Mehdi (Migration)

Mehdi (Migration) [2019] AATA 2973 (15 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Abbas Mehdi
CASE NUMBER:  1701876
HOME AFFAIRS REFERENCE:               BCC2016/3272178
MEMBERS:Lilly Mojsin (Presiding)

Lynda Young
DATE:15 May 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 15 May 2019 at 3:36pm
Statement made on 15 May 2019 at 2:23pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – not enrolled in registered course – no response to tribunal communication – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), condition 8202
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 30 January 2017 made by a delegate of the Minister for Immigration and Border Protection 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).
The applicant’s visa was subject to condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulation) requiring the applicant to be enrolled in a registered course of study. The delegate cancelled the visa on the basis the applicant, in breach of condition 8202(2)(a) of the Regulations, had not been enrolled in a registered course of study since 8 June 2016 and the grounds in favour of cancellation outweighed the grounds against cancellation. The issues in the present case are whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.
By letter emailed on 25 January 2019 to the applicant and his formerly registered migration agent, the Tribunal notified the applicant it was unable to make a favourable decision on the material before it information alone, and invited the applicant to give evidence and present arguments on the issues in his case at a hearing on 14 March 2019. The Tribunal’s invitation also advised the applicant the Tribunal may, if he did not attend the hearing and an adjournment was not granted, make a decision on the case without taking any further action to allow or enable the applicant to appear before it.
On each of 7 March 2019 and 13 March 2019, the Tribunal sent the applicant reminders by SMS about the hearing on 14 March 2019.
No response to the hearing invitation was received by the Tribunal, and no transmission or delivery failure notices were received in response to the Tribunal’s email and SMS messages.
The applicant failed to appear before the Tribunal on at the hearing on 14 March 2019. Neither the applicant or anyone on his behalf provided any explanation for his non-attendance or any documents including medical certificates, submissions, written responses to the hearing invitation or any requests for postponements to the Tribunal, at any time prior to the time of making this decision.
In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on this review application without taking any further action to enable the applicant to appear before it.
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
The issue in the present review 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.
The applicant applied to the Tribunal for review of the delegate’s decision on 3 February 2017, and attached to his application a copy of the notice of cancellation, the decision and his passport.
By email sent 6 February 2017, the Tribunal acknowledged receipt of his review application and requested he provide, as soon as possible, a statement explaining why he disagreed with the decision, and any supporting material or written arguments he wished the Tribunal to consider.
The Tribunal’s hearing invitation also requested the applicant provide to the tribunal by 7 March 2019, a copy of his current Certificate of Enrolment (CoE) or other document(s) showing current enrolment, documents showing the applicant’s past studies in Australia, including copies of all attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to his past or intended studies in Australia, and all additional documents or information on which he intended relying.
The applicant did not appear before the Tribunal at the scheduled hearing to give evidence and present arguments and, despite the Tribunal’s requests, did not provide the Tribunal with any documents in addition to those provided with his, or any submissions in support of his application or addressing the grounds for cancellation or why his visa should not be cancelled. As a result, the Tribunal must determine the application on the limited evidence before it, comprised of the review application and attached documents (the notice of cancellation, the decision and passport) and information contained in the NOICC and email correspondence from the applicant dated 30 January 2017 in Department's file.
Did the applicant comply with Condition 8202?
Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
Condition 8202, as it applies in this review 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).
In the present review, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
By Notice of Intention to Consider Cancellation (NOICC) dated 9 January 2017, the Department:
·     notified the applicant it intended considering cancellation of his visa as it appeared from PRISMS records he had not been enrolled in a registered course of study since 8 June 2016, in breach of visa condition 8202;
·     notified the applicant the delegate would take into account, in considering whether to cancel his visa were, matters such as the purpose of his travel to and stay in Australia , the extent of compliance with any conditions subject to which his visa was granted, the degree of hardship that may be caused to him and any family members if the visa is cancelled, the circumstances in which the ground for cancellation arose, his past and present behaviour toward the Department, the legal consequences of a decision to cancel the visa, and any other matters;
·     invited the applicant to provide his written response to the NOICC within five working days, addressing the identified ground(s) for cancellation, reasons why his visa should not be cancelled, the matters the delegate would take into account in considering whether to cancel his visa, and any other matter he considered relevant;
·     notified the applicant his response would be taken into account in deciding whether to cancel his visa, and if he did not respond, the decision would be made on the information then held by the Department;
·     outlined the consequences should the applicant’s student visa be cancelled.
·     On 30 January 2017, the delegate cancelled the applicant’s student visa, and a copy of the visa cancellation notice and delegate’s decision were emailed to the applicant. The decision set out the following:
·     the applicant was granted a Subclass 572 Vocational Education and Training Sector student visa on 10 March 2015, with a stay period to 5 July 2017;
·     the applicant was notified of the intention to consider cancellation on 9 January 2017 on the basis of PRISMS evidence that he had not been enrolled in a registered course of study since 8 June 2016 in breach of visa condition 8202; and invited to respond in writing;
·     no response to the NOICC was received within the specified timeframe;
·     on evidence obtained from PRISMS, the applicant had not been enrolled in a registered course of study since 8 June 2016, and had breached condition 8202 of his visa.
By email sent to the Department on 30 January 2017 in response to the Visa Cancellation Notice, the applicant stated:
“I am writing this email in regards to the cancellation notice I have received. It has come to my attention that according to the letter I have not enrolled into any course. I have to inform you that during this time I have been doing my certificate 3 and 4 in age care. With that I was also doing my business management course as well. As of my knowledge I have not committed any action that can result into the cancellation of my visa. If, the courses that I am doing is impacting my visa please do inform me so that I can take an early action to avoid the cancellation. Please feel free to contact me for further information.”
