Wang (Migration)

[2019] AATA 3157

Wang (Migration) [2019] AATA 3157 (5 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Huiling Wang

CASE NUMBER:  1703584

HOME AFFAIRS REFERENCE(S):          BCC2017/255825

MEMBERS:S. Baker (Presiding)

D. Shirrefs

DATE:5 March 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 05 March 2019 at 12:09pm

Statement made on 05 March 2019 at 1:07pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 572 Vocational Education and Training Sector visa – enrolment in a registered course – applicant ceased courses – applicant did not meet English language requirements – decision under review affirmed      

LEGISLATION

Migration Act 1958, ss 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 21 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.

2. The delegate cancelled the visa on the basis that the Applicant was not enrolled in a registered course of studies at the time the Notice of Intention to Consider Cancellation (NOICC) was issued and her action in response to the NOICC did not provide a reason to not cancel the visa. The applicant provided a copy of the delegate’s decision and the notification of that decision to the Tribunal. 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. On 14 February 2019 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 1 March 2019. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent SMS reminders about the hearing to the mobile telephone number supplied but these SMSes failed to be delivered.

4. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. 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), and that the invitation has not been returned to sender. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

5. 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

6. 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.

7. The Tribunal has reviewed and considered:

   a.the department’s decision record;

   b.the applicant’s responses to the NOICC dated 14 February 2017 and 15 February 2017 ;

   c.relevant legislation contained in the Migration Act 1958 (the Act) and the Migration Regulations 1994 (the Regulations).

8. Apart from the department’s decision record and notification of that decision, the applicant has not provided any further documents or information to the Tribunal.

   Did the applicant comply with Condition 8202?

9. 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).

10. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course at the time the NOICC was issued.

11. According to the delegate’s decision, evidence available to the delegate in the Provider Registration and International Student Management System (PRISMS), the applicant was not enrolled in a registered course of study since 25 June 2016. The delegate’s decision also notes that the applicant enrolled in a further course on 13 February 2017 for an Associate Degree in Fashion Design and Technology and a Bachelor of Fashion (Design) both at RMIT.

12. The information before the Tribunal demonstrates that the applicant was not enrolled in a registered course between 25 June 2016 and 13 February 2017.

13. It follows that, at time of this decision, on the evidence before the Tribunal, the applicant was not enrolled in a registered course for this period. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

14. 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’.

15. The applicant responded to the NOICC. The applicant’s responses to the NOICC noted that she obtained an offer of enrolment on 7/2016 for a Diploma as she did not meet the English language requirements, she had to study English language for another three months, she then travelled to China and returned to Australia on 11/2016 and had to provide material to her school, and she noted her enrolment in courses beginning 13 February 2017.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

16. The decision of the delegate noted that the Applicant was issued with a NOICC on 9 February 2017, after a period of not being enrolled in a registered course of study for 7 months.  The delegate further noted that it was after having been issued with the NOICC that the Applicant obtained new enrolment in order to demonstrate an intention to continue studying.

17. Given that timing the delegate gave little weight to the Applicant’s intention to continue studying and found that her response to the NOICC did not provide a reason to not cancel the visa.

18. As the applicant did not attend the Hearing the Tribunal has before it no further information or evidence in relation to the applicant’s whereabouts or the purpose of the visa holder’s travel and stay in Australia, or whether the visa holder has a compelling reason to travel to or stay in Australia.

19. The Tribunal has considered the evidence before it and the circumstances of this case.  The Tribunal gives no weight to the applicant’s travel purpose and reasons to stay in Australia in her favour and finds this is not a reason to not cancel the visa.

    The extent of compliance with visa conditions

20. The delegate considered the whole of the Applicant’s study history finding that the entirety of it, from the initial grant of a visa on 26 February 2013, was studying English courses.  The delegate noted that the Applicant had failed to commence any registered course of study at the Higher Education Level in accordance with her initial visa 573 class. 

21. The delegate also noted the period of non-enrolment as being 7 months prior to the issuing of the NOICC and together these factors were considered to give no weight in favour of the Applicant.

22. The Tribunal has considered the evidence before it and the circumstances of this case.  The Tribunal finds the period of non-enrolment, and therefore non-compliance with condition 8202(2), is substantial and weighs against the exercise of its discretion in favour of the visa not being cancelled.

    The degree of hardship that might be caused to the visa holder and any family members

23. In her response to the NOICC the Applicant did not raise any matters of hardship.

24. As the Applicant did not attend the Hearing the Tribunal has before it no contemporaneous evidence in relation to this consideration.  The Tribunal is not in a position to weigh hardship as a factor against the cancellation of the applicant’s visa.  The Tribunal gives this matter no weight in favour of the visa not being cancelled.

    The circumstances in which the ground for cancellation arose – whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing

25. In her responses to the NOICC, the applicant claimed that she had obtained an offer of enrolment on 7/2016 for a Diploma but that as she did not meet the English language requirements, she had to study English language for another three months. She then travelled to China and returned to Australia on 11/2016 and had to provide material to her school, and she noted her enrolment in courses beginning 13 February 2017. The applicant has not explained how these circumstances justify her failure to be enrolled for seven months. Had the applicant attended the hearing the Tribunal would have asked her about these matters.

26. There is no other evidence in relation to this consideration before the Tribunal. 

27. It follows that this consideration not be given any weight in favour of a decision to not cancel the visa.

    The past and present behaviour of the visa holder towards the department

28. There is no relevant evidence before the Tribunal in relation to the Applicant’s past and present behaviour towards the department other than the Applicant’s response to the NOICC.  While the applicant did respond to the NOICC, she has not attended at the Hearing.

29. The Tribunal refers to and repeats paragraph 8 of this Statement of Decision and Reasons.

30. The Tribunal has considered the decision of the delegate and the circumstances of this case. 

31. The Tribunal has not given any weight to this consideration in arriving at its decision in this case.

    Whether there are mandatory legal consequences of a cancellation: whether cancellation would result in the visa holder becoming unlawful and being liable to detention and removal; or whether indefinite detention is a possible consequence of cancellation; or whether the visa holder would be prevented from making a valid visa application without the Minister’s intervention

32. The Tribunal acknowledges that the cancellation of the visa would have the effect that the Applicant may become an unlawful non-citizen and may therefore be liable to detention and removal under the the Act  if she decided to not leave Australia voluntarily.  Having made that finding, we also note that the applicant would have available to her the possibility of applying for a bridging visa E, which would allow her to finalise her outstanding matters.

33. We further acknowledge that, if the visa is cancelled, the Applicant will be subject to section 48 of the Act meaning she would have limited options to apply for further visas in Australia. The Applicant would also be subject to Public Interest Criterion 4013 with the effect that she may not be granted a temporary visa for a period of three years from the date of the cancellation.

34. We also note that the applicant did not raise hardship in her response to the NOICC and did not attend the Hearing to make submissions or present arguments.

35. We have considered these matters carefully and weighed them in terms of the hardship they might result in.  We find that, while they have weight in favour of the Applicant’s visa not being cancelled, that weight is a lesser consideration than the significance of the non-compliance.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

36. There is no information before the Tribunal that this case raises any questions of Australia’s international obligations, and we give this factor no weight.

    Any other relevant matters

37. We are not aware of any other factors relevant to this decision.

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

    DECISION

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

    S. Baker
    Member

    
    

    D. Shirrefs
    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.