Po Ying (Migration)

[2019] AATA 647

Po Ying (Migration) [2019] AATA 647 (27 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Kan Po Ying

CASE NUMBER:  1709788

HOME AFFAIRS REFERENCE(S):           BCC2017/809048

MEMBER:Stephen Witts

DATE:27 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 27 February 2019 at 9:46am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – failure to attend Tribunal hearing – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion –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 1 May 2017 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 applicant, Miss Kan Po Ying, a citizen of Taiwan, was granted a visa to study in Australia.

3. The delegate cancelled the visa on the basis that the applicant had not maintained enrolment in a registered course and the grounds for cancelling the visa outweigh the grounds for not cancelling the visa.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant was invited to appear before the Tribunal on 27 February 2019 to give evidence and present arguments.

5. The applicant did not appear before the Tribunal at the appointed time and date and consequently the Tribunal has decided to make a decision on the material before it. This includes both the delegate’s file and the Tribunal file.

6. The Tribunal is satisfied that the applicant was duly informed of the hearing in accordance with established procedure.

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. According to the delegate’s decision record, provided to the Tribunal by the applicant, the applicant was not enrolled in a registered course of study between 25 August 2016 and 1 May 2017.

12. The applicant has not provided any evidence to the Tribunal in regard to the delegate’s contention that the applicant was not enrolled during this period of time. It is further noted by the Tribunal that the applicant did not attend the hearing and did not provide any submissions to the Tribunal in regard to this matter.

13. 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

14. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

15. 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’

16. On 6 April 2017 the delegate provided a Notice of Intention to Consider Cancellation by registered post, and the notice invited the applicant to respond in writing. According to the delegate, the applicant did not respond to the NOICC.

    ·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

17. The applicant has not provided any evidence in regard to any need she may have to travel to or remain in Australia.

    ·the extent of compliance with visa conditions

18. The Tribunal has found that the applicant was in breach of her student visa conditions by not maintaining her enrolment in a registered course between 25 August 2016 and 1 May 2017. But there is no evidence to indicate the applicant has breached other conditions.

19. According to the delegate the applicant did not inform the Department of her enrolment status during this time.

20. The Tribunal expects that a visa holder will generally adhere to the conditions of their visa and the Tribunal is mindful of the significance of the breach. 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)

21. No evidence was provided by the applicant that the applicant would suffer any hardship of a financial, psychological, or emotional nature should the applicant’s visa be cancelled.

    ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

22. No evidence has been provided by the applicant that the visa cancellation was beyond the visa holder’s control.

23. The Tribunal therefore finds that there were no grounds for cancellation beyond the visa holder’s control.

    ·past and present behaviour of the visa holder towards the department

24. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the department or the Tribunal in her dealings. However, this is expected of all visa holders.

    ·whether there would be consequential cancellations under s.140

25. There is no evidence of consequential cancellations under s140.

    ·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

26. The Tribunal is mindful that the applicant could become an unlawful noncitizen and detained and removed from Australia pursuant to ss. 189 and 198, and it may be difficult to be granted further visas, and she may be subject to a three year exclusion period unless relevant Public Interest Criterion is met.

27. It is unlikely however that the visa applicant will be detained but rather provided with a time-limited period in which she can leave the country or apply for review of the decision.

    ·whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

28. There is nothing before the Tribunal to indicate any international obligations to consider.

    ·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

29. No such considerations are relevant in this case.

    ·any other relevant matters.

30. No other relevant matters have been provided to the Tribunal in this matter.

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

    DECISION

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

    Stephen Witts
    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.