WU (Migration)

[2017] AATA 2502

WU (Migration) [2017] AATA 2502 (4 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms HANG WU

CASE NUMBER:  1613770

DIBP REFERENCE(S):  BCC2016/1432781 BCC2016/2224862

MEMBER:Antoinette Younes

DATE:4 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 04 October 2017 at 5:28pm

CATCHWORDS

Migration – Cancellation - Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Requirement to be enrolled in a registered course – Applicant not enrolled in a registered course- Lack of academic progress

LEGISLATION

Migration Act 1958, s 116

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 23 August 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa, under s.116(1)(b) of the Migration Act 1958 (the Act).  The visa was granted on 13 November 2013.

2. The delegate cancelled the visa on the basis that the applicant did not comply with 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.

3. The applicant appeared before the Tribunal on 4 October 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. 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

5. 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?

6. 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).

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

8. 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 23 August 2016, the applicant has not been enrolled in a registered course since 10 February 2016.

9. The Tribunal discussed with the applicant the summary of her study history as summarised in the delegate’s decision record (confirmed in PRISMS). Specifically, the Tribunal noted that although the applicant had completed a number of English courses and a Diploma of Commerce, the records show the following details of relevant enrolments:

   a.General English course 1 – CoE cancelled on 24 December 2013.

   b.Academic English 1 - variation on 9 May 2014.

   c.Academic English 2 - CoE cancelled on 18 July 2014 for non-commencement of studies.

   d.General English course 2 - cancelled due to change to student enrolment.

   e.Academic English 3 - cancelled on 18 July 2014 due to change to a course in the same sector.

   f.Academic English 2 - cancelled on 16 June 2014 due to change to CoE.

   g.Bachelor of Commerce – cancelled on 18 November 2014 due to non-commencement of studies.

   h.Bachelor of Commerce - cancelled on 13 January 2015 due to change to CoE.

   i.Diploma of commerce – CoE cancelled on 10 February 2016 for non-attendance.

   j.Bachelor of Commerce (x2) - CoEs cancelled on 22 December 2015 and 10 February 2016 due to non-commencement of studies.

10. The Tribunal advised the applicant that the above information is relevant in that it confirms that the applicant has not been enrolled in a registered course since 10 February 2016.  The applicant agreed with this information and provided explanations as discussed below.

11. On the basis of the available information, the Tribunal finds that the applicant has not been enrolled in a registered course since 10 February 2016. 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

12. 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.

13. 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

14. The applicant was granted the visa to study in Australia and the evidence before the Tribunal indicates that the applicant has had difficulties in achieving her study goals or the objectives of the visa which she was granted.

15. In the course of the hearing, the applicant gave evidence that she had applied for a “spouse visa” in February 2016 which was later clarified as being an application for a subclass 573 as a dependent on her partner’s subclass 573 visa. The applicant advised the Tribunal that the application was refused and she decided not to seek review of that decision because the relationship was “not good” and they were separating. The applicant confirmed that she is no longer in that relationship. She stated that she applied for the visa not to stay in Australia permanently but to take a break from studies. The Tribunal is not persuaded; the Tribunal is of the view that the application as a dependent is not in accordance with the original purpose of the subclass 573 which the applicant was granted.

16. The Tribunal accepts as plausible that the applicant travelled to Australia to study, but on the evidence before it, the Tribunal is not satisfied 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

17. Apart from non-compliance with condition 8202, there is no evidence before the Tribunal that the applicant has not complied with other visa conditions. The Tribunal gives this aspect some weight however the Tribunal considers the non-compliance with condition 8202 to be 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

18. The applicant did not respond to the notice of intention to consider cancellation. In the course of the hearing, she advised the Tribunal that she would like to continue her studies in Australia and achieve qualifications in business because the family runs an export business in China. She stated that she has had difficulties studying because she found the course of Academic English 3 to be very difficult and she has been unable to achieve the threshold score of 65.

19. The Tribunal is of the view that the evidence indicates that although the applicant has completed a number of English courses and a diploma of commerce, in over three years, she has been unable to progress beyond those levels. The subclass 573 is intended for students to undertake courses at a tertiary level and on her own evidence, the applicant has not been able to pass the Academic English level so it is difficult to see how she would be able to progress and complete a tertiary course. On the evidence before it, the Tribunal is not satisfied that if the visa were to be cancelled and as a result of the applicant would not be able to study in Australia, this would amount to hardship to mean that the visa should not be cancelled.

20. The Tribunal is mindful that if the applicant’s visa were to be cancelled, she could become an unlawful noncitizen and she could be detained. She would have limited options to apply for further visas in Australia and may be required to leave Australia. The Tribunal is satisfied that those are intended consequences of the legislation and in the applicant’s case, they do not mean that the visa should not be cancelled.

21. Looking at the circumstances cumulatively, 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.

22. In the course of the hearing, the applicant gave evidence that when she was studying the course of English Academic 3, the teacher recommended a diploma course and she was planning to undertake studies in February 2016 but her visa was cancelled.

23. As outlined above, the applicant has not enrolled in a course for a substantial period, contrary to a condition attached to her 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.

24. The applicant did not respond to the notice of intention to consider cancellation but the Tribunal has not placed much weight on this aspect in deciding that the visa should be cancelled.

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

25. There is no evidence before the Tribunal and the applicant is not claiming that there would be any consequential cancellations under s.140.

    Whether there are mandatory legal consequences to a cancellation decision

26. 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

27. On the evidence before it, the Tribunal is not satisfied that any international obligations would be breached as a result of the cancellation. 

    Any other relevant matters raised by the applicant

28. There are no other matters requiring consideration by the Tribunal.

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

    DECISION

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

    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.