Malik (Migration)

Malik (Migration) [2019] AATA 6328 (18 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Sunil Malik
CASE NUMBER:  1912171
HOME AFFAIRS REFERENCE(S):           BCC2019/302477
MEMBER:T. Quinn
DATE:18 November 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 18 November 2019 at 12:45pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa –applicant failed to attend tribunal hearing – not a genuine student – applicant failed to maintain enrolment in a full time registered course – breached condition 8202 –decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 338, 347
Migration Regulations 1994 (Cth), Schedule 8
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 15 May 2019 made by a delegate of the Minister for Home Affairs (‘the delegate’) to cancel the applicant’s Subclass 500 (Student) visa (‘the visa’) under section 116(1)(b) of the Migration Act 1958 (‘the Act’).
The applicant was granted the visa on 9 April 2018.[1] The applicant is from India and initially arrived in Australia in June 2016. On 9 April 2018, the visa was granted for the applicant to study a Bachelor of Business (Accounting).[2]
[1] See delegate’s decision.
[2]See delegate’s decision.
On 1 April 2019, the delegate sent the applicant a Notice of Intention to Consider Cancellation (‘NOICC’) on the basis that he had not been enrolled in a registered course of study since 27 April 2018. The applicant did not respond to the NOICC.
On 15 May 2019, the delegate cancelled the visa on the basis that the applicant had failed to comply with a condition of the visa as required by subsection 116(1)(b) of the Act, namely that the applicant had not complied with a condition of their visa. In this case, the applicant breached subclause 2(a) of condition 8202 of his visa in that he failed to maintain enrolment in a full time registered course. [3] The applicant did not comply with this condition of his visa from 27 April 2018 to 15 May 2019.[4] A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.
[3] As required by condition 8202(2)(a) of the Migration Regulations 1994 (‘the Regulations’).
[4] See delegate’s decision.
On 16 May 2019, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(3) and 347 of the Act.
The applicant’s matter was listed for hearing before the Tribunal at midday on 18 November 2019 whereby the applicant was given an opportunity to give evidence and present arguments. The applicant did not respond to his hearing invitation.
SMS hearing reminders were sent from the Tribunal to the applicant’s mobile number on 11 and 15 November 2019.
The applicant failed to appear before the Tribunal on 18 November 2019. The Tribunal waited until 1230pm and determined to decide this matter on the basis of the material before it.
It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.
The Tribunal has had regard to all the information before it, including the Department File and all information provided by the applicant to the Tribunal. The Tribunal notes that the applicant has not provided it with any material beyond which was before the Department on 15 May 2019.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
STATUTORY FRAMEWORK
The issue in this case is whether the applicant, as the holder of a student visa, has breached condition 8202 of the Regulations. If so, the ground for cancellation is made out and the issue then becomes whether the visa should be cancelled pursuant to section 116(1) of the Act.
Under section 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 subsection 116(1)(b) of the Act. 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Does the ground for cancellation exist?
A visa may be cancelled under section 116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 of the Regulations attached to the applicant’s visa. This condition requires that the applicant:
a.be enrolled in a registered course, or in limited cases, a full time course of study or training and that the registered course be undertaken at the required AQF level: 8202(1) and (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
c.has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full time registered course of study or training.
The applicant was enrolled in a Bachelor of Business (Accounting). This enrolment ceased on 27 April 2018 and the applicant has not been enrolled in a full time registered course of study since that date.
The applicant has not responded to the NOICC.
The Tribunal is satisfied that the ground for cancellation in section 116(1)(b) exists. As that ground does not require mandatory cancellation under section 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
Consideration of discretion to cancel the visa
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’.
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
The Tribunal does not have information about the applicant’s study history prior to arriving in Australia but assumes, given his age, he arrived shortly after completing secondary school. The delegate’s decision indicates that the applicant has been onshore since June 2016 but there is otherwise no information before the Tribunal as to what basis the applicant has resided onshore and/or how he has spent that time prior to his application for the visa in April 2018.
The applicant was granted the visa on 9 April 2018 to undertake a Bachelor of Business (Accounting).[5] Less than three weeks after this grant, the applicant’s enrolment was cancelled as he ceased attending classes.[6]
[5]See delegate’s decision.
[6]See delegate’s decision.
The applicant has not made submissions or provided evidence as to why he ceased attending classes or why he may have a compelling need to travel to or remain in Australia.
The Tribunal understands that a visa cancellation can be disappointing for visa holders and their families but does not consider there is a compelling need for the applicant to remain in Australia. The Tribunal gives weight in favour of cancelling the applicant’s visa in this regard.
Circumstances in which ground of cancellation arose
The applicant has not made submissions or provided evidence as to why he ceased attending classes or the circumstances in which the ground of cancellation arose and whether such circumstances were beyond the applicant’s control.
The option to return to India to avoid breaching his visa conditions was open to the applicant at all times.
It is the responsibility of a visa holder at all times to ensure they are complying with the conditions of their visa. The Tribunal gives weight in favour of cancelling the applicant’s visa in this regard
Extent of compliance with visa conditions
The Tribunal notes the applicant appears to have otherwise complied with student visa conditions. However, the applicant’s breach of the condition of the visa is extensive, being approximately thirteen months. The Tribunal considers the thirteen month breach a significant breach and gives weight in favour of cancelling the applicant’s visa in this regard.
The degree of hardship that may be caused to the visa holder and any family members
The applicant has not made submissions or provided evidence as to hardship that may be caused to him or his family members.
The Tribunal accepts that the cancellation of a visa is disappointing. It also accepts that money is invested in a person in order to set them up in a country to live independently in order to study.
The Tribunal recognises that the hardship is felt by family members who may also feel let down and disappointed.
The Tribunal is, however, mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition. Whilst appreciating the hardship the applicant and his family may face regarding a cancelled visa, it does not outweigh the breach and the Tribunal gives these reasons limited weight in its considerations.
The visa holder’s past and present behaviour towards the Department
There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department. The Tribunal gives some weight against cancelling the applicant’s visa in this regard.
Whether there are persons in Australia whose visas would, or may, be cancelled under section 140 of the Act
This is not relevant to the applicant.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, 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
If the visa is cancelled, this will result in the following:
a.the applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act;
b.the applicant will have limited options to apply for further visas in Australia;
c.the applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed. The applicant could therefore be subject to a three (3) year exclusion period where they will not be eligible to have any temporary visa application approved if they apply for a visa that requires Public Interest Requirement 4013 to be met.
The Tribunal gives little weight to this consideration in favour of the applicant because:
·these are the intended consequences of the legislation when a visa is cancelled under these grounds;
·it reflects the seriousness with which the Department takes this type of cancellation ground;
·the applicant will be eligible to apply for a bridging visa while they make arrangements to depart Australia and therefore the likelihood of detention is only in the event that they do not co-operate in applying for a bridging visa.
Australia’s international obligations
There is nothing before the Tribunal to suggest that the cancellation of the visa would breach any international obligations. The Tribunal places no weight on this in favour of or against the applicant.
Any other relevant matters
Nil.
CONCLUSION
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
T. Quinn
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.

[2019] AATA 6328

18 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Breach