Xian (Migration)

[2018] AATA 4956

Xian (Migration) [2018] AATA 4956 (25 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Juan Xian

CASE NUMBER:  1619844

HOME AFFAIRS REFERENCE:                BCC2016/3151893

MEMBER:Lilly Mojsin

DATE:25 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 25 October 2018 at 3:04pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – birth of a child – child’s interest – relationship within Australia – partner’s unwillingness to return to home country – funding of studies – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 116
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 November 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).

2. The applicant, a citizen of China, arrived in Australia on 26 October 2014 as the holder of a Student (Temporary) (Class TU) 573 visa under s.65 of the Migration Act 1958 (the Act). 

3. The delegate of the Department cancelled the visa on the basis that the applicant was not enrolled in a registered course and therefore had breached condition 8202 of her visa.

4. The applicant appeared before the Tribunal on 24 October 2018 to give evidence and present arguments.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present review 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.

7. Condition 8202, as it applies in this review, 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).

8. In the present review, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a registered course.

9. At the Tribunal hearing the applicant stated that she had arrived in Australia in order to study Business. Her visa had been due to expire in March 2019.

10. The applicant confirmed that a Notice of Intention to Consider Cancellation [NOICC] was sent by the Department to the applicant on 28 October 2016 and the notice invited the applicant to respond in writing.  The applicant responded in a series of emails dated 11 November 2016, 14 November 2016 and 15 November 2016.

11. The applicant agreed at the Tribunal hearing that she had not fulfilled her study commitment.

12. In light of the above statement made by the applicant, the Tribunal is satisfied that 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 review, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’

14. A reference provided by a social worker, Laurel Ginges, dated 29 December 2016, stated that the applicant was referred to their program due to multiple vulnerabilities as a mother with a baby. These include being unsupported, socially isolated with language barriers and a lack of knowledge of local services and resources. Since delivering her baby, which was unplanned, she has been a full-time carer. Her visa situation is causing increased stress and anxiety for the applicant. The applicant wishes to remain in Australia to continue her studies when her son can be placed in a day care situation.

15. The applicant applied to the Tribunal for a fee reduction stating that she receives financial support from her boyfriend who pays for rent and food. Her child was born on 7 September 2016. She has stated in response to question 9 of the Request for Fee Reduction, that details of her cost to travel and stay in Australia if the visa is granted, “boyfriends future/current work income”.

16. The applicant advised the Tribunal that her purpose of travel and stay in Australia was to study business. The visa was due to expire in March 2019. She lives in a permanent relationship with her husband/boyfriend but she is not sure if it is to continue because their  affection is no deep enough. Asked why she did not return to China when she stopped studying, she said at the time she was pregnant and scared. Asked why she did not return to China after her child was born she said that she does not know as her parents are not happy about it and she does not know how she will survive. Her boyfriend/de facto husband, Kai Wang, who is from Hebei, works in construction and he does not study. She is from Shenyang. They met in Australia in October or November 2015, but they only started living together one month after their son was born.

17. In regard to cancellation, the applicant stated that she intends to continue to study in Australia, for a better job. She would like to study to be a child care teacher based on her current situation, as it is easier. She would like to start studying and she will try to get into a school as soon as possible.

18. The applicant was informed the decision record stated that she would be subject to Public Interest Criteria 4013. She was informed that in the event of her visa cancellation she may not be granted a temporary visa for 3 years from the date of cancellation.

19. The applicant said that she had completed high school only. She studied English in Australia and she did not complete any other courses. She is living with her child’s father. She has been living with him for 2 years. He is Chinese, she does not know what type of visa he has.

20. When asked about any hardship she would suffer if the visa were cancelled, the applicant responded that she does not think her parents would help her but she does not know if her boyfriend would go back. He wants to stay here. They did not discuss his visa situation or her visa situation. The Tribunal expressed its concerns to the applicant that she and her boyfriend/spouse would not discuss something so important to their future as their visa status. She responded saying he knows about her visa and hopes she will study. Asked who would pay for her studies, she said her partner. When put that she is in stable relationship otherwise her boyfriend/spouse would not be prepared to pay for her studies, she said their relationship was relatively pretty stable.

21. Asked if there would be any hardship to her child if the visa is cancelled, she said she does not know.

22. The Tribunal has also had regard to matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. These are discussed below:

23. The purpose of the student visa is to enable the visa holder to undertake study in Australia. There is no evidence before the Tribunal to suggest that the applicant’s original intention for her travel to and stay in Australia was not for the purpose of study. The applicant agrees that she has not been enrolled in a registered course since completion of her English course in 2015 and that at the time the NOICC was sent to the applicant she had not been complying with condition 8202(2)(a). The applicant’s son was born 7 September 2016. The Tribunal considers the breach of condition 8202(2) to be significant as the applicant had not been fulfilling the purpose of her travel to and stay in Australia as a holder of a student visa when she ceased studying, which was prior to the birth of her child. The Tribunal weighs this factor in favour of cancelling the visa. 

24. The Tribunal accepts that the applicant wishes to stay in Australia with her boyfriend/de facto and her child. The applicant states that she has a compelling need to remain in Australia as she wishes to commence her studies in childcare. She does not know if her boyfriend/de facto would return to China with her. She claims that the affection in her marriage is not that deep. When put to her that her boyfriend/de facto is prepared to pay for her studies she said their relationship was relatively pretty stable. In light of this conflicting information the Tribunal is not satisfied that the applicant has truthfully explained her situation and the Tribunal is not satisfied the applicant has a compelling need to remain in Australia. The Tribunal weighs this factor in favour of cancelling the visa. 

25. The Tribunal accepts that cancellation may impact adversely on the applicant’s desire to study in the future in Australia. The Tribunal also accepts the applicant has not obtained a qualification in Australia.  As for hardship that would result to the applicant, her boyfriend/de facto and her child, the applicant has provided no information regarding her boyfriend/de facto’s residency or visa status. The applicant states that she and her boyfriend/de facto have not discussed their relevant status. The Tribunal finds the applicant’s explanation that she and her boyfriend/ de facto have not discussed their visa situation as implausible particularly because the applicant told the Tribunal that her boyfriend/de facto knows about her visa and hopes she will study. The Tribunal is not satisfied that the applicant has truthfully explained her circumstances and as the applicant has not been truthful, the Tribunal is not satisfied that the applicant would suffer hardship were the visa to be cancelled. The Tribunal weighs this factor in favour of cancelling the visa. 

26. There is no evidence before the Tribunal to indicate that the applicant's non-compliance with the visa condition was due to circumstances beyond her control. The Tribunal weighs this factor in favour of cancelling the visa. 

27. There is no evidence before the Tribunal to suggest that the applicant’s past or present behaviour towards the Department was adverse. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.  

28. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice regarding her immigration status. 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 she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion.

29. There are no persons in Australia whose visas would, or may, be cancelled under s140. The Tribunal notes from the decision record that there is no information before the Department that indicates that any other person currently holds a visa because the applicant held her student visa. The applicant stated she has a child but there is no evidence to suggest that her child holds a visa. Therefore any cancellation of the applicant’s student visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements any international obligations, including non-refoulement and best interests of the children, would be breached as a result of the cancellation. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.

30. The Tribunal accepts that returning to China with a 2 year old child may be difficult but does not amount to hardship. As the Tribunal is not satisfied the applicant has been truthful in explaining her circumstances to it, the Tribunal is not satisfied that the applicant’s parents would not help her on her return to China. The Tribunal weighs this factor in favour of cancelling the visa. 

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

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

    DECISION

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

    Lilly Mojsin
    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.