Shi (Migration)

[2018] AATA 5859

Shi (Migration) [2018] AATA 5859 (22 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tong Shi

CASE NUMBER:  1702232

HOME AFFAIRS REFERENCE(S):           BCC2016/3271591

MEMBER:Brendan Darcy

DATE:22 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 22 October 2018 at 10:16am


CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – business studies – not enrolled in registered course for more than 12 months – non-appearance at hearing – not genuine temporary visa holder for study purposes – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 140, 362
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 24 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).

2. The delegate cancelled the visa on the basis that the applicant had breached condition 8202 as he was not enrolled in a registered course for full-time study. 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 was invited to appear to a scheduled hearing for 2 October 2018 via email account of the applicant’s authorised recipient and representative.

4. Two reminder SMS messages were sent to the applicant’s mobile phone about the scheduled hearings on 12 and 18 October 2018. 

5. The Tribunal did not receive any response to the invitation to attend the scheduled hearing. Neither did the Tribunal receive any submissions by the applicant or on the applicant’s behalf to consider a postponement, including a medical certificate; nor any other submission whatsoever, right up to and including the beginning of the scheduled hearing.

6. As noted above, the applicant was represented in relation to the review by his registered migration agent. However there has been no documents, no submissions, no written responses to any hearing invitation and no requests for postponements forwarded to the Tribunal to consider, either from the applicant or from anyone on his behalf, right up to the time of making his decision.

7. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to proceed with its decision-making on this review application without taking any further action to enable the applicant to appear before it.

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. The delegate’s decision submitted to the Tribunal indicates the applicant had been granted a Subclass 573 Higher Education Sector student visa on 23 April 2014 and was due to expire on 30 August 2018.  It also shows that Provider Registration and International Students Management System (PRISMS) records indicate the applicant was not enrolled in a registered course of study from 19 December 2015 until the date of cancellation.  The record decision for the visa cancellation shows that the applicant was granted the student visa on the basis he was enrolled in:

    ·General Intensive English (Beginner to Advance) (4 to 84 weeks)

    ·English for Academic Purposes (EAP)(Upper o Advanced)

    ·Certificate IV in Business Administration

    ·Diploma of Business

    ·Bachelor of Business (Information Systems Management)

    The purpose for which the subclass 573 visa for Higher Education was specifically granted was to complete a Bachelor of Business (information Systems Management); however this enrolment was cancelled. It is noted the applicant completed three registered courses while holding this visa; and while the applicant has been in Australia he had not been studying since he ceased his studies in the Advanced Diploma of Management on 19 December 2015.

13. On 4 January 2017, the Department forwarded a Notice of Intention to Consider Cancellation (NOICC), inviting the applicant to respond in writing. However the applicant did not respond.

14. On behalf of the Minister, the delegate proceeded to cancel the applicant’s student visa on 24 January 2017.  

15. The applicant applied to have the delegate’s cancellation decision reviewed by the Tribunal on 9 February 2017 with the decision record attached.

16. On the evidence before the Tribunal, the applicant was not enrolled in a registered course study from 19 December 2015. Nor was he the holder of a previous class TU or any other student visa.

17. As the applicant has failed to comply with the visa condition 8202, the ground for cancellation in s.116(1)(b) exists.

    Consideration of the discretion to cancel the visa

18. Having found that the applicant had breached with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

19. 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).

    The purpose of the visa holder’s travel to and stay in Australia

20. According to the decision record, there is little evidence to suggest that the applicant’s original intention for his travel to and stay in Australia was not for the purpose of study other than his statement that he intended to finish his studies. The Tribunal notes that PRISMS records that the applicant completed his foundational English studies and a Certificate IV in Business Management but did not complete his enrolled diploma or begin his Bachelor’s degree. This would indicate some interest and capacity to complete his studies. The Tribunal, in this regard, places a little weight in his favour in not cancelling the visa, given the substantial amount of time the applicant was not enrolled since December 2015.

