Singh (Migration)

[2021] AATA 5062

Singh (Migration) [2021] AATA 5062 (1 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harwinder Singh

CASE NUMBER:  2003312

HOME AFFAIRS REFERENCE(S):          BCC2019/5003655

MEMBER:Joseph Lindsay

DATE:1 September 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 1 September 2021 at 10:17am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – no response to department’s notice or participation in review hearing – discretion to cancel visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 February 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. On 13 August 2021 the Tribunal emailed a hearing invitation to the applicant to participate in an audio hearing on 31 August 2021 at 3:00pm (AEST). The Tribunal also sent two SMS reminders of the hearing to the applicant’s mobile phone. At around the time of the hearing on 31 August 2021, the Tribunal telephoned the applicant to commence the hearing. However, in response the applicant refused to participate in the hearing. Accordingly, the Tribunal has decided to make a decision on the information before the Tribunal.

3. 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

4. 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 (Cth) (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?

5. 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)

   ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 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

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

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

7. As part of his application for review, the applicant provided a copy of the delegate’s decision to the Tribunal and the Tribunal has considered the information in that decision. The decision record states that the applicant has not been enrolled in a registered course of study since 10 September 2018. If the applicant had chosen to participate in the hearing with the Tribunal, the Tribunal could have questioned the applicant about this issue. However, given the applicant chose not to participate in the hearing the Tribunal was unable to do so.

8. On the evidence before the Tribunal, the Tribunal finds that the applicant has not been enrolled in a registered course of study since 10 September 2018. Accordingly, the applicant was not enrolled in a registered course and the applicant has not complied with condition 8202(2)(a). The Tribunal finds that the ground for cancellation of the applicant’s student visa is established in respect to s.116(1)(b) of the Act.

   Consideration of the discretion to cancel the visa

9. 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 Procedural Instruction ‘General visa cancellation powers’.

   The circumstances in which the ground for cancellation arose

10. If the applicant had chosen to participate in the hearing with the Tribunal, the Tribunal could have questioned the applicant about the circumstances in which the ground for cancellation arose. However, given the applicant chose not to participate in the hearing the Tribunal was unable to do so. The decision record states that the applicant did not respond to the Notice of Intention to Consider Cancellation. The applicant did not provide information to the Tribunal about why he had not been enrolled in a registered course of study since 10 September 2018.

11. Accordingly, the Tribunal places high weight against the applicant for failing to remain enrolled in a registered course of study since 10 September 2018, thereby breaching condition 8202 of his visa.

    The purpose of the visa holder’s travel to and stay in Australia; whether the visa holder has a compelling need to travel to or remain in Australia

12. If the applicant had chosen to participate in the hearing with the Tribunal, the Tribunal could have questioned the applicant about his purpose in travelling to and staying in Australia and whether he had a compelling need to travel to or remain in Australia. However, given the applicant chose not to participate in the hearing the Tribunal was unable to do so.

13. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was initially to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives no weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

14. If the applicant had chosen to participate in the hearing with the Tribunal, the Tribunal could have questioned the applicant about this issue. However, given the applicant chose not to participate in the hearing the Tribunal was unable to do so.

15. There is no indication that the applicant has not complied with his other visa conditions. Accordingly, the Tribunal gives no weight in the applicant’s favour in regard to this factor.

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

16. If the applicant had chosen to participate in the hearing with the Tribunal, the Tribunal could have questioned the applicant about this issue. However, given the applicant chose not to participate in the hearing the Tribunal was unable to do so. There is no information available to the Tribunal about any hardship that may be caused to him if his visa was cancelled. Accordingly, the Tribunal gives no weight in the applicant’s favour in regard to this factor.

    Past and present behaviour of the applicant towards the Department

17. If the applicant had chosen to participate in the hearing with the Tribunal, the Tribunal could have questioned the applicant about this issue. However, given the applicant chose not to participate in the hearing the Tribunal was unable to do so.

18. There is no evidence that the applicant has been uncooperative with the Department in the past. Accordingly, the Tribunal gives no weight in the applicant’s favour in regard to this factor.

    Whether there would be consequential cancellations under s.140 of the Act

19. If the applicant had chosen to participate in the hearing with the Tribunal, the Tribunal could have questioned the applicant about this issue. However, given the applicant chose not to participate in the hearing the Tribunal was unable to do so.

20. The information before the Tribunal indicates that the applicant does not have any dependants on his student visa who would be affected if his student visa was cancelled. Accordingly, the Tribunal places no weight on this information in the applicant’s favour.

    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. If the applicant had chosen to participate in the hearing with the Tribunal, the Tribunal could have questioned the applicant about this issue. However, given the applicant chose not to participate in the hearing the Tribunal was unable to do so.

22. The decision record clearly explains that there are legal consequences associated with the cancellation of his student visa and the three-year exclusion period as a consequence of his student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

23. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chooses not to return to India.

24. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

25. The Tribunal places no weight on this information in the applicant’s favour.

    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

26. If the applicant had chosen to participate in the hearing with the Tribunal, the Tribunal could have questioned the applicant about this issue. However, given the applicant chose not to participate in the hearing the Tribunal was unable to do so.

27. There is no information before the Tribunal that indicates there would be a breach of any international obligations if the applicant’s student visa was cancelled. Accordingly, the Tribunal does not accept that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places no weight on this information in the applicant’s favour.

    Any other relevant matters

28. If the applicant had chosen to participate in the hearing with the Tribunal, the Tribunal could have questioned the applicant about this issue. However, given the applicant chose not to participate in the hearing the Tribunal was unable to do so.

29. There is no information before the Tribunal that indicates there are any other relevant matters for the Tribunal to consider. The Tribunal places no weight on this information in the applicant’s favour.

    Conclusion

30. In balancing the above information, the Tribunal finds that the circumstances weigh heavily in favour of cancelling the applicant’s visa. Accordingly, the Tribunal finds that the visa should be cancelled.

    DECISION

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

    Joseph Lindsay
    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.