Singh (Migration)

[2019] AATA 1615

Singh (Migration) [2019] AATA 1615 (20 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manjinder Singh

CASE NUMBER:  1704206

HOME AFFAIRS REFERENCE(S):           BCC2016/3743333

MEMBER:Melissa McAdam

DATE:20 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 20 May 2019 at 1:50pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – failure to attend Tribunal hearing – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of visa not fulfilled – departed Australia – poor mental health – money problems – not substantiated – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B, 379A
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 27 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. The delegate cancelled the visa on the basis that that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   NOICC

3. On 3 February 2017 the Department sent to the applicant a Notice of Intention to Consider Cancellation (NOICC) of his Student visa, inviting him to comment on a possible breach of condition 8202, which required him to be enrolled in a registered course (Condition 8202(2)(a)). The delegate wrote that the applicant appeared to have not been enrolled in a registered course of study since 29 March 2016.

   Response

4. On 12 February 2017 the applicant sent an email message to the Department stating that he suffers from bipolar disorder and this was a major problem which stopped him going to school. He had depression and a money problem. He does not have problems anymore and wants to continue his study.

   Delegate’s Decision

5. The applicant submitted a copy of the Delegate’s decision to the Tribunal.

6. The Delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course.  The Delegate found that the applicant has not been enrolled in a registered course of study since 29 March 2016. 

   Tribunal Hearing

7. On 25 March 2019 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 applicant to give evidence and present arguments at a hearing on 16 May 2019. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.

8. On 25 March 2019 the applicant sent an email message to the Tribunal stating that he would not be able to attend the scheduled hearing because he has left Australia and because his father was very ill. He explained it had been a very long time since he had lodged his review application. He asked if the review fee he had paid could be refunded to him, given the long passage of time since he applied for review.

9. On 26 March 2019 an officer of the Tribunal wrote to the applicant explaining the review process delay, informing the applicant that there are limited circumstances in which he could receive a fee refund, and asking him to advise the Tribunal if he wished to attend the hearing by telephone.

10. No further communication has been received from the applicant.

11. The applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5) and that the applicant received the invitation. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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?

13. 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 her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

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

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

15. The applicant has impliedly confirmed he was not enrolled in a registered course of study from 29 March 2016. This is also confirmed by the Department’s PRISMS records.

16. On the evidence before the Tribunal, it finds that the applicant was not enrolled in a registered course of education from 29 March 2016.  Accordingly, the Tribunal finds that the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

17. 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 remain in Australia

18. The applicant travelled to and resided in Australia for the purpose of study. The Tribunal notes that the applicant ceased study in 2016 and has now left Australia. There is no evidence of any compelling need for the applicant to be in Australia. The Tribunal considers this factor weighs in favour of cancelling the applicant’s visa.

    The extent of compliance with visa conditions

19. There is nothing before the Tribunal to indicate that the applicant has breached other conditions on his visa.

20. The Tribunal gives some weight in the applicant’s favour to the fact that he complied with his other visa conditions while in Australia.

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

21. The applicant has not provided any evidence of hardship that will be caused if his visa remains cancelled. In view of the fact he has left Australia there is also no other indication that hardship will be caused to him by the cancellation of his visa.

22. The Tribunal considers that the absence of evidence of hardship weighs in favour of cancelling the applicant’s visa.

    The circumstances in which the ground of cancellation arose.

23. The applicant provided a brief written statement that his non-compliance arose because of his poor mental health and money problems. He did not provide any detail about these problems or any documentary evidence such as medical or financial reports.

24. There is a lack of evidence before the Tribunal that the applicant’s non-compliance was excusable or justifiable or otherwise reasonably explained. 

25. The breach is a serious one  and the Tribunal considers this factor weighs in favour of cancelling the applicant’s visa.

    Past and present conduct of the visa holder towards the Department

26. The applicant has provided very little information to the Department and to the Tribunal.  He has maintained only a low level of communication with both bodies.  He has also left Australia before the review of his application is completed. 

27. However the Tribunal notes that over two years has passed since the applicant submitted his review application.  While the processing delay may be explicable it does not change the circumstances for the applicant.  The long delay has inevitably resulted in uncertainty and insecurity for the applicant in Australia, so that it became untenable for him to remain in Australia to pursue the review application.

28. As he has departed Australia and is no longer pursuing the review application, a sensible approach would be for him to withdraw his review application.  However the limited scope for the successful refund of the substantial review fee, offers no real incentive for the applicant to do so.

29. The Tribunal therefore does not view the applicant’s lack of communication with the Tribunal adversely, and considers that this factor does not weigh in favour of cancelling the applicant’s 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. If the applicant’s visa remains cancelled the applicant will be temporarily barred from being granted a further visa to Australia. However there is no indication that the applicant wishes or needs to apply for another visa to Australia in the near future. The Tribunal therefore considers this factor weighs in favour of cancelling the applicant’s visa.

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

31. There is nothing before the Tribunal to indicate there are international obligations to consider.

    Any other relevant matters

32. There is no information before the Tribunal of any other relevant considerations.

    Conclusion

33. The Tribunal is of the view that the weight of the considerations is in favour of the Tribunal cancelling the applicant’s visa.

34. Considering the circumstances as a whole, and the seriousness of the applicant’s breach, the Tribunal concludes that the visa should be cancelled.

    DECISION

35. 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.