Shen (Migration)

[2018] AATA 2105

Shen (Migration) [2018] AATA 2105 (17 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hebin Shen

CASE NUMBER:  1615680

DIBP REFERENCE(S):  BCC2016/2187934

MEMBER:Mr S Norman

DATE:17 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 17 May 2018 at 12:15pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Enrolment in a registered course – Not enrolled in a registered course – Significant non-compliance – Completion of one course – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 116, 189, 362B
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 19 September 2016 made by a delegate of the Minister for Immigration 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 decision was lodged with the Tribunal.  The delegate cancelled the visa on the basis that the applicant had breached condition 8202(2) (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 4 December 2017, the Tribunal sent the applicant (by email to the agent’s address 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 17 May 2018. The applicant (by his agent) accepted the Tribunal hearing invitation (by email dated 23 January 2018). Two SMS (hearing reminder) texts were then sent to the applicant’s mobile phone (10/05/2018 & 16/05/2018). The applicant did not contact the telephone number listed in the SMS text, as he was invited to if he had any questions.

3. In its abovementioned letter of 4 December 2017, the applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. 

4. The applicant did not appear before the Tribunal on the day, time and place at which his hearing was scheduled. Neither did his agent again contact the Tribunal. After considering all the 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.

5. 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

6. 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?

7. 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).

8. 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 21 November 2014. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 12 August 2016, the applicant was advised that information on the Provider Registration and International Student Management System (PRISMS), indicated that he had not been enrolled in a registered course of study since 24 March 2015. It therefore appeared that he did not meet the requirements of condition 8202(2)(a) and that his visa may be cancelled under s.116(1)(b) of the Act.

9. The applicant responded in writing by letter dated 18 August 2016. Amongst other things the applicant said that after he came to Australia he felt the courses he was studying were “kind of difficult to him”. He was afraid he could not pass the exams in the future so he “decided to change his courses to an easier one which is more suitable to him and less pressure”. He then applied to the Australian Ideal College at the beginning of 2015. This was a “packaged course including a General English program, Certificate III & IV, Diploma and Advanced Diploma. He said this was an easy course for him to “handle”. He then applied for a subclass 572 Visa at the beginning of 2015 however, “unfortunately his 572 Visa application was refused by the Department”. He was therefore still the holder of a 573 Student visa.

10. The applicant continued to study at the Australian Ideal College. He did not enrol in the Graduate Diploma of Commerce course in Charles Sturt University because he knew he would “fail many courses not only in the Graduate Diploma course but also in the Masters course”. He said it would have cost him “a lot of money and time for him to make the situation right”. He therefore chose to remain at the Australian Ideal College. The applicant said he had “already finished lots of diploma courses in Ideal College”. He believed these courses would be a “pathway for his further studies”. He had “spent lots of time and money on his studies”. He said it was “not his problem that he could not pass all the courses in Charles Sturt University. If he knew that he couldn’t pass and still chose to do it that means he doesn’t even plan for his future”. The delegate cancelled the visa on 19 September 2016.

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 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. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

13. Regarding the purpose of the applicant’s travel to and stay in Australia, the Tribunal notes that Student visas are granted for the purposes of studying towards and achieving an educational qualification in Australia. On 24 October 2014, the applicant lodged an application for a TU 573 Higher Education Sector visa that was eligible under the streamlined student visa processing arrangements. Therefore, he was required to provide less evidentiary requirements on the basis that he was thought to be in a lower immigration risk category. The Tribunal understands the streamlined visa pathway does not require the applicant to provide evidence that he had sufficient funds to cover himself or his stay in Australia for travel, living costs and tuition costs. Instead he only had declared that he had access to sufficient funds to cover himself.

14. During the application process, the applicant had said his intention in travelling to and staying in Australia was to study the principal course of Master of Business Administration at Charles Sturt University. The applicant was also enrolled in other courses:

    ·English for Academic Purposes (Pre Intermediate to Advanced) (10- 40 weeks);

    ·Graduate Diploma of commerce;

    ·Master of Business Administration.

