BAI (Migration)

[2020] AATA 386

BAI (Migration) [2020] AATA 386 (6 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SHENGPENG BAI

CASE NUMBER:  1825070

HOME AFFAIRS REFERENCE(S):          BCC2018/1903885

MEMBER:Joseph Lindsay

DATE:6 January 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 06 January 2020 at 3:36pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa –applicant did not comply with condition 8202–had not been enrolled in a registered course of study – mother’s health situation – applicant didn’t take reasonable steps to maintain his enrolment – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116
Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 August 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. A hearing invitation was initially emailed to the applicant’s appointed agent on 22 November 2019 about the hearing scheduled on 12 December 2019. On 7 December 2019 the applicant’s appointed agent sent an email to the Tribunal to advise that the applicant was not able to attend the hearing scheduled for 12 December 2019 on the basis that the applicant was scheduled to have a medical procedure on 11 December 2019 and the applicant was expected to be unable to work or study from 11 December 2019 to 12 December 2019.  A medical certificate was provided. 

3. Accordingly, the Tribunal re-scheduled the hearing to 17 December 2019 at 3:30pm and emailed a further hearing invitation to the applicant’s appointed agent on 9 December 2019.

4. The applicant attended the hearing on 17 December 2019. He was assisted by an interpreter.

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. In his application for review, the applicant provided the delegate’s decision record dated 21 August 2018 to the Tribunal. The applicant indicated that he had read the decision record and the information in the decision record was correct.

   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. As indicated above, information from the delegate’s decision record dated 21 August 2018 indicated that the applicant failed to remain enrolled in a registered course of study since 9 October 2017.  At the hearing, the applicant confirmed that he had not remained enrolled in a registered course of study since 9 October 2017.

11. On the evidence before the Tribunal, the Tribunal finds that the applicant has not been enrolled in a registered course of study since 9 October 2017. Accordingly, the applicant was not enrolled in a registered course and the applicant has not complied with condition 8202(2)(a). The Tribunal finds that the ground for cancellation of the applicant’s student visa is established in respect to s.116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

12. 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 circumstances in which the ground for cancellation arose

13. At the hearing, the applicant claimed he ceased to be enrolled in his course because he was upset about his course. He claimed he tried to sort out the issues with his school but he did not get answers from the school. He said he still has $4000 in the UTS account.

14. The Tribunal put to the applicant that he was not making himself clear as to why he ceased to be enrolled on 9 October 2017. The applicant responded that there were courses that were overlapping. He claimed that he did not want to double pay the money for the enrolment.

15. The Tribunal put to the applicant that there was no indication he contacted the Department about his circumstances. In response, the applicant acknowledged that it was his responsibility to “go to school.” He explained that the reason why he did not go to UTS (University of Technology Sydney) was because they did not give him feedback about his course. He explained he failed a subject and that was why he had to re-do that subject in his second year. He indicated that he could not do two courses at the same time (the first year subject and the second year subject). The applicant claimed he failed one subject. He then claimed he also failed another subject – two subjects in the first year.

16. The Tribunal put to the applicant that it was his responsibly to manage his enrolment with his course provider. In response, he said he understood that but the problem was he did not realise the problems with his visa. He indicated that in 2017 he went back to China and he came back to Australia in March 2018.

17. The Tribunal put to the applicant that when he came back to Australia (in March 2018) he did not re-enrol. In response, the applicant agreed he did not re-enrol.

18. The Tribunal asked the applicant what he thought would happen if he did not study whilst on a student visa and he responded that when he came back from China he decided to find another university but he acknowledged that he did not re-enrol in a course anywhere.

19. When the Tribunal asked the applicant what he was doing whilst he was not re-enrolled, he said he was just trying to find another university.

20. The Tribunal put to the applicant that he indicated he had been searching for another course many months without getting enrolled. In response, he said “that’s true.” When the Tribunal asked the applicant whether he was doing anything else apart from searching for courses, he said “not from UTS.” He said his mother in China got cancer and he had to go back to help her. He said he then came back to Australia. He claimed that he was just thinking about his mother’s cancer for half a year of 2018. He claimed he did not work and he just closed himself into his room.

21. The Tribunal asked the applicant what his mother’s condition was at present. In response he indicated that he mother had chemotherapy and was having no more treatment and the cancer was not progressing.

22. The Tribunal asked the applicant if he told his provider (UTS) or the Department about his mother’s health situation and he said “no.” He said he did not go to UTS after 2018.

23. The Tribunal put to the applicant that he was nearly 30 years old, and he said “yes.”

24. The applicant confirmed he first got to Australia in 2014.

25. The Tribunal put to the applicant that he had gone for a long time without studying, to which he agreed.

26. The applicant complained that in the first year of his course in 2016, he encountered problems with the other UTS students with which he did group work, but the applicant agreed that this was not the reason why he stopped studying in 2017. 

27. The respect to the above, the Tribunal makes the following findings.

28. The Tribunal accepts that for international student from non-English speaking backgrounds, the early part of their studies is a hard transition. However, the Tribunal places low weight in the applicant’s favour on the issues he may have had with his studies in 2016. Rather, the Tribunal places higher weight on the applicant’s actions when he stopped studying in 2017, where he did not contact the Department and advise the Department of the fact that he was no longer enrolled in a registered course of study.

29. The Tribunal accepts that the applicant’s mother had health problems and that he went back to China to help his mother. However, the Tribunal finds that the applicant did not advise his provider or the Department about his mother’s health situation.

30. In weighing the above findings, the Tribunal does not accept that the applicant took reasonable steps to maintain his enrolment where he did not contact the Department to notify them of his circumstances or to request assistance in an endeavour to maintain his course enrolment. Accordingly, the Tribunal places high weight on this information against the applicant.

31. In consideration of the above circumstances, the Tribunal finds that these circumstances are not exceptional circumstances and they are not at all beyond the applicant’s control. Accordingly, the Tribunal places high weight on this information against the applicant.

    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

32. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

33. The Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

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

34. The applicant indicated that the hardship he would face was that he would have wasted his time for the last few years and that he did not finish his studies. He claimed he would not find a job in China, but then he claimed that because he did not finish his course it would be very hard for him to find a job.

35. The Tribunal accepts that the applicant would face some hardship where he felt that he wasted his time for the last few years and that he did not finish his studies. The Tribunal accepts that the applicant may find it hard to get a job in China because he did not finish his course.

36. Accordingly, the Tribunal gives some weight in the applicant’s favour in regard to this factor.

    Past and present behaviour of the applicant towards the Department

37. There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

38. The applicant does not have any dependents on his student visa who would be affected if his student visa was cancelled.

39. Accordingly, the Tribunal places no weight on this information in the applicant’s favour.

    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

40. The Tribunal accept that the applicant is reasonably aware of the legal consequences of the cancellation of his student visa and he is aware of the three-year exclusion period as a consequence of his student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

41. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chooses not to return to China.

42. The Tribunal places low weight on this information in the applicant’s favour.

    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

43. The applicant claimed his did not fear anything in China – apart from his parents who will be disappointed in him. He indicated that his parents are in small business and they are paying his bills. He indicated that his parents know he is not studying. He indicated he may be able to study a course in China that he may succeed at.

44. There is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places no weight on this information in the applicant’s favour.

    Any other relevant matters

45. There are no other relevant matters before the Tribunal.

    Conclusion

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

    DECISION

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

    Joseph Lindsay

    
    

    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.