Matiku (Migration)

[2019] AATA 1067

Matiku (Migration) [2019] AATA 1067 (14 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bob Odhiambo Matiku

CASE NUMBER:  1731432

HOME AFFAIRS REFERENCE(S):           BCC2017/3624612

MEMBER:Dr Colin Huntly

DATE:14 March 2019

PLACE OF DECISION:  Perth

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

Statement made on 14 March 2019 at 12:32pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – invitation to provide further information – no response – not entitled to appear before the Tribunal – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – length of non-compliance – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 359C, 360, 363A
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 4 December 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector 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 had not been enrolled in a course of study in a registered course from 14 March 2017, thereby breaching condition 8202(2) of the grant of the 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. By letter dated 27 February 2019, the Tribunal invited the applicant, pursuant to s.359 of the Act, to provide written information about his enrolment status in a course of study in a registered course between 14 March 2017 and 8 November 2017.  The invitation was sent to the last address provided in connection with the review and advised that,:

   If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information.  You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

4. As at the date of this decision, the applicant has not provided any additional information in response to the foregoing invitation or requested an extension of time.  In these circumstances, s.359C applies and, pursuant to s.360(3) of the Act, the review applicant is not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear.[1]  Accordingly, the Tribunal has proceeded to determine the application on the basis of the available information.

   [1]         Hasran v MIAC [2010] FCAFC 40.

5. The Tribunal also notes that the applicant did not respond to the Department’s notice of intention to cancel his visa, which was issued to the applicant on 4 December 2017.

6. 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

7. 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.

   Did the applicant comply with Condition 8202?

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

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

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

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

10. The Tribunal has had regard to the information in the delegate’s decision, namely, the applicant’s Provider Registration and International Student Management System (PRISMS) record, which confirms that the applicant was not enrolled in a course of study in a registered course between 14 March 2017 and 8 November 2017. 

11. The applicant has provided no information to suggest that, at the relevant time, he was enrolled in a course of study in a registered course.

12. The Tribunal notes that the applicant arrived in Australia on 28 February 2015 on a subclass 573 Student (Temporary) (class TU) Higher Education Sector visa.  The applicant remains in Australia at the date of this decision.

13. Accordingly, there is no information before the Tribunal that the applicant has been enrolled in a course of study in a registered course or applied for another substantive visa since 14 March 2017.

14. On the basis of the foregoing information, the Tribunal finds that the applicant was not enrolled in a registered course of study or training between 14 March 2017 and 8 November 2017. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

15. 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’

16. There is no information before the Tribunal that the applicant faced any illness or hardship that might be the reason why the breach of the applicant’s visa conditions referred to above has occurred.

17. There is no information before the Tribunal that the applicant to suggest that the applicant travelled to Australia for a purpose other than to engage in a course of study in a registered course.  However, the Tribunal also notes that the applicant has subsequently failed to satisfactorily remain enrolled in a course of study in a registered course since that time.  The Tribunal further notes its finding above, that the applicant was not enrolled in a registered course of study or training between 14 March 2017 and 8 November 2017.  The Tribunal, therefore, finds that the applicant has not demonstrated a compelling need to remain in Australia.

18. The Tribunal notes that the applicant’s period of non-compliance with his visa conditions has been substantial.  Accordingly, the Tribunal finds that the breach is, therefore, significant.

19. The Tribunal places some weight on the applicant’s apparent compliance with his visa conditions prior to 14 March 2017, but the Tribunal finds that this compliance does not outweigh the applicant’s non-compliance with his visa conditions after that date.

20. As the applicant has not provided any additional information to either the Department or the Tribunal, there is no additional information before the Tribunal to suggest that the applicant would face any particular hardship (such as financial, psychological, emotional or other hardship) as a consequence of the visa being cancelled.  Accordingly, the Tribunal finds that the applicant would not face any particular hardship as a consequence of the visa being cancelled.

21. The Tribunal notes that the applicant has provided no information about the circumstances of his non-compliance with his visa conditions, and has not responded to the Department or engaged with the Tribunal by providing further information when invited so to do.

22. The applicant has no family members attached to his visa who might be affected by a decision about whether to cancel the visa.

23. The applicant has provided no information regarding international obligations the Tribunal would need to consider if the visa is cancelled or whether there would be a breach of Australia’s nonrefoulement obligations.

24. The Tribunal notes that the decision to cancel a visa pursuant to s.116 of the Act is discretionary.  On the basis of the foregoing analysis and findings, the Tribunal finds that the considerations in favour of cancelling the visa are not outweighed by the considerations in favour of allowing the visa to stand.

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.

    Dr Colin Huntly
    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.