LEW (Migration)

[2019] AATA 3450

LEW (Migration) [2019] AATA 3450 (29 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr TZYY CHYUAN LEW

CASE NUMBER:  1716430

HOME AFFAIRS REFERENCE(S):          BCC2017/1652872

MEMBER:Lynda Young

DATE:29 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 29 July 2019 at 8:37am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – failure to attend scheduled hearing – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – failure to participate in the Tribunal’s review process – purpose of visa not fulfilled – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B, 379A
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 25 July 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant’s visa was subject to condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations), requiring the applicant to be enrolled in a registered course of study.

3. The delegate cancelled the visa on the basis the applicant, in breach of visa condition 8202(2)(a), had not been enrolled in a registered course of study since 19 October 2016, and the grounds in favour of cancellation outweighed the grounds against cancellation. The issues in the present case are whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. By letter emailed to the applicant on 8 July 2019, the Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in his case at a hearing on 24 July 2019 at 11:30am. The hearing invitation advised the applicant the Tribunal may, if he did not attend the scheduled hearing and an adjournment was not granted, make a decision on the case without taking any further action to allow or enable the applicant to appear before it.

5. On 17 July 2019 and again on 23 July 2019, the Tribunal sent the applicant reminders by SMS about the hearing on 24 July 2019 at 11:30am.

6. No response to the hearing invitation was received by the Tribunal, and no return to sender or delivery failure notice was received in response to the Tribunal’s email.  However, delivery failure notices were received by the Tribunal for each SMS message.

7. The applicant failed to appear before the Tribunal at the scheduled hearing on 24 July 2019 at 11:30am. Neither the applicant or anyone on his behalf provided any explanation for his non-attendance or any documents including medical certificates, submissions, written responses to the hearing invitation or any requests for postponements to the Tribunal, at any time prior to the time of making this decision.

8. The Tribunal is satisfied the applicant was properly invited to a hearing in accordance with s.379A(5) of the Act. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on this review application without taking any further action to enable the applicant to appear before it.

9. 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

10. 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.

11. On 28 July 2017, the applicant filed with the Tribunal, his application for review of the delegate’s decision attaching, in support of his application, a copy of each of the Notice of Cancellation and the Decision Record.

12. On 31 July 2017, by letter emailed to the applicant, the Tribunal acknowledged receipt of his application and requested he provide, as soon as possible, a statement explaining why he disagreed with the decision, and any supporting material or written arguments he wished the Tribunal to consider.

13. The Tribunal’s hearing invitation referred to in paragraph 4. above also requested the applicant, within seven days, provide all documents on which he intended relying in support of his case, and send any documents or written arguments to the Tribunal in English or accompanied by a translation from a qualified translator. .

14. The applicant did not appear at the scheduled hearing and failed to give evidence and present arguments at a hearing before the Tribunal as invited. Despite the Tribunal’s requests, the applicant has not provided the Tribunal with any documents other than those attached to his review application, or with any statement explaining why he disagreed with the decision, or with any submissions or written arguments relating to the issues in his case or the grounds for cancellation or why his visa should not be cancelled or at all.  In other words, the applicant has not provided the Tribunal with any further information than that provided to the Department.

15. As a result, the evidence before the Tribunal on this application comprises the documents attached to the review application (the Notice of Cancellation and the Decision Record), and the Notice of Intention to Consider Cancellation (NOICC) dated 30 June 2017 in the Department's file.

    Did the applicant comply with Condition 8202?

16. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

    a.be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

    b.has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

    c.has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

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

18. By Notice of Intention to Consider Cancellation (NOICC) dated 30 June 2017, emailed to the applicant, the Department:

    a.notified the applicant it intended considering cancellation of his visa as, on the basis of PRISMS evidence, it appeared he may have breached visa condition 8202(2)(a) by not having been enrolled in a registered course of study since 19 October 2016;

    b.set out the two-step process for deciding whether to cancel his visa, and set out the matters the delegate would take into account in considering whether to cancel his visa, being the purpose of his travel to and stay in Australia , the extent of compliance with any conditions subject to which his visa was granted, the degree of hardship that may be caused to him and any family members if the visa is cancelled, the circumstances in which the ground for cancellation arose, his past and present behaviour toward the Department, the legal consequences of a decision to cancel the visa, and any other matters;

    c.invited the applicant to provide his written response to the NOICC within five working days, addressing the identified ground(s) for cancellation, giving reasons why his visa should not be cancelled, and addressing the matters the delegate would take into account in considering whether to cancel his visa, and any other matter he considered relevant;

    d.notified the applicant his response would be taken into account in deciding whether to cancel his visa, and if he did not respond, the decision would be made on the information then held by the Department;

    e.outlined the consequences should the applicant’s student visa be cancelled.

