SHI (Migration)

[2019] AATA 1617

SHI (Migration) [2019] AATA 1617 (22 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Dianxia SHI
Master Ruichen Reason FANG

CASE NUMBER:  1702133

HOME AFFAIRS REFERENCE(S):           BCC2016/4334583

MEMBER:Wendy Banfield

DATE:22 May 2019

PLACE OF DECISION:  Sydney

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

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 22 May 2019 at 12:08pm

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 – purpose of visa not fulfilled – child born in Australia – length of non-compliance – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
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 January 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named 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 on the basis that the applicant was not enrolled in a registered course of study as required by condition 8202. 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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.

4. The applicant appeared before the Tribunal on 6 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

   Evidence of the visa applicant

6. The applicant advised she first came to Australia in July 2011 to study Management and was holding a Subclass 573 Student Visa. The applicant advised she completed a Diploma of Leadership and Management. She said her agent advised her to change school from Queensland because the tuition was too expensive so she changed to Warwick Institute in Sydney. She said she was studying Project Management with that institution. After her visa expired she applied for and was granted another visa and studied at Victoria University.

7. The Tribunal asked the applicant about the circumstances in April 2016 when she was no longer enrolled to study. She said her agent left and she found out by letter. She could not clearly remember what she had been studying at the relevant time. The applicant advised that in April 2016 she paid fees to study but was told her course was cancelled. Because her visa was still valid she was advised by her agent to change to another college but her agent then left. The Tribunal asked why the applicant did not change education provider herself and she said it was because she had already paid tuition. The applicant could not remember the name of the institution but said she had the Confirmation of Enrolment. She consulted her phone but was unable to provide further information.

8. The Tribunal discussed with the applicant her study history in Australia. She was given a copy of PRISMS and confirmed it was an accurate reflection of her enrolment. The applicant confirmed she had been enrolled in a Bachelor of Business and Diploma of Accounting. She said she believed the Diploma was the course that was cancelled. Regarding her activities after ceasing her studies, the applicant said she changed to another agent who applied for a Bridging Visa and an appeal against her visa cancellation. The applicant did not respond when asked why she took no action about her situation for eight or nine months, from April 2016 to January 2017. The Tribunal asked what the applicant was doing during the relevant period and she repeated that she was waiting for her agent to apply to another school for her.

9. The applicant conceded that she was not studying from April 2016 to January 2017 and the Tribunal then asked the applicant about her claims regarding cancellation of her visa. The applicant declared she has a compelling reason to stay in Australia because her child who is aged four is here and she wants him to have a better life. The Tribunal reminded the applicant that was not the purpose of a Student Visa.

10. When asked about the degree of hardship if her visa is cancelled the applicant said she would not be able to study. She claimed she still wanted to study Management, obtain a Certificate or Diploma and go back to her home country. The Tribunal put it to the applicant that she had already completed some courses here and she said they would not be enough. According to the applicant she is supported in Australia by her boyfriend and by family.

11. The applicant was asked if she wanted to make submissions regarding the consequential cancellation of her child’s visa and she said she did not. She also declined to comment on the legal consequences of cancellation or make any other submissions in support of the application for review.

12. 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

13. 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?

14. 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).

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

16. According to the evidence, the applicant had been enrolled in Business and Accounting courses in 2015 and 2016 but those enrolments were cancelled. The applicant was not enrolled in a registered course of study from 29 April 2016 to 19 January 2017 when the Department issued a Notice of Intention to Consider Cancellation (NOICC). Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

17. 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

18. The applicant arrived in Australia in July 2011 and was enrolled in English and Business courses. According to the evidence she has completed Diploma and Advanced Diploma programs since her arrival. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

19. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant declared she wants to stay in Australia because her four year old child was born here and she wants him to have a better life. The Tribunal notes the purpose of the Student Visa programme is to enable people who are not Australian citizens or Australian permanent residents to undertake study in Australia. It is not for the purpose of permanent migration.

20. For this reason, the Tribunal finds the applicant has not demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

21. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account. However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a student visa and weighs against the applicant in this case.

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

22. During the course of the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of her visa being cancelled. The applicant claimed he would suffer hardship because she would no longer be able to study and she still wanted to pursue a Management course. Taking into account the applicant’s lack of knowledge about her studies in Australia and her vague answers to questions about the circumstances that led to her visa being cancelled, the Tribunal is not satisfied the applicant is a genuine student. As such, although there may be some degree of financial and emotional hardship caused, it is not sufficient reason for not cancelling the visa.

23. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why 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

24. The applicant’s visa was cancelled because she remained in Australia as the holder of a student visa but did not continue her studies for a period of more than eight months. The applicant claimed that at the relevant time she had paid fees to study but was told her course was cancelled. She could not recall the name of the institution but said that because her visa was still valid, her agent advised she should change to another college but her agent then left. According to the applicant’s evidence she did not change to another education provider herself because she had already paid tuition. The Tribunal found the applicant to be vague and less than forthcoming about her failure to maintain enrolment as well as her activities during the relevant period and the Tribunal is not satisfied there were valid reasons for the breach of visa conditions.

25. The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, the applicant’s failure to study or seek assistance during the period when she was not enrolled to study, in breach of visa conditions. Therefore, the Tribunal places no weight on the circumstances in which the ground for cancellation occurred.

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

26. 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

27. The visa of the applicant’s child, Ruichen Reason Fang will be cancelled under s.140 of the Act if the primary applicant’s visa is cancelled. The Tribunal places some weight in the applicant’s favour on this issue.

    ·     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

28. 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 are not sufficient reason for the applicant’s 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

29. 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 has a child who was born in Australia but the applicant declined to make any submission regarding the best interests of the child, other than her statement that she would like to stay in Australia to give him a better life. There is no evidence available to the Tribunal to indicate the applicant’s son would not be able to accompany her if she is required to leave Australia and return to China.

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

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

    ·     any other relevant matters

31. There are no other relevant matters to be considered in the applicant’s case.

    Conclusion

32. 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 somewhat in her favour, on balance, the Tribunal is satisfied that the majority of considerations weigh heavily against the applicant. The Tribunal considers the length of time the applicant has spent in Australia having breached her visa conditions to be significant. The Tribunal is not satisfied the issues encountered by the applicant are sufficient reason for the visa not to be cancelled.

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 first named applicant’s Class TU visa. The Tribunal has no jurisdiction with respect to the other applicant.

    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.