Dang (Migration)

[2017] AATA 2442

Dang (Migration) [2017] AATA 2442 (21 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi My Hanh Dang

CASE NUMBER:  1619935

DIBP REFERENCE(S):  BCC2016/3148961

MEMBER:Michael Ison

DATE:21 November 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 21 November 2017 at 4:36pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Failure to enrol in a registered course

LEGISLATION
Migration Act 1958, ss 116(1)(b), 360(2)(b)
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 21 November 2016 made by a delegate of the Minister for Immigration 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 applicant is Ms Thi My Hanh Dang, a 26 year old Vietnamese citizen.

3. The delegate cancelled the visa on the basis that Ms Dang had not been enrolled in a registered course of study since 23 November 2015, contrary to the requirements of condition 8202(a) of Schedule 8 to the Migration Regulations 1994 (the Regulations). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. On 23 October 2017, Ms Dang was invited to attend to appear before the Tribunal to give evidence and present arguments in relation to her application for review. The hearing was scheduled for 10 November 2017.

5. On 9 November 2017 Ms Dang’s registered migration agent emailed the Tribunal to advise that Ms Dang would not be attending the hearing and “… the Member can make a decision based on current information.” [1] Ms Dang did not withdraw her application for review. The hearing was not cancelled and the Tribunal remained prepared to hear Ms Dang’s application. Ms Dang did not appear before the Tribunal on 10 November 2017.

   [1] Tribunal file, folio 27.

6. Accordingly, this decision is made pursuant to section 360(2)(b) of the Migration Act which enables the Tribunal to make a decision on a review where the applicant consents to the Tribunal deciding the review without the applicant appearing before the Tribunal.

7. For the following reasons, the Tribunal has concluded that the decision to cancel Ms Dang’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal has had regard to the material contained on Tribunal case file 1619935 and the Department case file BCC2016/3148961. Ms Dang provided the Tribunal with a copy of the Department’s decision at the time of making her application for review.

9. The issue in the present case is whether Ms Dang, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations. If Ms Dang has breached that condition, under s.116(1) of the Act, her visa may be cancelled.

   Did the applicant comply with Condition 8202?

10. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that Ms Dang:

    ·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).

11. In the present case, the Ms Dang’s visa was cancelled on the basis she was not enrolled in a registered course.

12. The Department’s decision dated 21 November 2016 records:

    “Based on evidence available to me in the Provider Registration and International Student Management System (PRISMS), THI MY HANH DANG has not been enrolled in a registered course of study since 23 November 2015.” [2]

    [2] Tribunal file folio 2.

13. The Department’s decision also records that the Department sent Ms Dang a Notice of Intention to Consider Cancellation of her visa (NOICC) on 19 October 2016.

14. The Department’s decision notes that Ms Dang did not respond to the Department’s NOICC.

15. Based on the information before the Tribunal, the Tribunal is satisfied that Ms Dang was not enrolled in a registered course of study with an approved provider from 23 November 2015 until Ms Dang’s student visa was cancelled on 21 November 2016. Accordingly, Ms Dang has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

16. Having found that Ms Dang has not complied with a condition of her visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

17. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to the information available on both the Tribunal’s and the Department’s files and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel or remain in Australia

18. The Department’s decision records that Ms Dang was granted her student visa on 27 November 2013. The Tribunal accepts, as the Department did, that at the time of application for her visa Ms Dang’s stated intention was to travel and stay in Australia temporarily to study.

19. However, the Tribunal gives this consideration little weight towards not cancelling Ms Dang’s visa. Ms Dang has failed to enrol in a registered course since 23 November 2015 but has remained in Australia. Prior to the cancellation of her visa, Ms Dang had almost 12 months to rectify her failure to maintain enrolment, but did not do so.

    The extent of compliance with visa conditions

20. There is no information before the Tribunal to indicate that Ms Dang is in breach of any condition of her visa, other than condition 8202.

21. Ms Dang failed to enrol in a registered course for almost 12 months prior to the cancellation of her visa. The Tribunal considers the extent of Ms Dang’s non-compliance with condition 8202 to be significant.

22. The Tribunal places considerable weight on this consideration supporting the Tribunal exercising its discretion to cancel Ms Dang’s student visa.

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

23. As Ms Dang did not respond the Department’s NOICC and did not appear before the Tribunal when invited to do so, the Tribunal has no information before it as to what, if any, hardship Ms Dang, her family or other people may suffer if Ms Dang’s student visa is cancelled.

24. Therefore, the Tribunal gives this consideration no weight in support of or against the cancellation of Ms Dang’s student visa.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.

25. As Ms Dang did not respond the Department’s NOICC and did not appear before the Tribunal when invited to do so, the Tribunal has no information before it as to what the circumstances are in which the ground for cancellation of Ms Dang’s student visa arose.

26. Therefore, the Tribunal gives this consideration no weight in support of or against the cancellation of Ms Dang’s student visa.

    Past and present conduct of the visa holder towards the department

27. The Department’s decision letter does not record any adverse issues against Ms Dang in relation to her conduct toward the Department. As noted above, Ms Dang did not respond to the NOICC issued by the Department on 19 October 2016 but nor was she under a legal obligation to do so.

28. The Tribunal gives this consideration little weight in Ms Dang’s favour against the cancellation of her student visa.

    If breach relates to a breach of r.2.43(1)(a) by a Subclass 457 visa holder – mitigating, compassionate and compelling factors

29. This consideration was not relevant in this review.

    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. The Department’s decision letter acknowledged there are some potential legal consequences for Ms Dang arising from the breach of her student visa:

    “… some hardship may be caused to [Ms Dang] should the visa be cancelled and she be required to depart Australia, [but] I note that eligibility will exist for a Bridging Visa E which may allow a lawful presence in Australia so that any outstanding matters can be finalised.

    If I decide to cancel the visa, then [Ms Dang] will become an unlawful non-citizen and may be liable to detention under s189 and removal under s198 of the Migration Act 1958 if she does not voluntarily depart Australia.

    If I decide to cancel the visa, then she will be subject to Section 48 of the Act which will limit options if applying for further student visas in Australia.

    Additionally, [Ms Dang] will be subject to Public Interest Criterion 4013 which means she may not be granted a temporary visa for three years from the date of this cancellation.”

31. The Tribunal acknowledges that the possible cancellation of Ms Dang’s student visa will have specific legal consequences for her, including making Ms Dang an unlawful non-citizen and preventing her from being granted another temporary visa, at least without Ministerial intervention, until 22 November 2019.

32. There is no evidence before the Tribunal as to what Ms Dang will do, in terms of her departure from Australia, if her student visa is cancelled. The Tribunal gives the significant potential consequences of cancellation, some but only modest, weight in Ms Dang’s favour against the Tribunal exercising its discretion to cancel her visa as these consequences would have been known to Ms Dang and she remained in breach of her visa for nearly 12 months.

    Whether there would be consequential cancellations under s.140

33. This consideration was not relevant in this review.

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

34. This consideration was not relevant in this review.

    Any other relevant matters

35. As Ms Dang did not accept the invitation to appear before the Tribunal to give evidence and did not provide any written submissions to the Tribunal, this consideration was not relevant in the circumstances of Ms Dang’s application for review to the Tribunal. This consideration is given no weight by the Tribunal.

    Conclusion

36. The Tribunal has considered all information on the Department’s file and the Tribunal’s file, including the NOICC dated 19 October 2016 and the Department’s decision dated 21 November 2016.

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

    DECISION

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

    Michael Ison
    Senior 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.