Ji (Migration)

[2019] AATA 5038

Ji (Migration) [2019] AATA 5038 (11 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Wenjia Ji

CASE NUMBER:  1714592

HOME AFFAIRS REFERENCE(S):           BCC2017/1479157

MEMBER:Lynda Young

DATE:11 November 2019

PLACE OF DECISION:  Sydney

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

Statement made on 11 November 2019 at 11:22pm

CATCHWORDS
MIGRATION – cancellation – Vocational Education and Training Sector (Class TU) visa – Subclass 572 (Student) (Temporary) – non-enrolment in registered course – applicant offshore and did not appear at hearing – factors for and against cancellation – decision under review affirmed

LEGISLATION
Migration Act 1959 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), 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 30 June 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant’s visa, granted on 4 May 2016, was subject to condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations), requiring the applicant to be enrolled in a registered course of study.

3.    On 29 May 2017, the Department emailed the applicant and sought her consent to electronic correspondence. The applicant replied to that email, consenting to electronic correspondence with the Department on 30 May 2017.

4.    On 2 June 2017, the applicant was issued a Notice of Intention to Consider Cancellation (NOICC) under s.119 of the Act, on the basis it appeared she had not complied with visa condition 8202(2)(a) as, on evidence obtained from the Provider Registration and International Student Management System (PRISMS), the applicant had not been enrolled in a registered course of study since 28 September 2016.  The applicant did not respond to the NOICC.

5. On 30 June 2017, the delegate cancelled the visa under s.116(1)(b) of the Act on the basis the applicant, in breach of visa condition 8202(2)(a), had not been enrolled in a registered course of study since 28 September 2016, and the grounds in favour of cancellation outweighed the grounds against cancellation.

6.    The applicant applied to the Tribunal for review of the decision on 7 July 2017, and attached to her application, a copy of the Notice of Cancellation and the Decision Record (application). The issues in the present case are whether the ground for cancellation in s.116(1)(b) of the Act is made out, and if so, whether the visa should be cancelled.

7.    By letter emailed to the applicant’s registered migration agent (representative) on 8 July 2019, the Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in her case at a hearing on 24 July 2019 at 10:00 AM (hearing invitation). The hearing invitation advised the applicant the Tribunal may, if she did not attend the scheduled hearing and an adjournment was not granted, make a decision on the review without taking any further action to allow or enable the applicant to appear before it. The ‘Information About Hearings – MR Division’ leaflet enclosed with the hearing invitation provided specific information in relation to the availability of telephone hearings.

8.    Also enclosed with the hearing invitation was a ‘Response to Hearing Invitation – MR Division’ document, to be filled in by the applicant and returned to the Tribunal.  That document specifically provided that if the applicant selected “no” in response to the question whether she would take part in the hearing, the Tribunal may make a decision on the application without taking any further action to allow or enable the applicant to appear before it.

9.    On 11 July 2019, the applicant’s representative provided to the Tribunal, a filled in and signed ‘Response to Hearing Invitation – MR Division’, on which the question whether the applicant would take part in the hearing scheduled for 24 July 2019, was answered, ‘no’. The representative’s covering email advised “the applicant is offshore and she is unable to attend the hearing.”

10.      The Tribunal, in its letter dated 19 July 2019 in response to the representative’s email, stated:

“[The] Tribunal confirm[s] your email advice on 11 July 2019 that the applicant is offshore and unable to attend the hearing.

As the applicant will not be attending the scheduled hearing, the Tribunal may make a decision on the application without taking any further action to allow or enable the applicant to appear before us.

Alternatively, if you are you instructed to withdraw this application, please provide the Notice of Withdrawal as a matter of utmost priority.

11.      The Tribunal did not receive any response to its 19 July 2019 letter, or any further correspondence or contact of any kind from or on behalf of the applicant, prior to either the hearing date or this decision.

12.      The applicant failed to appear before the Tribunal at the scheduled hearing on 24 July 2019 at 10:00 AM.  Movement records for the applicant confirm she departed Australia on 25 May 2019, on a Bridging Visa E with no return travel facility.

13.      The Tribunal is satisfied the applicant was properly invited to a hearing in accordance with s.379A(5) of the Act. 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.

14.      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

ISSUES

15. Under s.116 of the Act, the Minister may cancel a visa if she or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b).

