SAKIB (Migration)

[2019] AATA 6252

SAKIB (Migration) [2019] AATA 6252 (1 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MD NAJMUS SAKIB

CASE NUMBER:  1708764

HOME AFFAIRS REFERENCE(S):          BCC2017/1131079

MEMBER:Lynda Young

DATE:1 November 2019

PLACE OF DECISION:  Sydney

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

Statement made on 01 November 2019 at 2:03pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector visa –not a genuine student –applicant failed to attend tribunal hearing – not enrolled in a registered course of study – breached condition 8202 – applicant is, and has continually been offshore – medical certificates did not support a medical reason for the applicant’s failure to enroll –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 119, 379, 362
Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.    This is an application for review of a decision dated 12 April 2017 (decision) 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 applicant’s visa, granted on 13 May 2016, was subject to condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations) requiring the applicant to be enrolled in a registered course of study. 

3.    On 30 March 2017, the applicant was issued a Notice of Intention to Consider Cancellation (NOICC) under s.119 of the Act on the basis it appeared he had not complied with visa condition 8202(2)(a) as, on evidence obtained from the Provider Registration and International Student Management System (PRISMS), the applicant had not been enrolled in a registered course of study since 20 May 2016. The applicant responded to the NOICC on 6 April 2017 (NOICC response).

4.    The delegate cancelled the visa on 12 April 2017 on the basis the applicant, in breach of visa condition 8202(2)(a), had not been enrolled in a registered course of study since 20 May 2016, and the grounds in favour of cancellation outweighed the grounds against cancellation.

5.    The applicant applied to the Tribunal for review of the decision on 21 April 2017.  The issues in the present case are whether that ground for cancellation is made out and, if so, whether the visa should be cancelled.

6.    By letter emailed to each of the applicant and his representative on 29 April 2019 (hearing invitation), the Tribunal invited the applicant to give evidence and present arguments relating to the issues in his case at a hearing on 22 May 2019 at 9:30am. The invitation 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.

7.    On 15 May 2019 and again on 21 May 2019, the Tribunal sent the applicant reminders by SMS about the hearing and by SMS on 22 May 2019.

8.    No response to the hearing invitation was received by the Tribunal, and although a return to sender notice was received in response to the Tribunal’s email to the applicant’s representative, no return to sender or delivery failure notice was received in response to the Tribunal’s email to the applicant.  However, delivery failure notices were received by the Tribunal for each SMS message.

9.    The applicant failed to appear before the Tribunal at the scheduled hearing on 22 May 2019 at 9:30am.  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.

10.      Although movement records show the applicant is, and has continually been, offshore since he departed Australia on 19 July 2017, the Tribunal was still required to invite the applicant to present evidence and present arguments at a hearing. As the hearing invitation explained, the applicant could request the hearing be conducted by video conference or by telephone rather than in person, and the applicant could also have requested withdrawal of this review application. No requests were received by the Tribunal.

11. The Tribunal is satisfied the applicant was properly invited to a hearing in accordance with s.379A(5) of the Act. 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.

12.      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

ISSUES

13. Under section 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in the provision made out. Relevantly to this case, these include the grounds set out in section 116 (1)(b).

14. Section 116(1)(b) provides for cancellation of a visa where ‘its holder has not complied with a condition of the visa.’ Visa conditions for each subclass are identified in the relevant part of Schedule 2 to the Regulations, and described in Schedule 8.

15.      In this case, condition 8202 was imposed on the applicant’s student visa.

16.      Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

a.be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

b.has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

c.has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

17. If satisfied the ground for cancellation in s.116(1)(b) is made out then, 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, having regard to matters specified in the Act or Regulations that are required to be considered and all information relevant to the exercise of the discretion in the circumstances of the case, including matters raised by the applicant and matters of government policy.

18. There are no matters specified in the Act or the Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. Matters to which the Tribunal has regard in considering whether to exercise its discretion to cancel the applicant’s visa include matters raised by the applicant and the matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, Including:

a.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;

b.the extent of compliance with visa conditions;

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

d.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;

e.past and present behaviour of the visa holder towards the department;

f.whether there would be consequential cancellations under s.140;

g.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;

h.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;

i.if it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia;

j.any other relevant matters.

