Li (Migration)

[2018] AATA 3605

Li (Migration) [2018] AATA 3605 (27 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Szu-Hsuan Li

CASE NUMBER:  1704094

DIBP REFERENCE(S):  BCC2016/4313808

MEMBER:Christine Kannis

DATE:27 July  2018

PLACE OF DECISION:  Perth

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

Statement made on 27 July 2018 at 6:32am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – enrolment in a registered course –  cancellation by education provider – unsatisfactory attendance – change of field of study – effects on partner visa – time elapsed since NOICC – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 359AA
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

CASES
Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 February 2017 made by a delegate of the Minister for Immigration 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 issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal by telephone on 5 June 2018 to give evidence and present arguments. She was represented in relation to the review by her registered migration agent who also appeared before the Tribunal by telephone.

5. Prior to the hearing the applicant’s representative made a request to the Department under the Freedom of Information Act 1982. At hearing the representative advised the Tribunal that the information, which was voluminous, had been received however at that time she had not had the opportunity to consider it. The Tribunal provided the representative with additional time to make written submissions with respect to any issues arising from the FOI request and asked that they be provided by 29 June 2018. The Tribunal indicated that depending on whether the FOI request provided any additional relevant information, the Tribunal would consider re-convening the hearing or inviting written comment on any adverse information.

6. On 2 July 2018 the applicant’s representative provided a written submission and additional documentation which included receipts and transcript results. The written submission did not address the FOI information.

7. 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

8. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevant to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

9. On 29 May 2015 the applicant was granted a visa in Subclass 572 Vocational Education and Training Sector with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

10. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since 6 May 2016. She was enrolled in a Certificate IV in Business which was cancelled on 6 May 2016. The reason for cancellation was stated to be unsatisfactory attendance by the applicant.

11. Having regard to the information in the PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 6 May 2016. The Tribunal finds that she breached condition8202(2)(a) of her visa.

12. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that 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.

    Consideration of the discretion to cancel the visa

13. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

14. On  3 February 2017 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because she had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of her visa. 

15. On 10 February 2017 the applicant responded to the NOICC and provided the following information:

    I got an agent, Mr. Alex Chen, to apply the La Lingua Language school for me around

    April. May 2016. I passed all the information required by the school to him, and he had sent

    me the school offer and told me that he would take care of enrollment and the rest. That's

    why I think my student visa has no problem. Also I did paid the tuition fees, I transferred 2

    times to agent account and 1 time to school account. Please see attachment as proof.

    After I had received your mail, I immediately request the evident from my agent. He gave me the COE which I had attached.

    Few weeks ago I asked for transferring school to Perth as to be near to my relatives. And also I got the offer letter from new school. I really want to study and finish my course, to get a certificate, diploma, that will really good for me in my future career.

16. When responding to the NOICC the applicant also provided a copy of a Letter of Offer from the Australian Institute of Commerce and Technology to study the Certificate IV in Business course from 6 March 2017 to 1 September 2017. The applicant told the Tribunal that she was not able to accept the offer because her visa was cancelled.

17. The applicant told the Tribunal that she paid Mr Chen a lot of money to enrol her in her courses. She said the first time she was aware that she was no longer enrolled in a course was when she received the NOICC.

18. The Tribunal noted that PRISMS shows the applicant’s academic history to include:

    CoE Code 71D43A40 Certificate IV in Business - Period of study 08/01/2016 -

    08/09/2016 - Course Status: Unsatisfactory Attendance (last day of study: 2/05/2016)

    Education provider comments: Student was cancelled for low attendance. Evidence

    provided by student was insufficient and appeal was not approved.

19. The Tribunal put the PRISMS information to the applicant pursuant to s.359AA of the Act. The Tribunal pointed out that PRISMS indicates that her education provider discussed her unsatisfactory attendance and that her appeal was not approved. The Tribunal put to the applicant that she would therefore have been aware that her enrolment had been cancelled in May 2016.

