Wu (Migration)

[2017] AATA 2273

Wu (Migration) [2017] AATA 2273 (16 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zhou Wu

CASE NUMBER:  1618891

DIBP REFERENCE(S):  BCC2016/3147734

MEMBER:Nicola Findson

DATE:16 November 2017

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 16 November 2017 at 12:17pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Applicant changed enrolment to vocational course – Departure from Australia without Bridging visa

LEGISLATION

Migration Act 1958, ss 116, 140, 362B

Migration Regulations 1994

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 November 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of China, born in March 1992.  His most recent student visa was granted on 23 March 2015.  On 17 October 2016, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8516 of his visa, as he ceased to be enrolled in a higher education sector course.  The applicant did not provide a response to the NOICC.

3. On 2 November 2016, the delegate cancelled the visa under s.116(1)(b) on the basis that the applicant breached condition 8516 of his visa.

4. On 17 October 2017, the Tribunal received email correspondence from the applicant, indicating that he had returned to China for his grandfather’s funeral without making application for a bridging visa to enable him to re-enter Australia, and querying whether he would be able to attend any upcoming Tribunal hearing.  Movement records confirm that the applicant departed Australia on 1 January 2017.

5. On 26 October 2017, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his 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 by telephone at a hearing on 16 November 2017.  The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before it or may dismiss the application for review without any further consideration of the application or the information before it.  The applicant was also provided with an ‘Information about hearings – MR Division’ leaflet, which contained important information about hearings, dismissals and an applicant’s rights.

6. On 3 November 2017, the applicant provided the Tribunal with his ‘Response to hearing invitation’ form as well as an accompanying statement.  The ‘Response to hearing invitation’ form indicated that the applicant would not take part in the hearing scheduled for 16 November 2017, but that his representative would attend.  The accompanying statement stated as follows:

   My name is Zhou WU (Date of birth: 19 March 1992).  I have been granted a subclass 573 visa to study Bachelor of Commerce (Economics) at Canning College and Curtin University on 23 March 2015.

   My father owns a steel products processing business in China and he wanted me to study a commerce course so that I could help him manage our family business after I graduated.  I have listened my father’s advice but after studying it for one semester at Canning College, I found this course is not suitable for me as it is too academic and I would rather to study something that will give me more hands on experience in the construction industry and thus I have applied to enrol to Bricklaying courses at Silver Trowel.

   I did not realise this change of course means I need to lodge a separate visa application due to lack of relevant knowledge until one of my friends who experienced similar situation told me I should do so in May this year.  However, when I consulted to another friend of mine, he said the Simplified Student Visa Framework will remove all visa subclasses within student visa category, such as 572 & 573, and replace with only one subclass 500.  Therefore, I don’t need to change my student visa from 573 to 572, as long as I could maintain good attendance and academic performance with the new provider, of course I need to supply the new CoEs to the DIBP, which I have done accordingly.

   Even I received a Decision of Cancellation letter (please refer to attached Notification of Decision) on 2 November 2016, I still studied at Silver trowel went well until 30 December 2016, I received a call from my parents.  They asked me went back to China shortly because the serious family issue.  I hurriedly left from Australia and went back to home.  I really did not realise I am on bridging A visa, which is not allowed to leave from Australia.

   Currently, I am in China. After careful consideration of complexity of the student visa issues, I hereby would like to state that I am appointing Mr Gang CAO … as my representing migration agents in the Hearing with AAT on behalf of myself.

7. On 8 November 2017, the Tribunal wrote to the applicant and reiterated that if he did not attend his scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before it or may dismiss the application for review without any further consideration of the application or the information before it.  No response to the Tribunal’s letter was received, and neither the applicant or his representative attended the scheduled hearing on 16 November 2017 at 10:00am before the Tribunal.

8. Pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further steps to enable the applicant to appear before it.

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. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

11. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa. Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

12. The Departmental decision identified that the Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 17 October 2016.  The Departmental decision sets out that on 23 March 2015 the applicant satisfied the primary criteria for the grant of the 573 visa and met cl.573.231 or cl.573.223(1A) to be granted the visa.  These clauses requires the applicant to be enrolled in a bachelor or master degree course, or in a course of study that is a principal course of a type specified for a subclass 573 visas by the Minister in an instrument made under r.1.40A.