19.      The issues for the Tribunal’s determination in this case are:

a.does the ground for cancellation in s.116(1)(b) of the Act exist?

b.if the ground for cancellation in s.116(1)(b) of the Act exists, should the discretion to cancel the visa be exercised?

EVIDENCE ON THE APPLICATION

20.      The applicant applied to the Tribunal for review of the decision on 21 April 2017, and attached to his application, a copy of the Notice of Cancellation and the Decision Record (application). Although the checklist of attachments in Part K of the ‘Application for Review – Migration’ form lodged by the applicant included ‘Any evidence that will support your application or any comments you wish to make and why you disagree with the decision’, only the Notice of Cancellation and the Decision Record were provided with the application.

21.      The Tribunal, in its ‘Acknowledgement of Application’ letter emailed to the applicant’s representative on 26 April 2017 (application acknowledgment), requested the applicant provide, as soon as possible, material or written arguments he wished the Tribunal to consider, or any other material he believed supported his application, including a statement explaining why he disagreed with the Department's decision.

22.      The Tribunal’s hearing invitation of 29 April 2019 also requested the applicant provide, within seven days, all documents on which he intended to rely in support of his case, and for any documents or written arguments to be sent to the Tribunal to be in or translated into English.

23.      The applicant did not appear at the scheduled hearing to give evidence and present arguments as invited and despite the Tribunal requesting he do so, did not provide the Tribunal with any statement explaining why he disagreed with the decision, and other than those provided with his application, did not provide any documents or other material supporting his application or any submissions or written arguments relating to the issues in his case, or the grounds for cancellation or why his visa should not be cancelled, or at all. That is, the applicant has not provided the Tribunal with any further information than was provided to the Department.

24.      As a result, the evidence before the Tribunal on this review application comprises:

a.the application, including the attached Notice of Cancellation and the Decision Record;

b.the Department’s Notice of Intention to Consider Cancellation (NOICC), dated 30 March 2017;

c.the applicant’s NOICC Response emails to the Department on 6 April 2017.

The NOICC

25.      The Department’s NOICC issued 30 March 2017, notified the applicant it intended considering cancellation of his visa as, based on PRISMS evidence, it appeared he had not been enrolled in a registered course of since 20 May 2016, possibly breaching visa condition 8202(2)(a).  The applicant was invited 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, being those matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, and any other matter he considered relevant.

The decision record

26.      On 12 April 2017, the delegate cancelled the applicant’s student visa, and a copy of the Notice of Cancellation and decision were emailed to the applicant. The decision set out the following:

a.the applicant was granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 13 May 2016;

b.the Department notified the applicant of its intention to consider cancellation of his visa on 30 March 2017, on the basis of PRISMS evidence that he was not enrolled in a registered course of study since 20 May 2016, and invited him to respond in writing;

c.the applicant responded to the NOICC by email on 6 April 2017;

d.based on evidence obtained from PRISMS, the applicant was not enrolled in a registered course of study since 20 May 2016, in breach of condition 8202(2)(a) of his visa;

e.during the application process for his student Visa, the applicant stated his intended purpose of travel to and stand in Australia was study, but as he had not been enrolled since 20 May 2016, he was no longer in Australia in accordance with the original purpose of his visa;

f.after the applicant was issued the NOICC on 30 March 2017, he obtained a new enrolment on 4 April 2017 to demonstrate intention to continue studying. Although holding valid enrolment at the time of decision, the delegate did not consider this weighed significantly in the applicant’s favour as it was obtained after he was issued for the NOICC;

g.in his response to the NOICC the applicant did not raise any matters of hardship. The delegate accepted the applicant may, upon cancellation, become an unlawful non-citizen and be liable for detention under s189 and removal under s198 of the Act if he did not voluntarily depart Australia. Additionally, he may be subject to s.48 of the Act and may be prevented from applying for further visas onshore, and may not be granted a temporary visa for three years as Public Interest Criterion 4013 may apply;