21. Moreover the applicant did not attend the Tribunal’s hearing to elaborate on the purpose of his studies or the reasons he did not attempt to re-enrol before the issuing of the NOICC in late January 2017. This non-responsiveness strongly indicates to the Tribunal that the applicant is not a genuine temporary visa holder in Australia for the purposes of study. Based on this evidence, the Tribunal places considerable weight towards his visa remaining cancelled as the applicant’s purpose of remaining in Australia was not study. 

    The extent of compliance with visa conditions

22. There is no evidence before the Tribunal to indicate the applicant did not comply with other conditions.

23. However, in this regard the delegate mentioned that the applicant had not commenced his course work as the reason for his enrolment being cancelled. This indicates that the applicant had breached other aspects of condition 8202 requiring the visa holders to maintain satisfactorily attendance and academic progress as required by education providers. The applicant was not enrolled in a registered course for a long period of time – more than twelve months before the visa was cancelled. The Tribunal assesses, cumulatively considered, these significant breaches of condition 8202 to the question whether his visa should be reinstated. Furthermore the applicant has not provided any explanations to either the Department or the Tribunal for this non-compliance; this includes his non-attendance at a scheduled hearing to explain the breach. The Tribunal gives this factor significant weight towards the visa being cancelled.

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

24. The delegate’s decision accepted that there may be some hardships as a result of the cancellation. However the applicant neither provided any written or other responses to the NOICC nor any written, oral or documentary evidence to the Tribunal to elaborate on those hardships arising from his visa remaining cancelled.

25. Whilst the Tribunal accepts that the applicant may suffer some hardship, if the visa remains cancelled, it finds the applicant has not demonstrated any significant hardships at all. The Tribunal gives this factor little weight towards the visa not being cancelled.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

26. The applicant did not advance any past extenuating, exceptional or compelling circumstance in which the ground for cancellation arose, either to the Department or the Tribunal, at all. The applicant was provided with meaningful opportunities to do so, including a schedule hearing at which he did not attend or provide any explanations for his non-appearance.

27. The applicant has not provided any reasons or bases, credible or otherwise, to conclude that the visa should not be cancelled in this regard. Accordingly, the Tribunal gives this consideration significant weight towards the visa remaining cancelled.

    Past and present conduct of the visa holder towards the Department

    The applicant did not respond to the NOICC issued in 4 January 2017. The decision record indicating the applicant did not have an authorised recipient or agent and that the Department took all reasonable and lawful steps to issue the NOICC to both his last known residential and email address. The Tribunal considers this past conduct to be unsatisfactory and gives it some weight in favour of the visa remaining cancelled.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

28. Not relevant.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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 accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart, detained or be forcibly removed. It accepts that he may be barred from re-entering Australia for up to three years as he will subject to the operations of s.48 of the Act. Furthermore the applicant is not guaranteed that his offshore visa will be approved as he will be subjected to the Public Interest Criterion 4013. He has presented no specific evidence in relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

30. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Whether any international obligations would be breached as a result of the cancellation

31. The applicant has presented no specific evidence in relation to this factor. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Other relevant considerations

32. There are no other relevant considerations other than the overall lack of responsiveness by the applicant to provide any explanations about the cancellation of this visa to the Tribunal, despite have several meaningful opportunities to do so, including a scheduled hearing. Had the applicant any genuine or urgent reasons not to have the visa cancelled, it would be reasonable to expect his participation in this review application would extend further it being validly lodged. The Tribunal places significant weight on this lack of attendance and responsiveness in favour of the visa remaining cancelled.

    Conclusion

33. Having found that the applicant has not complied with a condition of the visa to a significant extent, the Tribunal must consider whether to exercise its discretion to cancel the visa.

34. The applicant has presented no written or oral arguments and no documentary evidence to either the Department or the Tribunal not to cancel his visa. With particular emphasis on the lack of responsiveness, the factors in favour of the visa remaining cancelled overwhelming outweigh those countervailing factors in favour of the visa not being cancelled.

35. Considering the evidence provided and on weighing the above factors and considering the accepted circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Brendan Darcy
    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.