LI (Migration)

[2018] AATA 5399

LI (Migration) [2018] AATA 5399 (15 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jintao LI
Mrs GUANGCAI LIN

CASE NUMBER:  1621026

HOME AFFAIRS REFERENCE(S):           BCC2016/3105168

MEMBER:Mr S Norman

DATE:15 November 2018

PLACE OF DECISION:  Sydney

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

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 15 November 2018 at 12:05pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (class TU) Higher Education Sector visa – Subclass 573 – enrolment in registered course not maintained – business management course – applicant did not attend tribunal hearing – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 140, 189, 198, 362
Migration Regulations 1994, Schedule 8 condition 8202(2)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 December 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The Department delegate’s decision was lodged with the Tribunal. The delegate cancelled the visa on the basis that the applicant had breached condition 8202(2) – 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.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.

4. By letter dated 14 September 2018 (dispatched by email to the applicant’s authorised email address), the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 15 November 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.  The Tribunal also issued two SMS hearing reminder texts to the applicant shortly prior to the scheduled hearing.

5. The applicant did not appear before the Tribunal at the time and day of the scheduled hearing (being 10am, Thursday 15 November 2018). Neither did he otherwise reply to the Tribunal’s hearing invitation letter (as he was requested). Neither did he respond to the Department NOICC letter. 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.

6. 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

7. 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?

8. 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).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 30 June 2014. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 17 November 2016,[1] the applicant was advised that information on the Provider Registration and International Student Management System (PRISMS) indicated he had not been enrolled in registered course of study since 18 August 2015. Further, that it therefore appeared he had breached condition 8202(2)(a); and that his visa may be cancelled under s.116(1)(b) of the Act. The applicant did not respond to the Department NOICC letter.

   [1] Department – folio 21.

10. In their decision, the delegate noted:

    ·the applicant had arrived in Australia on 8 July 2014; and

    ·on 30 June 2014, the applicant had been granted the Student visa on the basis he intended to study an approved Higher Education level course of study, specifically a package with the University of Canberra – including a UC English Language Program / Master of Marketing Management (later amended to a Master of Business Management).

11. That being said, 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

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’

13. Regarding the purpose of the applicant’s travel to and stay in Australia, in their decision the delegate noted the applicant had only completed the English Language Program and had not commenced any other registered course of study. He had not maintained enrolment in the registered course he had applied to study onshore. Based on the evidence before it, the Tribunal is not satisfied the applicant’s current intention is to remain in Australia for the purposes of study.

14. Next, based on the evidence before it, the applicant had not been enrolled in a registered course of study from 18 August 2015. Student visa applicants are made aware of the conditions attached to their visa at time of grant. The Tribunal believes this breach to be significant.

15. Next, though not stated by the applicant the Tribunal proposes to accept the applicant or his family may suffer some limited hardship if his visa is cancelled. He may also be subject to being detained under s.189 and removed 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 am also satisfied he would be able to temporarily retain his Bridging visa in order to remain in the community to finalise his affairs prior to departing.

16. Next, the circumstances giving rise to the ground for cancellation were that the applicant had failed to maintain enrolment in a registered course of study from 18 August 2015. There is no evidence the applicant has been uncooperative with either the Department or the Tribunal. There is no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

17. The Tribunal notes that the visa of a member of the applicant’s family unit would be consequentially cancelled if the applicant’s visa is cancelled.

18. 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 could not be granted a temporary visa for three years from the date of cancellation.

19. The Tribunal repeats that the applicant did not appear at the scheduled Tribunal hearing. That being said, based on all the accepted evidence before the Tribunal, I am satisfied the visa should be cancelled.

20. Therefore, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

21. The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa. The Tribunal has no jurisdiction with respect to the other applicant.

    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.