Hao (Migration)

[2019] AATA 5597

Hao (Migration) [2019] AATA 5597 (2 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jianxin Hao

CASE NUMBER:  1926399

HOME AFFAIRS REFERENCE(S):          BCC2019/2876845

MEMBER:Peter Booth

DATE:2 December 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 02 December 2019 at 9:04am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – not enrolled in registered course – financial hardship – lack of evidence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)
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 13 September 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) 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 complied with condition 8202. 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 email dated 25 October 2019, sent to the applicant’s migration agent, the applicant was invited to attend the hearing of the application. The applicant’s migration agent by email dated 4 November 2019 informed the Tribunal that neither the applicant nor the migration agent would attend the scheduled hearing of the application for review.

4. 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

5. 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?

6. Condition 8202, as it applies in this case, relevantly requires that the applicant:

   ·be enrolled in a full time registered course: 8202(2)(a)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

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

8. The decision record cancelling the applicant’s student visa is dated 13 September 2019. In that decision record the Minister’s delegate states that the applicant never commenced his studies in Australia and, further, the enrolment in the Bachelor of Commerce course was cancelled on 4 April 2018.The decision record also states that “in response to the NOICC the Visa holder did not dispute there are grounds for cancellation”. The applicant elected not to attend a hearing of his application for review. By email dated 4 November 2019, the applicant’s migration agent provided a submission from the applicant dated 1 November 2019. That submission to which reference is made later in this decision record does not take issue with the finding of fact by the delegate in the decision record dated 13 September 2019. 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

9. 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’.

10. The Tribunal turns to consideration of any relevant factors including matters raised by the applicant and the Departmental guidelines which cover matters such as:

    ·     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

    ·     The Minister’s delegate found that in the applicant’s reason for travelling to Australia was for the purposes of study. There is no evidence before the Tribunal as to whether the visa holder has a compelling need to travel to or remain in Australia.

    ·     The extent of compliance with visa conditions

    The Minister’s delegate found that the applicant was not enrolled in a registered course of study after 4 April 2018. This was not contested before the delegate and not contested in this Tribunal.

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

    The applicant gave no evidence regarding any degree of financial, psychological, emotional or any other hardship which may be caused by the cancellation of the visa. However, the Tribunal accepts that cancellation of the applicant’s visa will cause some degree of financial hardship in the form of lost tuition fees, or emotional, in the form of disappointment or embarrassment in not completing the course. The Tribunal gives this factor little weight.

    ·     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

    ·     The applicant declined an opportunity to appear at a hearing of his application for review in the Tribunal. The applicant has provided a submission dated 1 November 2019 which provides as follows:

    “My name is Jianxin HAO (DOB: 03 JAN 1995). I have received a Hearing Invitation from AAT in respect of the decision to cancel my 500 (student) Visa. I am writing this statement to explain my compassionate grounds as I sincerely request the case to be reconsidered and remitted by the AAT and wish to continue studying in Australia.

    The Department of Home Affairs sent the Intention to Cancel my student visa on 5 Aug 2019. I had responded to it with written submission. I received decision notification on 13 Sep 2019 that my claim was rejected. The officer gives limited weight to my written submission, and subsequently, my student visa got cancelled. However, after reading through the decision record thoroughly, I determined to lodge the AAT application to ask for the reconsideration of my cancellation decision and I will explain my compassionate grounds considerably.

    I have been in Australia for five years. Looking back on my studying experience, it was full of challenge and hardship. At first stage, when I commenced my study in Monash, I found the course was quite challenging, which was beyond my expectation. I felt that I had been oppressed by the study, and I was psychologically burdened. I made a hard decision to leave Monash and transfer to Deakin.

    Even through the experience at Deakin was still not as good as I thought, with my efforts, I finally completed the language course and the diploma course, but the whole process totally destroyed my confidence to continue my study as planned. Moreover, my family financial status became worse at this time and my parents could not support my living expenses on time. I had to earn money through a part-time job to enable me to pay rental and daily costs. Therefore, I missed the enrollment of my Higher Education course in April 2018. Consequently, the Bachelor of Commerce was cancelled. After that, I was struggling with financial issues. As my work limitation, I could not earn much money and my parents were struggling with financial issues either in China.

    As their adult child, I firmly understood that I should take responsibility to help release their burden. Therefore, I decided to continue my study through my own efforts. I originally planned to continue my study in March 2019, but I was told that I needed to submit the language evidence to apply for a bachelor course. Since then, I have been studying English through online courses and at the same time doing my part-time job to earn tuition fees. Currently, I have learned from my mistake and I deeply regret for my unthoughtful and childish behavior. Moreover, my family financial situation is becoming better and better. Therefore, I sincerely hope that the officer could understand my uncontrollable circumstance and give me an opportunity to continue studying in Australia; otherwise, I would disappoint my parents and I could not have a good future, and even not be possible to find a job by returning my home country without a Bachelor degree. At this stage, I want to pick up where I left from and pursue my dream. This time I am more determined and more committed. When I complete my bachelor degree, I will return to my home country and take advantage of my foreign study experience to start my career.

    Thank you for your consideration and your favorable decision will be highly appreciated.”

11. The applicant has raised one substantive issue in this submission namely that he was “struggling with financial issues”. This is not elaborated upon to any significant degree. The Tribunal has no evidence as to the nature of the financial issues, the extent of any financial issues, how those financial issues impacted upon the applicant’s ability to pay for tuition, the efforts made by the applicant to find employment, whether the applicant obtained employment, and the applicant’s income during the relevant period. Accordingly, there is no material upon which the Tribunal can form a view that the reason for the non-compliance with the visa condition was beyond the applicant’s control. In those circumstances the Tribunal is not satisfied that the breach of the visa condition was for reasons beyond the applicant’s control.

    ·     Past and present behaviour of the visa holder towards the Department

    There was no evidence in relation to this factor and the Tribunal gives it no weight.

    ·     Whether there would be consequential cancellations under s.140

    The Tribunal was provided with no evidence on this point and gives it little weight.

    ·     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

    The Tribunal accepts that there may be legal consequences as a result of the cancellation. However, these consequences were intended by the Parliament when enacting the relevant legislation. The Tribunal gives them little weight.

    ·     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

    There was no evidence in relation to this factor and the Tribunal gives it no weight.

    ·     If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

    There was no evidence in relation to this factor and the Tribunal gives it no weight.

    ·     Any other relevant matters

    There was no evidence of any other matters and the Tribunal gives this factor no weight.

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

    DECISION

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

    Peter Booth
    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.