16. Section 116(1)(b) provides for cancellation of a visa where ‘its holder has not complied with a condition of the visa.’ Visa conditions for each subclass are identified in the relevant part of Schedule 2 to the Regulations, and described in Schedule 8 to the Regulations.

17.      In this case, condition 8202 was imposed on the applicant’s student visa.

18.      Condition 8202, as it applies in this case, is set out in the attachment to this decision.  Relevantly, it requires the applicant:

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

b.has not been certified by her or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

c.has not been certified by her or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

19. If satisfied the ground for cancellation in s.116(1)(b) is made out then, as the ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa, having regard to matters specified in the Act or regulations that are required to be considered and all information relevant to the exercise of the discretion in the circumstances of the case, including matters raised by the applicant and matters of government policy.

20. There are no matters specified in the Act or the Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. Matters to which the Tribunal has regard in considering whether to exercise its discretion to cancel the applicant’s visa include matters raised by the applicant and the matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, including:

a.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;

b.the extent of compliance with visa conditions;

c.degree of hardship that may be caused (financial, psychological, emotional or other hardship);

d.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;

e.past and present behaviour of the visa holder towards the department;

f.whether there would be consequential cancellations under s.140;

g.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;

h.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;

i.if it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia;

j.any other relevant matters.

21.      The issues for the Tribunal’s determination in this case are:

a.does the ground for cancellation in s.116(1)(b) of the Act exist?

b.if the ground for cancellation in s.116(1)(b) of the Act exists, should the discretion to cancel the visa be exercised?

EVIDENCE ON THE APPLICATION

22.      The applicant applied to the Tribunal for review of the decision on 7 July 2017, and attached to her application, a copy of the Notice of Cancellation and the Decision Record (application).

23.      The Tribunal, in its ‘Acknowledgement of Application’ letter emailed to the applicant’s representative on 10 July 2017 (application acknowledgment), requested the applicant provide, as soon as possible, material or written arguments she wished the Tribunal to consider, or any other material she believed supported her application, including a statement explaining why she disagreed with the Department's decision.

24.      The Tribunal’s hearing invitation of 8 July 2019 also requested the applicant provide, within seven days, all documents on which she intended to rely in support of her case, and for any documents or written arguments to be sent to the Tribunal to be in, or translated into, English.

25.      The applicant did not appear at the scheduled hearing to give evidence and present arguments as invited and despite the Tribunal requesting she do so, did not provide the Tribunal with any statement explaining why she disagreed with the decision, and other than those provided with her application, did not provide any documents or other material supporting her application or any submissions or written arguments relating to the issues in her case, or the grounds for cancellation or why her visa should not be cancelled, or at all. That is, the applicant has not provided the Tribunal with any further information than was provided to the Department.

26.      As a result, the evidence before the Tribunal on this review application comprises:

a.the application, including the attached Notice of Cancellation and the Decision Record; and

b.the Department’s Notice of Intention to Consider Cancellation (NOICC) emailed to the applicant, dated 2 June 2017.

The NOICC

27.      The Department’s NOICC issued 2 June 2017, notified the applicant it intended considering cancellation of her visa based on PRISMS evidence from which it appeared she had not been enrolled in a registered course of study since 28 September 2016, possibly breaching visa condition 8202(2)(a). The applicant was invited to provide her written response to the NOICC within five working days, addressing the identified ground(s) for cancellation, reasons why her visa should not be cancelled, the matters the delegate would take into account in considering whether to cancel her visa, being those matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, and any other matter she considered relevant.

Decision Record

28.      The Decision Record includes, relevantly:

a.the applicant was granted a Student (Temporary) (Class TU) Subclass 572 Vocational Education and Training Sector (Subclass 572) visa on 4 May 2016, with a stay period to 15 June 2018;

b.the Department’s NOICC issued on 2 June 2017 on the basis of PRISMS evidence that the applicant was not enrolled in a registered course of study since 28 September 2016.

c.although the applicant responded to an email sent to her by the Department seeking her consent to electronic communication, and the NOICC was emailed to her the same day she provided that consent, no response to the NOICC was the received by the Department, and the applicant did not either dispute the ground for cancellation existed or provide reasons why her visa should not be cancelled;

d.on evidence obtained from PRISMS, the applicant had not been enrolled in a registered course of study since 28 September 2016, in breach of visa condition 8202(2)(a);

e.there was no evidence suggesting the applicant’s originally intended purpose of her travel to and stay in Australia was other than study;

f.the failure to be enrolled since 28 September 2016 was the only identified breach of visa conditions;

g.the delegate accepted the applicant may be caused some financial difficulty as a result of visa cancellation but she may be eligible for a Bridging Visa E, providing time for her to finalise outstanding matters. She would, upon cancellation, become an unlawful non-citizen and be liable for detention under s189 and removal under s198 of the Act if she did not voluntarily depart Australia. Additionally, she would be subject to s.48 of the Act, meaning she would have limited options to apply for further visas in Australia, and may be required to return to her home country. She would also be subject to Public Interest Criterion 4013.

