Guo (Migration)

[2019] AATA 2835

Guo (Migration) [2019] AATA 2835 (3 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Fan Guo

CASE NUMBER:  1800217

HOME AFFAIRS REFERENCE(S):           BCC2017/3316437

MEMBER:Wendy Banfield

DATE:3 June 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 03 June 2019 at 7:28pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – request for compassionate leave granted – failed to re-enrol after period of leave – consideration of discretion – circumstances giving rise to non-compliance – applied for appropriate leave – returned to Australia part way through the semester – evidence of ongoing communication with education provider – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 December 2017 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 the applicant had not been enrolled to study while holding a Student Visa, in breach of visa conditions. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

3. The applicant is a citizen of China and is currently 23 years old. He was granted the visa which is the subject of this review on 12 June 2015. The applicant was enrolled to study at the University of Canberra but obtained leave for the second semester of 2017 in order to return to China due to his mother’s illness. He had previously been granted leave for the same reason and was aware that his education provider could only allow two periods of leave from study.

4. The applicant appeared before the Tribunal on 7 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   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 2017 the applicant was enrolled to study a Bachelor of Commerce at the University of Canberra (UC).  At the relevant time in Semester 2 2017 the applicant applied for compassionate leave to travel to China as his mother was sick. The university granted the applicant’s request for leave and he was withdrawn from the units he had been enrolled in. No evidence was provided to demonstrate the applicant had re-enrolled to study after the period of leave granted by the education provider. Therefore, 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

11. 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 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

12. On the evidence before it, the Tribunal is satisfied that the applicant’s original purpose in travelling to and staying in Australia was to study.

13. The applicant was invited to make submissions regarding any compelling need to remain in Australia. In this regard he referred to his mother being ill and it being his family’s dream for him to study abroad. The applicant claimed there was no option for him to study in China and if his visa is cancelled he will have achieved only a Year 12 level education. The Tribunal assessed the claims put forward in considering whether the discretion to cancel the visa should be exercised. The Tribunal accepts the applicant and his family wish for him to obtain qualifications overseas, however, the Tribunal does not accept the applicant would have no options in his home country. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia. 

    ·     the extent of compliance with visa conditions

    There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account in favour of the applicant.

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

14. During the course of the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. The applicant claimed he would suffer hardship if his visa is cancelled because he needs to graduate and if he is unable to, it will destroy his life. The Tribunal acknowledges the cancellation of the visa would mean that the applicant would not be able to continue his studies in Australia and that this would cause him a degree of hardship. The Tribunal has given some weight in the applicant’s favour regarding this consideration.

    ·     circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

15. The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but did not continue enrolment in a course of study. The applicant provided reasons for discontinuing his studies. He advised he had to take leave from his Bachelor of Commerce degree at UC to return to China to be with his mother who was ill. The applicant applied for and was granted leave from his education provider and did leave Australia between 20 July and 7 August 2017. The applicant provided evidence of his ongoing communications with UC up to November 2017 but it appears he that during the relevant time he was communicating with them in relation to the status of his withdrawal from units of study rather than re-enrolment.

16. The applicant claimed he had been planning to re-enrol to study and advised the Department of this after being issued with a Notice of Intention to Consider Cancellation on 27 November 2017. However, the applicant’s visa was cancelled without further notice on 14 December 2017. It is difficult to see how the applicant could have re-commenced his studies with UC part way through Semester 2 of 2017 when he returned from China in August that year. While he was not enrolled for three to four months after a period of leave, it is possible the applicant was in fact going to re-enrol but did not appreciate the need to do so immediately upon his return. Since the applicant applied for and was granted compassionate leave and continued to engage with his education provider, the Tribunal considers the applicant should be afforded some weight in this regard. It is unfortunate the applicant did not take steps to make sure he did not breach his visa conditions but the Tribunal notes he was not represented at the time and did not have the benefit of any advice.

17. For these reasons, the Tribunal finds the circumstances in which the cancellation arose as submitted by the applicant weigh in his favour to a certain degree in relation to the Tribunal exercising its discretion to cancel the applicant’s visa.

    ·     past and present behaviour of the visa holder towards the department

    There is no evidence to indicate the applicant has not cooperated with the Department and the Tribunal has given this some weight in favour of the applicant.

    ·     whether there would be consequential cancellations under s.140

18. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

19. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequence of the legislation and do not weigh in favour of the applicant in the Tribunal’s discretion in regards to cancellation of the applicant’s visa.

    ·     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

20. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations including non-refoulement and the best interests of children.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

21. The Subclass 573 Student Visa is not a permanent visa.

    ·     any other relevant matters

    The student visa program in Australia enables people who are not Australian citizens or permanent residents to undertake study in Australia. The Tribunal accepts the applicant did initially enrol and commence studying at UC which was the purpose for which the visa was granted. The Tribunal has taken into account the fact that the applicant applied to his education provider for appropriate leave, he left Australia to visit his home country and continued to engage with UC on his return by meeting with student services and providing paperwork in relation to his compassionate leave. Although the applicant has not progressed as would be expected in the time since he arrived in Australia, the Tribunal considers he should be given another opportunity to prove himself by recommencing his studies and progressing academically.

    Conclusion

22. The Tribunal has considered the applicant’s circumstances individually and cumulatively and is satisfied that in this case the majority of considerations weigh in favour of the applicant. The Tribunal finds the applicant had applied for appropriate leave from his studies, he continued to engage with his education provider and based on submissions provided, it is possible he would have re-enrolled to study in the first semester of 2018 had his visa not been cancelled. Therefore the Tribunal does not consider it appropriate in this case to exercise the discretion to cancel the visa.

23. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

24. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Wendy Banfield
    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.