Promwongsa (Migration)

[2019] AATA 6377

Promwongsa (Migration) [2019] AATA 6377 (6 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Saowaluk Promwongsa
Mr Premchai Promwongsa

CASE NUMBER:  1727261

HOME AFFAIRS REFERENCE(S):           BCC2017/2939125

MEMBER:Stephen Conwell

DATE:6 November 2019

PLACE OF DECISION:  Melbourne

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

The Tribunal has no jurisdiction with respect to the second-named applicant.

Statement made on 06 November 2019 at 3:02pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Bachelor of Business – not enrolled in registered course for two years – enrolment cancelled – English language difficulties – purported issues with education agent – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348, 362B
Migration Regulations 1994 (Cth), cls 573.223, 573.231, Schedule 8, Condition 8516

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 November 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the first-named applicant’s (Miss Saowaluk Promwongsa) Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that since the cancellation of her Higher Education studies on 3 December 2015, the first-named applicant had failed to maintain her enrolment in a course of study that is a principal course of a type specified for the TU-573 Higher Education Sector, contrary to the requirements of condition 8516 of Schedule 8 to the Migration Regulations 1994 (the Regulations). 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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first-named applicant (the applicant). The second-named applicant’s (Mr Premchai Promwongsa) visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second-named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

4. On 23 October 2019, the applicant was invited by email to appear before the Tribunal to give evidence and present arguments in relation to her application for review. The hearing was scheduled for 6 November 2019.

5. On 28 October 2019 the applicant responded by email to the hearing invitation, advising that neither she nor second-named applicant would be attending the hearing. The Tribunal invitation noted that if the applicant declined to attend the hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable her to appear before it or may dismiss the application for review without any further consideration of the application or the information before it.  The applicant was also provided with an ‘Information about hearings – MR Division’ leaflet, which contained important information about hearings, dismissals and an applicant’s rights.

6. The applicant did not withdraw her application for review. The hearing was not cancelled and the Tribunal remained prepared to hear the application, however the applicant did not appear before the Tribunal on the day and time scheduled.

7. Pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further steps to enable the applicant to appear before it. 

8. 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

9. 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). 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?

10. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal 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. Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

11. The Decision Record noted that a Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 6 September 2017.  The Decision Record notes that the applicant provided a written response respectively on 9 and 11 September 2017 (although the latter submission appears to be merely a re-sending of her initial response to the NOICC).

12. According to the delegate’s decision, on 4 December 2014 the applicant satisfied the primary criteria for the grant of the 573 visa (and met cl.573.231 or cl.573.223(1A) to be granted the visa with condition 8516 attached. Condition 8516 states the visa holder meets the requirements if the visa holder continues to satisfy the primary or secondary criteria for the grant of the visa.

13. As noted in the delegate’s decision, the applicant’s entry in the Provider Registration and International Student Management Systems (PRISMS) records that her enrolment in the Higher Education Sector course, Bachelor of Business was cancelled on 3 December 2015.  As a consequence she was no longer enrolled in a bachelor’s degree or master’s degree course nor was she enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A.

14. The applicant’s response to the NOICC cites several reasons why she believed that her visa should not be cancelled, including:

    ·When she first decided to study in Australia she relied on advice from an education agent in Thailand who recommended that she enrol in a Bachelor of Business;

    ·Since arriving in Australia she realised how difficult it was to communicate (and study) in English. Her English is not good enough to study the Bachelor level course and she does not want to waste money on University fees because she knows that her grasp of English is not good enough to pass a University course;

    ·Whilst onshore she has been studying English to improve her chances of returning to University studies. Despite her attending English classes since 2014, her progress has been slow. Nevertheless she intends to continue with her English studies, then seek to enrol in a Certificate in Business before departing Australia.

15. On the basis of the information before it, the Tribunal notes there is no evidence to support the applicant’s claim that she was misled by an overseas education agent with respect to her study choices in Australia. Nor has the applicant identified the overseas education agent in question.

16. The Tribunal is satisfied that when the applicant ceased to be enrolled in a Higher Education course she did not continue to satisfy cl.573.231 or cl.573.223(1A), and she therefore did not continue to be a person who would satisfy the primary criteria for the grant of the visa. The Tribunal finds therefore that she breached condition 8516 of her Student visa.

17. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

18. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

    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

19. The applicant was granted her visa to undertake Higher Education studies in Australia, hence her reason to travel to Australia.

20. If the applicant had attended the scheduled hearing, the Tribunal would have discussed with her the reasons for, and extent of, the breach and the circumstances in which the grounds for cancellation arose. The Tribunal would have asked whether there were any academic or personal challenges to her continuing enrolment in the Higher Education sector course and, if so, what assistance she sought and obtained to overcome any such challenges.

21. The information before the Tribunal is that the applicant is no longer enrolled in a Higher Education course.  Taken in the context of the original purpose of her presence in Australia, the Tribunal is not satisfied that the applicant has a compelling need to remain in Australia. 

22. On the evidence before it, the Tribunal is not satisfied that the purpose for the applicant’s travel and stay mean that the visa should not be cancelled.

    The extent of compliance with visa conditions

23. The applicant was granted the visa to undertake specified studies in Australia.  She has not done so and she remained non-compliant with condition 8516 for almost two years from 3 December 2015 to the date her visa was cancelled, 1 November 2017.  She has not complied with the primary condition of the visa granted to her.

24. The Tribunal considers that this weighs heavily in favour of cancellation of the visa.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the visa holder and any family members

25. As the applicant elected not to attend the scheduled hearing, the Tribunal did not have the opportunity to ask what, if any, hardship would be caused to her or her family should the visa be cancelled.  Given there is no evidence before the Tribunal in this regard, the Tribunal considers this factor neutral in terms of exercise of the discretion to cancel the visa.

    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

26. As noted above, had the applicant attended the scheduled hearing, the Tribunal would have spoken with her in detail about the circumstances in which she ceased her enrolment in a Higher Education course. The Tribunal would have asked whether there were any academic or personal challenges to her continuing enrolment in the Higher Education sector course and, if so, what assistance she sought and obtained to overcome any such challenges.

27. It was fundamental to the grant of this visa to the applicant that she be enrolled in a Higher Education sector course, and maintain enrolment in such a course, in order to comply with condition 8516.  There is limited evidence before the Tribunal as to why the applicant ceased her enrolment in a Higher Education sector course.

28. The Tribunal is of the view that the extent of the breach of the visa condition is serious in relation to considering the discretion to cancel the visa.

    Past and present conduct of the visa holder towards the Department

29. There was no material before the Department to indicate that the applicant has been deliberately unco-operative or untruthful in her dealings with the Department, and the Tribunal notes that she did respond promptly to the NOICC.  The Tribunal gives some weight to this factor some weight in favour of not cancelling the visa.

    Whether there are mandatory legal consequence, such as whether cancellation would result in the visa holder being unlawful and subject 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

30. The Tribunal is not satisfied that there are consequences of the cancellation which mean that the visa should not be cancelled.

    Whether there would be consequential cancellations under s.140

    The second-named applicant's visa would be cancelled under s.140 and the Tribunal has given this some weight in favour of not cancelling the visa.

    Whether any international obligations would be breached as a result of the cancellation

31. There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation.

    Any other relevant matters

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

33. The Tribunal recognises that the cancellation of the visa is a significant matter.  However, on balance and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

34. The Tribunal affirms the decision to cancel the first-named applicant’s Subclass 573 Higher Education Sector visa.

35. The Tribunal has no jurisdiction with respect to the second-named applicant.

    Stephen Conwell
    Member