Luu (Migration)

[2019] AATA 3258

Luu (Migration) [2019] AATA 3258 (4 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Huu Tung Luu

CASE NUMBER:  1700615

HOME AFFAIRS REFERENCE(S):          BCC2016/4204525

MEMBER:Mr S Norman

DATE:4 March 2019

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

Statement made on 04 March 2019 at 11:40am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – applicant ceased enrolment – decision under review affirmed         

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 January 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). The Department delegate’s decision was lodged with the Tribunal. The delegate cancelled the visa on the basis that the applicant had breached condition 8202(2)(a) – enrolment. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

2. On 3 January 2019, the Tribunal sent the applicant (to the email address of his migration agent which had been authorised for service) a hearing invitation letter advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 4 March 2019.

3. By migration agent emails of 12 February 2019 and 1 March 2019, the agent advised they had attempted to contact the applicant, but had not been successful. The applicant had not provided the Tribunal with a mobile phone number, so no hearing reminder texts had been sent shortly prior to the hearing. Be that as it may, the Tribunal had issued the hearing invitation to the authorised address for service (with his migration agent) but the applicant was not then able to be contacted by his migration agent.

4. In its abovementioned letter of 3 January 2019, it was advised that if the applicant did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.  

5. That being said, the applicant did not appear before the Tribunal on the day and at the time and place at which his hearing was scheduled. 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.

6. 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

7. 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?

8. 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).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 8 April 2015 (expiry date 30 August 2019). By Notice of Intention to Consider Cancellation (NOICC[1]) of that visa dated 30 December 2016, the applicant was advised that information on the Provider Registration and International Student Management System (PRISMS) indicated he had not been enrolled in a registered course of study since 24 September 2016. The delegate noted the applicant had obtained enrolment in a registered course on 6 January 2017,[2] but this was after the NOICC had been issued. No further material information is now before the Tribunal.

   [1] Department – folio 12.

   [2] Department – from folio 15.

10. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

11. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

12. Regarding the purpose of the applicant’s travel to and stay in Australia, the Tribunal proposes to accept the applicant’s initial intention was to travel to and stay in Australia, for the purposes of study.

13. Next, as noted herein, the applicant had not been enrolled in a registered course of study for some three months at the time the NOICC was issued. He only sought to obtain enrolment in a registered course after the NOICC was issued.

14. Regarding whether the applicant or his family would suffer hardship if his visa was cancelled, he had said that if his visa was cancelled he would face undue personal hardship. He said he had established himself in Australia and that both he and his family have invested heavily in his education; and that his parents have high expectations of him.[3]

    [3] Department – folio 18.

15. However, the Tribunal notes the applicant had only been granted a temporary visa (on 8 April 2015) so without more, I am not satisfied he had ‘established himself’ in Australia. With respect to the claims of ‘heavy investment’, ‘undue personal hardship’ and his ‘parents high expectations’, the Tribunal notes that such claims are not uncommon in Student visa cancellation cases. However and without more, I am not satisfied they should prevent the Tribunal from exercising its discretion in this case.

16. Regarding the circumstances in which the ground for cancellation arose, in his response to the NOICC the applicant said he suffered a series of events; he found it difficult to adjust to the new study environment; being unaware of the status of his enrolment and visa requirements and taking a holiday resulted in the cessation of his studies.

17. The applicant also referred to wishing to change courses as his initial course was “hard for him”; he then made references to subjects per semester; activities during his holiday time; offers from UTS for the “second year at university”; and that he was shocked that his visa may be cancelled.[4]

    [4] Department – folio 18.

18. The delegate (and now the Tribunal) noted no corroborating evidence was provided as to any counselling the applicant may have undertaken with respect to his claimed problems. Further, the Tribunal does not accept that a genuine Student visa applicant would commonly be unaware of the status of his enrolment or visa requirements. In particular, the conditions which attached to a visa are explained at the time of the visa grant. Further, if the applicant was not aware of the conditions attaching to his visa, it would commonly be expected he could seek advice about same from the Department. There is no evidence of any material contact with the Department being made.

19. Next, the Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled. The Tribunal has no evidence that the applicant has a compelling need to travel to or stay in Australia.

20. Next, if the applicant’s visa is cancelled he would become an unlawful noncitizen and liable to detention under s.189 and removal under s.198 of the Act. However, the Tribunal has no evidence the applicant would be subject to indefinite detention. Further the Tribunal is satisfied the applicant would temporarily retain his Bridging visa in order to remain in the community so he could finalise his affairs prior to departing Australia.

21. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 of the Ac and he would have limited options to apply for further visas in Australia.  He would also be subject to PIC 4013; meaning he might not be granted a temporary visa for three years from the date of cancellation.

22. After then considering all the accepted circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Mr S Norman
    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.