DENG (Migration)

DENG (Migration) [2020] AATA 52 (6 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms ZHAOQI DENG
CASE NUMBER:  1823019
HOME AFFAIRS REFERENCE(S):          BCC2018/1524881
MEMBER:Joseph Lindsay
DATE:6 January 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 06 January 2020 at 1:29pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in course – postponement – did not attend postponed hearing – no further information provided – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), cls 573.223, 573.231, r 1.40A

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 8 August 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).
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant was initially invited to attend a hearing on 18 December 2019.
On 17 December 2019, the applicant’s representative sent an email to the Tribunal requesting that the hearing be postponed on the basis that the applicant “was down with a severe case of fever and illness (possibly caused by a gastro virus).” A medical certificate was attached covering the days of 17 and 18 December 2019.
On 18 December 2019, the Tribunal re-scheduled the hearing to 19 December 2019. On the same day, the applicant’s representative sent an email stating:
We will seek instructions as to the applicant’s conditions.
However, could you kindly put the member on notice of the fact that the agent that is representing the applicant has a hearing scheduled for the 19 December 2019 and may not be able to attend the hearing. In the circumstances, we kindly request for a vacation by a week, both for the applicant to recover and so that the agent is able to attemd?
On 18 December 2019, the Tribunal sent an email to the applicant’s representative stating:
On 27 November 2019, we sent a letter inviting you to attend a hearing on 18 December 2019 to give evidence and present arguments relating to the issues arising in your case.
On 17 December 2019, we received a request that the 18 December 2019 hearing be postponed. The member considered the request and postponed the 18 December hearing.
On 18 December 2019, the tribunal advised you of the new hearing date of 19 December 2019.
Later on 18 December 2019 also, we received a request that the hearing be postponed further. The Member has considered the request carefully but has decided not to postpone the hearing unless a medical certificate, in relation to the applicant’s capability to attend the hearing, is provided.
The hearing will therefore proceed as set out below. Please note that all details about the hearing, as set out in the hearing invitation letter dated 18 December 2019 still apply.
On 19 December 2019, a hearing was held. The applicant’s representative attended the hearing, but the applicant did not attend. The Tribunal noted that the Tribunal had only recently received a second medical certificate indicating that the applicant was not medically fit for 19 and 20 December 2019. At the hearing, the applicant’s representative made clear that he had no instructions from the applicant and had no information to submit to the Tribunal on behalf of the applicant. The applicant’s representative requested the Tribunal to further re-schedule the hearing to allow the applicant an opportunity to recover and to attend the hearing. Accordingly, at the hearing the Tribunal decided to re-schedule the hearing. On the same day, 19 December 2019, the Tribunal re-scheduled the hearing to 6 January 2020 at 10:00am.
However, at the hearing on 6 January 2020 at 10:00am, neither the applicant nor the applicant’s representative attended the hearing. There has been no further information provided to the Tribunal from the applicant or the applicant’s representative.
If the applicant had appeared at the hearing, the Tribunal would have had the opportunity to ask questions of the applicant.
The Tribunal would have had the opportunity to ask the applicant why she failed to maintain enrolment in a Higher Education Sector level principal course of study, therefore failing to meet subclauses 573.231 or 573.223(1A) since 03 June 2015.
The Tribunal would have had the opportunity to ask the applicant why she failed to respond the Notice of Intention to Consider Cancellation (NOICC).
Accordingly, the Tribunal has decided to make a decision based on the available evidence.
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
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)(b) of the Act. 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 matters of government policy.
In her application to the Tribunal, the applicant provided a copy of the delegate’s decision record dated 8 August 2018.
Does the ground for cancellation exist?
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 attached to the applicant’s visa. Visa condition 8516 states:
The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.
On 03 July 2014 the visa holder satisfied the primary criteria for a class TU-573 Higher Education Sector visa (‘student visa’). The criteria for the grant of the student visa required the visa holder to meet, among other criteria, subclause 573.231 or subclause 573.223(1A), which states:
573.231
If subclause 573.223(1A) does not apply:
(a) the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and
(b) the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:
(i) made under regulation 1.40A; and
(ii) in force at the time the application was made.
eligible higher degree student means an applicant for a Subclass 573 visa in relation to whom the following apply:
(a) the applicant is enrolled in a principal course of study for the award of:
(i) a bachelor’s degree; or
(ii) a masters degree by coursework;
(b) the principal course of study is provided by an eligible education provider;
(c) if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study:
(i) the applicant is also enrolled in that course; and
(ii) that course is provided by the eligible education provider or an educational business partner of the eligible education provider.
573.223 (1A)
If the applicant is, and was, at the time of application, 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:
(a) the applicant gives the Minister evidence that the applicant has:
(i) a level of English language proficiency that satisfies the applicant’s eligible education provider; and
(ii) educational qualifications required by the eligible education provider; and
(b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:
(i) the costs and expenses required to support the applicant during the proposed stay in Australia; and
(ii) the costs and expenses required to support each member (if any) of the applicant’s family unit.
The delegate was satisfied the visa holder met the requirements of subclauses 573.223(1A) or 573.231 and granted the TU-573 student visa on 03 July 2014 with condition 8516 attached.
Information in the delegate’s decision record dated 8 August 2018 indicated that the applicant was no longer enrolled in a bachelor’s degree or master’s degree course and 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 in an instrument made under regulation 1.40A.
Accordingly, the Tribunal finds that the applicant does not satisfy either subclauses 573.231 or 573.223(1A) and has not complied with condition 8516.
The Tribunal finds that because the applicant did not comply with condition 8516 then their visa may be cancelled under paragraph 116(1)(b) of the Act.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
Consideration of discretion
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 circumstances in which the ground for cancellation arose
Because the applicant failed to attend the hearing and she did not respond to the NOICC and her representative did not provide any information to the Tribunal, the Tribunal has no information as to the circumstances in which the ground for cancellation arose.
In consideration of the above circumstances, the Tribunal finds that there were no circumstances that were exceptional circumstances or that were beyond the applicant’s control.
Accordingly, the Tribunal gives no weight in the applicant’s favour in regard to this factor.
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 Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia probably was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.
The extent of compliance with visa conditions
The Tribunal finds that the applicant appears to have complied with her visa conditions apart from condition 8516. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
Because the applicant failed to attend the hearing and she did not respond to the NOICC and her representative did not provide any information to the Tribunal, the Tribunal has no information as to the hardship that may be caused to her if her student visa was cancelled.
Accordingly, the Tribunal gives no weight in the applicant’s favour in regard to this factor.
Past and present behaviour of the applicant towards the Department
There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.
Whether there would be consequential cancellations under s.140
The applicant does not have any dependents on her student visa that would be affected if her student visa was cancelled.
Accordingly, the Tribunal places no weight on this information in the applicant’s favour.
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 accept that the applicant is reasonably aware of the legal consequences of the cancellation of her student visa and she is aware of the three-year exclusion period as a consequence of her student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.
The Tribunal accepts that the applicant will need to make her own arrangements to obtain a visa to lawfully remain onshore and that if she does not do so, she will be in Australia unlawfully and may be liable to detention and removal if she chooses not to return to China.
The Tribunal places low weight on this information in the applicant’s favour.
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 no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places no weight on this information in the applicant’s favour.
Any other relevant matters
There are no other relevant matters before the Tribunal.
Conclusion
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 Subclass 573 Higher Education Sector visa.
Joseph Lindsay

Member

[2020] AATA 52

6 January 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice