Miao (Migration)

[2018] AATA 5181

Miao (Migration) [2018] AATA 5181 (26 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Xiangyu Miao

CASE NUMBER:  1619847

HOME AFFAIRS REFERENCE(S):           BCC2016/2487448

MEMBER:Wendy Banfield

DATE:26 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 26 November 2018 at 6:50pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – no credible reasons for failure to maintain enrolment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
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 31 October 2016 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 delegate cancelled the visa under s.116(1)(b) on the basis that that the applicant had not been enrolled in a registered course of study from 20 March 2015 to 20 September 2016 and therefore, did not meet the requirements of condition 8202(2) attached to the visa. As the applicant did not comply with condition 8202, according to the Migration Act, the visa may be cancelled. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

3. The applicant is a citizen of China and is currently 26 years old. He came to Australia on 11 March 2015 with the intention of studying Business Management. The applicant did not commence his studies and since his arrival in Australia, has not completed any courses.

4. The applicant appeared before the Tribunal on 6 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. Prior to the hearing, the applicant did not submit any written evidence in support of his application for review. When the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) on 20 September 2016, no response was provided.

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.

10. The applicant gave evidence that he enrolled to study in Australia with the help of an agent but on his arrival, he could not contact that person. The applicant said he did not commence the course he had been enrolled in as he did not know the name of the course or which institution he was meant to attend. According to the applicant, he was picked up on arrival and had accommodation arranged for him in Australia but he was thereafter unable to obtain his COE or contact his agent. The applicant did not dispute that he had not studied or maintained enrolment as required under the conditions of his student visa.

11. 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).

    Consideration of the discretion to cancel the visa

12. 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’.

    ·     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

13. The applicant travelled to Australia as the holder of a student visa which was granted on 27 February 2015 and was valid until 15 March 2017. He was enrolled in a course of study at the time the visa was granted. Although the applicant did not commence studying and has not completed any courses, the Tribunal is prepared to accept the applicant’s original intention to travel to and stay in Australia was to study.

14. The applicant has claimed he wishes to complete his studies in Australia, however, since his arrival he has been working and has not attempted to re-enrol or provided evidence of any plans for his education.

15. The Tribunal has carefully considered the evidence before it and is satisfied the applicant came to Australia to study. However, while the applicant has said he still wants to study, the Tribunal is not satisfied that the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

16. There is no evidence before the Tribunal that the applicant has not complied with visa conditions other than 8202. Therefore the Tribunal gives this aspect some weight in the applicant’s favour.

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

17. During the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. The applicant said he would have to leave Australia which he does not want and he would be forced to break up with his girlfriend. The Tribunal considers that leaving Australia is a natural consequence of an ongoing failure to comply with conditions of a visa granted for a particular purpose. Regarding the applicant’s claim of being in a relationship in Australia, the circumstances of the parties if the applicant departs Australia is a matter for them to decide.

18. The Tribunal is not satisfied the degree of hardship to the applicant is such that the visa should not be cancelled.

    ·     circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

19. The applicant’s visa was cancelled as a result of his failure to maintain enrolment for a period of more than 12 months. The applicant gave several reasons for this including not being able to contact the agent who had arranged his enrolment, not knowing what course he was enrolled in and not knowing where he was meant to study. The applicant said that because of these issues, he found employment through the internet and worked moving goods instead of studying. He said he also fell ill during his stay in Australia although no evidence was provided in support of this claim.

20. The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. It was the applicant’s responsibility to comply with visa conditions but instead he relied on an agent without being personally aware of the arrangements being made on his behalf. There is no evidence he sought to rectify matters by seeking advice from another agent or by contacting the Department.

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

21. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.

    ·     whether there would be consequential cancellations under s.140

22. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

23. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and in the applicant’s case is not sufficient reason for the visa to not be 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

24. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

25. The Subclass 573 Student Visa is not a permanent visa.

    ·     any other relevant matters

26. There is no evidence before the Tribunal of any other relevant matters.

    Conclusion

27. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh heavily against the applicant. The applicant did not take any steps to rectify his situation and has not provided credible reasons for his failure to maintain enrolment or study over a long period since his arrival in Australia.

28. The Tribunal concludes that the ground for cancellation in s.116(1)(b) exists and having regard to all the relevant circumstances, as discussed above, the Tribunal considers the visa should be cancelled.

    DECISION

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

    Wendy Banfield
    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.