SUN (Migration)

[2019] AATA 3486

SUN (Migration) [2019] AATA 3486 (6 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yanjie SUN

CASE NUMBER:  1715472

HOME AFFAIRS REFERENCE(S):          BCC2017/1567433

MEMBER:Frank Russo

DATE:6 August 2019

PLACE OF DECISION:  Sydney

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

Statement made on 06 August 2019 at 6:08pm

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 – credibility concerns – non-commencement of studies – purpose of visa not fulfilled – length of non-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 14 July 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 did not meet the requirements of her Student visa as he was not enrolled in a registered course. 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 appeared before the Tribunal on 6 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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 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).

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

8. The applicant is a 30-year-old Chinese national. In addition to the information provided with his application for review, the applicant provided the Tribunal with copies of the Delegate’s decision and the notification of cancellation of his visa.

9. The Tribunal has had regard to these documents in making its decision. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file.

10. The applicant gave evidence that he arrived in Australia in February 2016 for the purpose of studying. When asked by the Tribunal what he was intending to study he indicated Physics or Mathematics. When asked by the Tribunal which course he was enrolled in, he said that he could not remember as it had been a long time.

11. The Tribunal questioned the applicant as to whether he could remember which institution he had been enrolled in. He stated he had been enrolled at Queensland University of Technology (QUT), in Brisbane. When asked how long he had been enrolled in this course, the applicant gave evidence that he had been enrolled for a little over a year, and that after this his enrolment was cancelled.

12. When asked by the Tribunal why his enrolment has been cancelled, the applicant stated that the Department had issued him with something to say that he didn’t attend the course and he stated that he just did not understand.

13. The Tribunal asked the applicant what he did after his enrolment was cancelled. He stated that he came to Sydney. When asked when this occurred, he said that it was in 2017, but he couldn’t remember which month.

14. When asked what he has been doing since he moved to Sydney, the applicant stated that he sometimes went to a school in Redfern at night. When asked for the name of the school he stated that he could not remember. When asked what courses he had studied there, he stated just English language.

15. Adopting the procedure in s.359AA of the Act, the Tribunal put to the applicant that it had on file a copy of his enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal provided the applicant with a copy of his PRISMS enrolment records. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal explained to the applicant the consequences of relying upon the information. In particular, the Tribunal noted that according to the applicant’s PRISMS record, he was enrolled in a Master of Business, which was due to commence on 29 February 2016, however the enrolment was cancelled, and the reason for variation given is ‘Non-commencement of studies’. The Tribunal noted that according to the PRISM record the applicant was refunded. The Tribunal also noted that according to the PRISMS record the applicant has not been enrolled in another registered course other than his enrolment in the Master of Business. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments or wished to respond in relation to the information contained in his PRISMS enrolment records and advised that he may be granted time to comment on or respond to the information if needed.

16. The applicant indicated that he wished to respond to the PRISMS record at the hearing. He indicated that he thought he had attended a school in Brisbane, so he didn’t know why his PRISMS enrolment record would reflect that the course had been cancelled for non-commencement of studies. The Tribunal asked the applicant whether he has any records in relation to the studies which he claimed to have undertaken. The applicant responded that he does not have any records.

17. Given the applicant’s inability to remember the name of the course he was initially enrolled in, as well as his indications during the course of the hearing that he could not remember a range of other things, the Tribunal prefers to rely on the evidence contained within the applicant’s PRISMS record to the evidence he gave of his course enrolment and attendance. In addition, the applicant has not provided any documentary evidence to support his claim that he commenced these studies, and when questioned about the existence of any records, stated that he does not have any records. When asked whether he had completed any exams or papers in relation to these studies, he indicated, ‘Probably not. I can’t remember.’

18. On the evidence before it, the Tribunal is satisfied that the applicant was not enrolled in a registered course of study from 18 March 2016 until the date of the Delegate’s decision on 14 July 2017 and had failed to maintain his enrolment in accordance with condition 8202.

19. 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

20. 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

21. The applicant told the Tribunal that the purpose for this travel and stay in Australia is just to study. He gave evidence that he came to Australia with the intention of studying Physics or Mathematics, but told the Tribunal that he could not remember the course he had been enrolled in at QUT as it has been a long time. The applicant told the Tribunal that he completed a Bachelor of Business in China in 2014, but when asked at what university or institution this was obtained, he stated that he could not remember the name.

22. When asked what he plans to do after he completes his intended course, the applicant stated that he does not really have any plans for what he will do after studying and that maybe he will return to China.

