TRAN (Migration)

[2018] AATA 4682

TRAN (Migration) [2018] AATA 4682 (8 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr DUC TRUNG TRAN

CASE NUMBER:  1702158

HOME AFFAIRS REFERENCE(S):           BCC2016/4296924

MEMBER:Brendan Darcy

DATE:8 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 08 October 2018 at 11:33am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – lack of academic achievement – no other coursework – no response to Tribunal – non-attendance at hearing – non-attendance at hearing – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 February 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 cancelled the visa on the basis that there is a ground for cancelling the visa and because the delegate was not satisfied the grounds for cancellation of this visa outweighed the grounds for not cancelled. 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 lodged to have the delegate’s cancellation decision review by the Tribunal on 10 February 2017.

4. On 20 September 2018, the applicant was invited to appear to a scheduled hearing at 10.00 am on 5 October 2018 by emailing the applicant. 

5. Two reminder SMS messages were sent to the applicant’s mobile phone about the scheduled hearings on 27 September 2018 and 4 October 2018. 

6. The Tribunal did not receive any response to the invitation to attend the scheduled hearing. Neither did the Tribunal receive any submissions by the applicant or on the applicant’s behalf to consider a postponement, including a medical certificate; nor any other submission whatsoever, right up to and including the beginning of the scheduled hearing.

7. The applicant did not appear before the Tribunal on 5 October 2017 to give evidence and present arguments. The hearing was extended for an additional ten minutes to allow the applicant a further opportunity to present to the Tribunal or provide further request a postponement.  The Tribunal waited more than seventy two hours for further submissions or requests, including medical certificates, before writing of this decision.

8. At the time of writing this decision, the Tribunal has not received any further correspondence regarding the applicant’s non-attendance or visa cancellation. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to proceed with its decision-making on this review application without taking any further action to enable the applicant to appear before it.

9. 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

10. 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?

11. 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).

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

13. According to the decision record submitted at the time of this review application was lodged, the applicant was granted this Class TU Subclass 573 visa on 27 February 2014. The decision record states that based on the Provider Registration and International Student Management Systems (PRISMS), the review applicant had not been enrolled in a registered course of study between 16 September 2016 and 24 January 2017 when the applicant obtained a new enrolment: Certificate II and III in EAL and a Diploma of Business at Pax Institute of Education.

14. The Tribunal notes the applicant did not re-enrol in any Bachelor’s or Master’s degree as required by condition 8202 since 16 September 2016.

15. On 17 January 2017, the applicant was issued a Notice of Intention to Consider Cancellation (NOICC) which invited the applicant to respond that the applicant had not been compliant with condition 8202 imposed on his visa.

16. The applicant responded on 24 January 2017 by submitting new Confirmation of Enrolments (CoEs) indicating he was enrolled in vocational education coursework as of 24 January 2017. No written explanation for non-compliance with condition 8202 was provided.

17. A delegate on behalf of the Minister proceeded to cancel the visa on 6 February 2017. The applicant then lodged to have the delegate’s cancellation decision review by the Tribunal on 10 February 2017 with the decision record attached.

18. As outlined above, the applicant did not attend the scheduled hearing or provide the Tribunal with any written explanations regarding there not being the grounds for cancellation.

19. On the evidence before the Tribunal, the applicant was not enrolled in a registered course between 16 September 2016 and the date of cancellation – about four months. Accordingly, the applicant has not complied with condition 8202(2).

20. As the applicant has failed to comply with the visa condition, the ground for cancellation in s.116(1)(b) does arise. It follows that the grounds for cancellation of this visa exists.

    Consideration of the discretion to cancel the visa

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

    The purpose of the visa holder’s travel to and stay in Australia

22. According to the decision record, there is no available evidence to suggest that the applicant’s original intention for his travel to and stay in Australia was not for the purpose of study. The applicant did not elaborate to the Department any of the reasons his original purpose was to remain in Australia for study purposes given his non-compliance with condition 8202. The Tribunal notes, as did the delegate, that the late enrolment after the issuing of the NOICC was not in a registered course in accordance with the original subclass 573 visa for higher education.

