WANG (Migration)

[2018] AATA 3511

WANG (Migration) [2018] AATA 3511 (10 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr HAI WANG

CASE NUMBER:  1618399

HOME AFFAIRS REFERENCE(S):           BCC2016/2473566

MEMBER:Justin Owen

DATE:10 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 10 August 2018 at 12:37pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) –Significant breach – Failure to enrol in a course of study for 23 months – Decision made on review – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 362B, 379A
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 17 October 2016 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 applicant is a national of the People’s Republic of China born 16 April 1995.  His Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa was granted on 1 April 2014 and was subject to condition 8202.  On 23 August 2016 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he ceased to be enrolled in a registered course since 4 November 2014.  The applicant did not respond to the NOICC.  On 17 October 2016 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa.       

3. The delegate cancelled the visa on the basis that the applicant has not complied with the requirements of condition 8202 (2)(a) of the visa.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

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.

6. On 7 November 2016 the Tribunal wrote to the applicant and advised it had received an application for a review of the delegate’s decision to cancel his Subclass 573 Higher Education Sector visa.

7. On 19 July 2018 the Tribunal invited the applicant to attend a hearing to give evidence and present arguments relating to the issues in his case on 7 August 2018.

8. The Tribunal sent a courtesy reminder of the hearing via SMS to the mobile telephone number the applicant provided on 31 July 2018 and 6 August 2018.

9. No response was received from the Tribunal to its invitation.   The invitation stated that if the applicant did not attend the scheduled hearing then the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. 

10. The applicant did not appear before the Tribunal on the day at the scheduled time and place. The applicant has not provided any further evidence, submissions or information to the Tribunal between the hearing and decision. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5) and the invitation has not been returned to sender.

11. In these circumstances, and pursuant to s.362B of the Migration 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.

    Did the applicant comply with Condition 8202?

12. 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).

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

14. When making the application for review, the applicant supplied the Tribunal with a copy of the delegate’s decision of 17 October 2016. The decision record states that information before the Department from the Provider Registration and International Student Management System (PRISMS) indicated that the applicant had not been enrolled in a registered course of study since 4 November 2014. 

15. The delegate’s decision record states that the Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 23 August 2016 and the invited the applicant to respond in writing.  No response was received by the delegate.

16. The applicant has not made any written submissions to the Tribunal.  The applicant failed to appear before the scheduled Tribunal hearing to provide oral evidence. 

17. On the evidence before the Tribunal, the applicant was not enrolled in a registered course of study. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

18. 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’

19. The Tribunal considers that the purpose of a student visa is to enable the visa holder to study in Australia.  The primary decision record indicates that PRISMS evidence available to the Department indicated the applicant ceased to be enrolled between November 2014 and the time of decision in October 2016.  The Tribunal considers the breach of condition 8202(2) to be significant and that the applicant had not been fulfilling the purpose of his travel to and stay in Australia as a holder of a student visa. 

20. The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia.  The Tribunal notes from the decision record that the applicant had stated in his application that his purpose of travel to and stay in Australia was study.  Based upon the evidence of his significant period of non-enrolment, the Tribunal is of the view that the applicant was not in Australia for a significant period of time in accordance with the original purpose of his visa.  The Tribunal finds that between November 2014 and the delegate’s decision in October 2016 the applicant was not fulfilling the purpose of his travel to and stay in Australia as the holder of a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa.  This factor weighs in favour of cancelling the visa.  Given the applicant’s actions in failing to fulfil the purpose of his visa for a significant period of time, the Tribunal weighs this factor in favour of cancelling the visa.  On the evidence before concerning the purpose of the applicant’s travel to and stay in Australia, it the Tribunal weighs this factor in favour of cancelling the visa.

21. The Tribunal has considered the extent of the applicant’s compliance with visa conditions.  The Tribunal considers the applicant’s failure, as outlined in the decision record, to comply with the conditions of his visa by not being enrolled in a registered course of study for almost two years to be substantial.  The Tribunal considers the applicant’s non-compliance with his visa conditions to be considerable.  On the evidence before it the Tribunal weighs this factor in favour of cancelling the visa.