23. When asked what his plans are if his visa is not cancelled, the applicant stated it was to continue studying. When asked which course he intended to study, he stated, ‘something that relates to Business.’ When asked where he intended to study this, he indicated Brisbane, but did not indicate any particular education providers, nor did he indicate that he has any plans in place.

24. When asked why he has not enrolled in a further registered course the applicant responded, ‘Because I don’t know. I just don’t want to go.’ When the Tribunal sought to clarify whether he meant he did not want to go to school or did not want to return to China, he responded, ‘At this stage I don’t want to go to school.’ He stated that after the Delegate’s decision he didn’t want to attend school.

25. Although the applicant gave evidence that in 2018 he attended some language courses in Redfern, there is no record of him being enrolled in a registered course during this period.

26. The Tribunal notes that the applicant’s PRISMS record indicates that his enrolment in the Master of Business was cancelled due to non-commencement of studies and that the applicant was refunded course fees. When asked whether he had any recollection of his course fees being refunded, the applicant responded that he did not know. The Tribunal also notes that the applicant initially told the Tribunal that the purpose for travel to Australia was to study Physics of Mathematics and he was not able to name the course he had been enrolled in.

27. Given the applicant’s evidence and its inconsistency with his PRISMS enrolment record, the Tribunal is unable to find that the applicant is a credible witness. The inconsistency also raises concerns as to the applicant’s purpose for travel and stay in Australia.

28. The Tribunal notes the purpose of a Student visa is to allow for travel to and stay in Australia, in order to study. The applicant ceased to be enrolled in a registered course of study on 18 March 2016, one month after arriving in Australia on 18 February 2016 (according to his movement record). This is an indication the applicant was not pursuing the purpose for his travel to Australia; as he was not actively engaged in studies and had not enrolled in any registered course since 18 March 2016. Based on the applicant’s evidence, in particular his inability to remember what course he was enrolled in and his vague plans as to what he intends to study in future and his vague post-study plans, the Tribunal does not accept that the applicant has a compelling need to remain in Australia. Accordingly, the Tribunal gives this no weight against cancelling the visa.

    The extent of compliance with visa conditions

29. The applicant was in breach of Condition 8202(2) of his Student visa from 18 March 2016 until the Delegate’s decision on 14 July 2017, a period of almost 16 months. The Tribunal considers the breach to be significant, given the length of time in which the applicant failed to maintain enrolment.

30. The applicant gave evidence that other than this breach he has complied with the conditions of his visa. He stated that a work limitation of 20 hours per week applies to his visa and he stated that he has complied with that. The Tribunal accepts that the applicant has complied with the other conditions of his visa, but given his non-compliance with condition 8202(2) over a period of almost 16 months, I give this only little weight against cancelling the visa.

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

31. Based on the evidence before it, the Tribunal finds that the applicant may experience some hardship as a result of the cancellation of the visa. This may include financial difficulty, including his inability to continue to work in Australia to gain an income. The applicant stated that he works 20 hours per week to make some pocket money, but otherwise his family sends him some money. There is no evidence that he will lose course fees, given the applicant’s PRISMS record indicates the applicant was refunded these fees. The applicant stated that he has not returned to China is because of his current visa situation, which he would like resolved. The Tribunal is satisfied that the applicant and his family may experience some degree of hardship, including the applicant may be required to depart Australia, and gives this some weight against cancelling the visa.

    Circumstances in which ground of cancellation arose

32. When asked about the circumstances in which the ground of cancellation arose, the applicant told the Tribunal that he had no response and that he was not able to provide details of any circumstances which were beyond his control. Based on the evidence provided by the applicant at hearing, the Tribunal does not consider that there are extenuating or compassionate circumstances in this case. The applicant was not able to provide any satisfactory reasons or explanation for why he did not commence his studies in the Master of Business. The evidence which he provided was that he pursued his studies for a period of over a year, when the Department wrote to him and issued something to say that he did not attend his course. The applicant’s evidence is not consistent with his PRISMS enrolment record, which indicates that his enrolment was cancelled less than one month after his studies were due to commence, because of ‘non-commencement of studies’. As noted above, the Tribunal prefers to rely on the applicant’s PRISMS record and does not accept his evidence that he continued studying for over one year.

