Weng (Migration)

[2023] AATA 1947

Weng (Migration) [2023] AATA 1947 (8 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Qichao Weng

CASE NUMBER:  2211667

HOME AFFAIRS REFERENCE(S):          BCC2022/1862100

MEMBER:Christine Kannis

DATE:8 May 2023

PLACE OF DECISION:  Perth

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

Statement made on 08 May 2023 at 10:24am

CATCHWORDS
MIGRATION – cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant failed to attend hearing –breached condition 8202 – applicant was not enrolled in a full-time registered course – no evidence before the Tribunal as to whether there was a compelling need for him to remain in Australia –decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (ESOS Act), s 19
Migration Act 1958, ss 116, 359
Migration Regulations 1994 (Cth), Schedule 8

CASES

Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 August 2022 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 failed to comply with a condition of his 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.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The application for review was listed for hearing on 8 May 2023. An Invitation to attend a hearing was sent to the applicant on 13 April 2023. No response to the Invitation was received.

5. On 28 April 2023, the Tribunal sent the applicant an email advising that a response to the Hearing invitation had not been received and requesting a response by 1 May 2023. No response was received.

6. On 1 and 5 May 2023, the Tribunal sent the applicant a SMS hearing reminder to the mobile phone number he provided when lodging the application for review.

7. The applicant failed to appear at the hearing and did not contact the Tribunal prior to the scheduled hearing to advise of an inability to attend.

8. The Tribunal is satisfied that the applicant has been given an opportunity to attend the hearing.  The Tribunal proceeds to make a decision without taking any further action to allow or enable the applicant to appear before it as it is empowered to do under s.362B of the Act.

9. 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

10. 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?

11. On 26 May 2020, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.

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 full-time registered course: 8202(2)(a)

    ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

    ·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).

13. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

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

15. Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2]

    [1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).

    [2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act.

16. The information from the PRISMS shows that the applicant was not enrolled in a registered course from 9 March 2021 to 21 July 2022.

17. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 9 March 2021 to 21 July 2022 and the Tribunal finds that he breached condition8202(2)(a) of his visa.

18. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

19. 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’, as set out below.

20. On 5 July 2022, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 9 March 2021 to 21 July 2022 and had therefore failed to comply with condition 8202(2)(a) of his visa.  The applicant did not respond to the NOICC.

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

22. As the applicant failed to attend the hearing the Tribunal has considered the evidence provided in the delegate’s decision and in the Department file against each of the matters in PAM3 as referred to above.

23. The Tribunal has found that the applicant breached condition 8202(2)(a) of his visa because PRISMS shows he was not enrolled in a full-time registered course from 9 March 2021 to 21 July 2022. The Tribunal noted that the primary Decision Record, which was submitted with the review application by the applicant fell within the exceptions of s.359A (under s.359A(4)(b)) and contained this information. The Tribunal was therefore of the view that in this instance there is no obligation for it to put that information to the applicant in accordance with ss.359A or 359AA of the Act.

    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

24. The purpose of his visa was to enable the applicant to study. At the time the NOICC was issued the applicant had not been enrolled in a registered course for 16 months.  The Tribunal finds the applicant’s breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.

25. As the applicant failed to attend the hearing, there was no evidence before the Tribunal as to whether there was a compelling need for him to remain in Australia. 

26. The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

    The extent of compliance with visa conditions

27. The applicant has not complied with condition 8202 of his student visa because  he has failed to maintain enrolment in a full-time registered course of study from 9 March 2021 to 22 July 2022. There is no evidence before the Tribunal that  he has not complied with the other conditions attached to his visa.

28. The applicant’s non-compliance for an extended period of 16 months prior to the NOICC weighs in favour of visa cancellation.

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

29. As the applicant failed to attend the hearing, there was no evidence before the Tribunal as to the degree of hardship that may be caused. However the Tribunal considers it likely that the cancellation of the applicant’s visa will be disappointing to him in that he will not be able to complete his study in Australia. The Tribunal gives this some weight against cancellation.

    Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control

30. The applicant’s visa was cancelled as a result of his failure to maintain enrolment.  As the applicant failed to attend the hearing, there was no evidence before the Tribunal as to the circumstances in which the ground of cancellation arose and whether the circumstances were beyond the applicant’s control.

31. In the absence of any evidence to the contrary, the Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The Tribunal finds there are no extenuating or compassionate circumstances in this case and this weighs in favour of visa cancellation.

    Past and present behaviour of the visa holder towards the Department

32. There is no evidence before the Department that the applicant has behaved inappropriately with the Department and the Tribunal gives this factor no weight in its considerations.

    Whether there would be consequential cancellations under s 140

33. There is no one attached to the applicant’s visa and as such the Tribunal gives this factor no weight in its considerations.

    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

34. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s 189 and removed from Australia pursuant to s 198. The Tribunal is 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. The Tribunal acknowledges the difficulty this would cause the applicant and gives this some weight against cancellation.

    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

35. There is nothing to suggest that Australia’s international obligations would be breached as a result of the cancellation and the Tribunal gives this factor no weight in its considerations.

    Any other relevant matters

36. The Tribunal is not aware of any other considerations in relation to the cancellation.

    Conclusion

37. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of his visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant is not fulfilling the purpose of his travel to and stay in Australia as  he is not undertaking the study for which his visa was granted. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa. It will not be in breach of Australia’s international obligations. The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

38. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Christine Kannis
    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.