Lutchmiah (Migration)

[2024] AATA 517

Lutchmiah (Migration) [2024] AATA 517 (10 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Antish Lutchmiah

CASE NUMBER:  2217114

HOME AFFAIRS REFERENCE(S):          BCC2022/2198841

MEMBER:Christine Kannis

DATE:10  February 2024

PLACE OF DECISION:  Perth

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

Statement made on 10 February 2024 at 9:29am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant failed to attend tribunal hearing – applicant was not enrolled in a registered course from 21 February 2020 – applicant did not respond to the NOICC – breached condition 8202 – an extensive period of non-enrolment – decision under review affirmed  

LEGISLATION
Migration Act 1958, ss 116, 359

Migration Regulations 1994 (Cth), Schedule 8

CASES
Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 November 2022 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 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of his visa. 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. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. On 7 December 2023, the Tribunal sent the applicant an Invitation to Attend a Hearing letter (by email) which advised that a hearing had been listed for 6 February 2024 at 9.00am (WA time). The Invitation informed the applicant that if he was unable to attend the hearing he should advise the Tribunal as soon as possible. The Invitation advised that if he did not attend the hearing a decision may be made on the review without taking any further action to allow or enable him to appear before the Tribunal or that his application for review may be dismissed without any further consideration on the application and based on the information before the Tribunal. The Invitation was sent to the applicant’s email address provided by him in his Application for Review lodged on 21 November 2022.

5. The applicant did not respond to the Invitation.

6. On 20 December 2023 and 23 January 2024, the Tribunal sent the applicant emails requesting that a Hearing Response be provided. The Invitation was sent to the applicant’s email address provided by him in his Application for Review lodged on 21 November 2022.

7. On 30 January 2024, the Tribunal sent the applicant an email which included the following:

   On 7 December 2023 we sent a letter inviting you to attend a hearing in person on 6

   February 2024 to give evidence and present arguments relating to the issues arising in your case.

   Our records indicate that you departed Australia on 8 October 2023 and have not

   returned. To enable you to appear at the hearing, the hearing mode has changed to

   MS Teams video.

   Details relating to the new hearing mode are set out below. Please note that all other hearing details are unchanged.

8. In the email sent on 30 January 2024, the applicant was again advised that if he was unable to attend the hearing he should advise the Tribunal as soon as possible. The applicant was again advised that if he did not attend the hearing a decision may be made on the review without taking any further action to allow or enable him to appear before the Tribunal or that his application for review may be dismissed without any further consideration on the application and based on the information before the Tribunal. The email was sent to the applicant’s email address provided by him in his Application for Review lodged on 21 November 2022.

9. On 31 January 2024, the Tribunal sent the applicant an email which provided a link to a Change of Contact Details form provided on 26 August 2022.

10. The applicant did not respond to the Invitation dated 7 December 2023 or to any subsequent emails.

11. On 30 January 2024, the Tribunal sent the applicant a SMS hearing reminder to the phone number provided by him in his Application for Review lodged on 21 November 2022. Delivery of the SMS failed.

12. The Tribunal attempted to telephone the applicant at 8.50 am and at 9.00 am on 6 February 2024. The calls were not answered.

13. The applicant failed to appear at the hearing and did not contact the Tribunal prior to the scheduled hearing to advise of an inability to attend.

14. The Tribunal is satisfied that the applicant has been given an opportunity to attend the hearing. In making this determination the Tribunal has placed weight on the emails sent to the applicant between 7 December 2023 and 31 January 2024. The emails were sent to the applicant’s email address which he provided in his Application for Review lodged on 21 November 2022. There is nothing before the Tribunal to indicate that the emails were not delivered to the email address.

15. The Tribunal proceeds to make a decision in this case without taking any further action to allow or enable the applicant to appear before it as it is empowered to do under s.362B of the Act.

16. 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

17. 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 (Cth) (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?

18. On 15 June 2019, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.

19. 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 full-time registered course: 8202(2)(a)

    ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than the course in relation to which the visa was granted: 8202(2)(b)

    ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

    ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

20. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

21. In the present case, the applicant’s visa was cancelled on the basis that he was not enrolled in a full-time registered course.

22. Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2]

    [1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).

    [2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act.

23. The information from PRISMS shows that the applicant was not enrolled in a registered course from 21 February 2020.

24. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 21 February 2020 and the Tribunal finds that he breached condition8202(2)(a) of his visa.

25. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that 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

26. 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’, as set out below.

27. On 3 October 2022, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 21 February 2020 and had therefore failed to comply with condition 8202(2)(a) of his visa.

28. The applicant did not respond to the NOICC.

29. As the applicant did not respond to the NOICC and did not attend the hearing or provide written submissions prior to the hearing, the Tribunal has relied on the information contained in the Department’s file including the Decision Record.

30. The applicant’s PRISMS record shows he completed one course, an Advanced Diploma of Technology-Electrical course in 2017. PRISMS shows he had two courses cancelled, a Bachelor of Engineering course was cancelled in 2015 and a Bachelor of Engineering (Electrical and Renewable Energy) Honours course in 2020.

31. Relevant to the decision under review, PRISMS shows the applicant’s enrolment in the Bachelor of Engineering course was cancelled in 2020 due to Unsatisfactory course progress.

32. Given the applicant’s failure to attend the hearing the Tribunal was not able to put his PRISMS record to him for his comment or response under s 359AA of the Act.  Accordingly, the Tribunal places no weight on the applicant’s PRISMS record save for the enrolment which was cancelled on 21 February 2020. This enrolments was discussed in the NOICC and in the delegate’s decision and the Tribunal considers that the applicant has been given an opportunity to respond to this enrolment cancellation and has not disagreed with the information.

33. The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.

    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

34. The purpose of the applicant’s visa was to enable him to study. The applicant was not enrolled in a course of study for a period of 2 years 8 month from February 2020 until he received the NOICC. The Tribunal finds the applicant’s breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.

35. Given the applicant’s failure to appear at the hearing, the Tribunal was unable to ask him whether there was a compelling need for him to travel to or remain in Australia. 

36. The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

    The extent of compliance with visa conditions

37. The applicant has not complied with condition 8202 of his student visa because he has failed to maintain enrolment in a full-time registered course of study from 21 February 2020.  The requirement to maintain enrolment is a fundamental condition for the grant of a Student (subclass 500) visa. There is no evidence before the Tribunal that he has not complied with the other conditions attached to his visa.

38. The applicant’s non-compliance for an extended period of 2 years 8 months from 21 February 2020 until he received the NOICC weighs in favour of visa cancellation.

    The degree of hardship that may be caused (financial, psychological, emotional or other hardship)

39. Given the applicant’s failure to respond to the NOICC or to appear at the hearing, the Tribunal was unable to ask him whether hardship may be caused by the cancellation of his visa. The Tribunal is not aware of any hardship which will result from cancellation of his visa and gives this factor no weight in its considerations

    Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control

40. The applicant’s visa was cancelled as a result of his failure to maintain enrolment.  There was no evidence before the Tribunal to indicate that the applicant’s non-compliance with the visa condition was due to circumstances beyond his control or that there are any extenuating circumstances in this case.  

41. The Tribunal finds there are no extenuating or compassionate circumstances in this case and this weighs in favour of visa cancellation.

42. Past and present behaviour of the visa holder towards the Department

43. There is no evidence before the Department that the applicant has behaved inappropriately with the Department and the Tribunal gives this factor no weight in its considerations.

    Whether there would be consequential cancellations under s 140

44. There is no one attached to the applicant’s visa and as such the Tribunal gives this factor no weight in its considerations.

    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

45. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s 189 and removed from Australia pursuant to s 198. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant and gives this some weight against cancellation.

    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

46. There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation and the Tribunal gives this factor no weight in its considerations.

    Any other relevant matters

47. The Tribunal is not aware of any other considerations in relation to the cancellation.

    Conclusion

48. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of his visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant was not fulfilling the purpose of his travel to and stay in Australia as he was not undertaking the study for which his visa was granted. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa. It will not be in breach of Australia’s international obligations. The Tribunal is not aware of any hardship that may be caused by the cancellation. The Tribunal finds that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

49. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and 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 applicant’s Class TU visa.

    Christine Kannis
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.