Wei (Migration)

[2018] AATA 5469

Wei (Migration) [2018] AATA 5469 (16 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Jingping Wei

CASE NUMBER:  1621054

HOME AFFAIRS REFERENCE(S):           BCC2016/3366380

MEMBER:Mr S Norman

DATE:16 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 16 November 2018 at 12:00pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 573 Higher Education Sector – not enrolled in registered course – multiple visa applications – not genuine student – medical condition – applicant did not attend hearing – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 189, 198, 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 8 December 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). The Department delegate’s decision was lodged with the Tribunal. The delegate cancelled the visa on the basis that the applicant breached condition 8202(2) - enrolment. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

2. By letter of 13 September 2018 (issued by email to the authorised recipient), the Tribunal sent the applicant a hearing invitation advising that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 16 November 2018. In its letter of 13 September 2018, the applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on her case without further notice.

3. By letter of 13 September 2018, the Tribunal was advised the merits review application may be withdrawn. By letter of 14 September 2018 (issued by email to the authorised recipient), the Tribunal requested the applicant confirm this in writing by completing documents that had been attached. No response to this letter had been received.

4. Accordingly, two SMS (hearing reminder) texts were sent to the applicant’s claimed mobile phone shortly prior to the hearing.

5. The applicant did not appear before the Tribunal on the day and at the time and place at which her hearing was scheduled. In these circumstances, and pursuant to s.362B of the 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.

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. The applicant’s visa was cancelled on the basis that she was not enrolled in a registered course. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 31 July 2015. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 7 November 2016,[1] the applicant was advised that information on the Provider Registration and International Student Management System (PRISMS) indicated she had not been enrolled in a registered course of study since 18 December 2015. Therefore it appeared she had breached condition 8202(2)(a); and that her visa may be cancelled under s.116(1)(b) of the Act. The applicant did not dispute there were grounds to cancel the visa.

   [1] Department – folio 4.

10. 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

11. 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’

12. Regarding the purpose for the applicant’s travel to and stay in Australia, she said she travelled to Australia to study. The delegate noted the applicant had applied for the subclass 573 Student visa on 24 June 2015 and this was granted on 31 July 2015. The applicant had held prior Student visas; the first a subclass 571 granted 20 October 2006, the second a subclass 573 granted 19 March 2009, and the third a subclass 573 granted 31 July 2015. However, the applicant now wished to be granted a one-year Visitor visa with multiple facilities allowing her to stay three months every time she entered Australia.[2] She had also applied for a Visitor visa. In the circumstances, the Tribunal was not satisfied the applicant’s present intention is to stay in Australia for the purposes of study.

    [2] Tribunal – folio 4. 

13. Next, the applicant had not been enrolled in a registered course of study from 18 December 2015.  It was also conceded the applicant did not contact their education provider or (initially) return to China.

14. Regarding the degree of hardship the applicant or her family may suffer if the visa is cancelled, the Tribunal accepts that if the visa is cancelled she or her family may suffer some limited hardship. She may also be subject to detention under s.189 and removal under s.198 of the Act. However, based on the evidence before the Tribunal I am not satisfied she would be subject to indefinite detention. I am also satisfied she could temporarily retain her Bridging visa in order to remain in the community to finalise her affairs prior to departing.

15. Regarding the circumstances giving rise to the cancellation, in her response to the NOICC, the applicant referred to her poor health. She referred to “severe eczema in 2015”; blisters on her face, hands and feet; swelling of her face and neck; pain; swelling of her fingers; itchiness; and that none of the medical assistance she had been prescribed had assisted. She said she was unable to sleep and became “weak and feeble”. She said she had ‘wounds’ on her face and neck and appeared to be a “monster” in the eyes of other persons. People did not approach her due to her illness and this hurt her. She said her medication caused her to gain weight. She referred to suffering a fever and feeling bad and lying in her bed constantly. She was eventually “encouraged by her parents” to see a doctor. After more than half a year of treatment in Australia she recovered (medical evidence lodged). The medical evidence indicated she had been treated with herbal prescriptions.

16. An explanation of ‘pompholyzx eczema’ (apparently suffered by the applicant), indicated it was an extremely serious skin disease which generally occurred in summer. It was said the breach of her Student visa conditions were due to her health and these should be considered to give rise to compelling and compassionate circumstances and factors beyond her control. However, it was also conceded she did not contact her education provider at all, or at least initially, return to China to seek further medical treatment .

17. It was then submitted that as a young female who had suffered an embarrassing disease, she had decided to cease studying, to consider returning to China for treatment. It was also claimed she hoped to be granted a Visitor visa so she can return from China for sightseeing or visiting friends and relatives.

18. The delegate noted the applicant had departed Australia 15 December 2015 and had returned to Australia on 29 February 2016. At the time of the departure, the applicant had not been enrolled in a registered course of study and when they return to Australia they were still not enrolled. The delegate noted that when the applicant departed Australia on 15 December 2016, they were receiving treatment for a medical condition which was stated to have prevented her from attending classes. Nonetheless, it did not prevent the applicant from departing Australia and returning to China.  

19. The Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

20. The Tribunal also notes that if the applicant’s visa is cancelled she would be subject to s.48 and would have limited options to apply for further visas in Australia.  She would also be subject to PIC 4013 (meaning she could not be granted a temporary visa for three years from the date of cancellation). 

21. However, and after considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Mr S Norman
    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.