Wang (Migration)

[2017] AATA 2504

Wang (Migration) [2017] AATA 2504 (3 October 2017)

1. DECISION RECORD

   DIVISION:Migration & Refugee Division

   APPLICANTS:  Mr Binbin Wang
   Mrs Meijing Wang

   CASE NUMBER:  1614177

   DIBP REFERENCE(S):  BCC2016/2486255

   MEMBER:Antoinette Younes

   DATE:3 October 2017

   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 03 October 2017 at 4:12pm

   CATCHWORDS
   Migration – Cancellation – Student Visa – Subclass 573 Higher Education Sector – Breached visa conditions – Did not enrol in a registered course – Personal circumstances – Degree of hardship – No extenuating circumstances

   LEGISLATION
   Migration Act 1958 ss 116(1), 116(1)(b), 140(1) , 348, 359AA
   Migration Regulations 1994 Schedule 8 Conditions 8202, 8202(2), 8202(3)(a)-(b)

   STATEMENT OF DECISION AND REASONS

   APPLICATION FOR REVIEW

2. This is an application for review of a decision dated 31 August 2016 made by a delegate of the Minister for Immigration 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).

3. The delegate cancelled the visa on the basis that the first named applicant (‘applicant’) had breached condition 8202 attached to 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 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.

5. The applicants appeared before the Tribunal on 29 September 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. 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

7. 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?

8. 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).

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

10. In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record which the applicant provided to the Tribunal in support of the application for review. Specifically, the Tribunal indicated to the applicant that information available to the Department in the Provider Registration and International Student Management System (PRISMS) shows that at the date of the delegate’s decision record of 31 August 2016, the applicant has not been enrolled in a registered course since 7 October 2014.

11. In accordance with s.359AA, the Tribunal discussed with the applicant information available in PRISMS indicating that his enrolments in the two English Language Programs and two Bachelor of Information Technology courses were cancelled on 4 and 6 August 2014 and 7 October 2014 for non-commencement of studies, change to student enrolment and unsatisfactory attendance and consequently it appears that it is correct that since 7 October 2014, he has not been enrolled in a registered course which means that he has breached condition 8202. The applicant agreed with this information and provided explanations as discussed below.

12. 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) and it follows that the ground for cancellation under s.116(1)(b) arises.

    Consideration of the discretion to cancel the visa

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

14. 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 applicant’s travel to and stay in Australia - whether the applicant has a compelling need to travel to or remain in Australia

15. The applicant was granted the visa to study in Australia.

16. The Tribunal discussed with the applicant information contained in the delegate’s decision record provided by the applicant to the Tribunal, that on 19 August 2016, the applicant applied for a protection visa suggesting an intention to remain in Australia on a permanent basis. The Tribunal noted that this is inconsistent with the purpose for which the student visa subclass 573 was granted. The applicant stated that he had never applied for a protection visa but his lawyer had made a mistake because he had a lot of clients. The Tribunal asked the applicant if he knows the outcome of that application and the applicant replied by saying that he wanted to apply for a student visa. The Tribunal is not persuaded by the applicant’s explanations and the Tribunal is satisfied that applying for a protection visa indicates that the applicant’s intention is to remain in Australia permanently, contrary to the objectives of the student visa.

17. Given the fact that in over three years (the applicant came to Australia in June 2014) the applicant has not achieved any of his study goals and in consideration of the evidence as a whole including the application for a protection visa, the Tribunal is not satisfied that the applicant’s purpose to travel and to stay in Australia was to study or that the applicant has a compelling need to remain in Australia.

    The extent of compliance with visa conditions - whether the applicant has otherwise complied with visa conditions now and on previous occasions

18. The Tribunal is not aware of any other breach by the applicant and the Tribunal has given this some favourable weight.

19. The Tribunal has found that the applicant has breached condition 8202 and in the circumstances, the Tribunal is satisfied that the breach of condition 8202 is significant and means that the visa should be cancelled.

    The degree of hardship that may be caused to the applicant and any family members - whether the applicant is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision

20. In the course of the hearing, the applicant gave evidence that he would like to remain in Australia to study and that now he is ready to undertake courses. In response to the notice of intention to consider cancellation dated 30 August 2016, the applicant stated that if his visa were to be cancelled, this would lead to significant difficulties for himself and his wife because they would lose their right to work which means they are no longer able to support their families in China. He noted that he and his wife are still young and hope that their financial situation would improve subsequent to which he would enrol in a course.

21. The Tribunal appreciates that if the applicant’s visa were to be cancelled, this could have an impact on the secondary applicant and on their families, including the applicants not being able to work in Australia. Although the student visa has limited work rights, the primary objective of the student visa is to study not work so for the applicant to say that he would no longer be able to support family members is not persuasive in those circumstances. Furthermore, the holder of a student visa is expected to be able to finance course fees and living costs in Australia. Being allowed to work for limited hours on a student visa does not mean that the holder of a student visa can work but not study.

