Lu (Migration)

[2020] AATA 3517

Lu (Migration) [2020] AATA 3517 (19 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Xinyu Lu

CASE NUMBER:  1900647

HOME AFFAIRS REFERENCE(S):          BCC2018/5016292

MEMBER:Frank Russo

DATE:19 July 2020

PLACE OF DECISION:  Sydney

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

Statement made on 19 July 2020 at 4:04pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – failure to attend scheduled hearing – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of stay – length of non-enrolment – 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 4 January 2019 made by a delegate of the Minister for Home Affairs 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 delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study from 8 December 2017 until the date of the delegate’s decision on 4 January 2019. 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. The applicant appealed that decision to this Tribunal, attaching a copy of the Department decision to his application, as well as a copy of his passport photograph page and an academic transcript for the Diploma of Business, issued by La Trobe University on 28 March 2014. The applicant did not subsequently provide any other documents to the Tribunal. There are no documents provided by the applicant to the Department on the Department file. The Tribunal has read and had regard to these documents, as well as to the documents on the Department file.

4. The applicant was notified that the Tribunal had considered the material before it, but the Tribunal was unable to make a favourable decision on this information alone. The applicant was invited to appear before the Tribunal by telephone hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review, on 17 July 2020 at 3:30pm.

5. The applicant was advised that, if he failed to attend the scheduled hearing and an adjournment was not granted, the Tribunal might make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal.

6. The applicant did not acknowledge the Tribunal correspondence. The applicant did not attend the Tribunal hearing on 17 July 2020 at 3:30pm and the Tribunal has received no explanation.

7. In these circumstances, pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action.

8. 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

9. 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?

10. 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).

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

12. On 8 December 2017, the applicant’s education provider, Apex Institute of Education Pty Ltd, notified the Department that the applicant had ceased his studies and was no longer enrolled in his course of study. As noted in the Department’s decision, according to the Provider Registration and International Student Management System (PRISMS), the applicant was no longer enrolled in a registered course of study. The Department’s decision also notes that the applicant did not provide the Department with any evidence to show that he enrolled in any other registered course of study in Australia, and this is confirmed by a perusal of the Department file.

13. The Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) the visa on 3 December 2018. The applicant did not provide a response to the NOICC.

14. The applicant has not provided the Tribunal with any evidence regarding his enrolment in a course of study, other than a transcript for the Diploma of Business, issued by La Trobe University on 28 March 2014, for studies undertaken in 2012 and 2013, approximately 4 years prior to the date he ceased his studies.

15. Based on the evidence before the Tribunal, the applicant was not enrolled in a registered course from 8 December 2017 until the delegate’s decision on 4 January 2019. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

16. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. 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 Procedural Instruction ‘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

17. The applicant's student visa was granted to enable the applicant to undertake study in Australia. 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. The Only evidence that the applicant provided of his studies is an academic transcript for the applicant’s enrolment in a Diploma of Business in the 2012 and 2013 academic years. This indicates that the applicant enrolled in 15 subjects, only 8 of which he completed.

18. The applicant did not respond to the NOICC issued by the Department, nor provide the Department with any information as to his purpose for wishing to stay in Australia. According to the applicant’s PRISMS record, referred to in the delegate’s decision, the applicant was not enrolled in a course of study for a period of almost 13 months. The applicant was last enrolled in a Diploma and Advanced Diploma of Leadership and Management. There is no evidence before the Tribunal to indicate that the applicant has subsequently enrolled in a course of study.

19. The length of time that the applicant has remained unenrolled in a course of study, combined with the lack of explanation, raises concerns for the Tribunal as to the applicant’s purpose for wishing to remain in Australia. The applicant's non-engagement in study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of cancelling the visa.

    The extent of compliance with visa conditions

20. The applicant was not enrolled in a course of study from 8 December 2017 until the delegate’s decision on 4 January 2018, a period of almost 13 months. The Tribunal considers this a significant length of time to remain unenrolled when the purpose of the applicant’s visa was to allow him to study, and it was a condition of his visa that he maintain enrolment.

