Dang (Migration)

[2019] AATA 4170

Dang (Migration) [2019] AATA 4170 (2 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Ni Ni Dang

CASE NUMBER:  1833135

HOME AFFAIRS REFERENCE(S):           BCC2018/4043672

MEMBER:Mark Bishop

DATE:2 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 02 September 2019 at 10:08am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – failure to attend scheduled hearing – ground for cancellation – continue satisfaction of primary criteria – maintain enrolment in the higher education sector – consideration of discretion – significant period of breach – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B, 379A
Migration Regulations 1994 (Cth), Schedule 2, cls 573.223, 573.231; Schedule 8, Condition 8516

CASES
Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 November 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 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant was no longer enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas. 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. The applicant did not appear before the Tribunal on 2 September 2019 to give evidence and present arguments.

4. The applicant provided a copy of the decision record to the Tribunal.

5. On 17 July 2019 the Tribunal wrote to the review 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 review applicant to give evidence and present arguments at a hearing on 2 September 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. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

6. No response to the hearing invitation was received. However the review 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 review applicant was properly invited to a hearing in accordance with s.379A(4) the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. 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

7. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include government policy.

   Does the ground for cancellation exist?

   s.116(1)(b) - non-compliance with conditions

8. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 was attached to the applicant’s visa. This condition requires a visa holder continue to satisfy the primary or secondary criteria for the grant of a visa.

9. Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

10. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant met cl.573.231 if they were not an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student.

11. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a bachelor’s degree, master’s degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. The relevant instrument specifying education providers as eligible education providers for this visa was IMMI 12/037.

12. To satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application. ‘Principal course’ is defined in r.1.40. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 12/037.

13. The delegate made the following findings:

    ·The applicant was granted a TU-573 student visa on 27 August 2015 with condition 8516 attached;

    ·According to PRISMS as outlined by the delegate the applicant ceased her studies in a Bachelor of Business and her enrolment was cancelled on 2 June 2016;

    ·According to PRISMS as outlined by the delegate the visa holder was no longer enrolled in  a bachelor’s degree or master’s degree course;

    ·According to PRISMS as outlined by the delegate the visa holder was not enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister made under the relevant instrument;

    ·The applicant has not continued to be a person who satisfied either subclauses 573.231 or 573.223(1A) and has not complied with condition 8516;

14. The applicant responded to a notice of intention to consider cancellation (NOICC). The delegate recorded the applicant advised she would study at Southern Cross Institute Pty Ltd and provided a copy of a Confirmation of Enrolment (COE) in a Diploma of Early Childhood Education and Care.

15. The delegate outlined the applicant’s study history in Australia. The delegate made a finding the applicant’s enrolment in a Bachelor of Business was cancelled on 2 June 2016. The delegate made a further finding the applicant was not enrolled in a registered course of study from 2 June 2016 until 27 September 2018 (Tf:3).

16. The delegate made a finding the applicant chose to remain in Australia without a valid COE required by her visa. The delegate made a finding that this was a significant period of time without enrolment in a registered course of study while holding a valid student visa (Tf: 3).

17. The applicant did not challenge the findings of the delegate as outlined in paragraphs 15 and 16 above.

18. The applicant did not provide a written submission to the Tribunal.

19. Based on the information above, the Tribunal finds that the applicant, while holding a subclass 573 student visa, did not continue to satisfy cl.573.231 or cl.573.223(1A) and therefore did not continue to be a person who would satisfy the primary criteria for the grant of the visa. There was no evidence before the Tribunal to indicate that the applicant satisfied the secondary criteria for the grant of the visa. The Tribunal finds therefore that she breached condition 8516 attached to his student visa.

20. 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 the power to cancel the visa should be exercised.

    Consideration of discretion

21. 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 travel to or remain in Australia

22. The applicant did not provide any information to the Tribunal that addressed compelling need to travel or remain in Australia. There is no information before the Tribunal that enables the Tribunal to make a finding the applicant has a compelling need to travel to or remain in Australia.

    The extent of compliance with visa conditions

23. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will adhere to the conditions on their visa and the Tribunal finds the length of the breach significant in terms of the usual time period of study.  As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

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

24. The applicant did not provide any information to the Tribunal that addressed hardship. There is no information before the Tribunal that enables the Tribunal to make a finding the applicant will undergo a degree of hardship if she is required to leave Australia.

    Circumstances in which ground of cancellation arose

25. The Tribunal has considered the grounds upon which the cancellation arose. They are outlined in detail in the delegate’s decision and summarised above. The Tribunal has reviewed the information provided on the Departmental and Tribunal files. The Tribunal has reviewed the submissions of the applicant to the Department. The Tribunal notes the applicant advised the Department she was enrolled in a course in the VET sector and not the HE sector. The Tribunal notes the applicant has not provided an explanation as to why she did not adhere to conditions of enrolment in the HE sector as required by her student visa at the relevant times.

    Past and present behaviour of the visa holder towards the department

26. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach The Tribunal notes the applicant chose not to attend the scheduled hearing of 2 September 2019 and did not offer any explanation for this non-attendance.

    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

27. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained. It is noted the applicant may be barred from re-entering Australia for a period of three years. She has presented no specific evidence in relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

28. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

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

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

30. Any other relevant matters

31. The applicant has not brought to the attention of the Tribunal any other relevant matters.

32. The Tribunal has considered all factors both individually and cumulatively in the context of the breach. The Tribunal finds that the applicant was not enrolled in a course of study that is the principal source of a type specified for the Subclass TU-573 visa  and that a breach in excess of 12 months is significant in the context of a student’s study period

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

    DECISION

34. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Mark Bishop
    Member