Thai (Migration)

[2017] AATA 1169

Thai (Migration) [2017] AATA 1169 (20 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thu Thuy Thai

CASE NUMBER:  1619591

DIBP REFERENCE(S):  BCC2016/3036204

MEMBER:Tigiilagi Eteuati

DATE:20 June 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 20 June 2017 at 2:54pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Enrolment – Not enrolled in registered course since 2015 – Had child in 2015 – No intention of future study – No hardship if visa cancelled – Does not have ability to undertake higher education study – Visa due to expire in September 2017

LEGISLATION
Migration Act 1958, s 116(1)(b)
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 November 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had breached the condition of her visa to be enrolled in a registered course. 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. The applicant appeared before the Tribunal on 19 June 2017 to give evidence and present arguments.

4. At the hearing, James Farmer, who claimed to be a barrister, sought to act as the applicant’s representative and indicated that he wished to assist the Tribunal during the hearing. The Tribunal pointed out that the Migration Act 1958 prohibits those who are not registered migration agents from providing immigration assistance including representing applicants at hearings before the Tribunal. The Tribunal noted that even migration agents had a very limited role during hearings and that they were not entitled to present arguments to the Tribunal, or to address the Tribunal, unless the Tribunal was satisfied that, because of exceptional circumstances, the migration agent should be allowed to do so.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. 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

7. 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?

8. 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).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

10. The applicant admitted that she had not been enrolled in a registered course since 14 October 2015 and this accords with the records held by the Department.

11. 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

12. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

13. 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).

14. At the hearing the applicant provided the Tribunal with a written chronology of events during the applicant’s time in Australia.

15. The chronology indicated that the applicant began studying in January 2014 and discovered that she was pregnant in July 2014. The chronology indicated that the applicant ceased her studies in November 2014 and that her child was born on 30 January 2015. The chronology indicated that the applicant married the father of her child on 30 September 2014 and made an application for a Partner visa on 17 October 2014. That application was claimed to have been refused on 27 November 2014.

16. The chronology indicated that the applicant separated from her husband in June 2015 and that a Ms Thi Thu Hue Le was granted guardianship of the applicant’s daughter don 30 July 2015. The chronology indicated that the applicant applied for a subclass 143 contributory parent visa on 13 August 2015 and that a decision on that application is still pending.

17. The chronology indicated that the applicant wished to remain in Australia with her daughter.

18. The applicant admitted that she had no intention of studying in the near future and that this would not be possible because she had to care for her young child.

19. The Tribunal asked the applicant whether she or any family members would face hardship if her student remained cancelled and she said “no”.

20. The Tribunal raised with the applicant its concern that the applicant had not studied in Australia since 2014 and that she had no intention of studying in the near future. The Tribunal also indicated that because the applicant had a young child and could not speak English that she may not have the ability to undertake higher education studies in Australia and that she had admitted to having no desire to undertake studies in the near future. The Tribunal indicated that these matters tended to weigh in favour of exercising the discretion in section 116 to affirm the delegate’s decision. The applicant indicated that she wished to remain permanently in Australia and did not understand the law.

21. The Tribunal has decided that the decision under review should be affirmed. The applicant has not studied in Australia since 2014 and does not intend to undertake higher education studies if her visa was re-enlivened. Even if the applicant had the desire to undertake higher education studies, it appears that she does not have the ability to do so successfully.

22. The Tribunal is willing to accept that the applicant and her family members may experience disappointment that the applicant’s visa was cancelled and she will not be able to remain in Australia permanently on a student visa. However, the applicant held a temporary student visa and even if her visa was not cancelled, it appears that it was due to expire in September 2017. Thus, the applicant never had a right to remain in Australia permanently and it was always likely that the applicant would have to return to Vietnam.

23. The Tribunal has also considered that, as the applicant’s visa has been cancelled, she may have to wait for some time to be granted another student visa in Australia. It does not appear that condition 4013 attaches to the subclass 143 visa she has applied for and thus, the cancelation of her student visa would automatically not prevent her from being granted a subclass 143 visa. Even if it did, the Tribunal sees no utility in overturning the decision of the delegate in circumstances where the Tribunal has found that the applicant has not been studying in Australia since 2014 and has indicated that she has no intention to study a higher education course in Australia if she is allowed to remain in Australia.

24. Considering 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 Class TU visa.

    Tigiilagi Eteuati
    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.