21. According to the applicant’s movement record, the applicant has not held a valid visa since his Student visa was cancelled on 4 January 2019, and has remained onshore unlawfully without a valid Bridging visa.

22. On the evidence before it, the Tribunal weighs this factor in favour of cancelling the visa.

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

23. The applicant did not respond to the NOICC issued by the Department, and has not provided the Tribunal with any documents or information regarding specific hardship which would be caused to him or his family as a result of cancellation of the visa. The Tribunal however accepts that the cancellation of the visa may result in some financial, psychological or emotional hardship, including potential impact on the applicant’s ability to engage in study. I give this a little weight against cancelling the visa.

    Circumstances in which the ground of cancellation arose. Are there any extenuating circumstances beyond the visa holder’s control that led to the grounds existing?

24. On 8 December 2017 the applicant’s education provider notified the Department that the applicant had ceased his studies in a Diploma of Leadership and Management and his enrolment had been cancelled. The applicant was not enrolled again in a course of study as at 4 January 2019, the date of the delegate’s decision. The applicant did not respond to the NOICC issued by the Department, and has not provided the Department or the Tribunal with any information regarding the circumstances of the cancellation.

25. As the applicant did not attend the scheduled hearing, the Tribunal was unable to enquire as to any extenuating circumstances beyond the applicant’s control that led to the grounds existing.

26. The Tribunal notes that it is the responsibility of the Student visa holder to contact the Department before taking action which significantly changes their circumstances, including ceasing studies without first being granted a deferral or arranging a further enrolment. The delegate’s decision notes that there are no Departmental records of the applicant contacting the Department to advise of his change of circumstances or to seek clarification, and the Tribunal finds there are no documents to suggest otherwise contained on the Department file. The Tribunal also notes the significant period of almost 12 months from the time the applicant ceased his course of study until the issue of the NOICC. The Tribunal considers this a significant period of time, which the applicant could have used to address the circumstances, including contacting the Department. The Tribunal therefore gives this weight in favour of cancelling the visa.

    Past and present behaviour of the visa holder towards the Department

27. According to the delegate’s reasons, there is no evidence that the applicant has been uncooperative with the Department or with departmental staff. The Tribunal notes however that the applicant did not respond to the NOICC. On the evidence before it, the Tribunal weighs this factor neither in favour nor against cancelling the visa.

    Whether there would be consequential cancellations under s.140

28. There are no persons in Australia whose visas would, or may, be cancelled under s.140. The Tribunal notes that there is no information before it to indicate that any other person currently holds a visa because the applicant held his visa. Therefore, any cancellation of the applicant's visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. On the evidence before it, the Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.

    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 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, however he could apply for a Bridging visa in order to settle his affairs in Australia. The applicant would need to seek advice regarding his 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 he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. 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

30. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements any international obligations, including non-refoulement and best interests of the children, would be breached as a result of the cancellation. On the evidence before it, the Tribunal weighs this factor neither in favour nor against cancelling the visa.

    Any other relevant matters

31. As the applicant did not attend the hearing, the Tribunal is not aware of any other relevant matters or considerations to be taken into account in relation to the cancellation. The Tribunal weighs this factor neither in favour nor against cancelling the visa.

32. The Tribunal considers the applicant’s breach, where he remained unenrolled in a course of study for a period of almost 13 months, to be significant. The applicant did not respond to the NOICC or attend the scheduled hearing and has provided the Tribunal with only one document related to his studies, an academic transcript for a different course than his last one, and which predates his cessation of studies by approximately 4 years. The Tribunal therefore considers that the applicant has not availed himself of opportunities to provide information or evidence regarding the circumstances in which the ground for cancellation arose, his purpose for staying in Australia, nor with respect to the other factors relevant to the exercise of the discretion. The Tribunal determines that the grounds for cancellation outweigh the reasons not to cancel the visa.

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

    DECISION

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

    Frank Russo
    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.