No supporting material was attached to the applicant’s email.
The Tribunal wrote to the applicant on 25 January 2019 and invited the applicant to a hearing and also invited the applicant to provide details of his past studies in Australia and his current Confirmation of Enrolment. The applicant failed to do so and he failed to attend the hearing. As the Tribunal has not had the opportunity to discuss with the applicant his studies in Australia and as the applicant has failed to respond to Tribunal correspondence seeking details of his past and present studies, the Tribunal is unable to be satisfied that the applicant was enrolled in any course of study after 8 June 2016.
Accordingly, on the evidence before it, the Tribunal is satisfied the applicant was not enrolled in a registered course of study from 8 June 2016, in breach of visa condition 8202.
The Tribunal is accordingly satisfied the ground for cancellation in s.116(1)(b) exists.
As the 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
Having found the applicant had breached a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion.
The Tribunal has had regard to the circumstances of this case, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
The applicant did not respond to the NOICC request to provide the Department with any reasons why his visa should not be cancelled or address any of the matters the delegate would take into account (reflecting PAM3), or address any of those matters in his 31 January 2017 email. The applicant not appear and give evidence or provide submisisons at the hearing and, despite the Tribunal’s request in its application acknowledgement and hearing invitation, has not provided any documents or submissions in respect of any of the matters in PAM3 or other circumstances for the Tribunal’s consideration in deciding whether to exercise of its discretion to cancel the visa.
The PAM 3 matters are addressed in the decision. The applicant’s email does not dispute any of the information or conclusions set out in respect of the PAM3 matters in the decision.
The purpose of the visa holder’s travel to and stay in Australia
The decision states there was no evidence before the delegate suggesting the applicant’s original intention for travel to and stay in Australia was not for the purpose of study.
On the evidence before the Tribunal, the applicant was not enrolled in a registered course of study for a period of just over six months from 8 June 2016, until cancellation.
Student visas are, as the delegate identifies, granted for the purpose of non-citizens and non-permanent residents studying towards, and achieving, an educational qualification in Australia. That purpose cannot be achieved unless the visa holder is enrolled in a registered course of study. Taken in that context, the Tribunal considers the applicant’s failure to be enrolled in a registered course of study from 8 June 2016 weighs in favour of cancellation.
There is no evidence before the Tribunal to suggest that the applicant’s original intention for his travel to and stay in Australia was not for the purpose of study. The purpose of the student visa is to enable the visa holder to undertake study in Australia. As 3 years have passed since the applicant was last enrolled, the Tribunal finds the applicant's breach of condition 8202 of his visa to be significant because he did not engage in study for which his visa was granted and he was not fulfilling the purpose of his travel to and stay in Australia.
There is no evidence before the Tribunal to suggest that the applicant has a compelling need to remain in Australia or that he had a compelling need to travel to Australia. The applicant's non-engagement in 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.
Extent of non-compliance with any conditions subject to which the visa was granted.
The only breach identified in the decision in respect of this consideration is the applicant’s failure to remain enrolled. Although the evidence does not satisfy the Tribunal the applicant breached any other condition imposed on his visa, he was not enrolled for slightly over 6 months prior to cancellation. The noncompliance is significant and the Tribunal places weight on this consideration in favour of cancelling the visa.
Other than a breach of condition 8202 there is no evidence before the Tribunal that that applicant has breached any other conditions of his visa. The Tribunal weighs this factor in favour of not cancelling the visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship).
Given the applicant's failure to attend the hearing, the Tribunal is not aware of any hardship which will result from cancellation of the applicant’s visa. The Tribunal weighs this factor in favour of cancellation.
Although not aware of any specific hardship to the applicant or his family, the delegate accepted the applicant may not be granted a further temporary visa for a period of 3 years on the basis he may not, as a result of the cancellation, meet the public interest criteria 4013.
On the evidence before the Tribunal, the Tribunal is not satisfied there are any specific hardships that may be caused to the applicant or his family as a result of cancellation. The Tribunal considers the hardship caused by the intended consequences of cancellation weighs moderately in favour of not cancelling the visa.
The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.
Given that the applicant did not attend the hearing the Tribunal, and the applicant did not provide information as to the circumstances surrounding his breach of condition 8202, the Tribunal is unable to be satisfied about the circumstances in which the ground for cancellation arose. The applicant did not attend the Tribunal hearing and the applicant has not provided any information for the Tribunal to be satisfied that there are any extenuating circumstances beyond the visa holder’s control that led to the applicant breaching his visa conditions. The Tribunal weights these factors in favour of cancelling the visa.
Past and present conduct of the visa holder towards the Department
There is no evidence before the Tribunal to suggest that the applicant’s past or present behaviour towards the Department was adverse. The Tribunal weighs this factor neither in favour nor against cancelling the visa.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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
The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice regarding his immigration status. 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 weighs this factor neither in favour nor against cancelling the visa.
Whether there would be consequential cancellations under s.140 and whether any international obligations would be breached as a result of the cancellation.
On the evidence before the Tribunal, there are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing before the Tribunal to suggest that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation. The Tribunal weighs this factor neither in favour nor against cancelling the visa.
Other relevant considerations
As the applicant did not attend the Tribunal hearing, the Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation. The Tribunal weighs this factor neither in favour nor against cancelling the visa.
The applicant has not satisfactorily demonstrated that he is a genuine student who should have the visa reinstated because he is a genuine student interested in completing his studies. The Tribunal determines that the grounds for cancellation outweigh the reasons not to cancel the visa.
CONCLUSIONS
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 Class TU visa
Lilly Mojsin
Member
Lynda Young
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 2973

15 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Natural Justice