Li (Migration)

[2022] AATA 3871

Li (Migration) [2022] AATA 3871 (28 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yuran Li

REPRESENTATIVE:  Mr Anthony Parsons

CASE NUMBER:  2117760

HOME AFFAIRS REFERENCE(S):          BCC2021/1486787

MEMBER:Christine Kannis

DATE:28 October 2022

PLACE OF DECISION:  Perth

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

Statement made on 28 October 2022 at 7:50am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course ceased – applicant charged with criminal offences and detained – multiple courses cancelled – decision under review affirmed  

LEGISLATION

Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 48, 116, 140, 189, 198
Migration Regulations 1994, Schedule 4 Public Interest Criterion 4013; Schedule 8, Condition 8202; rr 1.03, 2.43

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 25 November 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of his visa. 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. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant was represented in relation to the review.

5. On 15 September 2022, the Tribunal sent the applicant an Invitation to Attend a Hearing letter (by email) which advised that a hearing had been listed for 25 October 2022. The Invitation informed the applicant that if he was unable to attend the hearing then he should advise the Tribunal as soon as possible. The Invitation advised that if he did not attend the hearing a decision may be made on the review without taking any further action to allow or enable him to appear before the Tribunal or that his application for review may be dismissed without any further consideration on the application and based on the information before the Tribunal. The Invitation also requested the applicant provide all documents on which he intended to rely to support his case by 18 October 2022.

6. On 21 September 2022, the applicant provided a Response to the hearing invitation in which he indicated that he would not participate in the hearing and consented to the Tribunal making a decision without taking further steps to allow him to appear. He also indicated that  his representative would attend the hearing and that the documents on which he intended to rely were written submissions.

7. On 26 September 2022, the representative advised that the applicant did not wish to attend the hearing and that he will be in prison at the time of the hearing.

8. On 28 September 2022, the Tribunal sent the following email to the representative:

   The Tribunal acknowledges receipt of the response to the Hearing Invitation dated 21 September 2022. The Member has requested clarification of the following.

   The response to the Hearing Invitation indicates that the applicant will not attend the hearing and that consent is given to the Tribunal to make a decision on the papers. However the response also indicates that you will attend the hearing.

   Please clarify whether the applicant’s instructions are that the matter be determined on the papers or whether the matter will proceed to a hearing with you attending. Please provide clarification by 4 October 2022.

   The response also indicated that the evidence on which the applicant seeks to rely is contained in written submissions. We confirm the advice in the Hearing Invitation that all documents on which the applicant intends to rely be provided by 18 October 2022.

9. On 30 September 2022, the representative responded by email and advised:

   Please be advised that I have sought specific instructions in respect of the issue raised. I am instructed to request that the matter be determined on the papers and that a hearing is not required. I understand that I will not be required to attend and that I will provide written submissions by the prescribed date .

10. 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

11. 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 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.

    Background

12. On 24 December 2015, the applicant was granted a Student (subclass 573) visa to complete an Academic English (Pre-Intermediate to Advanced) Course, UTS Foundation Studies (Standard) and a Diploma of Business (Standard) at UTS College in New South Wales (NSW).  

13. On 29 October 2020, the applicant was granted a Student (subclass 500) visa to complete an Advanced Diploma of Leadership and Management and a Graduate Diploma of Management (Learning). 

    Did the applicant comply with condition 8202?

14. On 29 October 2020 the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.

15. 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 full-time registered course: 8202(2)(a)

    ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

    ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

    ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

16. 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.

17. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full-time registered course.

18. Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2]

    [1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).

    [2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act.

19. The information from the PRISMS shows that the applicant was not enrolled in a registered course of study since his enrolment in an Advanced Diploma of Leadership and a Management Graduate Diploma of Management (Learning) was cancelled on 13 July 2021 until he obtained a CoE on 4 November 2021.

20. On 18 October 2022, the representative provided written submissions which included the following:

    The applicant completed a General English (Elementary to Upper Intermediate), Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management course from Australian Hospitality Skills Recognition Pty Ltd in Burwood NSW, with his last date of completion noted as 11 November 2020.

    On the 2 June 2021 the appellant was arrested for his role in the commission of a number of criminal offences. He has remained in custody since that date.  He initially denied the charges against him but after substantial negotiations with the Office of the Director of Public Prosecutions (ODPP) an agreement was reached and the appellant admitted responsibility to some matters. He is now due to be sentenced in the Sydney District Court on the 14 November 2022.

    Given that the appellant had not been enrolled in a registered course of study since the 13 July 2021 it appeared to the Department of Home Affairs (DOHA) that the appellant had not complied with the requirements of subclause (2)(a) of condition 8202, and therefore, there appeared to be grounds for cancelling his visa under s.116(1)(b) of the Migration Act 1958.

    The appellant made urgent enquiries through his migration agent and in fact then enrolled in a registered course with a start date of 22 November 2021 and an end date of 21 May 2023. 