h.at the time the NOICC issued, the applicant was not enrolled and had not been enrolled for over 10 months but subsequently on 4 April 2017 obtained new enrolment, stating that he received the offer for that course on 3February 2017;

i.the delegate, acknowledging the applicant’s response and considering the offer to the applicant predated the NOICC possibly suggesting an administrative error by the education provider, the delegate contacted the education provider and received from them confirmation there was no delay caused by them and the CoE was created at the time the student submitted the required documentation. The course start date was 4 April 2017 and the delegate was accordingly satisfied there had been no administrative error and the ground for cancellation remained valid;

j.although the applicant submitted a number of medical certificates and a letter from a counsellor at the University of Western Sydney, the delegate found the period during which the applicant was suffering health problems occurred in November 2015 but the medical certificate exempt him from studies until 31 March 2016 and the non-compliance did not commence until May 2016. Accordingly very medical certificates did not support a medical reason for the applicant’s failure to unroll;

k.there was no evidence before the delegate explaining the applicant’s failure to be enrolled in registered course for more than 10 months. Despite the applicant’s claims, the applicant had not comply with condition 8202 of his visa and his reasons for so doing were not supported by the evidence he provided;

l.there was no evidence the applicant had been uncooperative with the Department or its staff;

m.cancellation of the applicant Visa would not result in consequential cancellation of an independent Visa holders;

n.there was no information for the Department indicating cancellation would result in a breach of today’s international obligations;

o.the delegate was satisfied the grounds for cancelling the visa outweighed the reasons not to cancel the visa.

DOES THE GROUND FOR CANCELLATION EXIST?

Did the applicant comply with Condition 8202?

27.      The applicant had, as at the hearing date, been on notice of the ground on which his visa was cancelled for slightly more than two years and one month and in that time, despite the Tribunal’s requests in its review application acknowledgement and hearing invitation, has failed to provide any documents or submissions supporting his application, and has not disputed the ground for cancellation existed or provided reasons why his visa should not be cancelled.

28.      The Tribunal invited the applicant to give evidence and present arguments relating to the issues in his case at a hearing. As he failed to attend the hearing and give evidence and present arguments as invited, and the Tribunal has not had the opportunity discuss with the applicant any of the issues in his case including his studies in Australia, the Tribunal is unable to be satisfied that the applicant was enrolled in any registered course of study between 20 May 2016 and 4 April 2017.

29.      On the evidence before it, the Tribunal is satisfied the applicant was not enrolled in a registered course of study between 20 May 2016 and 4 April 2017, in breach of visa condition 8202(2)(a).

30. Accordingly, the Tribunal is satisfied the ground for cancellation in s.116(1)(b) exists.

31. 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

32. 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.

33.      The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant in his response to the NOICC, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

34.      The PAM 3 matters are addressed in the Decision Record. The applicant has not provided any material to the Tribunal or given any evidence at a hearing before the Tribunal disputing any of the information or conclusions set out in the Decision Record in respect of the PAM3 matters, or otherwise addressing the PAM3 matters or other circumstances germane to the Tribunal’s consideration in deciding whether to exercise its discretion to cancel the visa.

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

35.      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.

36.      On the evidence before the Tribunal the applicant had not, by the time his visa was cancelled on 12 April 2017, been enrolled in a registered course of study for a period of ten months.

37.      Student visas are 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. Considered in that context, the Tribunal finds the applicant’s failure to be enrolled in a registered course of study for ten months is significant and weighs in favour of cancellation.

38.      The Tribunal is not satisfied the applicant’s intended purpose of travel to and stay in Australia provides a compelling need to travel to and remain in Australia. Failing to be enrolled for ten months is inconsistent with such need. Similarly, if he genuinely had compelling need, it would be reasonable to expect the applicant to have participated meaningfully in his review application, rather than not attending the hearing without explanation. The Tribunal gives this consideration weight in favour of cancelling the visa.

39.      Nothing in the evidence before the Tribunal suggests 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 purpose his visa was granted for ten months and his failure to participate meaningfully in his review application satisfy the Tribunal the applicant does not have a compelling need to remain in Australia. The Tribunal gives this consideration weight in favour of cancelling the visa.

