Gao (Migration)

[2018] AATA 184

Gao (Migration) [2018] AATA 184 (1 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Huiyong Gao

CASE NUMBER:  1616668

DIBP REFERENCE(S):  BCC2016/2704429

MEMBER:Mr S Norman

DATE:1 February 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.  

Statement made on 01 February 2018 at 1:30pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – Requirement to be enrolled in registered course – Applicant not enrolled in registered course – Consideration of discretion – Hardship does not outweigh grounds for cancellation

LEGISLATION
Migration Act 1958, ss 48, 116(1)(b), 189, 195, 362B
Migration Regulations 1994, Schedule 4, PIC 4013, Schedule 8, Condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 4 October 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa under s.116(1)(b) of the Act on the basis that the applicant had not complied with condition 8202(2)(a) - enrolment. 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. On 12 January 2018 (by email to his authorised recipient/migration agent), the Tribunal sent the applicant a hearing invitation letter advising that it had considered all the material before it relating to his 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 on 1 February 2018. By migration agent email of 18 January 2018, the agent advised that the applicant would “attend the hearing by himself”. One SMS (hearing reminder) text was also sent to the applicant’s mobile phone number on 31 January 2018.

4. In the Tribunal’s abovementioned letter of 12 January 2018, 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 his case without further notice. The applicant did not appear before the Tribunal on the day and at the time and place at which his hearing was scheduled. At the time of this decision, neither had the applicant (nor his agent) advised the Tribunal that the applicant was prevented from attending the hearing. 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.

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.

   Did the applicant comply with Condition 8202?

7. Relevantly, condition 8202 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. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

9. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 6 June 2014. By Notice of intention to Consider Cancellation (NOICC) of that visa dated 14 September 2016, the applicant was advised that evidence available on the Provider Registration and International Student Management System (PRISMS) indicated that he had not been enrolled in a registered course of study since 5 September 2015.

10. The applicant/agent responded to the NOICC letter by email of 21 September 2016 and letter of 19 September 2016. However, he did not dispute there were grounds to consider cancellation of the visa.

11. Based on the information before it, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

12. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

13. The applicant claimed his intention in travelling to and residing in Australia, was (and is) for the purposes of study. However, after being granted the visa in June 2014, at the time of the delegate’s decision, the applicant had failed to maintain enrolment in a registered course of study since 5 September 2015.

14. In his letter of 19 September 2016, the applicant said he had a “strong intention to continue his study”. However, and based on all the findings herein, the Tribunal is satisfied that if this were true, he would not have failed to enrol in a registered course for the length of time he did. In his letter of 19 September 2016, the applicant had also claimed he had not received any warning letters from his school. However, the Tribunal notes that applicants are advised they must continue to maintain enrolment in a registered course with no more than a two month gap, and this is advised when the Student visa is granted.

15. Next, if the applicant’s Student visa is cancelled he may suffer some financial hardship. In the letter of 19 September 2016, the applicant claimed he had already “spent lots of money and time on his studies”. If his visa is cancelled, the applicant would also become an unlawful non-citizen and liable to detention under s.189 and removal under s.195 of the Act. However, based on the evidence before the Tribunal, I am not satisfied the applicant would be subject to indefinite detention. Further, I am satisfied he could apply for a Bridging visa, and therefore be allowed to remain in the community in order to finalise his affairs prior to departing.

16. Next, if the applicant’s visa is cancelled he would also be subject to s.48 of the Act which means that he would have limited options for applying for further visas in Australia. He would also be subject to Public Interest Criterion 4013, meaning he may not be granted a temporary visa for three years from the date of cancellation.

17. Next, in the email/letter response of 21/19 September 2016, it was claimed the applicant was affected by a health condition (including a fractured elbow). The applicant referred to fracturing his elbow in 2015 when he was on holiday in China. After returning to Australia he attempted to explain his condition to a general practitioner but his English language skills were insufficient. He said this brought him a ‘lot of inconvenience’. No corroborating evidence of medical treatment was lodged. It was also claimed that “nostalgia was a major problem”; that this gave rise to a “negative emotional effect”; that his education provider “MEGA changed his course [without proper communication] which he felt not suitable for him” (though no corroborating evidence of this was lodged).  The applicant said he felt homesick; he missed his wife and child; he had applied for them to travel to Australia as dependent family members; this application was refused; he then felt “really disillusioned”; he was then depressed; he attended a student advisor on two occasions and then he said he “understood that getting recovered from post-traumatic stress disorder would be a long period procession and depression may still appear in life”. It appeared he said he took medicines for “getting good sleep and had more social activities with people”.

18. The applicant did seek and was granted on 25 June 2015, an extension to COE 66340F66, on the basis of compassionate or compelling circumstances. However, at the time of the delegate’s decision, he was not enrolled in a registered course for a period of over 13 months. Further, there is no evidence he made any material effort to contact the Department in this period.

19. That being said, and as noted above, the Tribunal is satisfied the applicant would have taken steps to have resolved his migration status if he intended to study in Australia as he now claims. Based on the evidence before the Tribunal, I am not satisfied the applicant’s mental health (apparently only treated with sleeping tablets), or his physical health (apparently due to an injury suffered in China – but which could have been treated with the assistance of an interpreter or Chinese speaking doctor in Australia), constitute a reasonable explanation for the applicant failing to maintain enrolment in a registered course of study. Based on the evidence before the Tribunal, I do not accept the applicant suffered PTSD.

20. Next, the applicant also said the “courses were kind of difficult” for him. As he did not believe he could pass the exam he “changed course to an easier one which is more suitable to him and less pressure”. He then referred to a “bad experience with a group project during his classes”. He said his opinions and suggestions were being “disregarded by the group members then they complained to the teacher about him for not making contributions”. He said the group treated him with “great disrespect and one said go back to China”. Though no corroborating evidence from his school was provided, the Tribunal will accept some incident occurred and that it may have been distressing for the applicant. However, even considering this cumulatively with the other claims accepted here in, I am not satisfied this constitutes a reasonable explanation for the applicant failing to maintain enrolment in a registered course of study for the length of time he did.  

21. Next, the applicant referred to not having received warning letters from his school. He then said it was the schools fault, as at times he would attend classes late and his attendance would not be recorded by his teacher. However, and irrespective of whether this occurs, the Tribunal notes the reason for the cancellation is ‘fail to maintain enrolment in a registered course of study’ and not whether the applicant’s attendance was satisfactory.

22. There is no evidence before the Tribunal that the applicant has been uncooperative with either the Department or the Tribunal. There is no evidence before the Tribunal that any other persons visa would be cancelled as a result of the cancellation of the applicants visa. There is no evidence before the Tribunal that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

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

    DECISION

24. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Mr S Norman
    Member