23. The Tribunal notes that PRISMS records states that the applicant completed his foundational English language studies in 2014 and 2016 but no other coursework since arriving in Australia in 2011 on student visa for higher education. The Tribunal places significant weight on this lack of academic achievement in his favour in having the visa remain the visa.

24. Had the applicant attended the scheduled hearing, it would have enquired in the visa and academic history of the applicant since his arrival, such as which course work has he completed on this or any earlier student visas. It would have asked him to explain his academic and career goals in the context of this visa and study history. However the applicant did not provide either the Department or the Tribunal any written or oral evidence to elaborate on the purpose of the visa holder’s travel and stay in Australia.

25. This non-responsiveness and the lack of academic achievement strongly indicate to the Tribunal that the applicant is not a genuine temporary visa holder in Australia for the purposes of study. Based on this evidence, the Tribunal places considerable weight towards his visa remaining cancelled as the applicant’s purpose of travel to and remaining in Australia was not study. 

    The extent of compliance with visa conditions

26. The Tribunal notes the delegate considered the length of time of non-compliance to be significant and gave it little weight in the applicant’s favour. However, the Tribunal finds the non-compliance itself was not notable in length of time. The Tribunal has no other evidence of non-compliance with condition 8202 while the applicant held this student visa under review. Accordingly the Tribunal gives this factor some weight towards the visa remaining cancelled.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

27. The delegate’s decision accepted that there may be some hardships as a result of the cancellation, although the applicant did not raise any matters of hardship in this response to a NOICC. The applicant provided no written or oral or documentary evidence to the Tribunal as the degree of hardship that may be caused by the visa remaining cancelled. Had the applicant some genuine fears about the degree of hardship, it would be reasonable to present them to either the Department or the Tribunal to consider. However the applicant has been non-responsive in this matter. Accordingly, the Tribunal finds that the degree of hardship that may be caused by the visa remaining cancelled will not be considerable, notable or significant and it places little weight on this factor towards the visa not remaining cancelled.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

28. The Tribunal has considered the lack of any written response to the NOICC issued to explain his non-compliance and the applicant’s non-appearance at the scheduled hearing. The applicant presented no extenuating circumstances leading up to his non-enrolment The Tribunal places considerable weight on this lack of explanation in favour of the visa remaining cancelled.

    Past and present conduct of the visa holder towards the Department

29. According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department and it is noted that he responded to the NOICC issued in January 2017 albeit without any written statement or explanation.  The Tribunal gives this a little weight in his favour.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

30. Not relevant.

    whether there are mandatory legal consequences, 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

31. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be forcibly removed. It accepts that he may be barred from re-entering Australia for up to three years. Furthermore the applicant is not guaranteed that his offshore visa will be approved as he may be subjected to the Public Interest Criterion 4013. He has presented no specific evidence in relation to this factor at all. Accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

32. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

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

33. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Other relevant considerations

34. It is noted that the applicant had ample opportunity leading up to the Tribunal’s hearing date to provide evidence and that he did not attend the hearing. His non-attendance at a scheduled hearing and his paucity of written, oral and documentary evidence indicates to the Tribunal that the applicant did not have any extenuating circumstances leading to the ground for cancellation, any genuine motivation to complete enrolled studies and is unlikely to uphold conditions imposed on him in the future and that the visa should remain cancelled.

    Conclusion

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

36. The applicant submitted little written and documentary evidence to the Department not to cancel his student visa. Moreover the applicant submitted no oral, written or documentary evidence to the Tribunal at all. The applicant’s non-compliance with condition 8202, his non-attendance at a scheduled hearing and the lack of academic advancement in the past remains the most significant factors in finding that the applicant is not a genuine student who will uphold conditions imposed on him. These factors significantly outweigh any other factors in his favour.

37. Considering the evidence provided and on weighing the above factors and considering the accepted circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Brendan Darcy
    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.