Wirawan (Migration)

[2019] AATA 6295

Wirawan (Migration) [2019] AATA 6295 (17 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gd Mas Agus Wirawan

CASE NUMBER:  1718496

HOME AFFAIRS REFERENCE(S):          BCC2017/1924601

MEMBER:Mark Bishop

DATE:17 September 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 17 September 2019 at 2:38pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa –applicant did not comply with condition 8516– applicant did not hold enrolment in a course at the higher education sector – enrolments are in the VET sector–  decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 189, 198
Migration Regulations 1994 (Cth), cls 573.111, 573.112, 573.231, r 1.40A

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 17 August 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 was represented in relation to the review by his registered migration agent.

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

5. The applicant did not appear before the Tribunal. On 17 September 2019 the applicant advised the Tribunal in writing neither he nor his Migration Agent (MA) would attend the scheduled hearing.

6. 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

7. 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

8. 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 was 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. The delegate made the following findings:

    ·According to PRISMS the visa holder was no longer enrolled in  a course of study prescribed for Student Higher education Sector (subclass 573) visa;

    ·According to PRISMS the visa holder was not enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister made under the relevant instrument;

    ·The visa holder no longer satisfied either subclauses 573.231 or 573.223(1A) and had not complied with condition 8516;

14. The delegate stated the applicant was notified of the intention to consider cancellation (NOICC) on 26 July 2017 and the notice invited the applicant to respond in writing. The applicant did not respond.

15. The applicant did not provide a written submission to the Tribunal

16. Based on the information above, the Tribunal finds that the applicant, while holding a subclass 573 student visa, did not continue to satisfy cl.573.231 or cl.573.223(1A) and therefore did not continue to be a person who would satisfy the primary criteria for the grant of the visa. There was no evidence before the Tribunal to indicate that the applicant satisfied the secondary criteria for the grant of the visa. The Tribunal finds therefore that he breached condition 8516 attached to his student visa.

17. 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 the power to cancel the visa should be exercised.

    Consideration of discretion

18. 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

19. The applicant came to Australia as the holder of a subclass 573 visa to study in the higher education sector. The delegate made a finding the applicant did not hold enrolment in a course at the higher education sector. The applicant did not meet the requirements of condition 8516 attached to his student visa. The Tribunal places little weight on this information towards not cancelling his visa.

    The extent of compliance with visa conditions

20. The Tribunal is satisfied the applicant’s stated intention at the time of his visa application does not constitute a reason not to cancel his visa.

21. 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.

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

22. The applicant did not provide a response to the NOICC. The applicant did not provide a written submission to the Tribunal.

23. The applicant if required to depart Australia will be eligible to apply for a Bridging visa E which may allow him to remain lawfully in Australia so that he may finalise any outstanding matters.

24. If the applicant’s visa is cancelled he will become an unlawful non-citizen and may be held for detention under section 189 and removed under section 198 of the migration Act. In addition the applicant will be subject to s.48 of the Act which means that he will have limited options to apply for further visas to Australia.

25. Excluding the above he Tribunal is unable to determine that the applicant will suffer any degree of hardship that may be caused (financial, psychological, emotional or other hardship) by a return to his home country.

    Circumstances in which ground of cancellation arose

26. The applicant does not hold enrolment in a course at the higher education level. Future enrolments are in the VET sector. The applicant did not respond to the NOICC. The applicant did not provide a written submission to the Tribunal. There are no other circumstances under the grounds of cancellation that provide a reason not to cancel the visa.

    Past and present behaviour of the visa holder towards the department

27. 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

28. 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 Australia.  It is noted the applicant may be barred from re-entering Australia for a period of three years. He has presented no specific evidence in relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

29. 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

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

    Any other relevant matters

31. The Tribunal is not aware of any other relevant matters.

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

    DECISION

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

    Mark Bishop
    Member