Khiu (Migration)

[2019] AATA 4332

Khiu (Migration) [2019] AATA 4332 (19 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Mun Ting Khiu

CASE NUMBER:  1910546

HOME AFFAIRS REFERENCE(S):           BCC2019/185509 BCC2019/186431

MEMBER:Mark Bishop

DATE:19 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 19 September 2019 at 9:36am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – not enrolled in registered course – no extenuating circumstances –  decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 April 2019 made by a delegate of the Minister for Home Affairs 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. On 19 August 2019 the Tribunal wrote to the applicant and requested she provide a copy of the decision record provided to the Department of Home Affairs on 23 April 2019.  The applicant did not respond to the request for information. The applicant did not provide a copy of the decision record to the Tribunal.

3. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

4. The applicant appeared before the Tribunal on 19 September 2019.

5. Shortly after the review hearing commenced it became clear the applicant spoke and understood little English. The Tribunal established the applicant was fluent in Malay, Cantonese and Chinese. The Tribunal made immediate arrangements for the use of an interpreter. The remainder of the hearing was conducted with the assistance of the interpreter in the Malay language. As the resumed the Tribunal explained the purpose and process of the hearing. The interpreter explained this to the applicant. The applicant advised she understood and thanked the Tribunal for the new arrangements. The Tribunal inquired of both the interpreter and the applicant whether she fully understood the questions and processes of the review hearing. The applicant advised that she did. On a number of occasions during the hearing the Tribunal acted to ensure the applicant fully understood the questions.

6. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course between 11 May 2018 and 13 March 2019. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

7. 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

8. 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?

9. 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).

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

11. The applicant advised the Tribunal it was correct she was not enrolled in a registered course in the period 11 May 2018 until 13 March 2019. She advised the Tribunal she was not enrolled, did not study and did not complete any courses in this period.

12. The applicant first came to Australia in May 2016. She returned to her home country on one occasion for two weeks in 2017. The applicant advised the Tribunal she was not enrolled in a course of study between May 2018 and March 2019. The applicant advised she did not attend classes because she did not like the course.

13. Having regard to the evidence of the applicant as outlined in paragraphs 11 and 12 above the Tribunal finds that the applicant had not been enrolled in a full time registered course of study from 11 May 2018 until 13 March 2019. The Tribunal finds that she breached condition 8202(2)(a) of her visa.

14. 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).

15. 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

16. 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’

17. 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

18. The applicant’s visa was granted on 30 May 2016 for the purpose of study. The applicant advised her sole purpose in coming to Australia was to study. She got distracted and missed classes. As outlined above in paragraphs 11 and 12 the applicant did not commence studies after 11 May 2018. She did not outline any reasons for this ’distraction’. She did not explain how this distraction caused her not to enrol in a course of study for a lengthy period of time. The Tribunal gives this factor little weight in the applicant’s favour.

    The extent of compliance with visa conditions

19. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal finds the length of the breach significant in terms of the usual time period of study.  As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

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

20. The applicant has not made any specific information available to the Tribunal concerning this factor. The Tribunal has considered that the applicant may experience some hardship of the visa is cancelled. There is no evidence before the Tribunal that the applicant has any family in Australia who might be negatively impacted by the cancelation of the visa. The applicant advised she sought another chance.  She knew she had done wrong. The applicant advised she would get into strife with her family. This was because her family had made a lot of effort to get her to study in Australia. She realised she had slipped up. The applicant advised the Tribunal she did not wish to outline any additional or further hardship. The applicant advised she would not suffer any financial or psychological hardship if she returned to her home country. She did not outline any ‘emotional’ hardship if she returned home apart from the fact her parents would be upset at her poor study outcomes in Australia. It might cause some difficulties as she had been working part time in Australia. She wished to return home and get a good job. The Tribunal gives this factor a little consideration.

    Circumstances in which ground of cancellation arose

21. The applicant was not enrolled in a registered course of study from 11 May 2018 until 13 March 2019.  The applicant did not provide any information to the Tribunal that she had been enrolled, maintained enrolment or re-engaged in study after the March 2019.

22. There is nothing before the Tribunal to indicate there were extenuation circumstances beyond the control of the applicant that mitigate the grounds for cancellation. The Tribunal gives this consideration no weight in favour of the applicant.

    Past and present behaviour of the visa holder towards the department

23. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in her dealings. However, any enrolment or re-enrolment (if it occurred after March 2019) is expected of all visa holders and should not outweigh the significance of the breach.

    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 Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained. It is noted the applicant may be barred from re-entering Australia for a period of three years. She has presented no specific evidence in relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

25. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Whether any international obligations would be breached as a result of the cancellation

26. There is nothing before the Tribunal to indicate there are international obligations to consider.

27. Any other relevant matters

28. The Tribunal is not aware of any other relevant matters.

29. The Tribunal has considered all factors both individually and cumulatively in the context of the breach. The Tribunal finds that the applicant was not enrolled in a course of study that is the principal source of a type specified for the Subclass TU-572 visa  and that a breach of almost twelve is significant in the context of a student’s study period

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

    DECISION

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

    Mark Bishop
    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.