MASKEY (Migration)

[2020] AATA 166

MASKEY (Migration) [2020] AATA 166 (16 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr UTSHAB MASKEY

CASE NUMBER:  1932617

HOME AFFAIRS REFERENCE(S):           BCC2019/3163416

MEMBER:Peter Booth

DATE:16 January 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 16 January 2020 at 11:50am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant failed to maintain enrolment in a full time registered course – breached condition 8202 – non-payment of fees – COE was cancelled – inconsistent evidence –decision under review affirmed

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 November 2019 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 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with condition 8202 of Schedule 8 to the Migration Regulations 1994. 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 applicant appeared before the Tribunal on 15 January 2020 to give evidence and present arguments.

4. 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

5. 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 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?

6. 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)

   ·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).

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

8. The delegate’s decision cancelling the applicant’s student visa is dated 11 November 2019. In that decision the delegate found that the applicant failed to maintain enrolment in a registered course of study following the cancellation of his enrolment on 18 June 2019. At the hearing the applicant confirmed the correctness of this finding. On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).

   Consideration of the discretion to cancel the visa

9. 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. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedural Instruction ‘General visa cancellation powers’.

10. The Tribunal turns to consideration of any relevant factors, including matters raised by the applicant and the Departmental guidelines which cover matters such as:

    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

11. The applicant gave evidence that he arrived in Australia on 5 July 2015 as the holder of a Subclass 573 student visa for the purposes of studying a Bachelor of Information Technology (Networking). He gave no evidence that he has a compelling need to travel to or remain in Australia.

    The extent of compliance with visa conditions

12. The applicant confirmed that he was not enrolled in a registered course of study after 18 June 2019.

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

13. The applicant gave no evidence regarding any degree of financial, psychological, emotional or any other hardship which may be caused by the cancellation of the visa. However, the Tribunal accepts that cancellation of the applicant’s visa will cause some degree of financial hardship, in the form of lost tuition fees, or emotional, in the form of disappointment or embarrassment in not completing the course. The Tribunal gives this factor little weight.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

14. The applicant said that he completed a Certificate III in Information Technology (Networking) in January 2016, a Certificate IV in Information Technology (Networking) in July 2016 and a Diploma of Information Technology (Networking) in November 2016. He said that he had certificates of completion in respect of each course and would provide them to the Tribunal by 4 pm on 15 January 2020.

15. In March 2017 he enrolled in a Diploma of Business Information Management and completed it in August 2017. He then enrolled in a Certificate IV in Commercial Cookery, “around August 2018”. In answer to a question from the Tribunal he said that he did not attend any classes between August 2017 and August 2018. He added that he was enrolled in a Bachelor of Information Management course, but did not attend the classes. In answer to a question from the Tribunal he said that he has not yet completed the commercial cookery course. The Tribunal observed that the confirmation of enrolment (COE) in respect of that course stated that it was scheduled to be completed on 6 December 2019. The applicant said that he had some assessments yet to be completed. He did not elaborate.

16. The Tribunal enquired as to why he was not enrolled after 18 June 2019. He said that every six months he was supposed to re-enrol but he did not re-enrol in time. He received a notice of intention to consider cancellation of his student visa in “August 2019” and prior to that time did not know his enrolment had been cancelled. He said he “talked to the college” that he was told “after we get the fees we will talk about it”. He said that he paid the outstanding fees in “the first week of September”. In answer to a question from the Tribunal he said that he would provide documents in respect of the payment by 4 pm on 15 January 2020. The Tribunal enquired as to what steps he took to ensure that his course participation was reinstated to which he said “I went to a few classes and talk[ed] to some people”. He did not elaborate. In response to a question from the Tribunal he said that he did not obtain a new COE and did not ask for one. His reason appeared to be because he already had a COE, although this must have been the COE which had been cancelled by reason of non-payment of fees.

17. The Tribunal then put some passages from the delegate’s decision to the applicant. In particular the delegate stated:

    The visa holder claims that his purpose is to continue studying, in his in NOICC response dated 20 September 2019, the visa holder claimed that he has paid enrolment for these for his diploma of hospitality management course. However, the education provider has confirmed on 10 October 2019 that the visa holders COE for this diploma course was cancelled on 18 June 2019 for non-payment of fees. The education provider also confirmed that the visa holder is not a current student at their Institute.

18. The Tribunal observed that the passages in the delegate’s decision were inconsistent with the evidence of the applicant insofar as his assertion of payment of outstanding fees in “the first week of September” was concerned. The Tribunal pointed out that the course provider informed the delegate “on 10 October 2019” that the enrolment was cancelled and that “the visa holder is not a current student at their Institute”. The applicant was invited to comment upon this, he had no response. The Tribunal emphasised the importance of evidence of payment and reinstatement of the COE to the applicant. The applicant appeared to understand. The applicant declined an opportunity to add anything further to his application for review. The applicant has not provided any evidence of payment of the outstanding course fees in “the first week of September”. The Tribunal gives significant weight to the passages in the delegate’s decision referred to above and in the absence of documentary corroboration of the applicant’s assertions of payment, the Tribunal finds that the enrolment was cancelled for lack of payment and that the applicant did not pay some or all outstanding fees. The Tribunal concludes that the circumstances in which the cancellation arose were not beyond the applicant’s control.

    Past and present behaviour of the visa holder towards the Department

19. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    Whether there would be consequential cancellations under s.140

20. The Tribunal was provided with no evidence on this point and gives it little weight.

    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

21. The Tribunal accepts that there may be legal consequences as a result of the cancellation. However, these consequences were intended by Parliament when enacting the relevant legislation. The Tribunal gives them little weight.

    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

22. There was no evidence in relation to this factor and the Tribunal gives it no weight.

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

23. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    Any other relevant matters

24. There was no evidence of any other matters and the Tribunal gives this factor no weight.

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

    DECISION

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

    Peter Booth
    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.