LEE (Migration)

[2018] AATA 407

LEE (Migration) [2018] AATA 407 (20 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms SEULKI LEE

CASE NUMBER:  1615914

DIBP REFERENCE(S):  BCC2016/2702977

MEMBER:Mr S Norman

DATE:20 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 20 February 2018 at 12:00pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Not enrolled in a registered course

LEGISLATION
Migration Act 1958, s 116, 362B
Migration Regulations 1994, Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 September 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act). The delegate cancelled the visa on the basis that the applicant had breached condition 8202(2) – enrolment. 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. On 5 January 2018, the Tribunal sent the applicant (to the email address authorised for service) a hearing invitation letter advising that it had considered all the material before it relating to her 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 on 20 February 2018. By email of 9 January 2018, the applicant’s migration agent advised that they were not able to contact the applicant.

3. Two SMS (hearing reminder) texts were also sent to the applicant’s claimed mobile phone number (13/02/2018 & 19/02/2018). Only the second SMS text was noted as having failed to be delivered.

4. In its abovementioned letter of 5 January 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 her case without further notice. 

5. 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.

6. 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

7. 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?

8. 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).

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

10. The applicant was granted a Student (Template) (class TU) Higher Education Sector (subclass 573) visa on 1 July 2014. By Notice of Intention to Consider Cancellation (NOICC) dated 31 August 2016, the applicant was advised that information on the Provider Registration and International Student Management System (PRISMS) indicated that she had not been enrolled in a registered course of study since 6 November 2014. The applicant was advised it appeared they had breached condition 8202(2); and that their visa may be cancelled under s.116(1)(b) of the Act.

11. The applicant responded to the NOICC and had requested an extension of time. This was granted and her response was due no later than 14 September 2016. The applicant eventually responded but did not dispute there were grounds for the cancellation of the visa. The delegate then cancelled the visa on 20 September 2016.

12. That being said, 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).

    Consideration of the discretion to cancel the visa

13. 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).

14. Regarding the purpose of the applicant’s travel to and stay in Australia, in the visa application process she said her intention was to study in Australia. The Tribunal notes that Student visas are granted to non-citizens for the purposes of travel to and study in Australia in an appropriate course. However as noted above, at the time of NOICC letter (31 August 2016), PRISMS records indicated the applicant had not been enrolled in a registered course since 6 November 2014.  

15. Regarding the applicant’s compliance with any conditions to which the grant of her visa was subject, other than her non-enrolment in a registered course the Tribunal is not aware of further breaches.

16. Regarding the degree of hardship that may be caused to the applicant or her family if her visa is cancelled, the Tribunal presumes the applicant or her family may be subject to some financial hardship if her visa is cancelled. Further she would then become an unlawful noncitizen and be liable to detention under s.189 and removal under s.198 of the Act. However, based on the evidence before the Tribunal, I am not satisfied the applicant would be subject to indefinite detention. Further I note she could apply for a Bridging visa which would allow her to remain in the community to arrange her affairs prior to departing.

17. The Tribunal also notes that if the applicant’s visa is cancelled, she would be subject to section 48 of the Act, meaning she would have limited options to apply for further visas in Australia. Further, she would be subject to Public Interest Criterion 4013, meaning she would be subject to a three-year exclusion period.

18. Regarding the circumstances in which the ground for cancellation arose, the applicant had not been enrolled in a registered course since 6 November 2014 (at the time of the NOICC letter). In her response to the NOICC letter, the applicant had said she did not realise her enrolment was cancelled until she had ‘come to school’; she ‘panicked as she did not know what to do’; and she had ‘not received any notice from her school in regards to the COE cancellation’.

19. The applicant also had said she experienced financial hardship due to her father’s unexpected retirement; she had worked to pay rent and living expenses; she also had health problems and did not know how to solve her problems. However, the Tribunal believes that if this is correct, the applicant may have sought a deferment on her course in order to arrange to be able to return to her studies when she was able to continue. The Tribunal notes this may include her having to return to her country of citizenship.

20. Regarding the applicant’s past and present behaviour towards the Department, the Tribunal has no evidence the applicant has been materially uncooperative towards the Department or the Tribunal. The Tribunal has no information that any other persons visa would be impacted by the cancellation of the applicant’s visa. There is no evidence before the Tribunal that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

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

    DECISION

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

    Mr S Norman
    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.