Khadka (Migration)

[2018] AATA 1040

Khadka (Migration) [2018] AATA 1040 (14 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rani Khadka

CASE NUMBER:  1701672

DIBP REFERENCE(S):  BCC2016/4242878

MEMBER:Christine Kannis

DATE:14 March 2018

PLACE OF DECISION:  Perth

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

Statement made on 14 March 2018 at 10:09am

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector visa – Practice and Procedures – Postponement of hearing refused – Applicant unwell – Lack of Medical Evidence – Made decision on review – Ground of cancellation –  No longer enrolled in a registered course – No exceptional reasons for non-compliance

LEGISLATION
Migration Act 1958 ss 116, 140, 362B
Migration Regulations 1994 Schedule 8 Condition 8

CASES
Liu v MIMIA[2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 18 January 2017 made by a delegate of the Minister for Immigration 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 issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. On 9 February 2018 the Tribunal sent the applicant an Invitation to Attend a Hearing letter which advised that a hearing had been listed for 14 March 2018 at 9.00 am. The letter informed the applicant that if she was unable to attend the hearing then she should advise the Tribunal as soon as possible. The letter advised that the date of the hearing would only be changed if the Tribunal was satisfied that she had a very good reason for being granted an adjournment. The letter advised that if she did not attend the hearing a decision may be made on the review without taking any further action to allow or enable her to appear before the Tribunal or that her application for review may be dismissed without any further consideration on the application and based on the information before the Tribunal.

5. At 9.07 pm on 13 March 2018 the applicant sent the Tribunal the following email:

   I am really very sorry. I am not feeling well today. Could you please appoint it for another day.

6. At 7.18 am on 14 March 2018 the Tribunal attempted to contact the applicant on the telephone number provided in her application and on the telephone number provided in her email on 13 March 2018. The attempts to contact the applicant were recorded in the Tribunal’s electronic record as follows:

   Attempted to contact the RA using the number on file to advise the hearing postponement request has not been granted, but she has incoming call restrictions on her mobile and I cannot leave a message.

   I then rang the number provided in the email received this morning (0421 386 144) advising the Tribunal that she was unwell and seeking an appointment for another day. The number rang out. I left a voicemail advising the postponement would not be allowed without a good reason, that the Tribunal may dismiss the application or make a decision on the basis of the information before it if she fails to attend today’s hearing. I further advised in the message that the Tribunal could offer the hearing via   telephone and that I would confirm the message in writing and sought my call be returned ASAP.

7. At 7.40 am on 14 March 2018 the Tribunal sent the applicant an email which advised:

   I am writing in relation to the application for review made by you in respect of a

   decision to cancel your Subclass 572 Vocational Education and Training Sector visa.

   On 9 February 2018 we sent a letter inviting you to attend a hearing on 14 March 2018

   to give evidence and present arguments relating to the issues arising in your case.

   On 13 March 2018 we received a request that the hearing be postponed. The

   Member has considered the request carefully but has decided not to postpone the

   hearing based on the information provided. The Tribunal may dismiss the

   application, or make a decision on the basis of the information before it if you

   fail to attend the hearing as scheduled.

   The hearing will proceed as set out below. Please note that all details about the

   hearing, as set out in the hearing invitation letter dated 9 February 2018 still apply.

   The hearing can be conducted via telephone if required. Please provide your preferred contact telephone number as soon as possible.

8. At 7.43 am on 14 March 2018 the Tribunal attempted to telephone the applicant. This was recorded in the Tribunal’s electronic record as follows:

   On confirmation of the postponement refusal letter being dispatched, I rang the RA again and left a voicemail to advise that I had sent an email confirming her request had been refused and the hearing would still proceed as scheduled today. I offered the hearing to be conducted via telephone if required and asked her to urgently contact the Tribunal.

9. The Tribunal attempted to telephone the applicant at 9.00 am which was the time scheduled of  the hearing. The call went to voicemail and the Tribunal officer left a message for the applicant to return the call for the purposes of the hearing. The Tribunal attempted to telephone the applicant at 9.30 am and the call went to voicemail.