33. Overall the Tribunal found the applicant was not a credible witness. He stated that he was unable to remember the course he was enrolled in when he first arrived in Australia as it had been a long time. The Tribunal does not find this convincing, given this enrolment was in 2016. The Tribunal also notes the applicant’s initial response to the Tribunal about his intended studies when he arrived in Australia, which he stated was to study Physics and Mathematics, which are unrelated to his enrolment in a Master of Business. When asked whether he had sat any exams or handed in any assignments, he stated, ‘Probably not. I can’t remember.’ He stated that he could not remember the name of the university in China from which he had obtained a Bachelor degree. The Tribunal finds this unconvincing given the investment of time which a Bachelor degree requires. The Tribunal finds the applicant’s responses to his PRISMS enrolment record, including whether he received a refund, to be unconvincing.

34. When asked by the Tribunal whether there were any other reasons why he was not enrolled from 18 March 2016, the applicant responded, ‘Not really.’ When asked whether he had considered returning to China, given the reasons for his visa were to study and he has not been enrolled since 18 March 2016, he stated that he is not thinking about returning to China and the reason why he is not in China now is because of his visa status.

35. Given the applicant was unable to provide any satisfactory reasons or explanation for why he did not commence his studies, nor for why he remained unenrolled, the Tribunal gives this consideration no weight against cancelling the visa.

    Past and present behaviour of the visa holder towards the department

36. The Delegate’s decision noted that there is no evidence that the applicant has been uncooperative with the Department, although it noted that the applicant did not respond to a Notice of Intention to Consider Cancellation (NOICC) of his visa. The Tribunal has considered the documents on the Department’s file and notes there is no evidence of the applicant sending a response to the NOICC issued by the Department, although the applicant did respond to an enquiry from the Department seeking his contact details. The applicant stated at hearing that he has cooperated with the Department. The Tribunal gives this some weight against cancelling the visa.

    Whether there would be consequential cancellations under s.140

37. The applicant confirmed at hearing that there are no persons in Australia whose visas would, or may, be cancelled under s.140. The applicant stated that he was in Australia on his own. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.

    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

38. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice regarding his immigration status.

39. The Tribunal is also mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. As noted above, the applicant stated that the purpose for him remaining in Australia is to obtain a tertiary qualification, although based on the evidence before it, the Tribunal does not find that the applicant has a compelling reason for remaining in Australia. On the evidence before it, the Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.

    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

40. Not applicable.

    Any other relevant matters

41. When asked whether there are any other relevant matters the Tribunal should consider, the applicant stated that there was nothing, but stated that his main issue is his visa and he doesn’t understand why his visa was cancelled. The Tribunal has considered this, but finds that it is not a relevant consideration given the evidence before the Tribunal that the applicant ceased to be enrolled from 18 March 2019 and has not been enrolled in a registered course since that date. The Tribunal finds that there are no other relevant matters and weighs this consideration neither in favour nor against cancelling the visa.

42. The Tribunal has had regard to the circumstances of this case, including the matters raised by the applicant, and is satisfied that the visa should be cancelled. The breach in question is a significant breach, with the applicant failing to maintain enrolment in a registered course from 18 March 2016 until the delegate’s decision on 14 July 2017, a period of almost 16 months. Despite the applicant’s evidence that he continued to study for over a year at QUT, his PRISMS enrolment record indicates that his enrolment was cancelled less than one month after his enrolment commenced on 29 February 2016, and the reason provided for this cancellation is non-commencement of studies. The Tribunal has not seen any evidence to indicate the applicant has undertaken study in Australia, in a registered course of study, since March 2016. The applicant has not presented evidence of current study and provided only vague statements of future study plans.

1. The applicant has supplied no documents to the Tribunal, other than copies of the Department’s decision and notice of the decision, and when asked whether he has any records of his studies which might support his claims, he stated that he has no records. The Tribunal also notes that the applicant did not respond to the Department’s NOICC and there are no documents on the Department’s file which might support his claims or which provide an explanation of the circumstances which resulted in the breach. In considering the matters which the Tribunal should take into account in considering the discretion, the Tribunal places weight on the purpose for the applicant’s travel and stay in Australia and whether he has a compelling need to remain in Australia. The applicant has not been enrolled to study for a period of over three years and there is no evidence of him having commenced any studies since his arrival in Australia. The Tribunal has accordingly given this matter no weight against cancelling the visa. The applicant was also unable to provide an explanation of the circumstances in which the ground for cancellation arose, and again the Tribunal has given this matter no weight against cancelling the visa. Having weighed up each consideration relevant to the exercise of the discretion, as a whole, I find that these provide insufficient weight against cancelling the visa.

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

   DECISION

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

   Frank Russo
   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.