h.the ground for cancellation arose as a result of the applicant failing to maintain her enrolment;

i.there was no evidence the applicant has been uncooperative with the Department, or that there are any legal consequences for a decision to cancel the visa;

j.there were no persons in Australia whose visas may be cancelled under section 140 of the Act;

k.the circumstances of the case were not such that would engage Australia’s international obligations.

DOES THE GROUND FOR CANCELLATION IN S.116(1)(B) OF THE ACT EXIST?

Did the applicant comply with Condition 8202?

29.      The applicant had, as at the hearing date, been on notice of the ground on which her visa was cancelled for slightly more than two years and in that time, despite the Tribunal’s requests in its review application acknowledgement and hearing invitation, has not provided any documents or submissions supporting her application and has not disputed the ground for cancellation existed or provided reasons why her visa should not be cancelled. The applicant failed to attend the hearing, and failed to give any evidence at hearing and present arguments or to provide details of her past studies in Australia as invited. As the Tribunal has not had the opportunity to take evidence at a hearing from the applicant about her studies in Australia or the issues in her case or in relation to the ground for cancellation or why her visa should not be cancelled, or at all, and as the applicant has failed to respond to Tribunal correspondence seeking documents or submissions supporting her application, the Tribunal is unable to be satisfied that the applicant was enrolled in any course of study since 28 September 2016.

30.      Accordingly, the Tribunal is satisfied the applicant was not enrolled in a registered course of study since 28 September 2016, in breach of visa condition 8202(2)(a).

31. The Tribunal is accordingly satisfied the ground for cancellation in s.116(1)(b) exists.

32.      As the ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

SHOULD THE DISCRETION TO CANCEL THE VISA BE EXERCISED?

Consideration of the discretion to cancel the visa

33. 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.

34.       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’

35.      The PAM 3 matters are addressed in the Decision Record. The applicant has not provided any material to the Tribunal or given any evidence at a hearing before the Tribunal disputing any of the information or conclusions set out in the Decision Record in respect of the PAM3 matters, or otherwise addressing the PAM3 matters or other circumstances germane to the Tribunal’s consideration in deciding whether to exercise its discretion to cancel the visa.

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

36.      There is no evidence before the Tribunal to suggest that the applicant’s original intention for her travel to, and stay in, Australia was not for the purpose of study.

37.      On the evidence before the Tribunal, the applicant was not enrolled in any course of study since 28 September 2016.  She had not been enrolled for a period of nine months and two days prior to cancellation, and by the hearing date, had not been enrolled for two years, nine months and 26 days.

38.      Student visas are granted for the purpose of non-citizens and non-permanent residents studying towards, and achieving, an educational qualification in Australia. That purpose cannot be achieved unless the visa holder is enrolled in a registered course of study. Taken in that context, the Tribunal finds the applicant’s failure to be enrolled in a registered course of study for a period of nine months and two days prior to cancellation is significant, and weighs this factor in favour of cancellation.

39.      The Tribunal is not satisfied the applicant’s originally intended purpose for her travel to and stay in Australia provides a compelling need to travel to and remain in Australia. Failing to be enrolled for more than nine months pre-cancellation is inconsistent with such need. Similarly, if she genuinely had compelling need, it would be reasonable to expect the applicant to have participated meaningfully in her review application, rather than not attending and leaving the country without obtaining a visa allowing her to return to Australia for the hearing, without explanation. The Tribunal gives this consideration weight in favour of cancelling the visa.

40.      Nothing in the evidence before the Tribunal suggests the applicant has a compelling need to remain in Australia or that she had a compelling need to travel to Australia. Her voluntarily departure from Australia prior to the hearing on a visa without any return travel facility is compelling evidence of the contrary,. Her non-engagement in study for which purpose her visa was granted for more than two years and nine months together with her failure to participate meaningfully in her review application or the hearing satisfy the Tribunal the applicant does not have a compelling need to remain in Australia.

