Muenna (Migration)

[2020] AATA 847

Muenna (Migration) [2020] AATA 847 (19 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tanat Muenna

CASE NUMBER:  1805816

HOME AFFAIRS REFERENCE(S):          BCC2017/3936465

MEMBER:Stephen Conwell

DATE:19 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 19 March 2020 at 5:23pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – not enrolled in registered course – no appearance at hearing – discretion to cancel visa – physical health – breakdown of relationship – mental health – no approach to education provider – no evidence to support claim – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)

CASE

Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 March 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 and therefore had breached condition 8202 of his 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. The applicant sought review of the delegate’s decision at the Tribunal and attached a copy of the delegate’s decision with his application.

4. By letter dated 31January 2020, the Tribunal wrote to the applicant, inviting him to attend a video hearing on 18 March 2020. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. By email response of 11 February 2020 the applicant’s confirmed his attendance at the scheduled hearing.

5. On 17 March 2020, the day before the scheduled hearing, the applicant emailed the Tribunal advising that he would not in fact be attending the scheduled hearing and for the Tribunal to “proceed with making a decision in my absence.”  Accordingly the Tribunal will determine the review application “on the papers”.

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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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?

11. 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).

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

13. The Tribunal notes that the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) on 31 January 2018. The NOICC stated that it appeared to the Department that the applicant was not enrolled in a registered course of study since 6 May 2017. The applicant provided a written response to the NOICC in which he confirmed that he had not been enrolled in a registered course of study since 5 May 2017.  

14. In his response to the NOICC the applicant claims that changes in his financial circumstances culminated in the cancellation of his enrolment in a registered course on 4 August 2017. Whilst the response to the NOICC does not expressly concede the applicant’s breach of condition 8202, it does agree that the applicant’s Confirmation of Enrolment (COE) had been cancelled by his educational provider which “has attributed to the breach of this condition.” The response to the NOICC then seeks to explain the circumstances of the breach.

15. The Tribunal has regard to the applicant’s response to NOICC. No other written submission has been put before the Tribunal. The applicant’s submission in summary is:

    ·      he concedes he has not been enrolled in a course since 5 May 2017;

    ·      his non-enrolment came about because of certain personal problems with which  he struggled to cope;

    ·      in particular his eyesight deteriorated which made it difficult for him to study;

    ·      furthermore he suffered a broken relationship which proved emotionally challenging for him;

    ·      if his visa is permitted to be renewed he intends to return to study.

16. On the information before it the Tribunal is satisfied that the applicant was not enrolled in a registered course of study from 5 May 2017.  Furthermore, the applicant has submitted no evidence of his enrolment in any other registered course of study in Australia. The Tribunal is not satisfied the applicant meets condition 8202(2)(a). Condition 8202(2)(a) requires a Student visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the applicant to cease to be enrolled in a registered course (per Liu v MIMIA [2003] FCA 1170).

17. The Tribunal finds that on the evidence the applicant ceased to be enrolled in a registered course and therefore has breached condition 8202 of his visa.

    Consideration of the discretion to cancel the visa

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

19. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to the material evidence available to it, as to why the visa should not be cancelled, and government policy guidelines contained 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 or remain in Australia

20. The Tribunal notes the purpose of a Student visa is to allow for travel to and stay in Australia in order to study. The applicant’s response to the NOICC confirms that he came to Australia for the purpose of study. There is no evidence to suggest that the applicant came to Australia for any other purpose than to study. Furthermore he concedes that he had not been enrolled in a registered course of study since 5 May 2017.  The Tribunal is satisfied that the applicant was not pursuing the purpose for his travel to Australia as he was not actively engaged in studies since that time.  

    The extent of compliance with visa conditions

21. There is no information before the Tribunal to indicate that the applicant is in breach of any condition of his visa, other than condition 8202. However the Tribunal considers the breach to be significant, given the length of time in which the applicant failed to maintain enrolment.  The Tribunal also considers this breach to be serious given the significance of enrolment in a registered course for the visa granted.

