Hu (Migration)

[2019] AATA 2334

Hu (Migration) [2019] AATA 2334 (30 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yanlin Hu

CASE NUMBER:  1820358

HOME AFFAIRS REFERENCE(S):           BCC2018/1058156

MEMBER:Peter O'Farrell

DATE:30 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 30 May 2019 at 4:12pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – grounds for cancellation – not enrolled in registered course – neither the applicant nor the representative would attend hearing – period of non-enrolment before cancellation was significant – passing of applicant’s family member – not satisfied these events are significant – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 140
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 2 July 2018 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 there were grounds for cancellation as the applicant was not enrolled in a registered course of study and the grounds for cancelling outweighed the reasons for not cancelling. 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 invited to attend a hearing.  In response, the applicant’s representative provided a submission and indicated that neither the applicant nor the representative would attend the hearing.  The Tribunal has proceeded to determine this matter on the basis of the materials before the Tribunal.

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, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

a.be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)(a)

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

c.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 delegate decision that was provided by the applicant to the Tribunal records that the applicant had not been enrolled since 24 August 2017.

9.The applicant provided a response to the NOICC.  That response provided no material to dispute that the applicant had not been enrolled since 24 August 2017. 

10.In response to the hearing invitation, the applicant filed a submission with the Tribunal.  That submission contains no material to dispute that the applicant had not been enrolled since 24 August 2017. 

11.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

12.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

  13.In her response to the NOICC, the applicant set out that she had previously studied at La Trobe University commencing in 2015 but faced challenges with the new study mode, teaching method and examination approaches in a foreign country.  She stated that she subsequently transferred to Cambridge International College in March 2017 to major in Bachelor of Business. 

  14.The applicant was granted the visa on 30 March 2017 for the purpose of study.

  15.The applicant has not been enrolled in a registered course of study since 24 August 2017.

  16.The visa was cancelled on 2 July 2018.

  17.In her submission, the applicant stated that she is 24 years old and without a completed tertiary qualification.  She stated that if her visa is cancelled, she will have to return to her home country ‘with empty hands’ and might not be able to find a job.  She stated that this would cause disappointment to her parents and would not live up to the expectation of her now deceased grandfather.  She stated that a favourable outcome with this review would be very important to her study and her future.

  18.After her enrolment was cancelled, the applicant continued to reside normally resident in Australia on a study visa for in excess of ten months. The Tribunal finds that the period of non-enrolment before cancellation of the visa was significant.  The Tribunal is not satisfied that the applicant’s purpose of travel and stay in Australia is to study or that the applicant has a compelling need to travel or stay in Australia. 

• the extent of compliance with visa conditions

  19.The applicant was granted a TU500 visa for the purpose of study.  The study visa program provides an avenue to allow non-citizens and non-permanent residents to study in Australia.  In order to be granted and remain compliant with student visa obligations, the visa holder must maintain enrolment.

  20.The applicant has not complied with the condition attached to her visa as she has not been enrolled in a full-time registered course of study since 24 August 2017.

  21.I consider that the breach of condition 8202(2) here is significant, having been for a lengthy period.  I therefore give the lengthy breach of condition 8202 some weight towards the visa being cancelled.

  22.The Tribunal finds that the applicant appears to have complied with her visa conditions apart from 8202.  The Tribunal gives some weight towards the visa not being cancelled in this respect.

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

  23.As outlined above, the applicant has stated that if her visa is cancelled, she will have to return to her home country ‘with empty hands’ and might not be able to find a job.  She stated that this would cause disappointment to her parents and would not live up to the expectation of her now deceased grandfather.  She stated that a favourable outcome with this review would be very important to her study and her future.

  24.I accept that there may be some hardship to the applicant and her family if the visa remained cancelled, and I accept that there may be some difficulties for the applicant with her family and his career. However, I do not accept, on what she has said and the information before me, that such hardship is significant and I give this only little weight towards the visa not being cancelled

  ·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

  25.The grounds for cancellation arose because the applicant has not been enrolled in a full-time registered course of study since 24 August 2017.

  26.In response to the NOICC, the applicant claimed to have suffered a period of sadness associated with the diagnosis of the illness of her grandfather in China.  She claims to have suffered depression and that her friends suggested that she consult a psychological doctor but that she did not take their advice.  She claimed that her focus at the time was on the illness and pains of her grandfather without considering the serious consequences that her absence from school may cause. 

  27.I am not sufficiently satisfied by the information before me that these claims explain the reasons for the breach in this case.  If the applicant was having medical problems, she could have contacted her educational provided and arranged for deferral of her studies on compassionate or health grounds.  The applicant has put no medical evidence or the like to suggest that the applicant was incapacitated to such an extent that she was not able to maintain her enrolment or to make arrangements with her educational provider for deferral.  Whilst the Tribunal is sympathetic to the passing of the applicant’s family member, it is not satisfied that the circumstances in which the ground for cancellation arose were beyond the applicant’s control.

  28.She referred to the death of her boyfriend’s grandfather in March 2018 and the death of her grandfather in May 2018.  These events took place over 6 months after the cessation of enrolment and although the Tribunal is sympathetic to the passing of these persons, it is not satisfied that these events are significant in terms of the reason why the applicant failed to maintain enrolment.

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

  29.The delegate decision states that the applicant has been cooperative in her dealings with the Department.  I give this some weight in favour of the visa not being cancelled.

  ·whether there would be consequential cancellations under s.140

  30.There would be not consequential cancellations under section 140 as a result of cancellation.

  ·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

  31.The Tribunal is mindful that the applicant could become an unlawful noncitizen and detained and removed from Australia, and it may be difficult to be granted further visas, and she may be subject to an exclusion period and relevant Public Interest Criterion.

  32.It is unlikely however that the visa applicant will be detained but rather provided with a time-limited period in which she can leave the country or apply for review of the decision.

  ·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

  33.The circumstances of this matter are not such that would engage Australia’s international obligations.

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

  34.Not relevant.

  35.There being no other relevant matters and considering the circumstances as a whole, on balance, the Tribunal concludes that the visa should be cancelled.

  DECISION

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

  P. O'Farrell
  Member

  
  

  ATTACHMENT

  Migration Regulations 1994

  …

  Schedule 8

  8202(1)  The holder must be enrolled in a full time course of study or training if the holder is:

  (a)a Defence student; or

  (b)a Foreign Affairs student; or

  (c)a secondary exchange student.

  (2)A holder not covered by subclause (1):

  (a)must be enrolled in a full time registered course; and

  (b)  subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

  (c) must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

  (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

  (ii) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

  (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

  (a) is enrolled in a course at the Australian Qualifications Framework level 10; and

  (b) changes their enrolment to a course at the Australian Qualifications Framework

  level 9.