Tran (Migration)

[2019] AATA 463

Tran (Migration) [2019] AATA 463 (13 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rin Tran

CASE NUMBER:  1710841

HOME AFFAIRS REFERENCE(S):           BCC2017/1080054

MEMBER:Stephen Conwell

DATE:13 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 13 February 2019 at 12:53pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered Higher Education course – applicant failed to re-enrol – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 116, 140, 189, 198, 362, 379
Migration Regulations 1994, Schedule 8 Condition 8202

CASES

Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 May 2017 made by a delegate of the Minister for Immigration and Border Protection 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 of the Department cancelled the visa on the basis that the applicant was not enrolled in a registered course and therefore had breached condition 8202 of his visa.

3. 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. On 28 April 2017, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate considered the applicant did not comply with condition 8202 of his visa, as the applicant ceased to be enrolled in a registered course. The applicant replied to the Department by email of 8 May 2017 seeking an extension of time in which to respond to the NOICC, which request was granted.

5. On 12 May the applicant sent two emails in response to the NOICC. In his responses the applicant did not dispute there are grounds for cancellation of his visa, however he did offer reasons as to why the visa should not be cancelled.  After due consideration of the applicant’s submission and taking into account his overall circumstances, the delegate decided to cancel the visa held by the applicant, having found that the applicant did not comply with condition 8202 of his visa. 

6. The applicant sought review of the delegate’s decision at the Tribunal and attached a copy of the delegate’s decision with his application.

7. By letter dated 24 January 2019, the Tribunal wrote to the applicant inviting him to attend today’s hearing. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.

8. The Tribunal also sent the applicant telephone SMS Reminders about the hearing five business days and one business day before the scheduled hearing.  No response to the hearing invitation was received and the review applicant did not appear before the Tribunal on the hearing day and at the scheduled time and place.

9. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been ‘returned to sender’, and that separate SMS reminders were also sent to the review applicant about the hearing. In the circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to determine the review without taking any further action to enable the applicant to appear before it.

10. 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

11. 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?

12. 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).

13. The applicant is a national of Vietnam born 17 April 1995. He was granted a Subclass 573 Higher Education Sector on 2 July 2014.  As noted by the decision record, that visa was subject to condition 8202. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a registered course.

14. Based on the evidence in the Provider Registration and International Student Management System (PRISMS) which was before the delegate the applicant had not been enrolled in a registered course of study since 4 August 2016.  The applicant was advised that it appeared he did not meet the requirements of condition 8202(2)(a).  The applicant was then notified by NOICC on 28 April 2017 and invited to respond to that notice in writing.  The decision record notes that the applicant submitted two email responses to the NOICC.  Upon considering the evidence before him, including the applicant’s responses to the NOICC, the delegate was satisfied there is a ground for cancellation of the applicant’s visa under subsection “116(1)(b), breach of condition – 8202 of the Act.” 

15. Based on the information before the Tribunal, it is satisfied that the applicant was not enrolled in a registered course of study since 4 August 2016.  The Tribunal is not satisfied the applicant meets condition 8202(2)(b). Further, 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 registered course (per Liu v MIMIA [2003] FCA 1170).

16. The Tribunal finds that on the basis of the evidence, the applicant ceased to be enrolled in a registered course, and therefore has breached condition 8202 of his visa.

    Consideration of the discretion to cancel the visa

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

18. 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 the material evidence available to it as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

19. The Tribunal notes the purpose of a Student visa is to allow for travel to and stay in Australia, in order to study. The applicant has not been enrolled in a registered course of study on since 4 August 2016.This is an indication the applicant was not pursuing the purpose for his travel to Australia; as he was not actively engaged in studies since that date.  At the time of the delegate’s decision this period of non-enrolment of approximately nine months. 

20. The Tribunal considers the breach to be significant, given the length of time in which the applicant failed to maintain enrolment.  The Tribunal also considers this to be a serious breach given the significance of enrolment in a registered course, for the visa granted.

21. Further, based on the information before it, the Tribunal is not satisfied the breach occurred in circumstances beyond the applicant’s control.  Again, based on the information before it, neither does the Tribunal consider there are extenuating or compassionate circumstances in this case.

22. The Tribunal notes the applicant had not identified any hardship that may be caused to him and/or any family member by the cancellation of his visa. However, the Tribunal accepts the applicant might be subject to some financial difficulty if the visa is cancelled. The Tribunal also accepts that if the applicant’s visa is cancelled he would become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act. He would also have limited options to apply for further visas in Australia and may thus be required to return to his country of origin. However, this does not satisfy the Tribunal it should exercise the discretion not to cancel the visa.

23. The Tribunal notes there is no evidence that any family member/s in Australia would be negatively impacted by the cancellation of the applicant’s visa. 

24. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.  The Tribunal is also not satisfied there are persons in Australia whose visas would, or may, be cancelled under s.140.

25. Regarding Australia’s international obligations, the Tribunal is not persuaded that the circumstances of this case were such that would engage Australia’s international obligations. There is no evidence of children (or other family members) in Australia whose interests would be affected by the cancellation.  There was nothing to suggest that family violence was a relevant factor.

26. The Tribunal has therefore considered the totality of the applicant’s circumstances and has found that the applicant breached the enrolment requirement in condition 8202, and that this breach was significant.  The Tribunal has not seen any evidence to indicate the applicant has undertaken study in Australia in a registered course of study, since 4 August 2016. The applicant has not presented evidence of current or future study plans. 

27. Considering the circumstances as a whole, the Tribunal is satisfied the visa should be cancelled.

    DECISION

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

    Stephen Conwell
    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.