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

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).
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.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant was represented in relation to the review.
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.
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.
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.
On 28 September 2022, the Tribunal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Li (Migration)

Details

AGLC: Li (Migration) [2022] AATA 3871
Case: [2022] AATA 3871
Decision Date: 28 October 2022

CaseChat Overview and Summary

This case concerned the applicant, a holder of a Student (subclass 500) visa, and the cancellation of that visa by the Department of Home Affairs. The dispute centred on whether the applicant had breached condition 8202 of the Migration Regulations 1994 (Cth), which requires a student visa holder to maintain enrolment in a full-time registered course. The matter was heard by Christine Kannis, a Member of the Tribunal.

The legal issues before the Tribunal were whether the applicant had failed to comply with condition 8202 of their visa, specifically by ceasing to be enrolled in a full-time registered course, and if so, whether the decision to cancel the visa should be affirmed. Condition 8202 mandates that the holder be enrolled in a full-time registered course, maintain enrolment in a course leading to a qualification at the same or higher Australian Qualifications Framework level, and not be certified by their education provider as failing to achieve satisfactory course progress or attendance.

The Tribunal found that the applicant had breached condition 8202(2)(a) by ceasing to be enrolled in a full-time registered course. This conclusion was based on evidence from the Provider Registration and International Students Management System (PRISMS), which indicated multiple cancellations of enrolment, including due to non-payment of fees and non-commencement of studies. While the applicant provided reasons for these issues, including being detained by police and facing criminal charges, the Tribunal noted a history of cancelled enrolments and ultimately concluded that the ground for cancellation under s 116(1)(b) of the Act was established. The Tribunal then exercised its discretion to affirm the cancellation, considering the circumstances as a whole.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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 The Tribunal affirms the decision to cancel the applicant’s Class TU visa.Christine KannisMemberATTACHMENTMigration Regulations 1994…Schedule 88202(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.

Ratio Decidendi

Legal Principle Established

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 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. 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 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. 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.