Mumtaz (Migration)

[2018] AATA 4697

Mumtaz (Migration) [2018] AATA 4697 (8 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Farhan Mumtaz

CASE NUMBER:  1711117

HOME AFFAIRS REFERENCE(S):           BCC2017/1081100

MEMBER:Michelle East

DATE:8 October 2018

PLACE OF DECISION:  Perth

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

Statement made on 08 October 2018 at 12:15pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – family sickness – applicant’s mental health – lack of finances – significant period of non-compliance – 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 17 May 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 there was a ground for cancellation for breach of condition 8202, namely that the applicant had not been enrolled in a registered course of study since 28 July 2016. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.  A copy of the delegate’s decision was attached to the application for review.

3. On 31 July 2018 the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 22 August 2018. The invitation stated that if he did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.

4. The applicant failed to attend the hearing on 22 August 2018.  The Tribunal dismissed the application under s.362B(1A)(b) of the Act and the applicant applied for reinstatement of the application within the prescribed period by email.  The Tribunal reinstated the application on 30 August 2018 and invited the applicant to attend a hearing by telephone on 8 October 2018 at 10am.  The invitation stated that if he did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.

5. The Tribunal attempted several times from 10am on 8 October 2018 to contact the applicant on the telephone number provided by the applicant as the contact number in Pakistan, without success.

6. The Tribunal is satisfied the applicant received the invitation to attend the hearing on 8 October 2018 as evidenced by his providing his mobile phone contact in Pakistan for the purposes of the hearing.

7. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

8. 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

9. 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?

10. 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).

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

12. As outlined in the delegate’s decision, information relied on from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since 28 July 2016.

13. On the evidence before the Tribunal, the applicant was not enrolled in a registered course.  Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

14. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

15. On 2 May 2017 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because he was not enrolled in a registered course and therefore failed to comply with condition 8202(2) of his visa.

16. The applicant responded on 16 May 2017 outlining the reasons why he discontinued his studies, namely that his mum was sick, he was suffering depression and he had no money.

17. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of any breach and any reasons for the breach.

    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

18. The purpose of the student visa is to enable the visa holder to undertake study in Australia.

19. The applicant has not been enrolled in a registered course of study since 28 July 2016 and has been offshore since 7 August 2017.

20. The Tribunal finds the applicant’s breach of condition 8202 of his visa to be significant because he was not engaging in study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.

21. As the Tribunal was unable to question the applicant and nothing had been provided in writing by the applicant, the Tribunal finds there are no compelling reasons for the applicant to return to Australia.

22. The applicant’s non-engagement in study for which his visa was granted, and the absence of compelling reasons for him to return to Australia, weighs in favour of visa cancellation.

    The extent of compliance with visa conditions

23. The applicant was granted the visa to undertake specified studies in Australia and has not done so since 28 July 2016.  He has not complied with the primary condition of the visa granted to him.

24. Whilst the Tribunal notes the applicant was suffering from some personal family issues during this time it considers the condition of his visa to be important because one of the primary reasons for holding a student visa is to be enrolled and to study and he had not done so for a significant period of time.

25. The Tribunal considers this weighs heavily in favour of cancellation of the visa.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the visa holder and any family members

26. The Tribunal was unable to question the applicant and nothing was provided in writing by the applicant as to whether he would suffer any hardship as a result of the visa cancellation.

27. The Tribunal considers this weighs in favour of cancellation of the visa.

    Circumstances in which the ground of cancellation arose.  Were the circumstances beyond the visa holder’s control

28. The Tribunal notes the applicant’s response to the NOICC as outlined in the delegate’s decision regarding his mother’s health, his depression and lack of finances and acknowledges these circumstances were beyond the applicant’s control.  The Tribunal finds this gives some weight in the applicant’s favour.

    Past and present conduct of the visa holder towards the Department

29. Nothing adverse is known about the applicant’s past and present conduct towards the Department.  The Tribunal considers this weighs in favour of the applicant when considering whether to cancel 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

30. The delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, s.48 of the Act means that he will have limited options to apply for further visas in Australia.

31. The Tribunal notes the applicant is already offshore and living in Pakistan since August 2017.  The Tribunal affords this little weight in the applicant’s favour in determining whether to cancel the visa.

    Whether there would be consequential cancellations under s.140

32. There is no evidence before the Tribunal that there would be consequential cancellations in this case.

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

33. There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation.

34. The Tribunal recognises that the cancellation of the visa is a significant matter.  However, on balance and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Michelle East
    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.