19. On 25 July 2017, the delegate cancelled the applicant’s student visa, and a copy of the visa cancellation notice and delegate’s decision were emailed to the applicant. The decision set out the following:

    a.the applicant was granted a Subclass 572 Vocational Education and Training Sector student visa on 28 November 2014, with a stay period to 7 March 2018;

    b.the applicant was notified of the intention to consider cancellation on 30 June 2017 on the basis of PRISMS evidence that he had not been enrolled in a registered course of study since 19 October 2016 in breach of visa condition 8202; and invited to respond in writing;

    c.no response to the NOICC was received by the Department, and the applicant did not dispute the ground for cancellation existed or provide reasons why his visa should not be cancelled;

    d.on evidence obtained from PRISMS, the applicant had not been enrolled in a registered course of study since 19 October 2016, and had as a result, breached condition 8202(2)(a) of his visa;

    e.as the applicant had breached condition 8202(2)(a) of his visa, there was a ground for cancellation under s116(1)(b) of the Act;

    f.there was no evidence suggesting the applicant intended to travel to and stay in Australia for any purpose other than study, as stated in his visa application;

    g.the applicant was granted a student visa for the purpose of study, but had not been enrolled in a registered course of study since 19 October 2016;

    h.the applicant’s only identified non-compliance was his non-compliance with visa condition 8202;

    i.the delegate accepted the applicant, on his being required to depart Australia if his visa were cancelled:

    j.may be caused some financial difficulty and if he did not voluntarily depart Australia ,would become an unlawful non-citizen and be liable to detention under s189 and to removal under s198 of the Act;

    k.would be subject to s.48 of the Act, significantly limiting, post cancellation, the classes of visa for which he may apply onshore;

    l.would be subject to Public Interest Criterion 4013, and may not be granted a temporary visa for three years.

    m.the ground for cancellation arose when the applicant failed to maintain enrolment;

    n.there was no evidence the applicant had been uncooperative with the Department;

    o.there were no persons in Australia whose visas would or may be cancelled under s140 of the Act;

    p.the circumstances of the case were not such that would engage Australia’s international obligations;

    q.the delegate was satisfied there was a ground for cancelling the applicant’s student visa, and satisfied the grounds for cancelling the visa outweigh the grounds for not cancelling.

20. By the date for hearing, the applicant had been on notice of the ground on which his visa was cancelled for two years and in that time, despite the Tribunal’s requests in its acknowledgment of application and hearing invitation, did not provide any documents or submissions supporting his application to the Tribunal and has not disputed the ground for cancellation existed or provided reasons why his visa should not be cancelled. The Tribunal invited the applicant give evidence and present arguments relating to the issues in his case. He failed to attend the hearing, and did not give evidence at hearing before the Tribunal or present arguments, as invited.  As the opportunity to receive evidence at hearing from the applicant about the issues in his case has Tribunal has not been given had the, or in relation to the grounds for cancellation or why his visa should not be cancelled, or at all, the Tribunal is unable to be satisfied the applicant has been enrolled in any registered course of study since 19 October 2016.

21. On the evidence before it, the Tribunal is satisfied the applicant was not enrolled in a registered course of study from 19 October 2016, in breach of visa condition 8202(2)(a).

22. Accordingly, the Tribunal is satisfied the ground for cancellation in s.116(1)(b) exists.

23. As the ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    CONSIDERATION OF THE DISCRETION TO CANCEL THE VISA

24. Having found the applicant had breached a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion.

25. The Tribunal has had regard to the circumstances of this case, including matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

26. The applicant did not respond to the NOICC or the decision or otherwise provide the Department with any reasons why his visa should not be cancelled or address any of the PAM3 matters, which were set out in the NOICC as matters the delegate would take into account.

27. The applicant did not appear and give evidence or provide submissions at the hearing and, despite the Tribunal’s request in its application acknowledgement and hearing invitation, has not provided any documents or submissions in respect of any of the PAM3 matters or other circumstances for the Tribunal’s consideration in its exercise of the discretion to cancel the visa.

28. The PAM 3 matters are addressed in the decision. The applicant has not disputed any of the information or conclusions set out in respect of the PAM3 matters in the decision.

    The 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

29. There is no evidence before the Tribunal to suggest that the applicant’s original intention for his travel to and stay in Australia was not for the purpose of study.

30. On the evidence before the Tribunal, the applicant was not enrolled in a registered course of study for a period of just over nine months from 19 October 2016, until cancellation on 25 July 2017.

31. Student visas are granted for the purpose of non-citizens and non-permanent residents studying towards, and achieving, an educational qualification in Australia. That purpose cannot be achieved unless the visa holder is enrolled in a registered course of study. Considered in that context, the Tribunal finds the applicant’s failure to be enrolled in a registered course of study for over nine months prior to cancellation is significant and weighs in favour of cancellation.