    Section 116 (1) of the Act provides:

    Subject to subsections (2) and (3) the Minister may cancel a visa if he or she is satisfied that:

    (a)Its holder has not complied with a condition of the visa;

    On the 25 November 2021 DOHA notified the appellant in writing that his visa had been cancelled under s.116 (1) )b).

    Section 116 (2) of the Act provides, inter alia, :

    The Minister is not to cancel a visa under subsection (1) if there exist circumstances in which a visa is not to be cancelled.

    In the letter to the appellant dated the 25 November 2021, at page 4, paragraph 3,  under the heading Reasons:,   DOHA states, “While the visa holder has provided a CoE from Metro Institute indicating he is enrolled in an Advanced Diploma of Leadership and Management, I note that this was cancelled on 18 November 2021 for non-commencement of studies.

    It appears that this statement from DOHA may be in error as, according to the statement, the CoE was cancelled for non-commencement of studies before the course had even commenced.   As indicated in annexure A, the course start date was 22 November 2021.

    It is submitted on behalf of the appellant that the visa should not have been cancelled because circumstances existed in which it was not be cancelled.  Those circumstances were that the appellant was in fact enrolled in a registered course of study at the relevant time.

21. The Tribunal accepts that the applicant’s enrolment in an Advanced Diploma of Leadership and Management course was cancelled prior to the commencement date of the course. The Tribunal does not find this to be an error.

22. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 13 July 2021 until he obtained a CoE for an Advanced Diploma of Leadership and Management which was created on 4 November 2021.  Accordingly the applicant failed to maintain enrolment in a registered course for a period of nearly four months and the Tribunal finds that he breached condition8202(2)(a) of his visa.

23. 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

24. 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’, as set out below.

25. On 12 October 2021, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of his visa.

    Response to NOICC

26. On 27 October 2021 and 1, 8 and 12 November 2021 the applicant responded to the NOICC and provided the following information:

    ·He was unable to continue his enrolment for the Advanced Diploma of Leadership and Management course because he was taken into custody by the NSW Police on 2 June 2021 for matters for which he denied responsibility. He has assisted police with nominating the persons involved in the alleged criminal activity. This incident prevented him from being enrolled in the course.  It is anticipated that this matter with the police will soon be resolved.

    ·CoE for an Advanced Diploma of Leadership and Management at Metro Institute created on 4 November 2021, with the course scheduled to commence on 22 November 2021.

    ·He is an inmate at the Parklea Correctional Centre and stands charged with drug supply related charges involving relatively small amounts as well as charges relating to allowing his bank accounts to be used by others to remit money to overseas bank accounts. He has not been sentenced yet and negotiations are taking place between his lawyers and the Office of the Director of Public Prosecutions and he anticipates that his charges will be downgraded.

27. The Tribunal noted the following information from the applicant’s PRISMS enrolment record:  

    a.He was enrolled in English and Business courses between 2016 and 2019, 14 of which were cancelled and 3 of which he finished.

    b.He was enrolled in an Advanced Diploma of Leadership and Management, but this enrolment was cancelled on 27 August 2020 due to Change to CoE/Student Details.

    c.He  was enrolled in an Advanced Diploma of Leadership and Management course which he completed on 11 November 2020.

    d.He  was enrolled in two Advanced Diploma of Leadership and Management courses which were due to commence on 22 November 2021. Both these courses are recorded as Inactive.

    e.He was enrolled in an Advanced Diploma of Leadership and Management, but this enrolment was cancelled on 13 July 2021 due to non-payment of fees.

    f.He was enrolled in a Graduate Diploma of Management (Learning ) but this enrolment was cancelled on 13 July 2021 due to non-commencement of studies.

    g.He was enrolled in an Advanced Diploma of Leadership and Management but this enrolment was cancelled on 18 November 2021 due to non-commencement of studies.

    h.He is currently enrolled in an Advanced Diploma of Leadership and Management course and is indicated to be studying. The course commenced on 24 January 2022.

28. The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.

    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

29. The applicant was granted a student visa to study in Australia. The applicant was not enrolled from 13 July 2021 until 4 November 2021. At the time the NOICC was issued the applicant had not been enrolled in a registered course for three months. The Tribunal notes that the applicant obtained the CoE on 4 November 2021, after the NOICC was issued. The Tribunal notes this enrolment was cancelled on 18 November 2021 for non-commencement of studies.  The responses to the NOICC and the representative’s written submissions say the applicant’s arrest on 2 June 2021 and being held in custody are the reasons he was not studying. The applicant remains in custody and is due to be sentenced on 14 November 2022. The applicant’s incarceration is not consistent with the purpose of his student visa.

30. In relation to the Advanced Diploma of Leadership and Management course which PRISMS indicates the applicant is currently studying, on 25 October 2022 the course provider advised as follows:

    With regards to student LI Yuran, he did not commence into the course with us this year. So we have no current information only the registration record from his education agent.

    The reason why COE is not cancelled is that his agent informed that student lodged visa and waiting for process even though outstanding fees is not paid so far.