41.      The Tribunal gives this consideration weight in favour of cancelling the visa.

The extent of any non-compliance with visa conditions

42.      The only instance of non-compliance identified in the decision is the applicant’s failure to remain enrolled as required to comply with visa condition 8202(2)(a). Although the evidence does not satisfy the Tribunal the applicant breached any other condition imposed on her visa, she was not enrolled for more than nine months pre-cancellation. The non-compliance is significant - preventing her visa serving its purpose. The Tribunal weighs this factor in favour of cancelling the visa.

43.      Other than her non-compliance with condition 8202, there is no evidence before the Tribunal of any non-compliance with any other conditions of her visa. The Tribunal weighs this factor in favour of not cancelling the visa.

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

44.      The delegate accepted cancellation of the applicant’s visa would likely result in some financial.  The Tribunal considers this hardship weighs in favour of not cancelling the visa.

45.      Given the applicant's failure to attend the hearing, the Tribunal is unable to be satisfied any other specific hardship may be caused to the applicant or her family if her visa is cancelled, and considers this factor weighs in favour of cancellation

46. The Tribunal accepts visa cancellation ordinarily results in the visa holder becoming unlawful and liable for detention under s.189 and removal under s.198 unless the visa holder voluntarily departs Australia or holds a bridging visa. As the applicant voluntarily departed Australia on 25 May 2019 she is not at risk of becoming unlawful or liable to detention or removal upon cancellation. Accordingly, the applicant will not be caused any resulting hardship as would ordinarily be expected.

47.      The applicant would not be subject to s.48 of the Act, which significantly limits the classes of visa for which she may apply onshore, given her departure. The Tribunal is satisfied cancellation of the applicant’s visa would prevent her re-entering Australia for up to 3 years as she may not meet the public interest criterion 4013.

48.      The Tribunal considers any hardship as may be caused by these intended consequences of cancellation weighs in favour of not cancelling the visa

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

49.      Given the applicant did not attend the hearing and has not provided any information as to the circumstances surrounding her breach of condition 8202, the Tribunal is unable to be satisfied about the circumstances in which the ground for cancellation arose, and unable to be satisfied there were any circumstances beyond her control that led to the applicant breaching her visa conditions. The Tribunal weights this factor in favour of cancelling the visa.

Past and present conduct of the visa holder towards the Department

50.      There is nothing in the evidence before the Tribunal to suggest that the applicant’s past or present behaviour towards the Department was adverse. The Tribunal weighs this factor neither in favour of nor against cancelling the visa.

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

51.      The Tribunal is satisfied cancellation of the applicant’s visa would prevent her re-entering Australia for up to 3 years as she may not meet the public interest criterion 4013.  As the applicant voluntarily departed Australia on 25 May 2019 on a visa without any return travel facility, she is not at risk of becoming unlawful or liable to detention or removal upon cancellation.

52.      The applicant would not be subject to s.48 of the Act, which significantly limits the classes of visa for which she may apply onshore, given her departure.

53.      The Tribunal gives this consideration weight in favour of not cancelling the visa. 

Whether there would be consequential cancellations under s.140 and whether any international obligations would be breached as a result of the cancellation.

54.      On the evidence before the Tribunal, there are no persons in Australia whose visas would, or may, be cancelled under s.140. There is nothing before the Tribunal to suggest Australia’s international obligations, including in respect of non-refoulement and best interests of the children, would be breached as a result of the visa cancellation. The Tribunal weighs this factor neither in favour of nor against cancelling the visa.  

Other relevant considerations

55.      As the applicant did not attend the Tribunal hearing, the Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation. The Tribunal weighs this factor neither in favour nor against cancelling the visa.  

Conclusion

56.      In circumstances of the applicant’s failure to take any active role in the Tribunal’s review process or provide the Tribunal with any information or supporting material in addition to what was provided to the Department and failure to be enrolled for more than nine months pre-cancellation when neither the purpose for which her visa was granted or the purpose of her travel to and stay in Australia could be achieved without enrolment, the applicant has not satisfactorily demonstrated she is a genuine student who should have her visa reinstated because she is genuinely interested in completing her studies.

57.      Taken together and considered as a whole, the Tribunal is satisfied the matters weighing in favour of cancellation of the visa outweigh the matters weighing against cancellation. 

58.      The Tribunal concludes the visa should be cancelled.

DECISION

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

Lynda Young
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.