Abeysinghe (Migration)

[2018] AATA 1992

Abeysinghe (Migration) [2018] AATA 1992 (17 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs HEWAGE MADUSHIKA LANKESHI ABEYSINGHE
Mr Vimukthei Akalanka DIKKUMBURA

CASE NUMBER:  1709189

HOME AFFAIRS REFERENCE(S):           BCC2017/791436

MEMBER:Michelle East

DATE:17 May 2018

PLACE OF DECISION:  Perth

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

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 17 May 2018 at 2:02pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector visa – Non-commencement of studies – No exceptional circumstances – Decision made on review – First applicant – Decision affirmed – Second applicant – No jurisdiction 

LEGISLATION
Migration Act 1958, ss 48, 116, 189, 198, 348, 359C, 360
Migration Regulations 1994, Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 18 April 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named 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 has not complied with condition 8202(a) because the applicant was not enrolled in a full-time 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.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.

4. The Tribunal wrote to the applicant’s representative nominated on her application for review form on 24 January 2018 seeking further information from the applicant regarding her application with a request that the information be provided by 7 February 2018. It was noted that should the information not be provided by the due date the applicant’s entitlement to a hearing under the Act to appear to give evidence and present arguments would be lost. No response was provided by 7 February 2018 and accordingly the applicant has lost her right to appear before the Tribunal to give evidence and present arguments relating to the review application: section 360(3) of the Act.

5. The Tribunal may now make a decision on the review without taking any further action to obtain information: subsection 359C(1) of the Act.  The Tribunal has decided to proceed to make a decision on this review without taking any further action to obtain the information given that the Tribunal is satisfied the applicant has been given a reasonable opportunity to provide information and has not done so.

6. The applicants were represented in relation to the review by their registered migration agent.

7. 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

8. 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?

9. 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).

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

11. Information provided to the Department from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since 15 August 2016.  No evidence has been provided to contradict this finding.

12. 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

13. 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’.

14. On 31 March 2017 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because she was not enrolled in a  registered course and therefore failed to comply with condition 8202(2)(a) of her visa.

15. No response to the NOICC was received by the Department.

16. As the applicant’s right to a hearing was lost and she did not provide any written submissions the Tribunal has conducted its review on information contained in the Department’s file.

17. An email from Charles Sturt University dated 27 March 2017 to the Department advised the applicant did not commence her course with the university and was cancelled for non-commencement of studies on 15 August 2016.  The Delegate referred to PRISMS and stated the applicant had not enrolled in a registered course of study since 15 August 2016.

18. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of the breach and any reasons for the breach.

19. The purpose of the student visa is to enable the visa holder to undertake study in Australia.  The applicant did not enrol in a registered course and over 12 months have elapsed since the NOICC was issued.

20. Based on the evidence the Tribunal finds the applicant’s breach of condition 8202 of her visa to be significant because she was not engaging in study for which her visa was granted and was not fulfilling the purpose of her travel to and stay in Australia.

21. The Tribunal cannot be satisfied the applicant’s non-compliance with the visa condition was due to exceptional circumstances beyond her control.

22. The Tribunal finds there are no extenuating or compassionate circumstances in this case.

23. Given the applicant’s failure to respond to the NOICC and to the Tribunal’s letter dated 24 January 2018 the Tribunal is not aware of any hardship which will result by cancellation of her visa.

24. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

25. The delegate’s decision indicates that if the applicant’s visa were to be cancelled she would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if she does not voluntarily depart Australia. Further, s.48 of the Act means that she will have limited options to apply for further visas in Australia and she will also be subject to Public Interest Criterion 4013.

26. The applicant has provided no information in relation to the consideration and therefore the Tribunal attributes little weight to this consideration in determining whether to cancel the visa.

27. A secondary visa applicant will be cancelled under s140 and the Tribunal does give this some weight to this consideration in determining whether to cancel the visa.

28. There is no evidence before the Tribunal that would suggest Australia would be in breach of its international obligations in this case to either the applicant or the secondary applicant.

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

    DECISION

30. The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa. The Tribunal has no jurisdiction with respect to the other applicant.

    Michelle East
    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.