31. The Tribunal finds the applicant’s breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia since 13 July 2021.

32. The applicant did not attend the hearing. The responses to the NOICC and the representative’s written submissions did not address whether there was a compelling need for the applicant to remain in Australia.  

33. The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

    The extent of compliance with visa conditions

34. The applicant has not complied with condition 8202 of his student visa because he has failed to maintain enrolment in a full-time registered course of study from 13 July 2021 until 4 November 2021. The applicant’s non-compliance for a period of three months prior to the issuing of the NOICC weighs in favour of visa cancellation.

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

35. The applicant did not attend the hearing. The responses to the NOICC and the representative’s written submissions did not address the degree of hardship that may be caused by cancellation of the visa.

36. The delegate noted that noted that the applicant has been residing in Australia for over five years and may have established social ties and cancellation of his visa may cause him some emotional hardship. The delegate also refers to the cancellation of the visa causing applicant  some financial hardship. 

37. The Tribunal accepts that the cancellation of the applicant’s visa may cause emotional and financial hardship. The Tribunal gives this some weight against cancellation.

    Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control

38. The applicant’s visa was cancelled as a result of his failure to maintain enrolment. The responses to the NOICC and the representative’s written submissions state that the applicant’s arrest and being held in custody were the reasons he failed to maintain enrolment.

39. The applicant has been in held in custody since 2 June 2021. In his response to the NOICC  the applicant said charges were drug supply related charges and charges relating to allowing his bank accounts to be used by others to remit money to overseas bank accounts.  The Tribunal was not provided with any other information in relation to the applicant’s involvement in the charge matters.

40. The Tribunal notes that there is no evidence before it or claim made that the applicant, given his claimed circumstances, ever approached his education provider or the Department either seeking a deferral or informing them of his non-compliance respectively.

41. The Tribunal acknowledges the reasons the applicant was not enrolled from 13 July 2021 however in the absence of evidence in relation to the applicant’s involvement in the charge matters, the Tribunal is not satisfied that these reasons constitute matters that were outside of the control of the applicant.  This weighs in favour of visa cancellation.

    Past and present behaviour of the visa holder towards the Department

42. The delegate noted that the applicant has been co-operative and prompt in his dealings with the Department in relation to the NOICC. The Tribunal gives this some weight against cancellation.

    Whether there would be consequential cancellations under s 140

43. There is no one attached to the applicant’s visa and as such the Tribunal gives this factor no weight in its considerations.

    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

1. The Tribunal has considered the mandatory legal consequences of a cancellation decision. The Tribunal notes that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s189 and removal under s198 of the Migration Act if he does not voluntarily depart Australia. He will also be subject to an s 48 bar which will limit his options in applying for further visas in Australia. Depending on the visa applied, the Tribunal notes that the applicant will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a temporary visa for three years from this date except in certain circumstances. The Tribunal notes that the applicant has been charged with offences and is awaiting sentencing. The legal consequences of the cancellation specific to the applicant is that he is likely to be removed to Immigration Detention upon cancellation unless another visa allows him to stay pending the resolution of his criminal matter. The delegate also noted that the prosecuting authority are able to be request a Criminal Justice Stay certificate to prevent the applicant’s involuntary removal from Australia, should they seek for him to remain in Australia for purposes of legal proceedings.

2. On the evidence before it, the Tribunal weighs this factor neither in favour nor against cancelling the visa.     

   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

3. The circumstances of the applicant would not engage Australia’s international obligations. There is nothing to suggest and the applicant has not claimed that Australia’s international obligations would be breached as a result of the cancellation. There is nothing to suggest that the applicant has any children in Australia whose interests would be affected if the visa was cancelled. Accordingly, the Tribunal gives this factor no weight in its considerations.

   Any other relevant matters

4. The Tribunal is not aware of any other relevant matters which will impact whether the visa ought to be cancelled.

5. The Tribunal notes that under s 116(2) of the Act, the Minister is not to cancel a visa if there are prescribed circumstances where a visa must not be cancelled. No circumstances are prescribed. The Tribunal notes that under s 116(3) of the Act, the Minister must cancel a visa if there are prescribed circumstances. Regulation 2.43(2) of the Regulations sets out the prescribed circumstances. The circumstances of this case do not come within those prescribed circumstances.

   Conclusion

6. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of his visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant is not fulfilling the purpose of his travel to and stay in Australia as he is not undertaking the study for which his visa was granted. The Tribunal is not satisfied that the ground of cancellation arose due to circumstances beyond the applicant’s control in this case. The Tribunal is satisfied that the cancellation will not affect any other person’s visa. It will not be in breach of Australia’s international obligations. The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

7. 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

8. 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 must be enrolled in a full time course of study or training if the holder is:

   (a)a Defence student; or

   (b)     a Foreign Affairs student; or

   (c)      a secondary exchange student.

   (2) A holder not covered by subclause (1):

   (a)      must be enrolled in a full time registered course; and

   (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

   (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

   (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

   (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

   (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

   (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

   (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.