Thomas (Migration)

[2019] AATA 1600

Thomas (Migration) [2019] AATA 1600 (23 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaimon Thomas

CASE NUMBER:  1817630

HOME AFFAIRS REFERENCE(S):           BCC2018/194943

MEMBER:P. Maishman

DATE:23 May 2019

PLACE OF DECISION:  Perth

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

Statement made on 23 May 2019 at 3:05pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – no response to invitation to provide information – not entitled to appear before the Tribunal – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of visa not fulfilled – requisite skills to complete course – father withdrew financial support – claimed depression – not substantiated – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 359, 359, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

CASES
Hasran v MIAC [2010] FCAFC 40
Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 June 2018 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 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not been enrolled in a registered course of study from 1 August 2017 to 19 March 2018 and therefore did not meet the requirements of condition 8202(2)(a). 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 18 April 2019 the Tribunal wrote to the applicant’s authorised representative pursuant to s.359(2) of the Act, inviting the applicant to provide information about his enrolment status between 1 August 2017 and 19 March 2019 in writing. The applicant was invited to provide information in writing about the circumstances in which the ground for cancellation arose; whether he had a compelling need to remain in Australia; his compliance with visa conditions generally, including any previous pieces he may have held; the hardship that may have been caused to him or his family or to anyone else in connection with the visa; and any other matter he considered relevant.

4. The invitation was sent to the applicant’s registered migration agent at the last address provided in connection with the review and advised that, if the information was not provided in writing by 2 May 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.

6. The Tribunal has decided to proceed to decision without taking further steps to obtain the information given the Tribunal is satisfied the applicant has been given a reasonable opportunity to provide information and has not done so.  

7. The applicant was represented in relation to the review by his registered migration agent.

8. 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

9. The Tribunal had before it a copy of the Department’s file.

10. On 26 March 2018 the Department issued the applicant a Notice of Intention to Consider Cancellation (NOICC) because he was not enrolled in a registered course and therefore failed to comply with condition 8202(2) of his visa.

11. The applicant responded to the NOICC on 29 March 2018 and provided the Department information regarding his personal circumstances in support of his request to not have his visa cancelled. The applicant gave the Department a number of Confirmation of Enrolment’s indicating he was enrolled in a Certificate III Commercial Cookery course from 19 March 2018 to 1 April 2019 and various other courses until 20 January 2023.

12. The applicant is a 24-year-old  Indian National. The applicant was granted a Student visa on the basis that he was enrolled in a Higher Education Sector registered course of study.

13. As the applicant’s right to a hearing has been lost and he has not provided any written submission the Tribunal has conducted its review on information contained in the Department’s file.

14. 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?

15. 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).

16. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course between 1 August 2017 and 19 March 2018.

17. As outlined in the delegate’s decision, information relied on from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study from 1 August 2017 to 19 March 2018. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a registered course (per Liu v MIMIA [2003] FCA 1170).

18. On the evidence before the Tribunal, 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

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 in his response to the NOICC, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.  

20. In his response to the NOICC, the applicant says a few months into his original course he found his skills were not up to the level required for him to cope with higher education and he experienced a few incidences of negative feedback from lecturers. On the advice of a friend he took up Diploma of Early Childhood studies. He did not tell his father of the change in his studies direction. By late July 2017 he found he was not suited to Early Childhood studies either. He spoke to his parents and disclosed to his father that he had changed his studies to a Diploma of Early Childhood. His father was not happy with his choice to change studies and refused to support him financially. Additionally his relationship with a female friend broke down and he felt depressed and heartbroken. On 1 August 2017 the education institution cancelled the applicant’s enrolment and the applicant says he was heavily depressed and demotivated to study anything at all. He could not afford to pay medical fees and received no treatment for his illness. His friends advised him in September 2017 that he should recommence studies as soon as possible and he decided to enrol in Commercial Cookery and Hospitality courses however his father refused to provide the tuition fee. His mother eventually persuaded his father to continue to support the applicant financially and the applicant enrolled in a Certificate III in Commercial Cookery and Hospitality in March 2018.

21. The Tribunal considered the purpose of the applicant’s travel to and stay in Australia and whether he has a compelling need to remain in Australia.

22. The applicant was granted a visa to travel to and stay in Australia as a student on the basis of his enrolment in a Higher Education Sector registered course of study. The applicant skills were not up to the Higher Education level and he enrolled in a diploma level registered course of study which was cancelled on 1 August 2017. The applicant provided a number of Confirmation-of-Enrolments’ showing he again enrolled in a Certificate III course commencing 19 March 2018 and is enrolled in a number of different courses through to 20 January 2023.

