Miao (Migration)

[2018] AATA 255

Miao (Migration) [2018] AATA 255 (15 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Xinhe Miao

CASE NUMBER:  1615714

DIBP REFERENCE(S):  BCC2016/1909529

MEMBER:Mr S Norman

DATE:15 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 15 February 2018 at 11:30am

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector visa – Applicant did not appear before the Tribunal – Not registered in a course of study – No intention to reside in Australia for the purpose of study

LEGISLATION
Migration Act 1958, ss 48, 116, 189, 198, 362B

Migration Regulations 1994, Schedule 4 Criteria 4013 Schedule 8 Condition 8202

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 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 Department delegate’s decision was lodged with the Tribunal. 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 1 November 2017, the Tribunal sent the applicant a hearing invitation letter (dispatched by email to her authorised recipient – her agent) 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 15 February 2018. No response to the Tribunal’s hearing invitation letter was received. Two SMS (hearing reminder) texts were sent to the applicant’s claimed mobile phone (on 8/02/2018 & 14/02/2018), however both were noted as having failed to be delivered. Also, the applicant has made no contact with the Tribunal since lodging her merits review application, and she did not respond to the Department’s NOICC letter.

3. In its abovementioned letter of 1 November 2017, 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. 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.

4. 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

5. 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?

6. 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).

7. In the present case, the applicant’s visa was cancelled on the basis she was not enrolled in a registered course. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 29 October 2014. On 20 July 2016 the applicant was issued with a Notice of Intention to Considering Cancellation (NOICC) of her Student visa. The applicant was advised that based on the Provider Registration and International Student Management System (PRISMS), it appeared that she had not been enrolled in a registered course of study since 31 March 2015. It therefore appeared the applicant had breached condition 8202(2)(a); and that her visa may be cancelled under s.116(1)(b) of the Act. The applicant did not respond to the NOICC letter. The delegate then cancelled the visa on 13 September 2016.

8. 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

9. 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 before it as to why the visa should not be cancelled, including government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

10. Regarding the purpose of the applicant’s travel to and stay in Australia, during the visa application process she stated her intention was to study in Australia. However the evidence in PRISMS indicated the applicant had not been enrolled in a registered course of study since 31 March 2015 (being since some 5 months after her visa was granted). The Tribunal is not satisfied the applicant’s present intention is to reside in Australia for the purpose of study.

11. Regarding the extent of the applicant’s compliance with any conditions to which her visa was granted, again the Tribunal notes that at the time of the NOICC letter, the applicant had not been enrolled in a registered course of study since 31 March 2015 (around 16 months). The Tribunal believes the breach to be significant. Regarding the circumstances in which the ground for cancellation arose, at the time of the NOICC letter the applicant had not been enrolled in a registered course of study since 31 March 2015.

12. Regarding the degree of hardship that may be caused to the applicant or her family if her visa is cancelled, the Tribunal accepts the applicant may be subject to some financial hardship if her visa is cancelled. She may also be liable to detention under s.189 and removal under s.198 of the Act. However, the evidence has not satisfied the Tribunal the applicant will be subject to indefinite detention. The Tribunal also understands the applicant could apply for a Bridging visa which would allow her to remain in the community to finalise her affairs prior to departing Australia. The Tribunal also notes that if the applicant’s visa is cancelled she would be subject to s.48 (meaning she would have limited options to apply for further visas in Australia). She would also be subject to PIC 4013 (meaning she could not be granted a temporary visa for three years from the date of cancellation).

13. There is no evidence the applicant has been uncooperative with either the Department or the Tribunal (other than not responding to some correspondence). There is no evidence that any other person’s visa would be cancelled if the applicant’s visa is cancelled. There is no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

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

    DECISION

15. 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.