LEE (Migration)

[2018] AATA 5657

LEE (Migration) [2018] AATA 5657 (28 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  HYUNSOOK LEE

CASE NUMBER:  1621255

HOME AFFAIRS REFERENCE:                BCC2016/3368679

MEMBER:Lilly Mojsin

DATE:28 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 28 November 2018 at 4:47pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 572 Vocational Education and Training Sector visa – enrolment ceased by the education provider – difficulties in re-enrolment – compelling need to remain in Australia – decision under review affirmed        

LEGISLATION

Migration Act 1958, ss 116, 140, 189, 360, 362
Migration Regulations 1994, Schedule 2 cls 572.231; r 1.40; Schedule 8 Condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 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 under s.116(1)(b) on the basis that the applicant has not complied with a condition of his visa as he has not continued to be a person who would satisfy the primary criteria for the grant of a visa and has not complied with Condition 8516 as he was no longer enrolled in a Vocational Education and Training Sector course in breach of Condition 8516.

3. The applicant appealed that decision to this Tribunal, annexing a copy of the Department decision to the application for review.

4. The applicant was invited under s.360 of the Migration Act 1958 the applicant was notified that the Tribunal had considered the material before it but the Tribunal was unable to make a favourable decision on this information alone. The applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review, on 28 November 2018 at 9.00 am.

5. The invitation stated that if the applicant did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.

6. The applicant did not acknowledge the Tribunal correspondence, the applicant did not attend the Tribunal on 28 November 2018 at 9.00 am and the Tribunal has received no explanation.

7. In these circumstances, 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. On 3 July 2014 the applicant met the requirements of subclause 572.231 and was granted a Student Vocational Education and Training Sector (Subclass 572) visa with condition 8516 attached to the visa in order to study a Diploma of Community Services work.

9. The delegate stated that the applicant ceased to be enrolled in the Diploma of Community Services work on 29 May 2015 and she has not been enrolled in a course of study specified for Student Vocational Education and Training Sector (subclass 572) visas since that date.

10. A notice of intention to consider cancellation [NOICC] was sent by the Department to the applicant on 14 November 2016 and the notice invited the applicant to respond in writing. 

11. The applicant responded on 28 November 2016 providing the following documents:

    ·Letter of Offer from TAFE NSW to study a course in Health Services Assistance Certificate III

    ·Confirmation of Enrolment to study Preparation Course for Occupational English Test commencing on 9 January 2017 and ending on 20 January 2017

    ·Letter of Acceptance to study English Language Program commencing on 8 August 2016 and ending on 9 December 2016

12. In her response, the applicant stated that her enrolment in the Diploma course was cancelled on 29 May 2015, it was due to the education provider being unable to deliver the course. She stated that she had no choice but to withdraw from the course and change schools. She was confused and had some difficulties deciding what other course to enrol in and this had taken her until recently to decide. She stated that she would be studying Certificate III in Health Services Assistance at Sydney Institute which was due to commence on 30 January 2017, but meanwhile she was enrolled in English courses until the start date.

13. The delegate stated that information in PRISMS indicated that the applicant enrolled in English courses but no other active enrolment at the Vocational Education and Training level was found at time of decision.

    REASONS AND FINDINGS

14. The issue in the present review is whether ground for cancellation is made out, and if so, whether the visa should be cancelled.

15. Under s.116 of the Act, the Minister may cancel a visa if satisfied that certain grounds specified in that provision are made out. Relevantly, 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.

16. In this instance condition 8516 was attached to the applicant's visa. This condition required that the applicant continue to be a person who would satisfy the primary criteria of the grant of the visa. The primary criteria that is relevant is 572.231.

17. Condition 8516 requires that the applicant is enrolled in a principal course of study of the type that is specified for Subclass 572 by the Minister in an instrument made under regulation1.40A; and is in force at the time the application was made.

18. In light of the information provided by the applicant to the Department that she ceased enrolment in her Diploma course on 29 May 2015 and did not provide any information to the Department that she was enrolled in any other Diploma course, the Tribunal is satisfied that the applicant is not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8516.

    Consideration of the discretion to cancel the visa

19. 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.

20. As the applicant did not attend the hearing or to provide written submissions prior to the hearing, the Tribunal has had regard to the information contained in the Department's file and Tribunal file. The Tribunal has also had regard to matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. These are as follows:

21. The purpose of the student visa is to enable the visa holder to undertake study in Australia. the Tribunal accepts that the applicant’s education provider was unable to deliver the course,  and she had no choice but to withdraw from the course and change schools. Whilst she claims to have been confused and had some difficulties deciding what other course to enrol in, the applicant did not, on the information before the Tribunal, enrol in any other Diploma course at all.  The Tribunal places great weight on applicant not being enrolled in a registered Diploma course since 29 May 2015. The Tribunal weighs this factor in favour of cancellation.

22. The applicant has not provided any information to the Department or the Tribunal that she has a compelling need to remain in Australia. The Tribunal weighs this factor in favour of cancellation.

23. There is no evidence before the Tribunal to indicate that the applicant's non-compliance with the visa condition was due to circumstances beyond her control. The Tribunal weighs this factor in favour of cancellation.

24. Given the applicant's failure to attend the hearing, the Tribunal is not aware of any hardship which will result from cancellation of her visa. The Tribunal weighs this factor in favour of cancellation.

25. There is no evidence before the Tribunal to suggest that the applicant’s past or present behaviour towards the Department was adverse. The Tribunal weighs this factor neither in favour nor against cancelling the visa.  

26. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice regarding her immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion. The Tribunal weighs this factor neither in favour nor against cancelling the visa.  

27. There are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing before the Tribunal to suggest that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation. The Tribunal weighs this factor neither in favour nor against cancelling the visa.  

28. As 3 years have passed since the applicant was last enrolled, the Tribunal finds the applicant's breach of condition 8516 of her visa to be significant because she did not engage in study for which her visa was granted and she was not fulfilling the purpose of her travel to and stay in Australia. The Tribunal weighs this factor in favour of cancellation.

29. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

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 Class TU visa.

    Lilly Mojsin
    Member