Extent of non-compliance with any conditions subject to which the visa was granted.

40.      The only instance of non-compliance identified in the decision is the applicant’s failure to remain enrolled as required to comply with visa condition 8202(2)(a). Although the evidence does not satisfy the Tribunal the applicant breached any other condition imposed on his visa, he was not enrolled for ten months prior to cancellation.  That non-compliance is significant and the Tribunal weighs this factor in favour of cancelling the visa.

41.      Other than his non-compliance with condition 8202, there is no evidence before the Tribunal of any non-compliance with 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).

42.      Given the applicant's failure to attend the hearing, the Tribunal is not aware of any specific hardship that may be caused to the applicant or his family if his visa is cancelled, and considers this factor weighs in favour of cancellation

43. The Tribunal accepts visa cancellation would ordinarily result in the visa holder becoming unlawful and liable for detention under s189 and removal under s198 of the Act unless that person voluntarily departs Australia or holds a bridging visa. Movement records indicate the applicant was granted a Bridging Visa E. Although the basis on which it was granted and when it will cease are not specified, as it was granted temporally close to the date the the applicant lodged this review application, the Tribunal is satisfied it is reasonable to infer it was granted based on this review application and accordingly would remain in force until either 35 days after the Tribunal makes its decision on the review application or the applicant departs Australia, whichever is the earlier. In those circumstances, the Tribunal is not satisfied the applicant would immediately become unlawful or liable to detention or removal upon cancellation or be caused any hardship as might otherwise result.

44. The Tribunal accepts the applicant would, if his visa were cancelled, be subject to s.48 of the Act, which significantly limits the classes of visa for which he may apply onshore. The Tribunal is satisfied cancellation of the applicant’s visa would prevent him re-entering Australia for up to 3 years as he may not meet the public interest criterion 4013.

45.      The Tribunal considers any hardship as may be caused by these intended consequences of cancellation weighs 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.

46.      Given the applicant did not attend the hearing and has not provided any information as to the circumstances surrounding his breach of condition 8202 or any information for the Tribunal to be satisfied there were any extenuating circumstances his control that led to the applicant breaching his visa conditions, the Tribunal is unable to be satisfied about the circumstances in which the ground for cancellation arose, and unable to be satisfied there were any extenuating circumstances beyond his control that led to the applicant breaching his visa conditions. The Tribunal weighs this factor in favour of cancelling the visa.

Past and present conduct of the visa holder towards the Department

47.      There is nothing in the 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 of 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

48. The Tribunal is satisfied cancellation of the applicant’s visa would, in addition to preventing him re-entering Australia for up to 3 years as he may not meet the public interest criterion 4013, limit his ability to remain in Australia but would not, whilst his Bridging Visa E remains in-force, result in him immediately becoming unlawful and liable to detention under s189 of the Migration Act or removal under s198 of the Migration Act.

49. The Tribunal accepts the applicant would, if his visa were cancelled, be subject to s.48 of the Migration Act, which significantly limits the classes of visa for which he may apply onshore.

50.      The Tribunal gives this consideration weight in favour of not 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.

51.      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 Australia’s international obligations, including in respect of non-refoulement and best interests of the children, would be breached as a result of the visa cancellation. The Tribunal weighs this factor neither in favour of nor against cancelling the visa.  

Other relevant considerations

52.      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.  

Conclusions

53.      The applicant has not satisfactorily demonstrated he is a genuine student who should have his visa reinstated because he is genuinely interested in completing his studies. Taken together and considered as a whole, the Tribunal is satisfied the matters weighing in favor of cancellation of the visa outweigh the matters weighing against cancellation.  In circumstances where the applicant has failed to take any active role in the Tribunal’s review process or provide any supporting material or information (other than his application and attached documents) despite the Tribunal requesting he do so, the Tribunal is satisfied the applicant’s unexplained failure to be enrolled in any registered course of study for ten months prior to cancellation when neither the purpose for which the visa was granted or the applicant’s stated intended purpose for his travel to and stay in Australia can be achieved without enrolment, the factors in favour of cancelling the visa outweigh those in favor of not cancelling the visa.

54.      Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

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

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.