Dharel (Migration)

[2018] AATA 5182

Dharel (Migration) [2018] AATA 5182 (10 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rachana Dharel

CASE NUMBER:  1620504

HOME AFFAIRS REFERENCE(S):           BCC2016/3054022

MEMBER:Wendy Banfield

DATE:10 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 10 December 2018 at 9:26pm

CATCHWORDS
MIGRATION – cancellation – Subclass 572 Vocational Education and Training Sector visa – not enrolled in course of study – non-attendance at hearing – factors within applicant’s control – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116(1)(b), 140
Migration Regulations 1994, Schedule 2, Schedule 8 condition 8202, Public Interest Criterion (PIC) 4013

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 December 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training 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 had not been enrolled in a course of study from 21 October 2015 to 23 November 2016 as required by the conditions imposed on her student visa. After considering the applicant’s response to a Notice of Intention to Consider Cancellation, the visa was cancelled on 1 December 2018. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

3. The applicant is a citizen of Nepal and is currently 32 years old. Since she came to Australia as the holder of a Student Visa the applicant has completed several courses. These include General English, as well as Certificate and Diploma studies in Business, Management and Marketing. At the time the applicant’s Student Visa was considered for cancelation she had not been enrolled in a course of study for more than 12 months in breach of visa conditions. The applicant advised the Department that her husband had applied for a Subclass 186 Skilled Visa and that she was a dependent applicant.

4. The applicant was represented in relation to the review by her registered migration agent.

5. On 4 October 2018 the applicant was invited to attend a hearing scheduled for 5 November 2018, however, the applicant declined the invitation.

6. 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

7. 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?

8. 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).

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

10. According to the Department’s decision dated 1 December 2016 which was provided to the applicant as part of her application for access to documents, the applicant was not enrolled in a registered course of study for the period 21 October 2015 to 23 November 2016. The applicant had submitted evidence to the Department in response to a Notice of Intention to Consider Cancellation of her visa. The applicant stated her education provider did not inform her that her enrolment had been cancelled and were unable to provide evidence of having communicated with her in that regard. It was claimed the education provider had mishandled the matter and had tricked her and has since closed. The applicant declared she had not intended to breach visa conditions. At the time of cancellation, the applicant had obtained another COE from a different provider and together with her husband, had also lodged an application for permanent residency.

11. The applicant did not dispute that she had ceased studying and as a result, her COE had been cancelled by her education provider. No evidence was provided to refute the finding that the applicant was not enrolled to study for more than 12 months.

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’.

    ·     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

14. The applicant came to Australia as the holder of a Subclass 572 Student Visa which was granted on 30 July 2014 and was valid until 2 December 2016. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

15. The applicant’s purpose for staying in Australia has changed since holding a student visa. Her husband has lodged an application for a Subclass 190 visa with the applicant as a dependent. This indicates she is no longer intending to be a temporary entrant and wishes to remain in Australia permanently.

16. The Tribunal has carefully considered the evidence before it and is satisfied the applicant originally came to Australia to study. At the time of application the applicant had re-enrolled in a course of study but did not provide evidence of the status of her studies or subsequent completion of any courses at the time of decision. The applicant has not demonstrated a powerful or convincing reason for wanting to remain in Australia apart from awaiting the outcome of her application for permanent residency. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

17. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal gives this aspect some weight in the applicant’s favour.

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

18. The applicant provided evidence to the Department regarding hardship that may result from her visa being cancelled. This included the education provider’s mishandling of her studies with them and the fact that the applicant and her husband have been invited to settle in Australia. The applicant also stated that the breach of her visa should be forgiven so she can focus on her work, family life and future. No further evidence was submitted to the Tribunal on this issue.

19. The Department found that cancellation of the visa may cause some hardship to the applicant such as not having work rights in Australia and therefore unable to obtain an income. Some weight in the applicant’s favour was given to this consideration and the Tribunal makes the same finding.

    ·     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 that 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

20. The applicant did not submit evidence to the Tribunal about the circumstances in which the grounds for cancellation arose. She advised the Department as follows: she had been a victim of the college she was enrolled with: she had not intended to breach visa conditions; if a breach occurred it was due to mismanagement and trickery by the education provider’s staff and management; the education provider did not advise her the COE was cancelled; the college was demanding fees; the college is now closed; the applicant has applied for a permanent visa; and at the time of cancellation, she was enrolled with another provider. The applicant did not provide a satisfactory account of how why she had not been enrolled for over 12 months.

21. The Tribunal does not consider the grounds for cancellation arose due to factors that were beyond the applicant’s control and on the evidence available, and considers that in the circumstances, the visa should be cancelled.

    ·     past and present behaviour of the visa holder towards the department

22. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.

    ·     whether there would be consequential cancellations under s.140

23. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

24. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and not sufficient reason for the applicant’s visa to not to be cancelled.

25. Since the applicant has applied for a permanent visa along with her husband, she may be granted a Bridging Visa while a decision is made in that case. The Tribunal had intended to explore these issues with the applicant at a hearing had she chosen attend.

    ·     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

26. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

27. The Subclass 572 Student Visa is not a permanent visa.

    ·     any other relevant matters

28. The Tribunal intended to discuss the above matters with the applicant and obtain information about her current situation in order to make an assessment of her case; however, she decided not to attend a hearing to give evidence and present arguments.

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 applicant’s Class TU visa.

    Wendy Banfield
    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.