HIRUNNIL (Migration)

[2019] AATA 1636

HIRUNNIL (Migration) [2019] AATA 1636 (20 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Chotika HIRUNNIL

CASE NUMBER:  1705641

HOME AFFAIRS REFERENCE(S):           BCC2017/272486

MEMBER:Mr S Norman

DATE:20 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 20 May 2019 at 12:10pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – failure to attend Tribunal hearing – ground for cancellation – continue to be a person who would satisfy the primary criteria for grant of visa – ceased to be enrolled in a Higher Education Sector course – consideration of discretion – purpose of visa not fulfilled – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B
Migration Regulations 1994 (Cth), Schedule 2, cls, 573.111, 573.223, 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 20 March 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal. The delegate cancelled the visa on the basis that the applicant was found to have breached condition 8516 (discussed below). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

2. By letter dated 15 March 2019 (dispatched by email), the Tribunal wrote to the applicant advising that it had considered all the material before it relating to her application. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing at 10.30am on 20 May 2019. 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 her case without further notice. 

3. The Tribunal also issued two hearing reminder texts shortly prior to the scheduled hearing. At the time of this decision, no response had been received.

4. That being said, the applicant did not appear before the Tribunal on the day and at the time and place at which her hearing was scheduled. 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. 

5. 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

6. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8516 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 8516?

7. In the present case, the applicant’s Student visa was cancelled as she was found to have breached condition 8516. That stated:  

   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

8. Relevant to this case: 

   573.111

   …..

   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:

   (ia)    an advanced diploma in the higher education sector; or 

   (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.

   and:

   [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.

   and:

   [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

9. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 13 May 2015 (expiry date 15 March 2019). By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 3 March 2017, the applicant was advised that information on the Provider Registration and International Student Management System (PRISMS) indicated she had ceased to be enrolled in her Bachelor of Business degree on 8 April 2016, and that she had not held an enrolment in a course of study specified for a Higher Education Student visa since that date (being some 11 months). Therefore it appeared the applicant had not continued to be a person who would satisfy cl.573.231 or cl.573.223(1A), and had therefore not complied with condition 8516. Consequently, the Student visa might be cancelled under s.116(1)(b) of the Act.

10. In her response to the NOICC dated 17 March 2017,[1] the applicant did not dispute that she had breached her visa conditions (though she said it was not intentional).

    [1] Department – from folio 16.

11. On the evidence before the Tribunal, the applicant did not continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. Accordingly, the applicant has not complied with condition 8516.

    Consideration of the discretion to cancel the visa

12. 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’.

13. Regarding the purpose of the applicant’s travel to and stay in Australia, she claimed to have travelled to Australia for the purposes of study at the higher education level. However, she had failed to maintain enrolment in a registered course of study; and at the time the NOICC was issued, the applicant had not been enrolled in a registered course of study for some 11 months. She claimed this was the fault of poor advice she received from her then agent. However, the Tribunal understands that students are made aware of their visa conditions at the time of grant. In the present case, and after considering all the evidence, the Tribunal is not satisfied the applicant’s failure to maintain her enrolment can be solely attributed to the claimed poor advice she said she had received. Further, and based on all evidence herein, neither am I satisfied the applicant’s present intention is to remain in Australia for the purpose of study.

14. Regarding the extent of compliance with the visa conditions, the applicant had failed to maintain enrolment and registered course of study for around 11 months at the time the NOICC was issued.

15. Regarding the degree of hardship that may be caused to the applicant or her family if her Student visa is cancelled, the applicant did not provide any specific evidence about this. She did however say she did not want to be punished for an ‘honest mistake’. In their decision record, the delegate noted the applicant said she had spent a lot of money and wants to continue to study in Australia. However, the delegate also noted there was no evidence the applicant had even attempted to re-enrol in a registered course of study after the NOICC was issued (at least in the approximately three weeks or more, after the NOICC was issued). After then considering all the evidence, the Tribunal proposes to accept the applicant or her family may be subject to some limited hardship if her Student visa is cancelled.

16. Regarding the circumstances in which the ground of cancellation arose, in her response to the NOICC dated 17 March 2017,[2] the applicant explained that she understood she had been granted a Student visa which would last three years and eight months; on arrival in Australia she attended “AICE”; an agent organised her to study full-time between 25 May 2015 and 11 March 2016; she was then to attend a university in Cairns, however she did not wish to live in Cairns as she had friends in Sydney; she was then enrolled in the Sydney Metro College and completed a Certificate IV in Business. She had asked her agent who had advised her that there would be no problems for her to complete a Diploma course. The applicant said she was at “no time aware that this was a breach of her visa condition”. She then said her agent was no longer registered and she had been unable to contact them (though she provided a mobile phone number).

    [2] Department – from folio 16.

17. In January 2017, the applicant had attended S & K international Education inquiring about undertaking a business course. She said she was again not advised that there would be “an issue with her visa by completing a diploma course”. She did however have to complete a two-week English course at Scotts College (in January 2017). She said any breach of her visa conditions was unintentional. She said she was “new to Australia and honestly did not know differently”.

18. However, the Tribunal understands that Student visa holders are advised about the condition/s attached to their visas at time of grant. The Tribunal is therefore not satisfied the applicant can plausibly attribute sole blame for her circumstances on an agent. Based on the accepted evidence before it, the Tribunal is satisfied the applicant must accept substantial responsibility for breaching the conditions attached to her Student visa.

19. Next, if the applicant’s Student visa is cancelled she would become an unlawful non-citizen and liable to be detained under s.189 and removed under s.198 of the Act. However, there is no evidence before the Tribunal that has satisfied me the applicant would be subject to indefinite detention. Further, after considering the evidence the Tribunal is satisfied the applicant could temporarily retain her Bridging visa in order to remain in the community to organise her affairs prior to departing Australia.

20. The Tribunal also notes that if the applicant’s visa is cancelled she would be subject to s.48 of the Act, and would have limited options to apply for further visas in Australia.  She would also be subject to PIC 4013; meaning she might not be granted a temporary visa for three years from the date of cancellation (being from 20 March 2017).  

21. Next, the Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. Based on the evidence herein, I am not satisfied the applicant has a compelling need to travel to or remain in Australia. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

22. After then considering all the accepted evidence, the Tribunal is satisfied it should affirm the decision under review.

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

    DECISION

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

    Mr S Norman
    Member