Wu (Migration)

[2019] AATA 4168

Wu (Migration) [2019] AATA 4168 (6 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zhou Wu

CASE NUMBER:  1718625

HOME AFFAIRS REFERENCE(S):           BCC2017/2265475

MEMBER:Mark O'Loughlin

DATE:6 September 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 06 September 2019 at 12:57pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – no response to s 359A invitation – not entitled to appear before the Tribunal – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – significant period of non-enrolment – departed Australia with no right of re-entry – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

CASES
Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 August 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 breached condition 8202 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. On 22 August 2019 the Tribunal wrote to the review applicant pursuant to s.359A of the Act, inviting the review applicant to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The relevant information was contained in movement records and was that the applicant had returned to China with no right of return, which suggested that he did not intend to return to Australia and did not intend to pursue further study in Australia.

4. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 5 September 2019, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. The review applicant has not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

6. The applicant was represented in relation to the review by his registered migration agent.

7. 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

8. 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?

9. 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)

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

11. The applicant was sent a notice of intention to consider cancellation of his visa by the department in an email of 1 August 2017.

12. The applicant replied by email dated 6 August 2017.  In that email he admitted that he did not enrol in courses for the semester of November 2016. 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

13. 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’

14. The Tribunal has regard to the following documents;

    a.Notice of intention to consider cancellation dated 1 August 2017;

    b.Applicant’s email in response dated 6 August 2017;

    c.Delegate’s decision dated 11 August 2017 provided by the applicant to the Tribunal; and

    d.Movements details dated 21/08/2019.

15. The Tribunal has not relied on any other documents in making this decision.

16. The applicant’s email of 6 August 2017 might be relevantly summarised as saying that he did not enrol in courses in November 2016 because he was called back to China for a family issue involving a health crisis suffered by his grandmother.  When he attempted to enrol in March 2017 his enrolment had been cancelled.

17. He said that he suffered a relapse of depression which he had previously suffered in 2015 and it took him some time to recover sufficient function to return to study.  He changed to study cookery and his depression improved.

18. Movement records show that the visa holder returned to China on 3 January 2019 with no right of re-entry.

19. The visa holder’s representative contacted the Tribunal on 4 September 2019 to advise that the applicant had not responded to any communication attempts.

20. The Tribunal notes that there is no evidence that the visa holder intends to travel to or remain in Australia and no evidence of any need to travel to or remain in Australia.

21. The delegate’s decision says that the visa holder did not comply with the requirement that he be enrolled from 4 November 2016 to 23 July 2017 but that there was no evidence of failure to comply with other conditions of his visa.  The Tribunal finds that non-compliance for over 8 months is significant non-compliance.

22. There is no evidence that any hardship will be caused if the applicant’s visa is cancelled.

23. The visa holder has submitted that his failure to enrol was precipitated by a family crisis followed by a period of depression.  There is no evidence other than the applicant’s submissions to support that.  The Tribunal is not satisfied that the ground for cancellation arose in circumstances that were beyond the visa holder’s control.  The Tribunal is not satisfied that the reasons given by the applicant for his failure to be enrolled are sustained.

24. There is no evidence of past or present behaviour of the visa holder that supports a conclusion that the visa should be cancelled.

25. There is no evidence that there will be consequential cancellations under s.140 of the Act.

26. If the Student visa is cancelled, there will be no effect on the applicant’s status as a resident as he has returned to China.

27. Future visa grants may be compromised by the cancellation of this visa and in particular, the applicant will come within the risk factors defined in Public Interest Criterion 4013.  That will mean he will be restricted in lodging an application for another visa to Australia for 3 years after the cancellation of the Student visa.

28. There is no information before the Tribunal that shows that the cancellation would result in breach of Australia’s international obligations.

29. The Tribunal is not aware of any other factors relevant to the exercising of its discretion to cancel the visa.

30. The Tribunal has weighed the considerations set out above together and finds that, although the applicant suggests that the grounds for cancellation arose from matters beyond his control, namely depression, he has failed to demonstrate that.

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

    DECISION

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

    Mark O'Loughlin
    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.