WEI (Migration)

[2019] AATA 5967

WEI (Migration) [2019] AATA 5967 (3 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms YAHONG WEI

CASE NUMBER:  1714706

HOME AFFAIRS REFERENCE(S):          BCC2017/1504506

MEMBER:Mark Bishop

DATE:3 October 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 03 October 2019 at 8:37am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered Higher Education course – applicant ceased enrolment – applicant no longer continued to satisfy visa conditions – decision under review affirmed         

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2 cls 573.111, 573.223, 573.231; Schedule 8; Condition 8516; r 1.40

CASES

Singh v MIBP [2016] FCA 679           

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 June 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 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant was no longer enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas. 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 did not appear before the Tribunal.

4. The applicant provided a copy of the decision record to the Tribunal.

5. On 9 September 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 3 October 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 them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

6. No response to the hearing invitation was received. However 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(4) the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. 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.

7. The applicant did not respond to the invitation to attend a hearing.

8. The applicant did not provide any information or documents to the Tribunal as requested on 9 September 2019.

9. The applicant did not provide a submission to the Tribunal.

10. The applicant did not provide a response to the NOICC.

11. 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

12. 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. Relevantly, to this case, these include the ground set out in s.116(1). 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?

    s.116(1)(b) - non-compliance with conditions

13. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa. This condition requires a visa holder continue to satisfy the primary or secondary criteria for the grant of a visa.

14. Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

15. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant met cl.573.231 if they were not an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student.

16. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a bachelor’s degree, master’s degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. The relevant instrument specifying education providers as eligible education providers for this visa was IMMI 12/037.

17. To satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application. ‘Principal course’ is defined in r.1.40. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 12/037.

18. The delegate stated the applicant was notified of the intention to consider cancellation (NOICC) on 5 June 2016. The applicant did not respond. The applicant did not provide reasons why the visa should not be cancelled. The applicant did not advise if she agreed there was non-compliance.

19. The delegate stated the PRISMS  record of the applicant indicated the applicant to be enrolled in Bachelor of Design in Architecture [044179J] on 21 September 2015 and she has not held enrolment in a course of study specified for Student Higher Education Sector (subclass 573) visas since that date.

20. Therefore the applicant is no longer enrolled in a bachelor’s degree or master’s degree course and she is not enrolled in a course of study that is a principal course of a type specified for Student Higher Education Sector (subclass 573) visas by the Minister in an instrument made under regulation 1.40A.

21. Based on this information, it appears the applicant has not continued to be a person who would satisfy either subclause 573.231 or 573.223(1A). As such, it appears the applicant has not continued to be a person who would satisfy the primary criteria for the grant of the visa and has not complied with condition 8516.

22. In these circumstances the applicant’s visa may be cancelled under s116(1)(b) – non-compliance of visa condition 8516 of the Migration Act 1958.

23. Based on the above information the Tribunal is satisfied that there is a ground for cancellation of the applicant’s visa under paragraph(s) s116(1)(b) breach of condition - 8516 of the Act.

    Consideration of the discretion to cancel the visa

24. 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 and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

25. As part of the application process the applicant advised that her intended purpose of stay in Australia was to study at the higher education sector. The delegate made a finding the applicant had not enrolled in a registered course since 21 September 2015 and had not responded to the NOICC.

26. Therefore the Tribunal gives little weight to this consideration in the applicant’s favour.

    The extent of compliance with visa conditions

27. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) for the purpose of study. The applicant ceased to be enrolled in Bachelor of Design in Architecture [044179J] on 21 September 2015 and she has not held enrolment in a course of study specified for Student Higher Education Sector (subclass 573) visas since that date.

28. The Tribunal gives this consideration little weight in the applicant’s favour.

29. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal finds the length of the breach significant in terms of the usual time period of study.  As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

    Circumstances in which the ground for cancellation arose

30. The delegate was satisfied the applicant met the requirements of subclauses 573.223(1A) or 573.231 and granted her the Student Higher Education Sector (subclass 573) visa on 28 January 2015, with condition 8516 attached, with the visa valid until 15 March 2019.

31. The PRISMS record of the applicant as outlined in the decision record showed the applicant ceased to be enrolled in Bachelor of Design in Architecture [044179J] on 21 September 2015 and she has not held enrolment in a course of study specified for Student Higher Education Sector (subclass 573) visas since that date.

32. Therefore, it appears the applicant is no longer enrolled in a bachelor’s degree or master’s degree course and she is not enrolled in a course of study that is a principal course of a type specified for Student Higher Education Sector (subclass 573) visas by the Minister in an instrument made under regulation 1.40A.

33. Based on this information, it appears the applicant has not continued to be a person who would satisfy either subclause 573.231 or 573.223(1A). As such, it appears the applicant has not continued to be a person who would satisfy the primary criteria for the grant of the visa and has not complied with condition 8516.

34. The Tribunal gives this consideration little weight in the applicant’s favour.

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

35. The applicant did not respond to the NOICC and provide any information relevant to this discretionary consideration.

36. The Tribunal is not aware of any specific hardship that may be caused to the applicant and/or her family as a result of the cancellation of this visa.

37. Whilst the Tribunal acknowledges that some hardship may be caused to the applicant should she be required to depart Australia the Tribunal notes that she will be eligible to apply for a Bridging Visa E which may allow her to remain lawfully in Australia so that she can finalise any outstanding matters.

38. If the visa is cancelled the applicant will become an unlawful non-citizen and may be liable for detention under Section 189 and removal under Section 198 of the Migration Act 1958 if she does not voluntarily depart Australia.

39. The applicant will be subject to Section 48 of the Act which means that she will have limited options to apply for further visas in Australia. The applicant will also be subject to Public Interest Criterion 4013, which results in a 3 year exclusion period. The Tribunal notes that these are the intended consequences of the legislation when a visa is cancelled under these grounds, which reflects the seriousness with which the Department takes this type of cancellation ground.

40. Therefore the Tribunal acknowledges that some hardship may be caused to the applicant if his visa is cancelled, however the Tribunal is satisfied that the potential consequences of visa cancellation in this instance do not provide significant reasons not to cancel the visa. The Tribunal give little weight to this consideration in the applicant’s favour.

    Past and present behaviour of the visa holder towards the department

41. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

42. See paragraphs 35 to 37 above.

    Whether there would be consequential cancellations under s.140

43. 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

44. There is nothing before the Tribunal to indicate there are international obligations to consider.

45. Any other relevant matters

46. There are no other relevant matters to consider.

47. The Tribunal has considered all factors both individually and cumulatively in the context of the breach. The Tribunal finds that the applicant was not enrolled in a course of study that is the principal source of a type specified for the Subclass TU-500 visa  and that a breach  from November 2016 is significant in the context of a student’s study period

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

    DECISION

49. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Mark Bishop
    Member