Papanikolas (Migration)

[2019] AATA 4325

Papanikolas (Migration) [2019] AATA 4325 (26 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Konstantinos Papanikolas

CASE NUMBER:  1713614

HOME AFFAIRS REFERENCE(S):           BCC2017/1165436

MEMBER:Melissa McAdam

DATE:26 September 2019

PLACE OF DECISION:  Sydney

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

Statement made on 26 September 2019 at 2:16pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – not enrolled in registered course – applicant not in Australia – medical condition – no further information provide – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 359
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 20 June 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).

2. The delegate cancelled the visa on the basis that the applicant had not complied with 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. On 23 August 2019 the Tribunal wrote to the review applicant pursuant to s.359 of the Act, inviting the review applicant to provide information relevant to his current circumstances and why his Student visa should not be cancelled, in writing.

4. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 6 September 2019, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) 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: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

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 information in the applicant’s student records, held by the Department, show that he was not enrolled in a registered course of study from 11 September 2016.  The Department informed the applicant of this information and advised him it was considering cancelling his visa.

11. The applicant responded to the Department in May 2017 stating that he came to Australia to study and to see his adult children. He stated that he stopped studying in or around September 2016 because of anxiety, depression and tension brought about by the serious illness of his mother; the college’s mistake regarding his attendance; his trip to Greece to be with his mother for her operation; and his own illness on return and need for heart surgery.  He also submitted medical reports and letters confirming both his and his mother’s medical issues.

12. Other information in the Department’s records shows that the applicant departed Australia on 2 April 2018 and has not returned.  Also, the applicant’s Subclass 572 Student visa was due to expire on 8 June 2018, if it had not been cancelled.

13. The documentary evidence and the applicant’s own evidence confirm that the applicant was not enrolled in a registered course of study since September 2016.  Based upon this evidence the Tribunal finds that 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’.

    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

15. The applicant came to Australia for the purpose of study and to see his children. He has not demonstrated any compelling need to travel to or remain in Australia, and available information shows that he left Australia over a year ago. The Tribunal views this consideration as weighted in favour of the Tribunal exercising its discretion to cancel the applicant’s visa.

    The extent of compliance with visa conditions

16. There is no information before the Tribunal that the applicant has not complied with his other visa conditions. The Tribunal therefore views this consideration favourably to the applicant.

    The degree of hardship that may be caused

17. The Tribunal acknowledges that cancelling the applicant’s visa will make it difficult for him to apply for another visa to Australia in the short term future, and therefore to be able to see his children here.  The Tribunal therefore gives this consideration some weight in the applicant’s favour.

    The 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 that 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

18. The applicant stated that he gave up his studies and enrolment because of his and his mother’s serious illnesses. The Tribunal acknowledges that these health issues would be both extremely worrying and require substantial attention from the applicant.  The Tribunal therefore gives this consideration weight in the applicant’s favour.

    The past and present behaviour of the visa holder towards the department

19. The applicant appears to have been cooperative with the Department. The Tribunal gives this consideration some weight in his favour.

    Whether there would be consequential cancellations under s.140

20. There is no evidence that there will be any consequential cancellations under s.140.

    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

21. The mandatory consequences such as liability for detention, and a temporary ban on being granted a further visa without the minister’s intervention are intended consequences of a visa cancellation. There is no evidence that they would be imposed unfairly or inappropriately upon the applicant. The Tribunal does not view this consideration as weighing against the Tribunal’s exercise of its discretion to cancel the applicant’s visa.

    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

22. There is no information or indication before the Tribunal that any international obligations will be breached as a result of the cancellation of the applicant’s visa.

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

23. The applicant’s visa is not a permanent one so this is not a relevant consideration in this matter.

    Any other relevant matters.

24. The Tribunal notes that the applicant’s visa’s expiry date has well passed so that setting aside the cancellation of the visa will not result in the applicant holding a visa.

    Conclusion

25. The applicant’s breach was a very serious one. Balanced against this are the compassionate circumstances that lead, at least in part, to the applicant ceasing his study and course enrolment. Other reasons to not cancel the applicant’s visa are however weighted relatively low. In view of the applicant’s departure from Australia and the natural expiry date of his visa having passed, the Tribunal considers that the factors for the Tribunal to not exercise its discretion do not outweigh the seriousness of the breach. 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.

    Melissa McAdam
    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.