Quimbayo Falla (Migration)

[2018] AATA 5476

Quimbayo Falla (Migration) [2018] AATA 5476 (15 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jose Ricardo Quimbayo Falla

CASE NUMBER:  1702417

HOME AFFAIRS REFERENCE(S):           BCC2016/4334135

MEMBER:Brendan Darcy

DATE:15 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 15 November 2018 at 1:21pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 573 Higher Education Sector – not enrolled in registered course – lack of information – response to NOICC in inaccessible format – no response to resubmission request – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 February 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. When the applicant validly lodged this application for review, he submitted a copy of the delegate’s decision record outlining the reasons not to cancel the visa. The delegate cancelled the visa on the basis that the ground for cancellation existed and the grounds for cancellation outweighed the grounds for not cancelling the 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 was invited to attend a scheduled hearing at the Tribunal’s Melbourne offices at 12.00PM on 15 November 2018. He was notified by email.

4. On 12 November 2018, the applicant emailed the Tribunal to inform it that the applicant will not attend the scheduled hearing; that he did not have any additional information to provide; and to make a decision based on the available information.

5. Based on this request, the hearing was cancelled and the Tribunal has proceeded with its decision making based on the available information before it.

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. Based on the delegate’s decision record which was attached to the applicant’s review application, the applicant was granted a Subclass 573 visa for higher education on 9 September 2014 and the visa was to expire on 13 September 2018. According to the decision record, the Provider Registration and International Student Management

    
    

    Systems (PRISMS) records indicates the applicant has not been enrolled in a course work since 16 January 2016.

11. The decision record also notes that applicant was provided with a Notice of Intention to Consider Cancellation (NOICC) on 19 January 2017, inviting the applicant to respond in writing. On 30 January 2047, a response to the NOICC was received by email, however the documents could not be accessed or viewed.

12. On 30 January 2017, the Department requested the applicant to resubmit his response to the NOICC in a format that could be accessed. However, no response was received.

13. A delegate on behalf of the Minister then proceeds to cancel the applicant’s student visa on 8 February 2017.

14. The applicant applied to the delegate’s cancellation decision reviewed by the Tribunal on 13 February 2017 with the decision record attached.

15. At no stage between lodging this review application to the time of making this decision did the applicant or anyone on his behalf submit any documents, statements or arguments about the grounds for the cancellation not existing.

16. Based on the available evidence, the applicant was not enrolled in a registered coursework between 16 January 2016 and the date of cancellation, while holding a subclass 572 student visa for vocational education and training.

17. Accordingly, the applicant has not complied with condition 8202(2).

18. As the applicant has failed to comply with the visa condition 8202, the ground for cancellation in s.116(1)(b) exists.

    CONSIDERATION OF THE DISCRETION TO CANCEL THE VISA

19. 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’.

20. In this decision, the Tribunal notes that the applicant attempted to provide a response to the issued NOICC but it was not in format that could be accessed by the Department. The Department subsequently requested the applicant to resubmit in a format that could be access. However the applicant did not respond. This application for review has been lodged with the Tribunal for more than twenty months. The applicant responded to a hearing invitation by requesting it to proceed based on the available information. Indeed the applicant explicitly stated he had no additional information to provide.  

21. The Tribunal notes that the applicant has had ample opportunity to do so. In the exercise of its discretionary powers, the Tribunal has the delegate’s decision record on which to principally rely.

    the purpose of the visa holder’s travel and stay in Australia

22. The applicant applied for a student visa for the purposes of full time study in a Bachelor’s or Master’s degree. The delegate found on the basis of the applicant not being enrolled in a registered course of study since 16 January 2016, the delegate was not satisfied that the stated intention at the time of applicant constituted a reason not to cancel the visa. The Tribunal accepts the delegate’s argument in this regard. The Tribunal has little evidence or no arguments before it to the applicant being a genuine student whose purposes in remaining in Australia is full time study for higher education in the foreseeable future.  Accordingly, the Tribunal places considerable weight in this student visa remaining cancelled.  

    the extent of compliance with visa conditions

23. The Tribunal notes that more than twelve months of not being enrolled is a significant amount of time when the stated purpose of the visa is full time study. While this is no other evidence the applicant has not been non-compliant with other conditions imposed on him as a student visa holder, the Tribunal places some weight on his non-compliance with condition 8202 in not having the visa reinstated.

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

24. The Tribunal has no evidence or arguments that the visa remaining cancelled will cause any severe or significant degree of hardship of any kind on the applicant. While some hardship may be plausibly assumed, the lack of evidence or arguments in this particular case indicates the applicant did not have any urgent or severe or even notable degrees of hardships that he anticipates. Based on the applicant’s lack of responsiveness, the Tribunal places only a little amount of weight on their being any financial, emotional and psychological hardship if the visa remains cancelled. 

    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.

25. Had the applicant any circumstances that were extenuating or exceptional or beyond his control leading to the cancellation, he would have taken the opportunity to elaborate those explanations to both the Department and the Tribunal. Instead, he requested the Tribunal to proceed with its decision making on the available evidence. Accordingly the Tribunal places no weight on the visa not being cancelled due to extenuating circumstances beyond the applicant’s control leading to the grounds for cancellation.

    past and present behaviour of the visa holder towards the department

26. According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department .The Tribunal gives this past and present behaviour towards the Department a little weight in his favour.

    whether there would be consequential cancellations under s.140

27. This factor is not relevant in this matter.

    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

28. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained or even forcibly removed. The applicant has presented no specific evidence in relation to this factor despite being given the opportunity to do so. Accordingly the Tribunal gives this only little weight towards 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

29. The applicant, a Colombian national, has not argued there are compelling humanitarian reasons for him remaining in Australia. There is no evidence before the Tribunal that the applicant has earlier applied for a protection visa in the past or is barred by s.48A in applying for a protection visa. Given the applicant has another migration option in this regard, the Tribunal places no weight on this considerations in favour of the student visa not being cancelled.

    other relevant consideration

30. There are no other relevant considerations in this application for review.

    Conclusion

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

32. In this decision, neither the Department nor the Tribunal were provided with any accessible documentary, written or oral evidence or arguments to consider not cancelling the visa when exercising the Tribunal’s discretion. In the context of this lack of information, the Tribunal is not satisfied those factors, cumulatively considered, in favour of the visa not being cancelled are outweighed by those factors in favour of the visa being reinstated.

33. Based on the available evidence, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Brendan Darcy
    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.