23. The purpose of the student visa is to enable the visa holder to undertake study in Australia. A student visa holder is required to remain enrolled in a registered course to satisfy the student visa conditions.

24. The applicant was not enrolled in a registered course of study in the period 1 August 2017 until 19 March 2018 when he again enrolled in registered courses of study. There is no evidence to suggest the applicant has a compelling need to remain in Australia.

25. Based on the evidence the Tribunal finds the applicant was not enrolled in a registered course was not fulfilling the purpose of his travel to and stay in Australia from 1 August 2017.

26. There is no evidence before the Tribunal that the applicant has failed to comply with any other conditions of his student visa. However the Tribunal considers the breach to remain enrolled to be significant, given the length of time in which the applicant failed to maintain enrolment. The Tribunal considers it to be a serious breach given the significance of enrolment in a registered course to the grant of a student visa.

27. The applicant’s non-engagement in study for which the visa was granted and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

28. The Tribunal considered the hardship that may be caused to him or his family by the cancellation of the visa.

29. The applicant says he has obtained work and has pulled himself out of his depressive state. The applicant says that if he returns home as a qualified chef he could find good employment and would make his parents proud.

30. The Tribunal acknowledges that there may be some degree of financial hardship if the applicant’s student visa is cancelled because the applicant would no longer be able to work in Australia. There may be some loss of potential income from future employment because the applicant has not attained qualifications. There may be some emotional hardship for the applicant’s family realising that the applicant has not achieved qualifications.

31. The Tribunal accepts that there may be some degree of financial hardship to the applicant and that his family may be somewhat disappointed. However this does not persuade the Tribunal that it should not exercise the discretion to cancel the visa.

32. The Tribunal considered the circumstances in which the grounds for cancellation arose, the extent of any breach and any reasons for the breach.

33. The Tribunal notes the guidelines indicate as a general rule, a visa should not be cancelled where the circumstances in which ground for cancellation arose were beyond the visa holder’s control. If a relationship breakdown is considered a contributing factor, the Tribunal should consider if the relationship is broken down as a result of family violence.

34. The applicant’s enrolment was cancelled from 1 August 2017 because he ceased to study in a registered course. The applicant ceased to study because he was not capable of maintaining Higher Education studies and was not suited to Diploma level study. His friendship with a female friend broke down and he felt depressed and heartbroken. The applicant knew he needed to be enrolled in a registered course of study and wanted to enrol in a Commercial Cookery and Hospitality course in September 2017 but his father refused to pay the tuition fee. His father had a change of heart and the applicant was able to enrolled and pay fees in a Commercial Cookery and Hospitality course commencing on 19 March 2018.

35. If the applicant required medical treatment that he could not obtain in Australia the Tribunal expects the applicant would leave Australia to obtain that treatment. The applicant has given no evidence that his relationship was more than that of friends, or that family violence was a factor.

36. There is no probative evidence about the applicant’s depression. The applicant was in Australia on a student visa in order to pursue studies in a Higher Education Sector registered course. It is expected that visa applicants enrol in studies suited to their academic ability. The applicant ceased to study because he did not have the requisite skills for the first course in which he enrolled, and was not comfortable in the Diploma level Early Childhood course. His enrolment in his registered course of study was cancelled on 1 August 2017. The applicant’s father refused in September 2017 to continue to fund  the applicant’s course fees and living expenses in Australia when he found out the applicant had changed to Early Childhood studies.

37. The evidence does not demonstrate that the ground for cancellation arose due to circumstances beyond the applicant’s control. There is no evidence before the Tribunal to substantiate the applicant’s claimed medical condition. There is nothing before the Tribunal to indicate that the applicant approached his education provider to discuss compassionate grounds to defer his studies.  

38. Based on the information before it, the Tribunal does not consider the grounds for cancellation arose in circumstances beyond the applicant’s control.

39. Nothing adverse is known about the applicants past and present conduct towards the Department. The Tribunal gives some weight in the applicant’s favour.

40. The Tribunal is not aware that there are any persons in Australia whose visas would, or may, be cancelled unders.140 of the Act.

41. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189 of the Act. The Tribunal is mindful that a Visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant however this does not persuade the Tribunal that it should not exercise the discretion to cancel the visa.

42. There is nothing to suggest that the applicant claims that Australia’s international obligations would be breached as a result of the cancellation.

43. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

44. The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively. The Tribunal recognises that the cancellation of the visa is a significant matter. However on balance and considering the circumstances as a whole the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    P. Maishman
    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.