Li (Migration)

[2019] AATA 4104

Li (Migration) [2019] AATA 4104 (2 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yixuan Li

CASE NUMBER:  1920726

HOME AFFAIRS REFERENCE(S):           BCC2019/1451129

MEMBER:Lisa Hannon

DATE:2 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 02 September 2019 at 12:51pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – failure to attend scheduled hearing – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – voluntarily cessation of studies – significant period of non-enrolment – purpose of stay in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 July 2019 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 (Act) (Decision).

2. The delegate cancelled the visa on the basis that that the applicant had not complied with subclause 8202(2)(a) of condition 8202, finding that the applicant had not been enrolled in a full time registered course of study since 26 March 2018.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The application for review of the Decision was lodged by the applicant on 29 July 2019.  On 16 August 2019, the Tribunal wrote to the applicant to invite her to attend a hearing on 2 September 2019 at 9.30 am (Invitation).

5. The Invitation was sent to the last address provided in connection with the review (being that of the applicant’ registered migration agent (Agent)), and requested a response within 7 days of receipt.

6. The applicant did not respond to the Invitation within the requested period.  However, during the afternoon of 30 August 2019, the business day prior to the hearing, the applicant’s Agent returned a response to the Invitation completed by the applicant, which indicated that the neither the applicant nor her Agent would attend at the hearing. 

7. The Invitation expressly noted that if the applicant indicated that she would not take part in the scheduled hearing, then the Tribunal may make a decision on the application without taking any further action to allow or enable the applicant to appear before it.

8. The Tribunal is satisfied that the applicant was properly sent the Invitation, and that she wishes for the application to be determined without a hearing.

9. In these circumstances, and pursuant to section 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.

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 (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?

12. 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).

13. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

14. The Decision recorded that a Notice of Intention to Consider Cancellation was sent to the applicant on 3 June 2019 (NOICC).  The Decision sets out that the applicant at the time of the NOICC was not enrolled in full time registered course of study, and had not been so enrolled since 26 March 2018.

15. The applicant did not respond to the NOICC, nor has she provided any further information whatsoever to the Department, or to the Tribunal.

16. On the basis of the evidence before it the Tribunal finds that the Applicant has not been enrolled in a full-time registered course of study since 26 March 2018.  The Tribunal finds that the applicant breached condition 8202.  As that ground does not require mandatory cancellation, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of the discretion to cancel the visa

17. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. However, in considering whether to exercise the discretion, the Tribunal has had regard to the relevant circumstances of this case, including but not limited to matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    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

18. There is no evidence before the Tribunal to suggest that the applicant’s purpose in travelling to and staying in Australia was not to study, and has given this factor some limited weight in favour of not cancelling her student visa.

    The extent of compliance with visa conditions

19. The Tribunal has taken into account the fact that the applicant breached a condition of her visa.  The applicant has not responded to the NOICC, or provided the Department or this Tribunal with any evidence or information about the extent of the breach, or the reason why it occurred. 

20. The PRISMS information discloses that the applicant was initially enrolled in, and completed, a series of English language courses.  The applicant was then enrolled in a Masters of Professional Accounting, which was cancelled twice for non-payment of fees.  Importantly, the PRISMS information noted that the applicant’s enrolment in that course was cancelled for a third time on 26 March 2018, upon receiving notice of cessation of studies from her.

21. Thus, it appears that the applicant was not enrolled in a registered course from 26 March 2018 to 22 July 2019, a period of over 15 months.  Further, the applicant withdrew from that course of studies, notwithstanding the condition 8202.

22. The Tribunal considers this to be a significant period and, together with the apparently voluntarily cessation of studies, gives it substantial weight in favour of cancellation of the applicant’s visa.

23. The Tribunal has no evidence before it that the applicant has not complied with other visa conditions; the Tribunal gives that some limited weight in the applicant’s favour.

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

24. The applicant has not responded to the NOICC, or provided the Department or this Tribunal with any evidence or information about the degree of hardship that might be caused.  Further, her the term of her visa would otherwise have ceased on 30 September 2019.

25. The Tribunal considers, on the evidence before it, that the applicant will not face any degree of hardship if her visa is cancelled, and has given this no weight in her favour.

    The circumstances in which ground of cancellation arose, including extenuating circumstances

26. The applicant has not responded to the NOICC, or provided the Department or this Tribunal with any evidence or information about the circumstances in which this ground for cancellation arose.  The applicant was granted the visa so as to permit her to engage in a full-time registered course of study, in the field of accounting.  She appears to have voluntarily ceased those studies. 

27. The Tribunal considers, on the evidence before it, that there are not any extenuating circumstances, and has given this no weight in her favour.

    The past and present behaviour of the visa holder towards the department

28. There is no evidence before the Tribunal to indicate that the applicant has been untruthful or uncooperative in her dealings with the Department.  The Tribunal gives this some limited weight in the applicant’s favour.

    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

29. The cancellation of the applicant’s visa will result in her being unable to be granted some temporary visas, including visitor and student visas, for a three year period (condition 4013).  The applicant will also be prevented from applying for many permanent visas onshore. 

30. The applicant currently holds a bridging visa that allows her to remain lawfully in Australia. 

31. The Tribunal gives this only limited weight in favour of the visa not being cancelled.

    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

32. The applicant has not raised any matters that indicate that this is an issue and the Tribunal finds these factors are not relevant in the circumstances of the applicant.

    Any other relevant matters.

33. There are no other relevant matters,

34. Having regard to the matters set out above, whilst the Tribunal accepts that the applicant came to Australia intending to study in 2015, that position changed.  The evidence on the whole suggests that the applicant does not intend to stay in temporarily in Australia for the purposes of completing her studies.  The Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Lisa Hannon
    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.