Ramos De Oliveira (Migration)

[2019] AATA 651

Ramos De Oliveira (Migration) [2019] AATA 651 (25 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thais Ramos De Oliveira

CASE NUMBER:  1805495

HOME AFFAIRS REFERENCE(S):           BCC2017/4420618

MEMBER:Mr S Norman

DATE:25 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 25 February 2019 at 10:50am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – ground for cancellation – convicted of an offence – consideration of discretion – applicant departed Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 February 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant did not lodge the Department delegate’s decision with the Tribunal. However, the applicant did lodge the Notice of Intention to Consider Cancellation of her Student visa dated 5 January 2018. That set out the grounds upon which the delegate cancelled her Student visa.

3. The delegate cancelled the visa under s.116(1)(g) of the Act on the basis that (briefly) the applicant had been convicted of offences in Australia. 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 offered a Tribunal hearing, scheduled for 25 February 2019. The applicant was represented in relation to the review by her registered migration agent. By migration agent email dated 22 February 2019, the Tribunal was advised the applicant was “no longer in Australia and … she will not be attending the hearing on Monday, 25 February 2019 at 10.30am.” No further advice was received. In the circumstances, the Tribunal has decided to proceed to make a decision on the information presently before it. 

5. 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

6. 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)(g) 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?

7. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant. That stated:

   (oa)  in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any)) …

8. The applicant was granted a Student (Vocational and Training) (subclass 572) visa on 8 January 2016. That visa was due to expire on 2 April 2018. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 5 January 2018, after noting the applicant had confirmed in her Student visa application she would “respect Australian values as listed on this form during her stay in Australia and she will obey the laws of Australia”, the applicant was advised that information before the Department included that on 19 December 2016, the NSW Police attended an incident at the applicant’s then residence. As a result of the police investigation, the applicant was arrested and charged with the following offence:

   ·     1 x Destroy or Damage Property (DV)

9. On 21 June 2017, at Sutherland Local Court NSW, the applicant was convicted of:

   ·     1 x Destroy or Damage Property (DV)

10. The applicant was fined $1300 and ordered to pay $2488 in compensation to the victim. The applicant was then advised that as she had been convicted of an offence against the law of the Commonwealth, State or Territory, her Student visa may be considered for cancellation under s.116(1)(g) of the Act.

11. In her response to the NOICC, the applicant did not believe grounds for cancellation of their visa existed. It was claimed:

    ·     a Court Appearance Notice required them to attend the Southerland Local Court on 1 February 2017, however, the matter had then been adjourned till 12 June 2017

    ·     the applicant attended court on 12 June 2017 to represent themselves against the charge, however the court was closed due to it being a public holiday. She then made enquiries with the Sutherland Local Court and was advised that no records existed about her case

    ·     the applicant did not receive further correspondence about the hearing and assumed the matter was closed and no further action would be taken. However, on 10 January 2018 she received notification of a conviction, fine and the requirement to pay compensation.

    ·     the matter was heard on 21 June 2017 and not on 12 June 2017 as she had been advised

    ·     the applicant had appealed the conviction. The hearing was due to take place on 23 April 2018

12. As noted above, by “migration agent email dated 22 February 2019, the Tribunal was advised that the applicant was “no longer in Australia and … she will not be attending the hearing”. That being said, based on the information before the Tribunal, I am satisfied there are grounds to cancel the applicant’s Student visa as she had been convicted of the above offence.

13. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) of the Act, exists. 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

14. 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’.

15. Regarding the purpose of the applicant’s travel to and stay in Australia, the applicant arrived in Australia on 30 May 2015 (as the holder of a Student - subclass 570 visa) and had studied English. She departed Australia on 1 February 2016 and then returned on 23 February 2016 as the holder of a Student (Vocational and Training) visa to complete her English studies. The applicant also studied for a Certificate IV course; and the delegate noted she had successfully completed some subjects. The applicant also wanted to continue her studies in Australia. Based on the evidence before the Tribunal, I accept the applicant’s intention in travelling to and staying in Australia, was for the purpose of study.

16. Regarding the degree of hardship that may be caused to the applicant or her family if her visa is cancelled, the applicant said she had been studying a Certificate IV in Marketing and Communication and she said she had received “excellent results”. Results from the applicant’s College indicated she had passed her subjects in term 6 of 2017. She had also provided positive work references. She referred to having a good character, to paying her rent on time, and to have, “throughout her temporary residence in Australia formed close relationships with both Australian residents and others that reside in Australia on a temporary basis”. She also referred to having formed “close relationships with her work [colleagues] and … had developed strong relationships with her school colleagues”.[1] She had also provided references relating to her “good character”. The delegate, and now the Tribunal, accepts the applicant had resided, worked and studied for more than two years in Australia.

    [1] Department – folio 59.

17. Next, the Tribunal also accepts that if the applicant’s visa is cancelled, she may not be able to continue her studies in Australia (at least for the reasonably foreseeable future). However, the Tribunal notes it has also been advised the applicant had departed Australia already (presumably on a Bridging visa).

18. Next, the circumstances in which the ground of cancellation arose are that on 21 June 2017 the applicant was convicted of the aforementioned offences. The applicant said she had been confused or misled by the date of her hearing at Sutherland Court, and she had subsequently appealed her conviction (at the date of this decision, the Tribunal has not received any further evidence about this). Next, apart from that which is discussed herein, the applicant had complied with other conditions which had attached to her visa. Further, apart from the aforementioned conviction, the applicant appeared to have abided by Australian laws.

19. Next, the Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence that any others person’s visa would or may be cancelled if the applicant’s visa is cancelled. The Tribunal has no evidence that Australia’s international obligations would or may be breached, if the applicant’s visa is cancelled. Next, if the applicant’s visa is cancelled, she 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 it, the applicant has already departed Australia.

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

21. Considering the circumstances as a whole, and including that the applicant had decided to depart Australia, the Tribunal concludes that the visa should be cancelled.

    DECISION

22. The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

    Mr S Norman
    Member