Ge (Migration)

[2018] AATA 795

Ge (Migration) [2018] AATA 795 (20 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Ya Ling Ge

CASE NUMBER:  1617576

DIBP REFERENCE(S):  BCC2016/1839073

MEMBER:Antoinette Younes

DATE:20 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 20 February 2018 at 2:16pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Bachelor degree enrolment cancelled – Failed to comply with Condition 8516 – Applicant did not attend hearing – Tribunal was unable to explore reasons for non-compliance

LEGISLATION
Migration Act 1958, s116
Migration Regulations 1994 Schedule 2 cl 573.231 Schedule 8 Condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 October 2016 made by a delegate of the Minister for Immigration 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 breached condition 8516. 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 following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   HEARING INVITATION

4. On 20 December 2017, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled at 11.00am on 16 February 2018. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on the case without taking any further action to allow or enable the applicant to appear before the Tribunal or may dismiss the application for review without any further consideration. The applicant did not respond to the hearing invitation and she did not attend the hearing.

5. In those circumstances, the Tribunal has decided to make its decision on the review without taking any further action.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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). 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.

   Does the ground for cancellation exist?

7. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal 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. This condition requires the visa holder to continue to be a person who would satisfy the primary or secondary criteria for the grant of the visa.

8. In support of the application for review, the applicant provided to the Tribunal a copy of the delegate’s decision record in which it is noted that information available to the Department in the Provider Registration and International Student Management System (PRISMS) indicated that at the date of the delegate’s decision record, the applicant had not been enrolled in a course of study that is a principal course of the type specified for the subclass TU 573 visa.  The information in PRISMS indicated that:

   a.The applicant’s enrolment in the Bachelor of Business degree was cancelled on 17 March 2015 due to non-commencement of studies.

   b.On 21 July 2015, the applicant enrolled in a Certificate IV in Business Administration at Aussietech Investments P/L which she completed on 8 January 2016.

   c.On 5 February 2016, the applicant was enrolled in a Diploma of Software Development at the Australian Higher Education Services which was cancelled due to non-commencement of studies.

   d.On 7 June 2016, the applicant was enrolled in a second Diploma of Software Development at the Australian Higher Education Services which was cancelled on 16 August 2016 due to notification of cessation of studies.

   e.On 9 August 2016, the applicant was enrolled in a Diploma of Business at Elizabeth Bence P/L in which she remained to be enrolled at the time of the decision record.

9. On 26 September 2016, the Department sent to the applicant a notice of intention to consider cancellation to which the applicant replied on 4 October 2016. In her response, the applicant indicated that when she came to Australia she had limited language skills and she worked very hard to improve her English skills.  She was confused about studying business which was recommended by her agent. She completed the Certificate IV and she developed interest in IT. She indicated that she did not know the difference between a certificate course, a diploma course or a bachelor’s degree and she did not know that the student visa required her to study at a bachelor’s degree level. She stated that she was surprised when she received the notice of intention to consider cancellation because she had been studying very hard and it would be disastrous for her and her parents would be disappointed if the visa were to be cancelled. She plans to contact her agent to recommence studies at a bachelor level.

10. On the basis of the available information, the Tribunal finds that the applicant has not been enrolled in a course of study that is a principal course of the type specified for the subclass TU 573 visa, as required by s.573.231. It follows that the applicant is not a person who would satisfy the primary or secondary criteria for the grant of the visa. Accordingly, the applicant has not complied with condition 8516 and therefore the ground for cancellation in s.116(1)(b) arises. 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.

11. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.  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 matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

12. The Tribunal has carefully considered the explanations provided by the applicant in the response to the notice of intention to consider cancellation. The Tribunal acknowledges that the cancellation would cause disappointment to the applicant and to her family and the Tribunal has given this aspect some weight. The Tribunal has not had the opportunity to speak with the applicant in the course of a hearing so that the Tribunal could have asked the applicant for further information and details about the non-compliance. The Tribunal would have asked the applicant about any other circumstances that led to the cancellation of the visa and any relevant factors that might have impacted on her ability to enrol and comply with condition 8516. The Tribunal would have asked the applicant about her current circumstances and would have obtained a comprehensive understanding relevant to the considerations relating to the guidelines in PAM3.

13. The Tribunal when inviting the applicant to the hearing had indicated to her that the Tribunal was unable to make a favourable decision on the basis of the available information.  Without having had the opportunity to further explore with the applicant at a hearing the reasons for non-compliance and ask her about any other circumstances that led to the non-compliance, the Tribunal is not satisfied that there are any circumstances in this case that mean that the visa should not be cancelled. 

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

    DECISION

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

    Antoinette Younes

    
    Senior Member