LI (Migration)

[2018] AATA 5595

LI (Migration) [2018] AATA 5595 (6 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr WENXU LI

CASE NUMBER:  1622190

HOME AFFAIRS REFERENCE(S):           BCC2016/3471301

MEMBER:Mr S Norman

DATE:6 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 06 December 2018 at 1:30pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – applicant’s poor academic progress – changed enrolment to English course – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 116, 189, 198, 362
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 14 December 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal. The delegate cancelled the visa on the basis that the applicant was determined 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.

2. On 29 October 2018, the Tribunal sent the applicant (to the email address authorised for service) a hearing invitation letter advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 6 December 2018. No response to the Tribunal’s hearing invitation letter was received. Two SMS (hearing reminder) texts were sent to the applicant’s claimed mobile phone (29/11/2018 & 5/12/2018). Again no response was received.

3. In its abovementioned letter of 29 October 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.

4. The applicant did not appear before the Tribunal on the day and at the time and place at which his hearing was scheduled. 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 had been granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 4 July 2014. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 25 November 2016, the applicant was advised that information on the Provider Registration and International Student Management Systems (PRISMS), indicated the applicant had not been enrolled in a registered course of study since 10 May 2016. Therefore, that he may not meet the requirement of condition 8202(2)(a), and that his visa may be cancelled under s.116(1)(b) of the Act.

9. The applicant responded to the NOICC,[1] but he did not dispute there were grounds to cancel his visa. In his response to the NOICC, the applicant said he travelled to Australia in July 2014 to “enhance his English competence”. He later enrolled in a “diploma course”. He was however, unable to “catch up with his peers”. After discussing his problems with his parents he decided to “discontinue his Advanced Diploma of Business … at Warwick Institute”. He then “decided to take an English course at first because the incompetency of both his written and spoken English limited his further study”. He commenced a Certificate IV in spoken and written English.

   [1] Department – from folio 23.

10. However, the applicant then suffered from long-term depression and anxiety. He said that since he completed his English language course in February 2015 and then failed to commence his diploma course immediately at UTS In search, he had suffered “great pressure from his parents and himself”. He then referred to having difficulty sleeping, that he was depressed, that he suffered anxiety, and that he could not understand what his lecturers were saying. He eventually “could not make his way to school anymore due to bad feelings he had suffered”. He nonetheless claimed that he “still tried his best to do every effort in order to continue his study in Australia”. However “things were getting worse”. He then was unable to continue his normal studies and “felt a strong sense of isolation”. He said his limited English pushed him away from his friends.

11. The applicant said he did try to attend community events and make some friends with different cultural backgrounds; and that with their help and ‘careful concern’ he started to “redirect his way here and he is ready to face the challenge of future study”. He has now “formulated a comprehensive study plan [which contained] a series of learning objectives and strategies in order to make sure he’s on the right track.” He now wants a second chance to continue his studies in Australia.

12. Based 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

13. 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’.

14. The applicant said his intention in travelling to and residing in Australia was for the purposes of study. However, at the time of the delegate’s decision (14 December 2016), he had not been enrolled in a course of study since 10 May 2016. The applicant did say he was depressed and anxious. However, there is no evidence of (ie) the applicant having sought any medical or other assistance (though he did claim to have sought assistance through attending community events). However, based on all the evidence, the Tribunal is not satisfied the applicant’s present intention is to remain in Australia for the purposes of study.

15. As noted herein, PRISMS indicated the applicant had not been enrolled in a course of study since 10 May 2016 (approximately 7 months at the time of the delegate’s decision). The Tribunal believes this breach is reasonably substantial.

16. Next, and regarding hardship, the applicant said he did try to attend community events and make some friends with different cultural backgrounds; and that with their help and careful concern he started to “redirect his way here and he is ready to face the challenge of future study”. He has now “formulated a comprehensive study plan [which] contains a series of learning objectives and strategies in order to make sure he’s on the right track. He now wants a second chance to continue his studies in Australia. Therefore, if the applicant’s visa is cancelled, he may not be able to pursue any claimed study plans. If his visa is cancelled, he or his family more also suffer some form of hardship.

17. Next, in his response to the NOICC[2], the applicant said he travelled to Australia in July 2014 to “enhance his English competence”. He later enrolled in a “diploma course”. He was however, unable to “catch up with his peers”. After discussing his problems with his parents he decided to “discontinue his Advanced Diploma of Business … at Warwick Institute”. He then “decided to take an English course at first because the incompetency of both his written and spoken English limited his further study”. He commenced a Certificate IV in spoken and written English.

    [2] Department – from folio 23.

18. However, the applicant then suffered from long-term depression and anxiety. He said since he completed his English language course in February 2015 and then failed to commence his diploma course immediately at UTS In search he had suffered “great pressure from his parents and himself”. He then referred to having difficulty sleeping, that he was depressed, that he suffered anxiety, and that he could not understand what his lecturers were saying. He eventually “could not make his way to school anymore due to bad feelings he had suffered”. He nonetheless claimed that he “still tried his best to do every effort in order to continue his study in Australia”. However “things were getting worse”. He then was unable to continue his normal studies and “felt a strong sense of isolation”. He said his limited English pushed him away from his friends.

19. However, Student visas are granted for the purpose of allowing noncitizens to reside in Australia for the purposes of study. Therefore while the applicant remains onshore, he was required to give priority to maintaining ongoing enrolment in a registered course. There is also no evidence the applicant had sought any medical or other assistance. Nor did he apparently seek a deferment.

20. The Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

21. Next, the Tribunal notes that if the applicant’s visa is cancelled he would be subject to detention under s.189 and removal under s.198 of the Act. However, based on the evidence before the Tribunal I am not satisfied he would be subject to indefinite detention. I also accept the applicant would be able to retain his Bridging visa temporarily, in order to remain in the community to finalise his affairs prior to departing Australia.

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

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

    DECISION

24. 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.