22. The Tribunal has considered the degree of hardship that may be caused to the applicant or his family members should his student visa be cancelled.  The applicant has not provided the Tribunal with any information concerning the hardship that may be caused to him or his family should his student visa be cancelled.  The Tribunal notes from the decision record that the applicant also failed to provide the delegate with any information concerning the hardship that may be cause to him or his family should his student visa be cancelled.

23. The Tribunal notes that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s189 and removal under s198 of the Migration Act if he does not voluntarily depart Australia. He will also be subject to an s48 bar which will limit his options in applying for further visas in Australia. The Tribunal notes that the applicant will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a temporary visa for three years from this date. The Tribunal however also notes that if his visa is cancelled, the applicant may be eligible to apply for a Bridging Visa E to allow him to remain in Australia to finalise any outstanding matters and visa applications that have been lodged. On the evidence before it concerning the degree of hardship, the Tribunal weighs this factor in favour of cancelling the visa.

24. The Tribunal has considered the circumstances in which the ground for cancellation arose.  At the time of decision the applicant has not provided the Tribunal with any submissions concerning the circumstances in which the ground for cancellation arose.  The Tribunal notes that the applicant also failed to provide the delegate with any detail or documentation in response to the Notice of Intention to Consider Cancellation (NOICC) issued by the Department. 

25. The Tribunal notes that the ground for cancellation arose due to the fact the applicant ceased enrolment with a registered education provider and subsequently failed to rectify his enrolment status in an adequate time.  The applicant on the evidence in the decision record had failed to adequately rectify his enrolment situation for almost two years.  Given the applicant was a direct party to his enrolment; the Tribunal is of the opinion that on the evidence he would have been aware that he had ceased enrolment with a registered education provider.  The Tribunal furthermore notes that visa holders are expected to be mindful of the requirements of their visa and to inform the Department of any changes to their status.  The Tribunal is of the opinion that the applicant would have been well aware that his student visa contained condition 8202 which required him to remain enrolled in a registered course.  The Tribunal is of the firm view that the applicant would reasonably have been aware that his failure to remain enrolled with a registered education provider for almost two years would have an impact upon his eligibility to continue to hold his student visa.  On the evidence before it concerning the ground for which the cancellation arose, the Tribunal weighs this factor in favour of cancelling the visa.

26. The Tribunal has considered the past and present behaviour of the applicant towards the Department.  The Tribunal notes that the applicant failed to respond to the Department’s NOICC.  There is no other evidence before the Tribunal concerning the applicant’s previous and present behaviour towards the Department in favour or against cancelling the visa. On the evidence before it the Tribunal weighs this factor neither in favour or against cancelling the visa. 

27. The Tribunal has considered whether there are persons in Australia whose visas would, or may be, cancelled under s140 as a result of the cancellation of the applicant’s visa. The Tribunal notes from the decision record that Departmental records indicate that no other person currently holds a visa because the applicant held his student visa. There is no claim made or evidence before the Tribunal that this is not the case. Therefore any cancellation of the applicant’s student visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. On the evidence before it the Tribunal weighs this factor neither in favour or against cancelling the visa.

28. The Tribunal has considered whether there are 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 of the applicant’s visa.  There is no information before the Tribunal which indicates that ant cancellation would result in any breach of Australia’s international obligations.  On the evidence before it the Tribunal weighs this factor neither in favour or against cancelling the visa.     

29. On the evidence before it the Tribunal considers the applicant’s breach of condition 8202 of their student visa to be substantial.  The Tribunal considers the 23-month period outlined in the decision record that the applicant failed to be enrolled in a registered course of study to be significant.  The Tribunal notes that the applicant failed to respond to the Department’s NOICC.  The applicant failed to respond to the Tribunal’s invitation to hearing and has failed to make any submissions to the Tribunal whatsoever as to the use of its discretion whether to cancel the visa. 

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

    DECISION

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

    Justin Owen
    Senior 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.