NGUYEN (Migration)

[2019] AATA 1060

NGUYEN (Migration) [2019] AATA 1060 (11 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr VAN YEN NGUYEN

CASE NUMBER:  1700499

HOME AFFAIRS REFERENCE(S):           BCC2016/3187278

MEMBER:Mr S Norman

DATE:11 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 11 March 2019 at 12:30pm  

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – failure to attend hearing – ground for cancellation – continue satisfaction of primary criteria – failed to maintain enrolment – consideration of discretion – non-commencement of studies – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B
Migration Regulations 1994 (Cth), Schedule 2, cls 573.223, 573.231; Schedule 8, Condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 December 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa under s.116(1)(b) of the Act, on the basis that the applicant was found to have breached condition 8516 (discussed below). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. On 3 January 2019, 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 his 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 11 March 2019. 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 (14/03/2019 & 8/03/2019); but again no response was received. 

4. The applicant was represented in relation to the review by his registered migration agent.

5. In its abovementioned letter of 3 January 2019, the applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. 

6. The applicant did not appear before the Tribunal on the day and at the time and place at which his 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.

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. 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. Relevantly, to this case, these include the ground set out in s.116(1)(b) of the Act. 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?

9. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa. This condition requires that the visa holder must continue to be a person who would satisfy the primary or secondary criteria for the grant of the visa. In this case, the relevant criteria is set out in cl.573.223(1A) & cl.573.231.

10. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 19 September 2013 (expiry date 30 August 2017). By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 5 December 2016, the applicant was advised that information on the Provider Registration and International Student Management System (PRISMS) indicated he had not been enrolled in a Bachelors degree or Masters degree course, being a principal cause of the type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A. It therefore appeared he may have breached condition 8516 as he had failed to satisfy the primary criteria attached to his visa grant (cl.573.231 or cl.573.223(1A)). The applicant did not respond to the NOICC.

11. Condition 8516 provided:

    The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

12. Therefore, the applicant must continue to satisfy (ie) cl.573.231:

    If the applicant is not an eligible higher degree student, or does not have a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:
    (a)      the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and
    (b)      the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:

    (i)      made under regulation 1.40A; and
    (ii)      in force at the time the application was made

13. Further, the applicant must also continue to satisfy (ie) cl.573.223(1A):

    (1A) If the applicant is an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:
    (a)      the applicant gives the Minister evidence that the applicant has:

    (i)      a level of English language proficiency that satisfies the applicant’s eligible education provider; and
    (ii)      educational qualifications required by the eligible education provider; and

    (b)      the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

    (i)      the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
    (ii)      any other relevant matter; and

    (c)      the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

    (i)      the costs and expenses required to support the applicant during the proposed stay in Australia; and
    (ii)      the costs and expenses required to support each member (if any) of the applicant’s family unit.

14. That being said, based on the evidence before it, the Tribunal is satisfied the applicant had breached condition 8516, and that his Student visa may be cancelled pursuant to s.116(1)(b) of the Act.

15. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

16. 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 (that may be) raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

17. Based on the evidence before the Tribunal, I propose to accept the applicant’s initial intention for travelling to and staying in Australia was for the purposes of study.

18. Next, as noted above the applicant breached condition 8516 of his Student visa when he failed to maintain enrolment in a registered course of study.

19. Next, the Tribunal will accept that if the applicant’s visa is cancelled he or his family may suffer some limited financial or other hardship.

20. Next, the circumstances giving rise to the cancellation of the applicant’s visa were that he failed to maintain his enrolment in a registered course of study. For instance, the Tribunal notes that on 28 May 2014 the applicant’s then education provider (Swinburne University of Technology), advised the Department that the applicant’s registration for a Bachelor of Information and Communication Technology was cancelled as a result of non-commencement of studies.

21. Next, the Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. Next, the Tribunal has no evidence that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. Next, there is no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

22. Next, if the applicant’s visa is cancelled he would become an unlawful noncitizen and 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 he would be subject to indefinite detention. Further, I am satisfied he could temporarily retain his Bridging visa in order to remain in the community to finalise his affairs prior to departing Australia.

23. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 of the Act, and would have limited options to apply for further visas in Australia.  He would also be subject to PIC 4013; meaning he might not be granted a temporary visa for three years from the date of cancellation. 

24. However, after then considering all the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Mr S Norman
    Member