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

22. The Tribunal notes the applicant had not identified any hardship that may be caused to him and/or any family member by the cancellation of his visa. However, the Tribunal accepts the applicant might be subject to some financial difficulty if the visa is cancelled. The Tribunal also accepts that if the applicant’s visa is cancelled he would become an unlawful non-citizen and liable to detention under s.89 and removal under s.198 of the Act. He would also have limited options to apply for further visas in Australia and may thus be required to return to his country of origin. However, this does not persuade the Tribunal it should exercise its discretion not to cancel the visa.

23. The Tribunal notes there is no evidence that any family member/s in Australia would be negatively impacted by the cancellation of the applicant’s visa. 

    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 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.

24. According to his evidence the circumstances in which the applicant’s non-enrolment arose came about because of personal problems which challenged him, including the pain of a broken relationship and challenge of a serious problem with his eyesight, which made study  difficult for him.

25. The applicant has submitted little or no evidence in support of these claims.  In respect of his claimed difficulties with his eyesight he has tendered only a prescription for spectacles from an optometrist dated 11 September 2017. Poor eyesight is a common enough problem for a great many people, many of whom find a satisfactory remedy in the wearing of prescription spectacles or contact lenses, allowing them to pursue all manner of studies, sports and careers.

26. The applicant has not provided any other medical certificate or report to elaborate on the nature or severity of the problem with his eyesight.  There is no evidence to suggest that this condition had impacted on his ability to study or to remain enrolled.

27. In respect of the breakdown of a personal relationship the Tribunal notes that the applicant has provided no evidence to support this claim; the Tribunal therefore finds that this claim is not an exceptional circumstance.  Emotional pain is sadly one of the many vicissitudes of life which very few people, if any, are able to avoid.

28. It is reasonable to expect that a Student visa holder affected by financial and/or personal difficulties would depart Australia temporarily to seek the support of family and friends until their financial situation or personal circumstances improve rather than remain in Australia and continue to not comply with their visa conditions.

29. Student visa holders who no longer study in Australia and are enrolled in a CRICOS[1]  registered course should make plans to depart Australia, or alternatively discuss their predicament with their educational provider as well as consult with the Department regarding their visa status.

    [1] Commonwealth Register of Institutions and Courses for Overseas Students

30. The onus rests solely on the Student visa holder to contact the Department before taking any action to significantly change their circumstances (such as ceasing studies without obtaining alternative enrolment or not commencing further studies) and to clarify any consequences that may result from such a change.

31. It is reasonable to conclude that the applicant was aware of these circumstances yet failed to contact the Department regarding his changed circumstances or seek clarification or advice with respect to his visa status. Instead he has remained in Australia in breach of his Student visa condition for an extended period of time.

32. Further, as previously noted, based on the evidence before it, the Tribunal is not satisfied the breach occurred in circumstances beyond the applicant’s control.  Neither does the Tribunal consider there are extenuating or compassionate circumstances in this case.

    Past and present conduct of the visa holder towards the department

33. Nothing adverse is known about the applicant’s past and present behaviour towards the Department. 

    Whether there would be consequential cancellations under s.140

34. The Tribunal is satisfied there are no persons in Australia whose visas would, or may, be cancelled under s.140 as a consequence of the applicant’s visa being cancelled.

    Whether any international obligations would be breached as a result of the cancellation

35. Regarding Australia’s international obligations, the Tribunal is not persuaded that the circumstances of this case were such that would engage Australia’s international obligations. There is no evidence of children (or other family members) in Australia whose interests would be affected by the cancellation.  There was nothing to suggest that family violence was a relevant factor.

    Any other relevant matters

36. As the applicant elected to not attend the scheduled hearing and his submission did not mention any other relevant matters, this consideration is given no weight by the Tribunal.

    Conclusion

37. The Tribunal has considered the totality of the applicant’s circumstances and has found that the applicant breached the enrolment requirement in condition 8202 and that this breach was significant.  There is no evidence before the Tribunal to indicate the applicant was enrolled in a registered course of study since 5 May 2017.

38. Considering the circumstances as a whole, the Tribunal is satisfied the visa should be cancelled.  

    DECISION

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

    Stephen Conwell
    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.