32. The Tribunal is not satisfied the applicant’s intended purpose of travel to and stay in Australia provides a compelling need to travel to and remain in Australia. Failing to be enrolled since 19 October 2016 is inconsistent with such need. Similarly, if he genuinely had compelling need, it would be reasonable to expect the applicant to have participated meaningfully in his review application, rather than not attending the hearing without explanation. The Tribunal gives this consideration weight in favour of cancelling the visa.

33. There is no evidence before the Tribunal to suggest the applicant has a compelling need to remain in Australia or that he had a compelling need to travel to Australia. The applicant's non-engagement in study for which his visa was granted since he was last enrolled on 19 October 2016 and failure to participate meaningfully in his review application satisfy the Tribunal the applicant does not have a compelling need to remain in Australia. The Tribunal gives this consideration weight in favour of cancelling the visa.

    Extent of non-compliance with any conditions subject to which the visa was granted.

34. The only breach identified in the decision in respect of this consideration is the applicant’s failure to remain enrolled. Although the evidence does not satisfy the Tribunal the applicant breached any other condition imposed on his visa, he was not enrolled for slightly over nine months prior to cancellation.  The noncompliance is significant and the Tribunal weighs this factor in favour of cancelling the visa.

35. Other than a breach of condition 8202 there is no evidence before the Tribunal that that applicant has breached any other conditions of his visa. The Tribunal weighs this factor in favour of not cancelling the visa.

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

36. The Tribunal accepts visa cancellation ordinarily results in the visa holder becoming unlawful and liable to detention unless that person voluntarily departs Australia or holds a bridging visa. Movement records indicate the applicant voluntarily departed Australia on 16 January 2018 with a bridging visa with no permission to return. In those circumstances, the Tribunal is not satisfied the applicant would become unlawful or liable to detention upon cancellation. The Tribunal accepts a visa holder may be prevented from being granted a further temporary visa for a period of 3 years on the basis that person may not, as a result of the cancellation, meet the public interest criterion 4013.

37. The Tribunal considers any hardship as may be caused by these intended consequences of cancellation weighs in favour of not cancelling the visa

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

38. Given the applicant did not attend the hearing and has not provided any information as to the circumstances surrounding his breach of condition 8202, the Tribunal is unable to be satisfied about the circumstances in which the ground for cancellation arose. Accordingly, the Tribunal is not satisfied there were any extenuating circumstances beyond his control that led to the applicant breaching his visa conditions. The Tribunal weights this factor in favour of cancelling the visa.

    Past and present conduct of the visa holder towards the Department

39. There is no evidence before the Tribunal to suggest that the applicant’s past or present behaviour towards the Department was adverse. The Tribunal weighs this factor neither in favour nor against cancelling the visa.

    Whether there would be consequential cancellations under s.140.

40. On the evidence before the Tribunal, there are no persons in Australia whose visas would, or may, be cancelled under s140. The Tribunal weighs this factor neither in favour nor against cancelling the visa.  

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

41. The Tribunal accepts the applicant would, if his visa were cancelled, be subject to s.48 of the Migration Act, which significantly limits the classes of visa for which he may apply onshore. The Tribunal is satisfied cancellation of the applicant’s visa would prevent him re-entering Australia for up to 3 years as he may not meet the public interest criterion 4013 but would not, as it appears he voluntarily departed Australia on 16 January 2018 with a bridging visa with no permission to return, result in him immediately becoming unlawful and liable to detention under s189 of the Migration Act or removal under s198 of the Migration Act.

42. The Tribunal gives this consideration weight in favour of not cancelling the visa. 

    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

43. There is nothing before the Tribunal to suggest Australia’s international obligations, including in respect of non-refoulement and best interests of the children, would be breached as a result of the visa cancellation. The Tribunal weighs this factor neither in favour nor against cancelling the visa.  

    Other relevant considerations

1. The applicant has not satisfactorily demonstrated that he is a genuine student who should have the visa reinstated because he is a genuine student interested in completing his studies.

2. Taken together and considered as a whole, the Tribunal is satisfied the matters weighing in favor of cancellation of the visa outweigh the matters weighting against cancellation.  In circumstances where the applicant has failed to take any active role in the Tribunal’s review process or provide any supporting material or information (other than his application and attached documents) despite the Tribunal requesting he do so, the Tribunal is satisfied, in light of the centrality of enrolment to the existence and purpose of the applicant’s visa and stated purpose for his travel to stay in Australia and the applicant’s unexplained failure to be enrolled in any registered course of study for a period in excess of nine months prior to cancellation, the factors in favour of cancelling the visa outweigh those in favor of not cancelling the visa.

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

   DECISION

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

   Lynda Young
   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.