McDonald (Migration)

[2019] AATA 3460

McDonald (Migration) [2019] AATA 3460 (2 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jordan Lee McDonald

CASE NUMBER:  1832299

HOME AFFAIRS REFERENCE(S):          BCC2018/3721468

MEMBER:Vanessa Plain

DATE:2 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 02 August 2019 at 12:12pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of visa not fulfilled – motivated to remain in Australia for purposes other than full time study – length of non-enrolment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
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 16 October 2018 made by a delegate of the Minister for Home Affairs 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 delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study. 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 22 July 2019 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 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?

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 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).

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

8. At the hearing, the applicant candidly admitted that he was not presently enrolled in a registered course of study.  He stated that he had lost interest in his studies some time ago and does not wish to study presently.  He further candidly admitted that he currently held a bridging visa with limited working rights and it was his intention to apply for a partner visa in due course, as he is currently in a relationship with a British woman who is residing in Australia on a student visa presently.  The applicant further candidly stated that it was his wish to remain in Australia and see where the relationship progresses.  This statement is consistent with the applicant’s desire to obtain a partner visa. 

9. The applicant’s student visa was granted on 4 May 2016 and he ceased to be enrolled in a registered course on or around 9 January 2017.  The applicant has delayed making an application for a partner visa based on the advice of his migration agent, who advised the applicant to wait until this Tribunal’s determination of this application. 

10. The applicant candidly admitted that he does not desire to study, that his main reason for being in Australia is to see where his relationship progresses while he has limited rights to work in the country.

11. On the basis of the applicant’s candid evidence at the hearing, the Tribunal finds that the applicant’s primary purpose for remaining in Australia is not to study as a full time student and therefore, his intention is inconsistent with the purpose of the grant of student visa.

12. On the evidence before the Tribunal as set out above, the Tribunal is satisfied that the applicant was not enrolled in a registered course at the time his visa was cancelled.  Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

13. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

14. 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’

    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 

15. As stated above, the applicant has candidly admitted that his purpose in being in Australia is to see where his relationship progresses and to work temporarily.  This is supported by his desire to obtain a partner visa.  The applicant candidly admitted he does not wish to study. 

16. Further, the applicant’s partner is resident in Australia and he wishes to obtain a partner visa so as to remain in the country with his partner. 

17. I therefore find that the applicant has a compelling need to remain in Australia for purposes other than full time study and I give this evidence substantial weight towards the visa being cancelled.        

    The extent of compliance with visa conditions

18. The applicant has not complied with condition 8202(2) and for a considerable amount of time, namely, since 9 January 2017. 

19. Given the applicant’s evidence above as to his primary purpose for being in Australia, I find that the applicant does not have a compelling reason for the breach and that the circumstances that led to the breach were reasonably within his control.  I give this some weight towards the visa being cancelled. 

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

20. The applicant described some financial hardship that he would endure if the visa were cancelled, related to the necessity of having to leave the country before being able to apply for a visa again.  I give this some minor weight in favour of the visa not being cancelled. 

    Circumstances in which ground of cancellation arose

21. The circumstances that led to the cancellation of the applicant’s visa have been described above in paragraphs 8 – 10. 

22. As above, the circumstances that led to the cancellation of the visa were entirely within the applicant’s control, further, by the applicant’s own candid admissions, he has a compelling need to remain in Australia for purposes other than full time study.  I give these matters substantial weight towards the visa being cancelled.         

    Past and present behaviour of the visa holder towards the Department

23. The applicant has conducted himself in good faith in his dealings with the Department.  This is demonstrated by the fact that he responded immediately and frankly to the NOICC and gave evidence at the hearing, consistent with his response to the Department.  I give this some weight in favour of the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

24. Not applicable.

    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

25. If the visa were to be cancelled, the applicant would be excluded from making applications for certain types of visas and most importantly to the applicant, would have to depart Australia.  However, given the circumstances set out above, this would not be manifestly unfair and I do not give this substantial weight in favour of the visa not being cancelled. 

    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

26. Not applicable.

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

27. Not applicable.

    Any other relevant matters

28. Not applicable. 

29. In conclusion, the applicant candidly admitted the breach of his visa and that he did not desire to study further in Australia.  It is therefore clear that the considerations I have arrived at, on examining all the evidence before me, lean towards the visa being cancelled and I so find.

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

    DECISION

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

    Vanessa Plain
    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.