Tyagi (Migration)

Tyagi (Migration) [2023] AATA 4202 (4 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Suryansh Tyagi
REPRESENTATIVE:  Mr M Shamraiz Mehdi (MARN: 1465452)
CASE NUMBER:  2216008
HOME AFFAIRS REFERENCE(S):          BCC2021/2263670
MEMBER:Christine Kannis
DATE:4 December 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 04 December 2023 at 2:00pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – multiple courses cancelled – applicant working more than 20 hours per week – applicant ceased studies – decision under review affirmed
LEGISLATION
Education Services for Overseas StudentsAct 2000, s 19
Migration Act 1958, ss 48, 116, 140, 189, 198, 359, 362
Migration Regulations 1994, Schedule 8; Condition 8202
CASES
Liu v MIMIA [2003] FCA 1170
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 25 October 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of his 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.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. On 26 October 2023, the Tribunal sent the applicant an Invitation to Attend a Hearing letter (via his representative) which advised that a MS Teams video hearing had been listed for 4 December 2023 at 12.00 pm (VIC time) . The Invitation informed the applicant that if he was unable to attend the hearing then he should advise the Tribunal as soon as possible. The Invitation advised that if he did not attend the hearing a decision may be made on the review without taking any further action to allow or enable him to appear before the Tribunal or that his application for review may be dismissed without any further consideration on the application and based on the information before the Tribunal. The Invitation also requested the applicant provide all documents on which he intended to rely to support his case by 27 November 2023.
5. No response to the Invitation to Attend a Hearing was received.