22. The Tribunal recognises that the cancellation of the applicant’s student visa could result in the applicant becoming an unlawful noncitizen and consequently liable for detention and removal from Australia. He could also face difficulties in obtaining another Australian visa and he may be required to return to China. The Tribunal is of the view that those are legitimate consequences in the migration program and in this instance, the Tribunal is not satisfied that they mean that the visa should not be cancelled.

23. The Tribunal has carefully considered the applicant’s circumstances but the Tribunal is not satisfied that there is a degree of hardship that means that the visa should not be cancelled.

    The Circumstances in which ground of cancellation arose - whether there were any extenuating circumstances beyond the applicant’s control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, whether the relationship has broken down as a result of family violence.

24. In the course of the hearing, the applicant gave evidence that prior to the grant of the student visa, his father-in-law died which saddened his wife who remained in China for a month longer than the applicant. He stated that his wife was sad and did not eat or drink. He stated that he was worried about her and he was unable to study. He stated that he requested leave which was not granted. The applicant referred to documents provided prior to the hearing specifically four photographs showing a burn on a foot. He stated that about two years ago his wife burnt her foot and that although he had taken photographs at the time, he no longer has that mobile phone. He provided documents from Optus referring to a telephone replacement.

25. The Tribunal referred to the letter dated 30 August 2016 responding to the notice of intention to consider cancellation where the applicant had noted that:

    a.He came to Australia to study for a better future for himself. Subsequent to his arrival in Australia, he discovered that the University in which he was enrolled is located in Canberra and not Sydney where his friends and relatives live. This created inconvenience. He subsequently applied to transfer to a campus in Sydney but was unsuccessful.

    b.The business of his parents and his in-laws had problems and they were no longer able to support him to pay for the course fees. The family needed money to pay for medical costs for his father. Under those circumstances, he had to work on a building site to earn a living for himself and his wife.

26. The Tribunal asked the applicant to explain the reasons for not mentioning the father-in-law’s death or the burn in response to the notice of intention to consider cancellation. The applicant said that he had found a lawyer and the applicant did not know what to do. The applicant also referred to 2 documents that he provided prior to the hearing referring to problems with his back. He stated that he has had back problems since he came to Australia. The Tribunal noted that the documents provided do not appear to confirm this; the Tribunal discussed the x-ray document of July 2017 noting “clinical history: Upper back pain for two years. worse for a week”.

27. The Tribunal accepts that the applicant’s father in law died a month prior to the grant of the visa and that it is natural that this saddened the secondary applicant. The Tribunal further accepts that when the secondary applicant came to Australia, she continued to feel sad and that she burnt her foot during an accident. The Tribunal also accepts that the applicant has had back pain for two years but on the evidence before it, the Tribunal does not accept that the applicant has had the problem since he came to Australia, or that the back problem impacted the applicant’s ability to study or to comply with the visa conditions.  The Tribunal gives some weight to the applicant’s circumstances. 

28. The Tribunal has carefully considered the applicant’s explanations. The Tribunal is however of the view that the applicant was granted a student visa in order to undertake studies in Australia and in over 3 years of his presence in Australia, the applicant has not completed any courses indicating that the student visa is not the appropriate visa for this applicant. 

29. On balance and considering the applicant’s circumstances individually and cumulatively, the Tribunal is not satisfied that the applicant’s circumstances as accepted by the Tribunal mean that the visa should not be cancelled. 

30. As outlined above, the applicant has not enrolled in a course for over three years, contrary to a condition attached to his visa. The applicant’s personal circumstances as accepted by the Tribunal and for the reasons explained do not mean that the visa should not be cancelled.

    The applicant’s past and present behaviour towards the department - whether the applicant has been truthful and cooperative in their dealings with the department.

31. The applicant responded to the notice of intention to consider cancellation and the Tribunal has given this aspect some weight in favour of the applicant but this does not mean that the visa should not be cancelled.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s140.

32. The second named applicant was granted a student visa as a secondary applicant and her visa would be cancelled under s.140. The Tribunal has given this aspect some weight however this does not mean that the visa should not be cancelled.

    Whether there are mandatory legal consequences to a cancellation decision

33. As discussed earlier, the applicant could become unlawful and may be subject to detention but these are consequences of the legislation and the Tribunal is satisfied that in this case, they do not mean that the visa should not be cancelled.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

34. The Tribunal asked the applicant about the application for a protection visa and he denied the making of the application and stated that this was due to error of his representative. The applicant did not raise any protection claims and there is no evidence before the Tribunal that there would be breach of any international obligations as a result of the visa cancellation.

35. Considering the circumstances individually and cumulatively, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

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

    Antoinette Younes

    
    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.