LI (Migration)

[2019] AATA 3462

LI (Migration) [2019] AATA 3462 (8 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr QIXIANG LI

CASE NUMBER:  1705746

HOME AFFAIRS REFERENCE(S):          BCC2016/4313747

MEMBER:Lynda Young

DATE:8 August 2019

PLACE OF DECISION:  Sydney

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

Statement made on 08 August 2019 at 5:27pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – failure to attend schedule hearing – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – failure to participate meaningfully in the review process – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B, 379A
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 15 March 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant’s visa was subject to condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations), requiring the applicant to be enrolled in a registered course of study.

3.    The delegate cancelled the visa on the basis the applicant, in breach of visa condition 8202(2)(a), was not enrolled in a registered course of study since the 10 January 2016, and the grounds in favour of cancellation outweighed the grounds against cancellation. The issues in the present case are whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

4.    By letter emailed to the applicant on 8 March 2019, the Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in his case at a hearing on 27 March 2019 at 9:30 AM. The invitation advised the applicant the Tribunal may, if he did not attend the scheduled hearing and an adjournment was not granted, make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

5.    On 20 March 2019 and again on 26 March 2019, the Tribunal sent the applicant reminders by SMS about the hearing on 27 March 2019.

6.    No response to the hearing invitation was received by the Tribunal, and no return to sender or delivery failure notice was received in response to the Tribunal’s email or either SMS message.

7.    The applicant failed to appear before the Tribunal at the scheduled hearing on 27 March 2019 at 9:30 AM.  At approximately 9:58 AM, a member of the Tribunal’s staff telephoned the applicant’s mobile phone number, but the call went unanswered. Neither the applicant or anyone on his behalf provided any explanation for his non-attendance or any documents including medical certificates, submissions, written responses to the hearing invitation or any requests for postponements to the Tribunal, at any time prior to the time of making this decision.

8.    The Tribunal is satisfied the applicant was properly invited to a hearing in accordance with s.379A(5) of the Act. 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.

9.    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

10. The issue in the present review is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Regulations. If the applicant has breached that condition, under s.116(1)(b) of the Act, the visa may be cancelled.

11.      On 23 March 2017, the applicant filed with the Tribunal, his application for review of the delegate’s decision attaching, in support of his application, the first page of the Visa Grant Notice for his student visa dated 21 March 2014, a copy of his passport, and a letter from the applicant, stating:

“My name is LI, Qixiang … I was granted the student visa (573) in 2014. I could not check my visa status via VEVO a week ago. However, I could not contact the migration and education agency who helped to apply the visa, so I did not have the visa cancellation letter. I think the visa has been canceled.

Therefore, I'm writing to submit the application to review the decision.”

12.      By letter emailed to the applicant on 28 March 2017, the Tribunal acknowledged receipt of his review application and requested he provide, as soon as possible, a copy of the department's decision, or any other material the applicant believed supported his application, including a statement explaining why he disagreed with the department's decision, and any supporting material or written arguments he wished the Tribunal to consider.

13.      In addition to inviting the applicant to appear before it to give evidence and present arguments relating to the issues in his case at the hearing, the Tribunal’s hearing invitation of 8 March 2019 also requested the applicant provide within seven days, any additional documents or information on which he wished to rely.

14.      The applicant did not appear before the Tribunal at the scheduled hearing and did not give hearing evidence or present arguments. Despite the Tribunal’s requests, the applicant did not provide the Tribunal with a copy of the department's decision, or a statement explaining why he disagreed with the decision, did not provide any documents or material supporting his case other than the first page of the Visa Grant Notice for his student visa dated 21 March 2014, a copy of the his passport, and his letter dated 23 March 2017 attached to his application for review, and did not provide any submissions or written arguments relating to the issues in his case, or in relation to the grounds for cancellation or why his visa should not be cancelled, or at all. As a result, the evidence the applicant has placed before the Tribunal on this review application comprises:

a.the review application and attached documents (the first page of the Visa Grant Notice for the applicant’s student visa dated 21 March 2014, a copy of the applicant’s passport, and a letter from the applicant dated 23 March 2017); and

b.the Tribunal’s correspondence with the applicant

Did the applicant comply with Condition 8202?

15.      Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

a.be enrolled in a registered course, or in limited cases, a full-time course of study or training: 8202(2)

b.has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

c.has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

16.      The applicant had, as at the hearing date, slightly more than two years to provide to the Tribunal any evidence supporting his application. In that time, despite the Tribunal’s requests in its review application acknowledgement and hearing invitation, has failed to provide any documents or submissions supporting his application, and has not provided a copy of the department's decision or disputed the ground for cancellation existed or provided reasons why his visa should not be cancelled. The Tribunal invited the applicant to give evidence and present arguments relating to the issues in his case at a hearing. He failed to attend the hearing, and failed to give evidence at hearing and present arguments as invited. As the Tribunal has not had the opportunity of taking evidence at hearing from the applicant about the issues in his case, or in relation to the grounds for cancellation or why his visa should not be cancelled, or at all.

17.      On the evidence before it, the Tribunal cannot be satisfied the applicant was not in breach of visa condition 8202(2)(a).

18.      Accordingly, the Tribunal is satisfied the ground for cancellation in s.116(1)(b) exists.

19.      As the 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

20.      Having found the applicant had breached a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa. There are no  matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion.

21.      The Tribunal has had regard to the circumstances of this case, including matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

22.      In the slightly more than two year period between the decision and the Tribunal hearing, and despite the Tribunal’s requests in its review application acknowledgement and hearing invitation, the applicant has not provided any documents or submissions or given any evidence at hearing in respect of any of the PAM3 matters or other circumstances for the Tribunal’s consideration in its exercise of the discretion to cancel the visa.