On 8 and 27 November 2023, the Tribunal sent the applicant Hearing response reminders (via his representative).
On 28 November 2023, the Tribunal received the following request from the representative:
The applicant has advised that he will not be able to attend the hearing due to his Mental Health issues.
He has requested of it is possible for AAT to reschedule the hearing after 31.12.2023?
On 28 November 2023, The Tribunal advised the representative the postponement had been refused and further advised the following:
A request to postpone for medical reasons must be accompanied by a medical
certificate certifying the applicant’s conditions and setting out clear reasons why the
applicant is unable to participate in the hearing.
The hearing will therefore proceed (via video link) as set out below. Please note that
all details about the hearing, as set out in the hearing invitation letter dated 26 October 2023 still apply.
The applicant did not provide any further documents.
On 27 November 2023 and 1 December 2023, the Tribunal sent the applicant a SMS hearing reminder to the phone number he provided.
On 4 December 2023, the Tribunal attempted to contact the applicant on the phone number provided between 11.45 am (VIC time) and 12.10 pm (VIC time) on five occasions. Each attempted call either went unanswered or went to message bank.
The Tribunal did not contact the representative as the outcome of the attempted MS Teams test on 26 November 2023 was advice that the representative was on leave until the end of January 2024.
The applicant failed to appear at the hearing and did not provide the requested medical information supporting an inability to attend to the hearing.
The Tribunal is satisfied that the applicant has been given an opportunity to attend the hearing. The Tribunal proceeds to make a decision in this case without taking any further action to allow or enable the applicant to appear before it as it is empowered to do under s.362B of the Act.
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
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?
On 7 April 2021, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.
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 full-time registered course: 8202(2)(a)
·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(2)(c)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.
In the present case, the applicant’s visa was cancelled on the basis that he was not enrolled in a full-time registered course.
Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2]
[1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).
[2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act.
The information from PRISMS shows that the applicant was not enrolled in a registered course from 3 August 2021.
On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 3 August 2021 and the Tribunal finds that he breached condition8202(2)(a) of his visa.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that 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
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 his representative, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below.
On 17 October 2022, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 3 August 2021 and had therefore failed to comply with condition 8202(2)(a) of his visa.
The applicant did not respond to the NOICC.
As the applicant did not respond to the NOICC and did not attend the hearing or provide written submissions prior to the hearing, the Tribunal relied on the information contained in the Department’s file including the Decision Record.
The applicant’s PRISMS record shows he has completed two courses, a Certificate IV in Information Technology Networking in 2012 and a Foundation Studies Program in 2015. PRISMS shows he has had 18 courses cancelled between 2011 and 2022. The reasons for cancellation included Non-payment of fees and Non-commencement of studies.
Relevant to the decision under review, PRISMS show the applicant was enrolled in a Certificate III in Commercial Cookery which was cancelled on 3 August 2021 due to non-payment of fees. He was also enrolled in a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management both of which were also cancelled on 3 August 2021 for Non-commencement of studies.
The delegate stated that on 3 August 2021, the education provider cancelled the applicant’s enrolment in the Certificate III in Commercial Cookery due to ‘Non-payment of fees’. The following comment was recorded on PRISMS: “Student Owes tuition fees of $6000 and missed excessive classes, we have attempted to contact this student several times but have not received any response.” PRISMS further indicates that the visa holder did not access the Complaints and Appeals process.
Given the applicant’s failure to attend the hearing the Tribunal was not able to put his PRISMS record to him for his comment or response under s 359AA of the Act. Accordingly, the Tribunal places no weight on the applicant’s PRISMS record save for the enrolments which were cancelled on 3 August 2021. These enrolments were discussed in the NOICC and in the delegate’s decision and the Tribunal considers that the applicant has been given an opportunity to respond to these enrolment cancellations and has not disagreed with the information.
Non-disclosure certificate
The Department file contained a certificate regarding disclosure of certain information under s 376 of the Act. The effect of such a certification is that the Tribunal is given discretion whether to disclose the document and/or information covered by the certificate. The Tribunal found the certificate to be valid because disclosure of the material was stated to be contrary to public interest because the information had been given in confidence and the provider of the information had not consented to disclosure. Additional public interest reasons were stated to be disclosure would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would likely prejudice the effectiveness of this methods.
The Tribunal noted that gist of the protected information was that the Department had received allegations that the applicant was working more than 20 hours per week and had stopped attending university. As the applicant failed to attend the hearing the Tribunal was not able to put the information to him for his comment or response under s 359AA of the Act. Accordingly, the Tribunal places no weight on the information covered by the s 376 certificate.
The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.
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
The purpose of the applicant’s visa was to enable him to study. The applicant was not enrolled in a course of study from 3 August 2021. The Tribunal finds the applicant’s breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.
Given the applicant’s failure to appear at the hearing, the Tribunal was unable to ask him whether there was a compelling need for him to remain in Australia.
The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.
The extent of compliance with visa conditions
The applicant has not complied with condition 8202 of his student visa because he has failed to maintain enrolment in a full-time registered course of study from 3 August 2021. There is no evidence before the Tribunal that he has not complied with the other conditions attached to his visa.
The applicant’s non-compliance for an extended period of 14 months prior to the NOICC weighs in favour of visa cancellation.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
Given the applicant’s failure to attend the hearing, the Tribunal is not aware of any hardship which will result from cancellation of his visa.
Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control
The applicant’s visa was cancelled as a result of his failure to maintain enrolment. There was no evidence before the Tribunal to indicate that the applicant’s non-compliance with the visa condition was due to circumstances beyond his control or that there are any extenuating circumstances in this case.
The Tribunal finds there are no extenuating or compassionate circumstances in this case and this weighs in favour of visa cancellation.
Past and present behaviour of the visa holder towards the Department
There is no evidence before the Department that the applicant has behaved inappropriately with the Department and the Tribunal gives this factor no weight in its considerations.
Whether there would be consequential cancellations under s 140
There is no one attached to the applicant’s visa and as such the Tribunal gives this factor no weight in its considerations.
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
The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s 189 and removed from Australia pursuant to s 198. 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 and gives this some weight against cancellation.
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
There is nothing to suggest and the applicant has not claimed that Australia’s international obligations would be breached as a result of the cancellation and the Tribunal gives this factor no weight in its considerations.
Conclusion
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of his visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant was not fulfilling the purpose of his travel to and stay in Australia as he was not undertaking the study for which his visa was granted. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa. It will not be in breach of Australia’s international obligations. The Tribunal is not aware of any hardship that may be caused by the cancellation. The Tribunal finds that there is nothing adverse known about the applicant’s past and present conduct towards the Department.
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
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Christine Kannis
Member

ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:
(a)a Defence student; or
(b)     a Foreign Affairs student; or
(c)      a secondary exchange student.
(2) A holder not covered by subclause (1):
(a)      must be enrolled in a full time registered course; and
(b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
(c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:
(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a)     is enrolled in a course at the Australian Qualifications Framework level 10; and
(b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.

[2023] AATA 4202

4 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Breach

Jurisdiction