Vo (Migration)

[2018] AATA 259

Vo (Migration) [2018] AATA 259 (7 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Kieu Tho Vo

CASE NUMBER:  1616301

DIBP REFERENCE(S):  BCC2016/2703526

MEMBER:Antoinette Younes

DATE:7 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 07 February 2018 at 10:40am

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Enrolment in a Higher Education course – No enrolment for a significant period

LEGISLATION

Migration Act 1958, s 116

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 28 September 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 condition 8202. 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. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   HEARING INVITATION

4. On 20 December 2017, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled at 11.00am on 6 February 2018. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on the case without taking any further action to allow or enable the applicant to appear before the Tribunal or may dismiss the application for review without any further consideration. The applicant did not respond to the hearing invitation or attend the hearing.

5. The Tribunal is satisfied that it has given the applicant a fair opportunity to attend a hearing and the Tribunal has no explanation for the applicant’s lack of attendance at the hearing scheduled at 11.00am on 6 February 2018. 

6. In those circumstances, the Tribunal has decided to make its decision on the review without taking any further action.

   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. In support of the application for review, the applicant provided to the Tribunal a copy of the delegate’s decision record in which it is noted that information available in the Provider Registration and International Student Management System (PRISMS) indicates that as of the date of the delegate’s decision record of 28 September 2016, the applicant had not been enrolled in a registered course of study since 31 July 2015.

11. On 2 September 2016, the Department sent to the applicant a notice of intention to consider cancellation to which the applicant did not respond.

12. On the basis of the available information, the Tribunal finds that for a significant period, the applicant was not enrolled in a registered course of study. Accordingly, the applicant has not complied with condition 8202(2) and therefore the ground for cancellation in s.116(1)(b) arises.

13. 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.  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 relevant matters including government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

14. The Tribunal has not had the opportunity to speak with the applicant in the course of a hearing so that the Tribunal could have asked the applicant for further information and details about the non-compliance. The Tribunal would have asked the applicant about the circumstances that led to the cancellation of the visa and any relevant factors that might have impacted on her ability to enrol and comply with condition 8202. The Tribunal would have asked the applicant about her current circumstances and would have obtained a comprehensive understanding relevant to the considerations relating to the guidelines in PAM3.

15. The Tribunal when inviting the applicant to the hearing had indicated to her that the Tribunal was unable to make a favourable decision on the basis of the available information.  Without having had the opportunity to further explore with the applicant at a hearing her reasons for non-compliance and ask her about the circumstances that led to the non-compliance, the Tribunal is not satisfied that there are any circumstances in this case that mean that the visa should not be cancelled. 

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

    DECISION

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

    Antoinette Younes

    
    Senior 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.