23.      The PAM 3 matters are addressed in the decision. The applicant has not disputed any of the information or conclusions set out in respect of the PAM3 matters.

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

24.      There is no evidence before the Tribunal to suggest that the applicant’s original intention for his travel to and stay in Australia was not for the purpose of study.

25.      Student visas are granted for the purpose of non-citizens and non-permanent residents studying towards, and achieving, an educational qualification in Australia. That purpose cannot be achieved unless the visa holder is enrolled in a registered course of study. Considered in that context, a failure to be enrolled in a registered course of study is significant and would weigh in favour of cancellation.

26.      However, the applicant has provided no evidence to the Tribunal about his purpose; and accordingly the cannot be satisfied the applicant’s intended purpose of travel to and stay in Australia provides a compelling need to travel to and remain in Australia. If he genuinely had compelling need, it would be reasonable to expect the applicant to have participated meaningfully in his review application, rather than not attending the hearing without explanation. The Tribunal gives this consideration weight in favour of cancelling the visa.

27.      The applicant has provided no evidence to the Tribunal suggesting he has a compelling need to remain in Australia or that he had a compelling need to travel to Australia. The applicant's failure to participate meaningfully in his review application satisfies the Tribunal the applicant does not have a compelling need to remain in Australia. The Tribunal gives this consideration weight in favour of cancelling the visa.

Extent of non-compliance with any conditions subject to which the visa was granted: whether the visa holder has otherwise complied with the visa conditions now and on previous occasions

28.      The applicant has provided no evidence to the Tribunal about his non-compliance with visa conditions and accordingly the Tribunal cannot be satisfied as to the extent to which the applicant did or did not comply with this visa condition.

29.      The Tribunal weighs this factor neither in favour of nor against cancelling the visa.

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

30.      The applicant has provided no evidence to the Tribunal and the Tribunal is therefore unable to be satisfied any specific hardship may be caused to the applicant or his family if his visa is cancelled, and considers this factor weighs in favour of cancellation

31. The Tribunal accepts visa cancellation ordinarily results in the visa holder becoming unlawful and liable for detention under s189 and removal under s198 unless that person voluntarily departs Australia or holds a bridging visa. Movement records indicate the applicant was granted a Bridging Visa E on 24 March 2017, which remains in force. Although the basis on which it was granted and when it will cease are not specified, given the nine day period between the applicant lodging this review application and being granted the visa, the Tribunal is satisfied it is reasonable to infer it was granted based on this review application and accordingly would remain in force for 35 days after the Tribunal makes its decision on the review application. In those circumstances, the Tribunal is not satisfied the applicant would become unlawful or liable to detention upon cancellation or be caused any hardship as might otherwise result.

32. The Tribunal accepts the applicant would, if his visa were cancelled, be subject to s.48 of the Act, which significantly limits the classes of visa for which he may apply onshore. The Tribunal is satisfied cancellation of the applicant’s visa would prevent him re-entering Australia for up to 3 years as he may not meet the public interest criterion 4013.

33.      The Tribunal considers any hardship as may be caused by these intended consequences of cancellation weighs neither in favour or against not cancelling the visa

The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

34.      Given the applicant did not attend the hearing and has not provided any information as to the circumstances surrounding his breach of condition 8202, the Tribunal is unable to be satisfied about the circumstances in which the ground for cancellation arose. Accordingly, the Tribunal cannot be satisfied as to whether there were any extenuating circumstances beyond his control that led to the applicant breaching his visa conditions. The Tribunal weights this factor neither in favour of nor against cancelling the visa.

Past and present conduct of the visa holder towards the Department

35.      On the available evidence, the Tribunal is not satisfied the applicant’s the applicant’s past or present behaviour towards the Department was adverse. The Tribunal weighs this factor neither in favour of nor against cancelling the visa.

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

36. The Tribunal is satisfied cancellation of the applicant’s visa would, in addition to preventing him re-entering Australia for up to 3 years as he may not meet the public interest criterion 4013, limit his ability to remain in Australia but would not, as he hold an in-force Bridging Visa E, result in him immediately becoming unlawful and liable to detention under s189 of the Act or removal under s198 of the Act.

37. The Tribunal accepts the applicant would, if his visa were cancelled, be subject to s.48 of the Migration Act, which significantly limits the classes of visa for which he may apply onshore.

38.      The Tribunal gives this consideration weight in favour of not cancelling the visa.

Whether there would be consequential cancellations under s.140 and whether any international obligations would be breached as a result of the cancellation.

39.      On the evidence before the Tribunal, there are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing before the Tribunal to suggest Australia’s international obligations, including in respect of non-refoulement and best interests of the children, would be breached as a result of the visa cancellation. The Tribunal weighs this factor neither in favour of nor against cancelling the visa.

Other relevant considerations

40.      The Tribunal is not satisfied the applicant has satisfactorily demonstrated he is a genuine student who should have his visa reinstated because he is genuinely interested in completing his studies.

41.      Taken together and considered as a whole, matters weighing in favour of cancellation of the visa outweigh the matters weighing against cancellation. In circumstances where the applicant has failed to take any active role in the Tribunal’s review process or provide any supporting material or information (other than his application and attached documents) despite the Tribunal requesting he do so, the Tribunal is satisfied factors in favour of cancelling the visa outweigh those in favor of not cancelling the visa.

42.      Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

43.      CONCLUSION

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

Lynda Young
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.