Chen (Migration)

[2018] AATA 5027

Chen (Migration) [2018] AATA 5027 (31 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Yijia Chen

CASE NUMBER:  1618477

HOME AFFAIRS REFERENCE:                BCC2016/2803216

MEMBER:Lilly Mojsin

DATE:31 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 31 October 2018 at 9:33am

CATCHWORDS

MIGRATION – Cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) –  breach of enrolment conditions – failure to enrol in a course – no compelling reasons – wish to study in Australia – able to study in China – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 8 condition 8202

CASES

Babicci v MIMIA [2005] FCAFC 77

MZYPZ v MIAC [2012] FCA 478

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 October 2016 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 (the Act).

2. The delegate cancelled the visa on the basis that that the applicant was not enrolled in a registered course and therefore had breached condition 8202 of his visa.

3. The applicant appealed that decision to this Tribunal, attaching a copy of the Department decision to his application.

4. The applicant appeared before the Tribunal on to give evidence and present arguments ON 17 October 2018.

5. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present review 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. Condition 8202, as it applies in this review, 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).

8. The applicant’s Subclass 573 Higher Education Sector visa was granted on 12 October 2012.

9. A notice of intention to consider cancellation [NOICC][1] was sent by the Department to the applicant on 27 September 2016 and the notice invited the applicant to respond in writing.  The applicant’s advisor responded on 12 October 2016[2]. He advised that the applicant had been suffering from a medical condition and required additional time to obtain documents. The advisor stated;

   'Yijia has been suffering from medical conditions and is now trying his best to prepare the supporting documents. However, as he has not been keeping records of his visits to his doctors, he now require additional time to obtain the relevant documents. He has made appointments with the associated doctors and will provide the medical reports as soon as possible. After discussing with Yijia, I hereby request an extension of time to respond to the notice you have sent. It will be much appreciated if an extension can be granted so that Yijia has a chance to properly present his case.'

   [1] BCC2016/2803216  Folio  27

   [2] BCC2016/2803216  Folio  35

10. The delegate granted additional time. No further information was provided. The delegate noted in his decision that the applicant had enrolled in a CRICOS course on 17 October 2018. This was after the applicant had received the NOICC.

11. The applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course since 4 August 2015.

12. The applicant confirmed to the Tribunal that this was correct. He said that he was ill at that moment. The applicant stated that he enrolled in a CRICOS course of study after the NOICC was received and this enrolment was created on 17 October 2016. The applicant said that he could not finish the course. He is not studying at all anymore.

13. In light of the above statement made by the applicant, the Tribunal is satisfied that the applicant did not maintain enrolment in a registered course after 4 August 2015. The delegate issued the NOICC on 27 September 2016. 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.

15. The applicant, in his response to the Department, did not dispute that there were grounds for cancellation at the date of receipt of the NOICC. There is no evidence before the Tribunal to suggest that the applicant is now enrolled in any course of study.

16. The Tribunal has also had regard to matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. These are as follows:

    ·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

17. The purpose of the student visa is to enable the visa holder to undertake study in Australia. There is no evidence before the Tribunal to suggest that the applicant’s original intention for his travel to and stay in Australia was not for the purpose of study. The applicant has not been enrolled in a registered course since 4 August 2015 and over 12 months had elapsed from that date until the NOICC was issued on 27 September 2016. Therefore at the time NOICC was sent to the applicant he had not been complying with condition 8202(2)(a). The applicant claimed on 12 October 2016 he had some medical problems. He told the Tribunal that he had a stroke in 2014 but he has not provided any medical information in regard to his medical problems. The Tribunal therefore does not accept that the applicant had any medical condition. The Tribunal therefore does not accept that the applicant had a medical condition that prevented him studying. The Tribunal is satisfied that the applicant has not been studying for a substantial period of time. The Tribunal places weight on the applicant’s lack of study, without an explanation, as a factor in favour of cancellation.

18. The Tribunal has had regard to whether the visa holder has a compelling need to travel to or remain in Australia.  The expression 'compelling reasons' is not defined for the purposes of PAM3. However, the reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA [2005] FCAFC 77 at [24].

19. The applicant states that he has a compelling need to remain in Australia. The applicant lives with his uncle who provides him with accommodation and he supports himself. His father does not want to pay for his studies in Australia anymore. His father wants him to stop but he wants to finish his education.  Asked why he cannot finish his studies in his home country he said he studied in England, obtained his A level, and then went back to China. He came to Australia as his mother passed away. His uncle is now helping him and he is trying to work. His health is ok. He wants to stay in Australia not only for study, but because his father has remarried and will not support him. He is working in logistics. He does not want to go back to China as he does not want to give up his studies. The Tribunal is not satisfied that the applicant’s reasons for remaining in Australia are compelling.  The Tribunal weighs this factor in favour of cancellation.

20. In regard to the extent of compliance with visa conditions, the Tribunal accepts that the applicant has always been compliant with visa conditions. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.  

21. In regard to the degree of hardship that may be caused (financial, psychological, emotional or other hardship), the Tribunal accepts that the applicant has been in Australia for 6 years. The applicant has not provided any information to the Department or the Tribunal that cancellation would result in hardship to him or his family members. He said that he just wants to finish his education and stay in Australia. He agrees he can return to China and study. The Tribunal weighs this factor in favour of cancellation.

22. Assessing the circumstances in which ground of cancellation arose, there is no evidence before the Tribunal to indicate that the applicant's non-compliance with the visa condition was due to circumstances beyond his control.  The Tribunal weighs this factor in favour of cancellation.

23. There is no evidence before the Tribunal to suggest that the applicant’s past and present behaviour towards the Department has been adverse. There is no evidence before the Tribunal that the applicant has not been co-operative with the Department. There is nothing to suggest that the applicant has been other than compliant in his dealings with the Department. The Tribunal weighs this factor in favour of not cancelling the visa.

24. There are no persons in Australia whose visas would, or may, be cancelled under s140. The Tribunal notes that there is no information before it to indicate that any other person currently holds a visa because the applicant held his visa. Therefore any cancellation of the applicant’s visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements any international obligations, including non-refoulement and best interests of the children, would be breached as a result of the cancellation. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.

25. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice regarding his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.  

26. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

27. As 3 years have passed since the applicant was last enrolled, the Tribunal finds the applicant's breach of condition 8202 of his visa to be significant because he was not engaging in study for which his visa was granted and he was not fulfilling the purpose of his travel to and stay in Australia. The Tribunal does not give weight to the applicant's claims that he wants to study again in Australia and the Tribunal determines that the grounds for cancellation outweighs the reasons not to cancel the visa.

28. 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 applicant’s Class TU visa.

    Lilly Mojsin
    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.