20. The applicant said Mr Chen had told her she could study online and that was the reason she had not attended classes. She said she made a mistake in not checking that she was enrolled.

21. The Tribunal asked the applicant whether she made any attempt to enrol after cancellation of her enrolment in May 2016 and prior to receiving the NOICC in February 2017. She said she emailed and texted Mr Chen and asked him to enrol her in a Massage course. The applicant’s evidence in relation to the reason for changing her field of study from Business to Massage was not clear. She said she waited to hear from Mr Chen about her enrolment before she received the NOICC. Noting that a period of nine months elapsed from cancellation of her enrolment until the NOICC, the Tribunal asked the applicant the reason she retained Mr Chen when it appeared he had not provided her with a reliable service. She said she had paid him a lot of money and she did not want the money to be paid for nothing.

22. Since cancellation of her visa the applicant has been financially supported by her partner.  

23. Regarding her future plans the applicant said she and her partner reside in Broome and said they have lodged an application for a Partner visa. She said the courses offered in Broome are limited to IT or child care. She hasn’t chosen the course she will study but it will probably be child care.

24. Regarding the potential hardship which would result from the cancellation of her visa the applicant said she would have to wait for three years to lodge a Partner visa application.  The applicant also said that cancellation of her visa will also cause financial hardship because her partner is working two jobs to support them and she is not working.

25. The written submission provided following the hearing included the following:

    The Review applicant wishes to apply for a Partner Visa and will be prevented from doing so in the event that she is obliged to lodge such a Visa offshore given the exclusion period. She would like to proceed with an onshore application for Partner visa and is more likely to satisfy the Public Interest and Special Return criterion in the absence of a cancellation decision that is allowed to remain.

26. Following the hearing the applicant provided a letter addressing the circumstances of the cancellation of her enrolment and her reasons for coming to Australia to study and her future study plans. The information provided was not materially different to the information provided at hearing.

27. In the written submission provided on 2 July 2018 the applicant’s representative said the applicant will suffer emotional, financial and other hardship if her visa is cancelled. She said she will be depressed if she is not permitted to study. The applicant’s representative said the applicant had extenuating circumstances that led to her non-compliance and referred to a failure on the part of her advisors.

    Conclusion

28. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of the breach and reasons for the breach as set out in the response to the NOICC and in the applicant’s oral evidence.

29. The applicant told the Tribunal that the cancellation of her enrolment was due to her agent not maintaining her enrolment and because she made a mistake in not checking her enrolment.

30. The purpose of the student visa is to enable the visa holder to undertake study in Australia. The applicant has not been enrolled in a registered course since 6 May 2016 and more than nine months elapsed from that date until the NOICC was issued. Based on the evidence, the Tribunal finds the applicant’s breach of condition 8202 of her visa to be significant because she was not engaging in study for which her visa was granted and was not fulfilling the purpose of her travel to and stay in Australia.

31. In relation to the applicant’s claim that Mr Chen was responsible for her enrolment, the Tribunal is of the view that it is the applicant’s responsibility as the visa holder to ensure that she is aware of and complies with the conditions of her visa. When the education provider did not approve her appeal following cancellation of her enrolment in May 2016 the applicant would have been aware that she had become non-compliant of the enrolment condition and would have realised that this would have impacted on her eligibility to continue to hold the student visa.

32. There was no evidence to indicate that the ground for cancellation arose due to extenuating circumstances beyond the applicant’s control.

33. The Tribunal acknowledges that the cancellation of the applicant’s visa may cause her emotional hardship because of the impact it may have on her application for a Partner visa. The Tribunal accepts that the applicant may also suffer financial hardship although no details in this regard were provided. However, the Tribunal is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

34. The Tribunal has no evidence before it that the applicant’s past and present behaviour towards the Department has been untruthful or unco-operative.  It considers this is a consideration that is in her favour and it has taken this into account.

35. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice pertaining to her immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion.

36. There are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

37. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

38. The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Christine Kannis
    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.