Kiddie (Migration)

[2018] AATA 3553

Kiddie (Migration) [2018] AATA 3553 (7 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Elijah Kiddie

CASE NUMBER:  1810133

HOME AFFAIRS REFERENCE(S):           BCC2017/3721577

MEMBER:Ann Duffield

DATE:7 August 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 07 August 2018 at 10:25am

CATCHWORDS
Migration – Cancellation – Student (Temporary)(Class TU) – Subclass 500 (Student) – Breach of enrolment conditions – Practice and procedure – No response to Tribunal requests – No notification of change of address – Decision made on review – Decision affirmed

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8 condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 4 April 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not comply with a condition of his visa, in particular that the applicant was not enrolled in a full-time registered course as required. 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. The Tribunal wrote to the applicant on 23 July 2018 via email to his nominated addressed requesting that he comment on information that would be a reason or part of the reason that the Tribunal would affirm the decision under review. The Tribunal also sought information from the applicant in relation to any current enrolment he may have. The applicant was advised that if the Tribunal did not receive either his comments or the information sought, he would lose his entitlement to a hearing and the Tribunal would make a decision on the review without taking any further action.

4. The applicant did not respond to the Tribunal’s request so it has proceeded to make its decision on the basis of the information before it, including the delegate’s decision which the applicant provided to the Tribunal along with his application for review.

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. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   s.116(1)(b) - non-compliance with conditions

7. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance, condition 8202 was attached to the applicant’s visa. This condition requires that the holder of the visa must be enrolled in a full-time registered course.

8. The Department of Home Affairs wrote to the applicant on 22 January 2018 informing him that his visa was under consideration for cancellation. The department put to the applicant that information available in the Provider Registration and International Student Management System (PRISMS) showed that he had not been enrolled in a registered course of study since 19 July 2017 and hence was not in compliance with the conditions of his visa. The applicant was invited to respond to the department but he did not do so.

9. The department proceeded to cancel the applicant’s visa on 4 April 2018.

10. The Tribunal wrote to the applicant on 23 July 2018, providing him with a copy of his PRISMS record showing that he was no longer enrolled in a registered course and had not been since 19 July 2017. The Tribunal also asked the applicant to provide it with evidence of his enrolment in a registered course.

11. As of the date of this decision the applicant did not respond to the Tribunal’s request for information or provide any comment on the adverse information given to him.

12. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(12)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

13. 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’.

14. The Tribunal has considered the purpose of the visa holder’s travel and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia. The Tribunal notes that the applicant’s purpose of travel to Australia was to study. He has not been enrolled, or provided evidence that he has been enrolled in a relevant course since July 2017. As the applicant has provided no other evidence to the Tribunal in relation to this matter the Tribunal finds that the applicant’s purpose of travel to Australia is no longer relevant and therefore he has no need to hold a visa for the purpose of that study.

15. The Tribunal has considered the extent of compliance with visa conditions and finds that the applicant has not been enrolled in a relevant course since at least April 2017. The Tribunal therefore finds that the applicant has not complied with at least one condition of his visa.

16. The Tribunal is unaware of any hardship (financial, psychological, emotional or other hardship) that the visa applicant or any of his family members may suffer should his visa be cancelled.

17. The applicant’s visa was cancelled as a result of his non-compliance with visa condition 8202. The applicant has not provided the Tribunal with any information relevant to this matter.

18. The evidence before the Tribunal is that the applicant has not provided the department with his current address or notified his education provider of any change of his address. This indicates an unwillingness of the part of the applicant to inform the department of his whereabouts for the purpose of compliance.

19. There is no information before the Tribunal that the cancellation of the applicant’s visa would result in the breach of any international obligations, including non-refoulement and best interests of any children. According to the delegate’s decision, the applicant does not have any children in Australia.   There is no information before the Tribunal that the applicant has any strong business or other ties in Australia.

20. The Tribunal does not consider there are any relevant matters.

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

    DECISION

22. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Ann Duffield
    Senior Member