Ramirez Ramirez (Migration)

[2018] AATA 5101

Ramirez Ramirez (Migration) [2018] AATA 5101 (13 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Diego Fernando Ramirez Ramirez

CASE NUMBER:  1702545

HOME AFFAIRS REFERENCE(S):           BCC2016/4333219

MEMBER:Christine Kannis

DATE:13 August 2018

PLACE OF DECISION:  Perth

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

Statement made on 13 August 2018 at 10:33am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector visa – applicant had been deported from Australia – not enrolled in a registered course of study – breach of condition 8202 – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 362B, 140, 189
Migration Regulations 1994, Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 February 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 issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. On 16 July 2018 the a Case Note was entered which recorded that the applicant’s representative, Ms Tiffany Hale, had contacted the Tribunal and advised that the applicant had been deported from Australia as he did not have a valid visa.

5. The applicant lodged the application for review prior to being deported and there is nothing to suggest that he or his representative sought at any time to withdraw the application.

6. On 21 July 2018 the Tribunal sent the applicant’s representative an Invitation to Attend a Hearing letter (by email) which advised that a hearing had been listed for 13 August 2018 at 9.00 am. The letter informed the applicant that if he was unable to attend the hearing then he should advise the Tribunal as soon as possible. The letter advised that if he did not attend the hearing a decision may be made on the review without taking any further action to allow or enable him to appear before the Tribunal or that his application for review may be dismissed without any further consideration on the application and based on the information before the Tribunal.

7. On 6 and 10 August 2018 the Tribunal sent the applicant’s representative SMS hearing reminders to the phone number provided in the Application for review. The delivery of the SMS on 6 August 2018 failed however delivery of the later SMS on 10 August 2018 appeared to have been successful.

8. The applicant and/or his representative did not respond to the Invitation to Attend a Hearing.

9. The applicant and/or his representative failed to appear at the hearing and did not contact the Tribunal prior to the scheduled hearing to advise of an inability to attend.

10. The Tribunal proceeds to make a decision in this case without taking any further action to allow or enable the applicant to appear before it as it is empowered to do under section 362B of the Act.

11. 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

12. 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. Relevant 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?

13. On 18 August 2015 the applicant was granted a visa in Subclass 572 Vocational Education and Training Sector with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

14. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since 12 February 2016. He was enrolled in a Certificate IV in Leadership and Management which was cancelled on 12 February 2016. The reason for cancellation was stated to be student notifies cessation of studies. His enrolments in a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management were also cancelled on 12 February 2016.

15. Having regard to the information in the PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 12 February 2016. The Tribunal finds that he breached condition8202(2)(a) of his visa.

16. 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 to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

17. 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).

18. On  18 January 2017 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of his visa. 

19. On 2 February 2017 the applicant’s previous representative responded to the NOICC and provided the following information:

    ·The applicant had been living with his partner, Ms Tiffany Hale, since 24 September 2015. Ms Hale is a single parent of three children and she is very much dependent on the applicant to assist her in household chores and in raising the children.

    ·The children and Ms Hale are emotionally dependent on the applicant and he looks after them.

    ·Ms Hale was not well in 2016 and the applicant looked after her, the children and the house. As a consequence the applicant found it difficult to concentrate on his studies. He tried his best but due to poor results the college cancelled his courses on 12 February 2016.

20. As the applicant did not attend the hearing or provide written submissions prior to the hearing, the Tribunal relied on the information contained in the Department’s file and in his response to the NOICC.

21. The Tribunal noted that the PRISMS shows the applicant has completed only two courses, both in 2015.

22. The purpose of the student visa is to enable the visa holder to undertake study in Australia. The applicant has not been enrolled in a registered course since 12 February 2016 and over eleven months elapsed from that date until the NOICC was issued.

23. Based on the evidence, the Tribunal finds the applicant’s breach of condition 8202 of his visa to be significant because he was not engaging in study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.

24. There was no evidence before the Tribunal to indicate that the applicant’s non-compliance with the visa condition was due to circumstances beyond his control. No medical evidence was provided in relation Ms Hale’s illness in 2016.

25. Given the applicant’s failure to attend the hearing, the Tribunal is not aware of any hardship which will result from cancellation of his visa.

26. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

27. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice pertaining to his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion.

28. There are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

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

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

    DECISION

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

    Christine Kannis
    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.