CUI (Migration)

[2017] AATA 1466

CUI (Migration) [2017] AATA 1466 (18 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr HONGWEI CUI

CASE NUMBER:  1611913

DIBP REFERENCE(S):  BCC2016/1983089

MEMBER:Antoinette Younes

DATE:18 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 18 August 2017 at 4:08pm

CATCHWORDS

Migration – Cancellation – Class TU – Subclass 573 Higher Education Sector visa – Non-compliance with condition 8202 – Not enrolled in registered course

LEGISLATION

Migration Act 1958, ss 116(1)(b), 140
Migration Regulations 1994, Schedule 8, Condition 8202, r 2.43(1)(la)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 July 2016 made by a delegate of the Minister for Immigration 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 the applicant did not comply with condition 8202 attached to his visa. 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. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   HEARING INVITATION

5. On 22 June 2017, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled at 10.30am on 17 August 2017. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on the case without taking any further action to allow or enable the applicant to appear before the Tribunal or may dismiss the application for review without any further consideration.

6. On 10 August 2017, the applicant advised the Tribunal that he was not “able to attend the interview”. The applicant did not request an adjournment or provide any reasons or any evidence relating to his inability to attend the hearing. The Tribunal is satisfied that it has given the applicant a fair opportunity to attend a hearing and the Tribunal has no explanation for the applicant’s inability to attend.  In those circumstances, the Tribunal has decided to make its decision on the review without taking any further action.

   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. In support of the application for review, the applicant provided to the Tribunal a copy of the delegate’s decision record in which it is noted that information available in the Provider Registration and International Student Management System (PRISMS) indicates that the applicant had not been enrolled in a registered course of study from 4 March 2015 until 22 June 2016. On 5 July 2016, the Department sent to the applicant a notice of intention to consider cancellation to which the applicant did not respond. In a “Declaration” provided to the Tribunal, the applicant provided reasons and explanations as outlined below relating to his non-enrolment between 4 March 2015 and 22 June 2016.

11. On the evidence before the Tribunal, the applicant was not enrolled in a registered course from 4 March 2015 until 22 June 2016. Accordingly, the applicant has not complied with condition 8202(2) and therefore the ground for cancellation under s.116(1)(b) arises.

    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 to exercise its discretion to cancel the visa.

13. 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). These matters include: the purpose of the visa holder’s travel and stay in Australia, reason and extent of any breach of a visa condition, degree of hardship that may be caused, circumstances in which the ground of cancellation arose, past and present conduct of the visa holder towards the Department, if breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors, whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, whether there would be consequential cancellations under s.140, whether any international obligations would be breached as a result of the cancellation, the impact on any victims of family violence, and any other relevant matters raised by the visa holder.

14. In the “Declaration” provided to the Tribunal, the applicant indicated that:

    a.Australia is highly reputable in terms of education. Australia provides high-quality courses in a safe environment. He and his parents agreed that the best way for his future development would be to study overseas and gain higher qualifications in a Western country.

    b.He came to Sydney on 21 April 2014 and commenced his course at UTS Insearch on 2 June 2014. During September, his mother was diagnosed with “some health issues” which caused him stress and he could not sleep or eat well. In addition, he did not get good results and he was disappointed. After consideration, he decided to change his school to ideal college where he studied hard and obtained good results. His parents did not want him to return to China and wanted him to concentrate on his studies in Australia. It was the first time he studied overseas and he had difficulties with English.

    c.Due to his mother’s health problems, he could not organise matters and he did not pay much attention to his studies; he locked himself at home. He did not have many friends and there was no one to talk to. He did not go to school. He did not even know that he was not enrolled until one of his friends told him. He was worried and found an agent to help him.

15. The Tribunal has carefully considered the applicant’s explanations in relation to the non-compliance. The Tribunal has not had the opportunity to speak with the applicant in the course of a hearing so that the Tribunal could have asked the applicant for further information and details about his claims of his mother’s illness, the stress he suffered, and any other explanations he might have had in relation to the non-compliance. For example, the Tribunal would have asked the applicant for further details and/or any corroborative evidence in relation to his claims of his mother’ s illness.  The Tribunal when inviting the applicant to the hearing had indicated to him that the Tribunal was unable to make a favourable decision on the basis of the available information.  Without having had the opportunity to further explore with the applicant at a hearing his reasons for non-compliance and ask him more questions about the circumstances that led to the non-compliance, the Tribunal is not satisfied that those circumstances mean that the visa should not be cancelled. 

16. The Tribunal accepts as plausible that the applicant came to Australia to study. The Tribunal notes that the applicant did not respond to the notice of intention to consider cancellation. The Tribunal acknowledges that the cancellation of the visa may cause the applicant a certain degree of hardship such as being unable to pursue further studies in Australia and facing difficulties in being granted any subsequent Australian visas. He could also be detained and removed from Australia. There is no evidence before the Tribunal that the applicant has failed to comply with other visa condition(s). There is no evidence before the Tribunal that there would be any consequential cancellations under s.140, or that any international obligations would be breached as a result of the cancellation, or that there would be impact on any victim of domestic violence. The applicant was granted the student visa for the purpose of studying in Australia. The non-enrolment period is significant and on the basis of the available information, the Tribunal is not satisfied that there are any circumstances that mean that the visa should not be cancelled.

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

    DECISION

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

    Antoinette Younes

    
    Senior 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.