TSHERING (Migration)

[2017] AATA 2806

TSHERING (Migration) [2017] AATA 2806 (6 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ugyen TSHERING
Mrs Pema YANGZOM

CASE NUMBER:  1617455

DIBP REFERENCE(S):  BCC2016/2889105

MEMBER:Christine Kannis

DATE:6 September 2017

PLACE OF DECISION:  Perth

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

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 06 September 2017 at 3.07 pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Enrolment in a Higher Education course – Enrolment cancelled – Applicant departed Australia – Agent claimed withdrawal of review application

LEGISLATION

Migration Act 1958, ss 116, 140, 348, 362B

Migration Regulations 1994, Schedule 8 cl 457.223(4)(a) 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 13 October 2016 made by a delegate of the Minister for Immigration to cancel the first named applicant’s Subclass 573 Higher Education 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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant (the applicant). The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.

4. The applicant was represented in relation to the review by his registered migration agent.

5. On 18 August 2017 the applicant was sent an Invitation to Attend a Hearing via his migration agent. The hearing was scheduled for 6 September 2017 at 1.00pm. The Invitation to Attend a Hearing advised that a failure to attend the hearing may result in the Tribunal making a decision without allowing or enabling the applicant to appear before it.

6. On 29 August 2017 the applicant’s migration agent provided a Withdrawal of application on behalf of the applicant. The migration agent advised the applicant had departed Australia without contacting him and that the applicant did not intend to attend the hearing. The migration agent advised that the applicant had departed Australia without letting him know whether she planned to return. He indicated that he was unable to contact the applicant.

7. On 30 August 2017 the Tribunal sent the migration agent the following email:

   I refer to your email below advising the Tribunal that your client has departed Australia and that you were unable to contact him.
   The Member has directed that you confirm as to whether or not you received written instructions from the review applicant to withdraw the application so the Member can make a decision on your request, the soonest.

8. On 30 August 2017 the applicant’s migration agent responded by email and said:

   We have tried through both email and telephone to contact our client without success

   Therefore as her agent I have made the decision to withdraw her application as she has no interest in attending a hearing. 

9. The Tribunal considered the material before it regarding the Withdrawal of application. The Tribunal noted the migration agent referred to the applicant as being female. The applicant in this matter is male. As stated above, the Tribunal has no jurisdiction in relation to the other applicant. The Tribunal noted that the migration agent stated the applicant had departed Australia without contacting him.

10. The Tribunal is mindful that in order for a review application to be withdrawn, it must be satisfied that the the person requesting the withdrawal is acting with the authority of the applicant and that the applicant must have intended to withdraw.

11. The applicant’s Movement Record shows he departed Australia on 20 February 2017. The other applicant departed Australia on 3 May 2017. There is nothing before the Tribunal to indicate the applicant has returned to Australia. The Tribunal noted that the applicant’s Bridging visa ceased on 20 February 2017. There is nothing before the Tribunal to indicate that he applied for a further Bridging visa.

12. It is the applicant’s responsibility to provide the Tribunal with correct contact information. In this case the most recent contact information provided was that the applicant was represented by his migration agent. As such the Tribunal is satisfied that the migration agent is the applicant’s authorised representative. Based on the information provided however, the Tribunal is not satisfied that the migration agent is acting with the authority of the applicant in relation to an intention to withdraw his application for review.

13. The applicant failed to appear on 6 September 2016 at 1.00 pm. The applicant did not contact the Tribunal prior to the scheduled hearing to advise of an inability to attend.

14. 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.

15. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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?

17. On 19 August 2014 the applicant was granted a visa in Subclass 573 Higher Education 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.

18. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant was not been enrolled in a registered course of study from 4 November 2015 to 2 October 2016.  He was enrolled in a Bachelor of Engineering which was cancelled on 4 November 2015. His enrolment in the pathway courses was also cancelled.  

19. The PRISMS shows the applicant was enrolled in a Diploma of Business on 3 October 2016 however his enrolment was cancelled three days later on 6 October 2016.

20. Having regard to the information in the PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 4 November 2015 to 2 October 2016. He again ceased to be enrolled from 6 October 2016.The Tribunal finds that he breached condition8202(2)(a) of his visa.

21. 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

22. 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).

23. On 15 September 2016 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. 

    Applicant’s response to the NOICC

24. On 20 September 2016 the applicant responded to the NOICC and provided the following information:

    • He disputed the ground for cancellation existed.
    • He had completed two semesters of his pathway course and was about to enrol in the next semester when he lost his wallet. His wallet contained his enrolment fees of $14,800.
    • He did not report the missing wallet to the Police because a friend had told him that the money was gone and the Police could not do anything.
    • After losing the money he could see his dream and his family’s expectation go into the dust.
    • His family has a construction business in Bhutan and he wanted to pursue a career in Civil Engineering on his return. He undertook some vocational courses and training in Thailand, following which he decided to upgrade his knowledge and obtain a substantial degree in Civil Engineering in Australia.
    • His wife gave up her career in nursing to travel to Australia with him.
    • He had been admitted in a Diploma of Business at Stanley International College.
    • He had been provided with thoughtless advice in the migration process and that may have caused his non-compliance.
    • It was not his intention to breach his visa conditions.

25. The Tribunal had regard to the PRISMS and noted that save for an ELICOS course completed on 19 December 2014, all of the other ten courses in which the applicant has been enrolled have been cancelled.  The reasons included non-commencement of studies and disciplinary reasons.

    Conclusion

26. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of the breach and reasons for the breach as set out in the response to the NOICC.

27. The purpose of the student visa is to enable the visa holder to undertake study in Australia. The applicant was not been enrolled in a registered course from 4 November 2015, save for three days in October 2016. Over ten months elapsed from 4 November 2015 until the NOICC was issued.

28. 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.  Save for three days in October 2016, which was after he received the NOICC, the applicant has not been enrolled in a registered course since 4 November 2015. The Tribunal finds it is a significant breach given the central importance of enrolment to a student visa and given the period of time which has elapsed.

29. The Tribunal had regard to the applicant’s contention that he lost his course fees of $14,800.  Having considered the matters raised by the applicant in the NOICC, the Tribunal finds that there are no extenuating or compassionate circumstances in this case.

30. The Tribunal accepts that the applicant will suffer hardship by cancellation of his visa because he will not be able to apply for a visa to return to study in Australia in the near future. The Tribunal also accepts the applicant’s evidence contained in his response to the NOICC that his family in Bhutan will be disappointed if he returns before completing his studies.

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

32. As a result of cancellation of the applicant’s visa, the other applicant, Pema Yangzhom, has also had her visa cancelled under s140.

33. There is nothing to suggest that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

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

    DECISION

35. The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa. The Tribunal has no jurisdiction with respect to the other applicant.

    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.