Jin (Migration)

[2019] AATA 854

Jin (Migration) [2019] AATA 854 (7 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Minsu Jin

CASE NUMBER:  1711273

HOME AFFAIRS REFERENCE(S):           BCC2017/1180902

MEMBER:Brendan Darcy

DATE:7 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 07 February 2019 at 12:54pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – applicant departed Australia  – did not attend hearing – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – lack of academic progress – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 May 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 delegate cancelled the visa on the basis that there is a ground for cancelling the visa and because the delegate was not satisfied the grounds for cancellation of this visa outweighed the grounds for the visa not to be cancelled. 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. On 22 January 2019, the applicant was invited to attend a scheduled hearing at 10.00am on 7 February 2019 at its Melbourne facilities. The Tribunal emailed the applicant to the nominated contact address he provided the Tribunal on the date of this review application was [lodged].

4. The Tribunal notes that the applicant’s movement record indicates that he departed Australia on 29 August 2017. At no stage did the applicant asked for his review application to be withdrawn. Accordingly, the Tribunal proceeded with the hearing.

5. Two reminder SMS messages were sent to the applicant’s [mobile phone] about the scheduled hearings on 31 January 2019 and 6 February 2019. Both messages failed to deliver.  At no stage prior to the hearing did the applicant respond to the invitation, including asking from any request for a postponement.

6. The applicant did not appear before the Tribunal at the time or date of the scheduled hearing. Nor did he contact the Tribunal to provide evidence via teleconference. The Tribunal kept the hearing open for a further ten minutes to allow the applicant the opportunity for any late postponement requests. However, the Tribunal was not contacted and the hearing was then closed at 10.10am.

7. At the time of writing this decision, the Tribunal has not received any further correspondence regarding the applicant’s non-attendance or visa cancellation. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to proceed with its decision-making on this review application without taking any further action to enable the applicant to appear before it.

8. 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

9. 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?

10. 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).

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

12. According to the decision record submitted at the time of this review application was lodged, the applicant was granted this Class TU Subclass 572 visa on 3 September 2015. The visa was set to expire on 15 March 2019. The decision record states that based on the Provider Registration and International Student Management Systems (PRISMS), the review applicant had not been enrolled in a registered course of study between 23 August 2016 and 5 May 2017.

13. On 2 May 2017, the applicant was validly issued a Notice of Intention to Consider Cancellation (NOICC) which invited the applicant to respond that the applicant had not been compliant with condition 8202 imposed on his visa.

14. The applicant responded on 3 May 2017 and 8 May 2017. Included in that response were two Confirmations of Enrolment (CoEs) indicating that the applicant enrolled in a Certificate IV in Marketing and Communications and a Diploma in Marketing and Communications at Harward International College on 5 May 2017.

15. The vaguely written response was limited in detail. It did not dispute that he was not enrolled for a period of time and claimed that it was not his fault.

16. A delegate on behalf of the Minister proceeded to cancel the visa on 22 May 2017. The applicant then lodged to have the delegate’s cancellation decision review by the Tribunal on 26 May 2017 with the decision record attached.

17. As outlined above, the applicant did not attend the scheduled hearing or provide the Tribunal with any written explanations regarding there not being the grounds for cancellation.

18. 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).  

19. It follows that the grounds for cancellation of this visa exists.

    Consideration of the discretion to cancel the visa

20. 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’.

21. The applicant responded to the NOICC as the reasons his visa should be cancelled. In an email dated 8 May 2017 the applicant claims his original education provider cancelled his enrolment in October 2016 without notification; that he paid tuition fees in November 2016 and hasn’t been issued a CoE. He further claimed that he was studying up to this time and that he now has current CoEs with Harward International College. IT also states that he was reimbursed for tuition fees by Western Institute of Technology.

22. No submissions or documents to support the visa under review being reinstated were submitted to the Tribunal at all. Neither did the applicant provide any oral evidence at a scheduled hearing.

23. A PRISMS record indicates that the applicant had been enrolled in General English course, a Diploma of Business and an Advanced Diploma of Management when the visa was granted. It further indicates the applicant English coursework was cancelled on 31 March 2015 due to unsatisfactory attendance; the diploma was cancelled on 14 July 2016 due to unsatisfactory course progress and the advanced diploma was cancelled on 23 August 2018 due to the non-commencement of studies.

