidence put to the Tribunal by the applicant, nor Mrs Kiako, that they would be separated as a result of the applicant’s visa being cancelled and the applicant potentially having to leave the country and return home. 

42. On the basis of those matters, the Tribunal gives this very minor weight in favour of the visa not being cancelled. 

    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

43. If the visa were to be cancelled, the applicant would be excluded from making applications for certain types of visas and may be liable to detention and removal from the country.  However, these are mandatory and intended consequence of the legislation and in view of the Tribunal’s findings regarding the circumstances that led to the breach of the visa condition, I do not consider these consequences to be manifestly unfair in the circumstances and I give this a little weight in favour of the visa being cancelled. 

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

44. Not applicable.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

45. Not applicable.

    Any other relevant matters

46. Not applicable. 

47. Although the matters set out above do not reveal any bad faith on the part of the applicant, it is clear based on all the evidence set out above, that the reasons for the breach of the visa condition were not matters that were outside the control of the applicant or debilitating to a degree that prevented the applicant from taking steps to defer his studies. 

48. It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa being cancelled and I so find.

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

    DECISION

50. 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 Plain
    Member