10. The applicant failed to appear at the hearing either in person or by telephone. The request for a postponement was received less than 12 hours prior to the scheduled hearing and stated that she was feeling unwell on the day the email was sent. She did not provide any evidence to substantiate the nature of her illness or why it prevented her from attending the hearing. The Tribunal was satisfied that the applicant had been advised in the Invitation to Attend a Hearing letter that she would need a very good reason for seeking an adjournment. The Tribunal decided that her advice that she was feeling unwell and the lack of any medical evidence regarding the nature of her illness and the reasons it prevented her from attending the hearing was not sufficient reason to adjourn the hearing.

11. The Tribunal has also taken into account that the applicant did not answer the two mobile telephone numbers she provided and that she did not respond to the email sent on the morning of the hearing.

12. Given that less than 12 hours prior to the scheduled hearing the applicant requested a postponement by email, the Tribunal considers it reasonable to expect that she would be available to answer phone calls and/or check her incoming emails for a response to her request.

13. The Tribunal considers the applicant has been given the opportunity to attend a hearing in person or by telephone.

14. The Tribunal proceeds to make a decision in this case without taking any further action to allow or enable the applicant to appear before it as it is empowered to do under section 362B of the Act.

15. 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

16. 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. Relevant 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?

17. On 17 July 2014 the applicant was granted a visa in Subclass 572 Vocational Education and Training Sector with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

18. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since 28 March 2016. Her enrolment a Certificate IV in Aged Care was cancelled on 28 March 2016 and the reason indicated was non-commencement of studies.

19. Having regard to the information in the PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 28 March 2016. The Tribunal finds that she breached condition8202(2)(a) of her visa.

20. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

21. 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).

22. On  9 January 2017 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of her visa. 

23. On 17 January 2017 a response to the NOICC was received. In her response the applicant provided the following information:

    ·A series of family members became severely ill and this in conjunction with her confusion and apprehension about her chosen course of studies caused the cessation of enrolment.

    ·Her aunty passed away in 2016.

    ·Her brother and her father were unwell in 2016.

    ·As a result she could not focus on what she wanted to study at that time. She had lost interest in nursing and wanted to study something that interested her. She took a little more time to figure out what she should study and what were her interests. She decided that she wanted to become a chef and was commencing her classes that week in Certificate III in Commercial Cookery.

24. As the applicant did not to attend the hearing or to provide written submissions prior to the hearing, the Tribunal relied on the information contained in the Department’s file and in the response to the NOICC.

25. The PRISMS shows that since 2010 the applicant has been enrolled in various courses in different areas of study including Hospitality, Nursing, Dental Assisting and Business. Several of these enrolments have been cancelled and the reasons stated include non-commencement of study, disciplinary reasons, student notifies cessation of studies and unsatisfactory course progress. In her response to the NOICC the applicant said she would be commencing classes in a Commercial Cookery course.

    Conclusion

26. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of the breach and reasons for the breach as set out in the applicant’s response to the NOICC.

27. The purpose of the student visa is to enable the visa holder to undertake study in Australia. The applicant has not been enrolled in a registered course since 28 March 2016 and over nine months elapsed from that date until the NOICC was issued.

28. Based on the evidence, the Tribunal finds the applicant’s breach of condition 8202 of her visa to be significant because she was not engaging in study for which her visa was granted and was not fulfilling the purpose of her travel to and stay in Australia.

29. The Tribunal notes in the response to the NOICC sought the applicant to rely on the illnesses of family members and the death of a family member as the reason she lost interest in her study. No medical evidence was provided to substantiate this contention.

30. Having regard to the evidence available the Tribunal cannot be satisfied that the applicant’s non-compliance with the visa condition was due to exceptional circumstances beyond her control.

31. The Tribunal finds that there are no extenuating or compassionate circumstances in this case.

32. Given the applicant’s failure to attend the hearing, the Tribunal is not aware of any hardship which will result by cancellation of her visa.

33. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

34. There are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing to suggest, and the applicant does no claim, that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

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

    DECISION

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

    Christine Kannis
    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.