CHEN (Migration)

[2018] AATA 4229

CHEN (Migration) [2018] AATA 4229 (17 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr HAO CHEN

CASE NUMBER:  1618293

HOME AFFAIRS REFERENCE(S):           BCC2016/3150015

MEMBER:Melissa McAdam

DATE:17 September 2018

PLACE OF DECISION:  Sydney

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

Statement made on 17 September 2018 at 10:26am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – care for wife and child – period of non-compliance – no attempt to regularise immigration status – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116


CASES
Migration Act 1958 (Cth), Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 November 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 applicant was represented in relation to the review by his registered migration agent.

3. On 19 October 2016 the applicant was sent a Notice of Intention to Consider Cancellation of his Student visa, inviting him to comment on a possible breach of condition 8202, which required him to be enrolled in a registered course.

4. The applicant provided a response that his wife was pregnant in 2014 and had “severe symptoms”, so that he ceased his study in February 2015 to look after her.  His son was born ten weeks premature on 10 June 2016 and kept in ICU for eight weeks.  His son improved but remained weak. His wife took almost a year to recover. The applicant is the only person in the family to take care of them. He therefore could not return to study.  His wife and son continue to improve and he is looking for courses to continue his study.

5. The delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course.  The delegate found that the applicant had not been enrolled in a registered course of study since 28 October 2015. The issue in this case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

6. On 18 July 2018 the Tribunal wrote to the 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 applicant to give evidence and present arguments at a hearing on 12 September 2018. The invitation stated that if the applicant 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 the applicant SMS reminders about the hearing five business days and one business day before the scheduled hearing.

7. No response to the hearing invitation was received until 5:25pm on 10 September 2018, when the applicant’s Agent emailed the Tribunal requested a postponement of the hearing, stating:

   “Our client have a scheduled hearing on 11/09/2018. Unfortunately, he just informed us he is currently suffering severe cold and fever and require treatment for the following two days.”

8. Attached to the email was a letter from Dr Xin Guang Shi, dated 10 September 2018, which states:

   “This is to certify that Mr Hao Chen is receiving medical treatment for the period Monday 10 September 2018 to Wednesday 12 September 2018 inclusive. He will be unfit to continue his usual occupation.”

9. The Tribunal attempted to telephone the Agent but she did not respond to the calls. The Tribunal then wrote to the applicant’s Agent informing her the Tribunal would not postpone the hearing unless the applicant provided medical evidence he was not fit to attend the Tribunal in person or by phone. The Tribunal informed the Agent that the hearing could be conducted by telephone and that she should advise the Tribunal if the applicant’s wanted to have the hearing conducted by phone. No response from the Agent or the applicant was received.

10. The applicant did not appear before the Tribunal on the day and at the scheduled time and place of the hearing.

11. No further communication from the Agent or the applicant has been received.

12. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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?

14. 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 education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

    ·has not been certified by his education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

15. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

16. The applicant has admitted he has not been enrolled in a registered course of study, in his email to the Department, dated 26 October 2016. The evidence from the Department’s PRISMS’ records also confirm that the applicant has not been enrolled in a registered course of study since 28 October 2015.

17. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

18. 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’.

19. The Tribunal has considered the submission provided by the applicant to the Department.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to remain in Australia.

20. The applicant has provided information that he came to Australia to study. He has completed some courses of study in Australia.  He has not presented any information evincing a need to remain in Australia. He asked to be given “another chance” to finish his study in Australia but did not offer any explanation why he needed to remain in Australia.

    The extent of compliance with visa conditions

21. There is nothing before the Tribunal to indicate that the applicant has breached other conditions on his visa. The Tribunal expects that a visa holder will generally adhere to all the conditions of his or her visa. In this case the applicant’s breach is a significant one.  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 has not put forward any information regarding the hardship caused to him by the cancellation of his visa.

23. The Tribunal presumes that a cancellation would result in the applicant departing Australia. However there is no indication that this would cause hardship to the applicant or anyone in his family.

24. His application for the cancellation decision to be reviewed does strongly indicate that the applicant does not want his visa to be cancelled.  Therefore the Tribunal presumes he may anticipate hardship if his visa remains cancelled. However the Tribunal is unable to speculate what aspects this hardship may or may not take. On the evidence before it the Tribunal is not satisfied that the cancellation of the applicant’s visa will cause him hardship.

    The circumstances in which the ground of cancellation arose.

25. The applicant explained in his email to the Department  hearing that he had to care for his wife and child because of difficulties with his wife’s pregnancy and the poor health condition of his son when born.

26. The applicant provided no further detail of his family’s health problems that he claimed required him to completely give up studying in 2015.  Nor is there any indication the applicant has enrolled in any course of study in the intervening years. There is no indication the applicant took any steps to lawfully address his situation; or engage with the Department or an education provider regarding his circumstances; or to comply with his visa condition.

27. The Tribunal gives some weight to the applicant’s situation pertaining to the health of his wife and child.  However the Tribunal views the long period of non-compliance by the applicant as a very serious matter. The Tribunal finds that this consideration outweighs any weight given in favour of the applicant and not cancelling the visa.

    Past and present conduct of the visa holder towards the Department

28. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings, since receiving the Notice of Intention to Cancel his visa.  However, this is expected of all visa holders and does 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 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

29. It is unlikely that the visa applicant would be detained but rather provided with a time limited period in which he can leave the country or apply for curial review of the decision.

    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. There is no indication of other relevant matters before the Tribunal.

32. The Tribunal has considered all factors listed above both individually and cumulatively. The Tribunal finds that the applicant’s breach, well in excess of twelve months, is significant, as is the absence of any indication he tried to address his situation or engage with either the Department or an education provider. Therefore, considering the circumstances as outlined by the applicant, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Melissa McAdam
    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.