1507732 (Migration)

[2016] AATA 4106

1507732 (Migration) [2016] AATA 4106 (12 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Xue LIU
Mr Haichao YANG

CASE NUMBER:  1507732

DIBP REFERENCE(S):  CLF2013/155730

MEMBER:Sean Baker

DATE:12 July 2016

PLACE OF DECISION:  Melbourne

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 12 July 2016 at 9:42am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 4 June 2015 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 delegate cancelled the visa on the basis that Departmental records indicate that the applicant has not been attending school since completing an English course in May 2014 at Ozford English language centre and that to date the applicant had not provided any evidence to suggest that she has been studying at a registered provider in the past year and therefore was in breach of condition 8202 attached to her visa. The delegate went on to consider the factors in favour of cancellation outweighed those against and cancelled the visa. The applicant provided a copy of the Notice of Intention to Consider Cancellation (NOICC) and delegate’s decision with her application for review. 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 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 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. On 16 June 2016 the Tribunal wrote to the review applicants, advising that it had considered all the material before it relating to their application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 11 July 2016. They were advised that if they did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on their case without further notice. No response was received. On 4 July 2016 and again on 8 July 2016 the Tribunal sent SMS hearing reminders to the first named applicant’s mobile telephone number. The applicants did not appear before the Tribunal on the day and at the time and place at which they were scheduled to appear. 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 applicants to appear before it.

5. The applicants were represented in relation to the review by their registered migration agent.

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. 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. The delegate’s decision records states that the applicant was not enrolled in a registered course since May 2014; that she was provided with a NOICC on 3 June 2015 and as at the time of cancellation on 4 June 2015, had not provided evidence of enrolment in a registered course. The applicant has not taken the opportunity to give oral evidence and present arguments to the Tribunal, nor has she provided any material to the Tribunal addressing this. On the evidence before the Tribunal, the applicant was not enrolled in a registered course from May 2014 until the cancellation of her visa. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

11. 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.

12. 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).

13. According to the decision record, at the interview at which the visa was cancelled, the applicant stated that she was not learning anything by attending school and therefore decided to teach herself at home, and argued she has been learning and should be given the chance to remain here as a student.

14. The applicant provided copies of her and her partner’s passport, and the NOICC and decision record to the Tribunal, as well as PRISMS records of the cancellation of her courses on 20 May 2014. She has not provided any further materials to the Tribunal.

    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

15. According to the decision record, at interview the applicant stated that her purpose had been for study and to acquire a qualification. There is no further evidence before me about her purpose and I give this little weight in favour of the visa not being cancelled

    the extent of compliance with visa conditions

16. According to the decision record, the applicant was in breach of condition 8202(2) since May 2014 and did not at the time of cancellation hold a valid confirmation of enrolment. There is no evidence before me to indicate the applicant did not comply with other conditions.

17. The applicant was not enrolled in a registered course for a long period of time. I consider this significant to the question whether her visa should be reinstated. Her only explanation before me is that she was not learning anything by attending school and therefore decided to teach herself at home, has been learning and should be given another chance. I note also that she claimed to have a letter of offer from Zarah College at the interview. I do not find any of these explanations persuasive or to explain the considerable breach of her visa conditions here. She has not attended the hearing or provided any further information to the Tribunal to explain the breach. I give this factor significant weight towards the visa being cancelled.

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

18. According to the decision record, at interview the applicant stated that she wanted to be able to study which was her intention, that she wanted to learn English and had a letter of offer from Zarah Institute to study English commencing in June 2015.

19. I accept that the applicant may suffer some hardship if the visa remains cancelled. I accept that she had a letter of offer from Zarah College at the interview but I do not accept that this explains the considerable breach. I give this factor little weight towards the visa not being cancelled.

    circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

20. According to the decision record, Departmental records confirmed that the applicant was not meeting condition 8202 attached to her student visa as she was not enrolled in a registered course and had not been attending classes.

21. The applicant has not attended the hearing or provided any further information to the Tribunal to explain the breach or the circumstances. On the evidence before me I do not accept that the circumstances were beyond her control. Having had regard to her explanations at the interview as recorded in the decision record, I consider that the applicant has not provided any basis to conclude that the visa should not be cancelled. The evidence indicates that she chose to withdraw as she believed she was not learning. In making this choice, she ceased to be enrolled in, and therefore to study in, a registered course with a registered provider, the main purpose of the visa she held. On the evidence before me I find that the circumstances as described here indicate that the applicant ceased to be enrolled and studying at a registered provider and I give this significant weight towards the visa being cancelled.

    past and present conduct of the visa holder towards the department

22. According to the decision record, the applicant was cooperative and compliant. I give this some little weight in her favour.

    if breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

23. Not relevant.

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

24. There is no evidence before me that this is relevant and I give this factor no weight.

    whether there would be consequential cancellations under s.140

25. On the evidence her partner, the secondary applicant has had his visa consequentially cancelled under s.140. He did not attend the hearing, nor provide any evidence about how the consequential cancellation has affected him, and I give this factor no weight.

    whether any international obligations would be breached as a result of the cancellation

26. There is no evidence before me that this is relevant and I give this factor no weight.

    any other relevant matters.

27. According to the decision record, at interview the applicant stated that she wishes to learn English and would like another opportunity to do so. The applicant has not attended the hearing or provided any further information to the Tribunal about these vague and undetailed claims and I give them no weight.

28. Having considered her responses at interview and the documents provided, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

29. 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.

    Sean Baker
    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.