Sun (Migration)

[2020] AATA 172

Sun (Migration) [2020] AATA 172 (8 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hongfei Sun

CASE NUMBER:  1925508

HOME AFFAIRS REFERENCE(S):           BCC2019/2858329

MEMBER:Peter Booth

DATE:8 January 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 08 January 2020 at 11:58am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa –applicant was not a genuine student –applicant failed to maintain enrolment in a full time registered course – breached condition 8202 –failed to respond to cancellation notice –decision under review affirmed

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 4 September 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) 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 did not comply with 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. By email dated 29 October 2019 the applicant informed the Tribunal that he would not attend the hearing of this matter, then scheduled to take place on 11 November 2019.

4. 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

5. 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?

6. 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 full time registered course: 8202(2)(a)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

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

8. The delegate’s decision dated 4 September 2019 found that the applicant had not been enrolled in a registered course of study since 10 April 2018.The decision record also notes that the applicant did not respond to a notice of intention to cancel his Visa which was dated 26 July 2019. However it is apparent that the applicant was aware of the decision cancelling his Visa because he applied for review of that decision to the Tribunal on 11 September 2019. The applicant has provided no information to the delegate or to the Tribunal in support of his case or challenging the finding of the delegate that he had not been enrolled in a registered course of study since 10 April 2018.On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course since 10 April 2018. Accordingly, the applicant has not complied with condition 8202(2)(a).

   Consideration of the discretion to cancel the visa

9. 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 Procedural Instruction ‘General visa cancellation powers’.

10. The Tribunal turns to consideration of any relevant factors, including matters raised by the applicant and the departmental guidelines which cover matters such as:

    ·     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

    The delegate’s decision dated 4 September 2019 records that the applicant arrived in Australia on 30 August 2017 and commenced study on 4 September 2017. There is otherwise no evidence as to whether the applicant has a compelling need to travel to or remain in Australia.

    ·     The extent of compliance with visa conditions

    The delegate’s decision records that the applicant had not been enrolled in a registered course of study since 10 April 2018.This has not been contradicted by the applicant. The Tribunal finds on the available evidence that the applicant had not been enrolled in a registered course of study since 10 April 2018.

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

    The applicant gave no evidence regarding any degree of financial, psychological, emotional or any other hardship which may be caused by the cancellation of the visa. However, the Tribunal accepts that cancellation of the applicant’s visa will cause some degree of financial hardship in the form of lost tuition fees, or emotional, in the form of disappointment or embarrassment in not completing the course. The Tribunal gives this factor little weight.

    ·     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

    The applicant did not respond to a notice of intention to cancel his Visa dated 26 July 2019. The applicant has not provided any information to the Tribunal in support of his application for review. Accordingly there is no material before the Tribunal to support a conclusion as to whether the circumstances in which the ground for cancellation arose were beyond the Visa holders control. The Tribunal gives this aspect no weight.

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

    There was no evidence in relation to this factor and the Tribunal gives it no weight.

    ·     Whether there would be consequential cancellations under s.140

    The Tribunal was provided with no evidence on this point and gives it little weight.

    ·     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

    The Tribunal accepts that there may be legal consequences as a result of the cancellation. However, these consequences intended by the Parliament when enacting the relevant legislation. The Tribunal gives them little weight.

    ·     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

    There was no evidence in relation to this factor and the Tribunal gives it no weight.

    ·     If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

    There was no evidence in relation to this factor and the Tribunal gives it no weight.

    ·     Any other relevant matters.

    There was no evidence of any other matters and the Tribunal gives this factor no weight.

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

    DECISION

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

    Peter Booth
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)       must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)      is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.