Han (Migration)

[2018] AATA 2099

Han (Migration) [2018] AATA 2099 (11 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Xiangsheng Han

CASE NUMBER:  1616838

DIBP REFERENCE(S):  BCC2016/2487265

MEMBER:Mr S Norman

DATE:11 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 11 May 2018 at 2:58pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Enrolment in a registered course – Not enrolled in a full-time registered course – Significant breach – Failure to maintain enrolment – Medical certificate – Health issues – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 362B
Migration Regulations 1994, Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 October 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). The applicant lodged the Department decision with the Tribunal.

2. The delegate cancelled the visa on the basis that the applicant was found to have breached 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. By letter dated 9 March 2018, the Tribunal wrote to the applicant (dispatched by email to his authorised recipient) advising that it had considered all the material before it relating to his application. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 11 May 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. Two SMS hearing reminder texts were also sent to the applicant shortly prior to the hearing.

4. The applicant did not appear before the Tribunal on the day and at the time and place at which his hearing was scheduled. Neither did he otherwise reply to the Tribunal’s hearing invitation letter (as he was requested). 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. 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).

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa (the Student visa) on 26 March 2013. By the Department’s Notice of Intention to Consider Cancellation (NOICC) of the Student visa dated 20 September 2016, the applicant was advised that information on the Provider Registration and International Student Management System (PRISMS), indicated that he had not been enrolled in a CRICOS registered course of study since 11 May 2015. In their decision record, the delegate noted the correct date was in fact 11 May 2014 (the applicant’s education provider “Victoria University”, advised the Department the applicant had finished their studies and was no longer enrolled). Subsequently, it was noted the applicant had enrolled in a CRICOS registered course,[1] which new enrolment was created on 7 October 2016 (being shortly after the applicant received the Department’s NOICC letter). In their decision record, the delegate noted that grounds for cancellation existed at the time of the NOICC letter and that the applicant had breached condition 8202(2) and section 116(1)(b) of the Act.

   [1] DIBP – folio 27.

9. In their response to the NOICC letter, the applicant also said inter alia he “loves to study”; he “suffered from physical pain”; he lodged a medical certificate dated 24 October 2013 referring to “wrist, nerve, tendon damage”; this medical certificate said he was unable to drive or engage in strenuous exercise and could not lift with his left hand;[2] he now wants to complete his studies in Australia.[3] He subsequently repeated that he wished to continue to study and that the Department could “monitor his behaviour”.

   [2] DIBP – folio 20 & 36. 

   [3] DIBP – folio 26.

10. Based on the evidence before the Tribunal, the applicant was not enrolled in a CRICOS registered course (between 11 May 2014 and 7 October 2016). 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 to exercise its discretion to cancel the visa. 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).

12. Regarding the applicant’s purpose in travelling to and residing in Australia, he said he wished to travel to and reside in Australia for the purposes of study. Given the applicant was not enrolled in a registered CRICOS course for over two years, the Tribunal is not satisfied the applicant’s present intention in remaining in Australia, is for the purposes of study.

13. Regarding the applicant’s compliance with any conditions to which his Student visa was granted, as noted herein the applicant has breached condition 8202(2). Based on information before the delegate, and given the Victoria University reported on 11 May 2014 that the applicant’s enrolment in the Bachelor of Business (Information Systems) degree course was cancelled, this means the applicant was not enrolled in a full-time registered course of study for a total of 878 days - being for the period 12 May 2014 to 6 October 2016. The Tribunal is satisfied the applicant would understand he needed to maintain enrolment in a registered course of study for the duration of his visa, and without more than a two-month gap. In the circumstances of this case, the Tribunal believes the breach to have been significant.

14. Regarding the degree of hardship that may be caused to the applicant or his family if his Student visa is cancelled, the Tribunal proposes to accept the applicant or his family may be subject to some limited financial or other hardship if his visa is cancelled. If his visa is cancelled he would also become an unlawful noncitizen and liable to detention under s.189 and removal under s.198 of the Act. However, based on all the information before the Tribunal, I am not satisfied the applicant would be subject to indefinite detention.

15. The Tribunal also notes that if the applicant’s Student visa is cancelled he would also be subject to s.48 of the Act and would have limited options to apply for further visas in Australia. He would also be subject to PIC 4013; meaning he could not be granted a temporary visa for three years from the date of cancellation.

16. Regarding the circumstances which caused the visa to be cancelled, the Student visa was cancelled due to the applicant failing to maintain his enrolment in a CRICOS registered course of study. In his response to the NOICC letter, it was claimed the applicant was suffering physical pain, he could not go to school because he was hurt, and he was recovering. However the ‘medical certificate’ lodged (a Discharge Instruction Sheet from Tamworth Hospital dated 24 October 2013), indicated the applicant underwent exploration surgery with “debridement and flexor tendon repair on 23 October 2013”. It also advised that the applicant should not drive, not lift with his left hand and not engage in strenuous activities (but the Tribunal was not satisfied this indicated he was unable to study). It was also advised the applicant needed follow-up assistance at the plaster clinic, physiotherapy exercise and with his general practitioner. No further medical evidence was provided.

17. There is no evidence the applicant sought to defer his studies and return to China rather than remain in Australia in breach of his visa condition. The Tribunal understands the advice given to Student visa holders is they may seek a deferral of their studies for compelling and compassionate circumstances. There is no evidence the applicant materially attempted to avail himself of this. Next, there is no evidence the applicant contacted the Department regarding his health issue, or in an attempt to otherwise regularise his visa status. Instead the applicant remained in Australia in breach of a known visa condition.

18. Next, the Tribunal has no information before it that the applicant has been uncooperative with the Department or the Tribunal. There is also no evidence before the Tribunal that there are persons in Australia whose visas would or maybe cancelled if the applicant’s Student visa is cancelled.  Based on the evidence before the Tribunal, I am not satisfied that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

19. After considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Mr S Norman
    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.