15. The Tribunal notes the applicant arrived in Australia on 27 November 2014 and had remained onshore. However, the purpose for which his Higher Education Student visa was granted ended at least on 5 March 2015, being the date the applicant’s enrolment in the Higher Education Sector Course (Master of Business Administration) was cancelled. Since arriving in Australia, the Tribunal also notes the applicant had completed only one registered course; and while he had been in Australia he had not been studying since he ceased his studies in the General English (Beginner to Advanced) course on 24 February 2015. Subsequent registered courses enrolled in by the applicant were either never commenced or not completed. The Tribunal notes that at the time of the Department decision the applicant had only been actively involved in study for approximately three months and seven days since he had arrived in Australia. Based on all the evidence before the Tribunal, I am not satisfied the applicant’s present intention for staying in Australia is for the purposes of study.

16. Regarding the extent of the applicant’s compliance with any conditions subject to which his visa was granted, the evidence before the Tribunal indicates the applicant failed to maintain enrolment in a registered course of study. Further, he did not enrol in his Graduate Diploma and Masters of Commerce degrees; he did enrol at the Australian Ideal College to study at the Certificate III, IV, Diploma and Advanced Diploma levels. However, his subsequent onshore application for a TU 572 Vocational Education Sector Visa was refused. An appeal of that decision to the Administrative Appeals Tribunal was lodged. The Department decision was affirmed by the AAT. Based on all the evidence herein, the Tribunal is satisfied the extent of the applicant’s non-compliance is significant.

17. Regarding the degree of hardship that may be caused to the applicant or his family if his visa is cancelled, the Tribunal accepts the applicant or his family may be subject to some financial hardship if his visa is cancelled. For instance, the applicant said he had “spent lots of time and money on his studies and had considered all the benefits for his future so it’s not fair if he did not have a chance to keep studying”. He also said it will “cost lots of money and time for him to make the situation right”. However, these are possible consequences of the legislation when a visa is cancelled for non-compliance with visa conditions. Also, with respect to the applicant’s claim that he wished to study further in Australia, the Tribunal notes he had been in Australia for very many months at the time of the Department decision and he had only completed one registered course in that time. Therefore, while the Tribunal accepts the applicant or his family may suffer some hardship if his visa is cancelled, this has not satisfied the Tribunal the discretion to cancel his visa should not be invoked.

18. Next, if the applicant’s visa is cancelled he will be subject to detention under s.189 and removal under s.198 of the Act. However, based on the evidence before the Tribunal I am not satisfied the applicant will be subject to indefinite detention. I am also satisfied may retain a Bridging visa in order to remain in the community to finalise his affairs prior to departing.

19. If the applicant’s visa is cancelled he would also be subject to s.48 of the Act and have limited options to apply for further visas in Australia. He would also be subject to PIC4013, and therefore subject to a three-year exclusion period where he may not be eligible to apply to have a temporary visa application approved.

20. Regarding the circumstances in which the ground for cancellation arose, same arose due to the applicant not maintaining enrolment in a registered course of study. Amongst other things he felt his studies were too difficult for him and that is why he wished to continue his studies at the vocational level. However, the applicant was not successful in his subsequent application for a TU 572 Vocational Education Sector Visa.

21. There is no evidence before the Tribunal that any family members or other persons in Australia will have their visas impacted by the cancellation of the applicant’s visa. There is no evidence before me that the applicant has been uncooperative with either the Department or the Tribunal. Based on the evidence before the Tribunal I am not satisfied that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

22. Regarding the applicant’s claim that he preferred to study at the vocational level and had “finished lots of diploma courses at Ideal College”, and that it is “not his problem that he could not pass all the courses at Charles Sturt University”, the Tribunal notes the applicant was granted a Higher Education Student visa and has not maintained enrolment in a registered course of study. Further, at the time of Department decision, and based on the evidence before the Tribunal, the applicant had not completed any registered courses since his former education provider cancelled all active involvements on 24 March 2015.

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

    DECISION

24. 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.