    The purpose of the visa holder’s travel to and stay in Australia

24. According to the decision record, the delegate was not convinced that the applicant’s new enrolments indicted he intended to resume studying and that the CoEs were obtained solely in response to the NOICC being issued. The Tribunal concurs with the delegate that such a delayed action does not mitigate the seriousness of the breach of visa condition 8202 that has occurred.  The Tribunal places no weight on these late CoEs to indicate that the applicant travelled to Australia for the purposes of full time study.

25. The Tribunal is unable to overlook that the applicant’s academic progress since arriving in Australia has been considerably poor. His English coursework was cancelled due to unsatisfactory attendance soon after arriving in Australia and that his diploma was cancelled due to unsatisfactory course progress. The Tribunal places significant weight on this lack of academic achievement in his favour in having the visa remaining the visa.

26. Had the applicant attended the scheduled hearing, it would have asked him to explain his academic and career goals in the context of this visa and study history. However the applicant did not provide either the Department or the Tribunal any written or oral evidence to elaborate on the purpose of the visa holder’s travel and stay in Australia.

27. This non-responsiveness in combination with the lack of academic achievement strongly indicate to the Tribunal that the applicant is not a genuine temporary visa holder in Australia for the purposes of study or that he will uphold one or more of visa conditions imposed on any reinstated student visa. Based on this evidence, the Tribunal places considerable weight towards his visa remaining cancelled as the applicant’s purpose of travel to and remaining in Australia had not been for study. 

    The extent of compliance with visa conditions

28. The Tribunal notes the delegate considered the length of time of non-compliance to be significant and gave it little weight in the applicant’s favour. However, the Tribunal finds the non-compliance itself was not notable in length of time – around nine months. During this period of time, the applicant had ample time to rectify or mitigate this breach. However, he only re-enrolled after the issuing of the NOICC.  While the Tribunal has no other evidence of non-compliance with condition 8202 while the applicant held this student visa under review, the Tribunal gives this factor some weight towards the visa remaining cancelled.

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

29. The delegate’s decision accepted that there may be some hardships as a result of the cancellation, although the applicant did not raise any matters of hardship in this response to the validly issued NOICC. The applicant provided no written or oral or documentary evidence to the Tribunal as the degree of hardship that may be caused by the visa remaining cancelled. Had the applicant some genuine concerns about the degree of hardship, it would have been reasonable to present them to either the Department or the Tribunal to consider. However the applicant has been non-responsive in this matter. Accordingly, the Tribunal finds that the degree of hardship that may be caused by the visa remaining cancelled will not be considerable, notable or significant and it places little weight on this factor towards the visa not remaining cancelled.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

30. The Tribunal has considered the lack of any detailed response to the NOICC issued to explain his non-compliance. He vaguely stated that to the Department that “As you know, it’s not my fault’ as he was not notified by his education provider about his enrolment for an advanced diploma being cancelled. The Tribunal does not accept this on the basis of his earlier enrolments had been cancelled due to unsatisfactory attendance and progress.  Furthermore, the applicant has not presented any evidence to support his claim and he has not advanced any other extenuating circumstances leading up to his non-enrolment to the Tribunal, despite having the opportunity to do so.  With no credible evidence to support that the circumstances in which the ground for cancellation arose, the Tribunal places considerable weight on this factor in favour of the visa remaining cancelled.

    Past and present conduct of the visa holder towards the Department

31. According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department. The Tribunal gives this minimal weight in his favour.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

32. Not relevant.

    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

33. The Tribunal notes that the applicant has already departed Australia.  If the visa remains cancelled, it is accepted that he may be barred from re-entering Australia for up to three years. Furthermore the applicant is not guaranteed that his offshore visa will be approved as he may be subjected to the Public Interest Criterion 4013. He has presented no specific evidence in relation to this factor at all. Accordingly the Tribunal gives this minimal weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

34. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Whether any international obligations would be breached as a result of the cancellation

35. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Other relevant considerations

36. There are no other relevant considerations.

    Conclusion

37. Having found that the applicant has not complied with a condition of the visa to a significant extent, the Tribunal must consider whether to exercise its discretion to cancel the visa.

38. It is noted that the applicant had ample opportunity leading up to the Tribunal’s hearing date to provide evidence and that he did not attend the hearing, including via a teleconference facility. His non-attendance at a scheduled hearing and his paucity of written, oral and documentary evidence indicates to the Tribunal that the applicant did not have any extenuating circumstances leading to the ground for cancellation, any genuine motivation to complete enrolled studies and is unlikely to uphold conditions imposed on him in the future. These factors significantly outweigh any other factors in favour of being reinstated.

39. Considering the evidence provided and on weighing the above factors and considering the accepted circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Brendan Darcy
    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.