13. According to the delegate’s decision, the Departmental systems indicated that at the time of the NOICC, the applicant was no longer enrolled in a bachelor or master degree course, nor in a course of study that is a principal course of a type specified for subclass 573 visas by the Minster in an instrument made under r.1.40A.

14. The applicant, in his statement to the Tribunal, indicated that he had ceased being enrolled in his Bachelor of Commerce (Economics) because he found it “not suitable” and “too academic” and that he had instead enrolled in a bricklaying course at another institution.  He also indicated that he did not understand that he was required to lodge a separate visa application because of his course change.

15. On the basis of the information before it, the Tribunal is satisfied that when the applicant ceased to be enrolled in a higher education course he did not continue to satisfy cl.573.231 or cl.573.223(1A), and that he therefore did not continue to be a person who would satisfy the primary criteria for the grant of the visa. The Tribunal finds therefore that he breached condition 8516 of his student visa.

16. 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 the power to cancel the visa should be exercised.

    Consideration of discretion

17. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

    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

18. The applicant was granted his visa to undertake higher education studies in Australia, thus his purpose for and travel to Australia.

19. If the applicant had attended the scheduled hearing, the Tribunal would have spoken with him in detail about the reasons for and extent of the breach and the circumstances in which the ground for cancellation arose. The Tribunal would have asked whether there were any academic or personal barriers to his continuing enrolment in the higher education sector course and, if so, what assistance he sought and obtained to overcome any such barriers.

20. The information before the Tribunal is that the applicant is no longer enrolled in a higher education course.  Taken in the context of the original purpose of his presence in Australia, the Tribunal is not satisfied that the applicant has a compelling need to remain in Australia. 

21. On the evidence before it, the Tribunal is not satisfied that the purpose for the applicant’s travel and stay mean that the visa should not be cancelled.

    The extent of compliance with visa conditions

22. The applicant was granted the visa to undertake specified studies in Australia.  He has not done so.  He has not complied with the primary condition of the visa granted to him.

23. The Tribunal considers that this weighs heavily in favour of cancellation of the visa.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the visa holder and any family members

24. If the applicant had attended the scheduled hearing, the Tribunal would have asked him about what, if any, hardship would be caused to him or his family if the visa is cancelled.  Given there is no evidence before the Tribunal in this regard, the Tribunal considers this factor neutral in terms of exercise of the discretion to cancel the visa.

    Circumstances in which ground of cancellation arose.  If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence.  The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

25. As already set out above, if the applicant had attended the scheduled hearing, the Tribunal would have spoken with him in detail about the circumstances in which he ceased his enrolment in a higher education course. The Tribunal would have asked whether there were any academic or personal barriers to his continuing enrolment in the higher education sector course and, if so, what assistance he sought and obtained to overcome any such barriers.

26. It was fundamental to the grant of this visa to the applicant that he be enrolled in a higher education sector course, and maintain enrolment in such a course, in order to comply with condition 8516.  There is limited evidence before the Tribunal as to why the applicant ceased his enrolment in a higher education sector course.

27. The Tribunal is of the view that the extent of the breach of the visa condition is serious in relation to considering the discretion to cancel the visa.

    Past and present conduct of the visa holder towards the Department

28. While there was no material before the Department to indicate that the applicant has been deliberately uncooperative or untruthful in his dealings with the Department, the Tribunal notes that he did not respond to the NOICC.  The Tribunal gives some weight to this factor as weighing in favour of cancellation of the visa.

    Whether there are mandatory legal consequence, such as whether cancellation would result in the visa holder being unlawful and subject 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

29. The evidence before the applicant is that he has departed Australia and returned to China. 

30. The Tribunal is not satisfied that there are consequences of the cancellation which mean that the visa should not be cancelled.

    Whether there would be consequential cancellations under s.140

31. There is no evidence before the Tribunal that there would be consequential cancellations in this case.

    Whether any international obligations would be breached as a result of the cancellation

32. There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation.

    Any other relevant matters

33. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation. 

34. 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

35. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Nicola Findson
    Member