Xu (Migration)

[2019] AATA 3473

Xu (Migration) [2019] AATA 3473 (27 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Geng Xu

CASE NUMBER:  1825613

HOME AFFAIRS REFERENCE(S):          BCC2018/2326873

MEMBER:Christine Kannis

DATE:27 July 2019

PLACE OF DECISION:  Perth

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

Statement made on 27 July 2019 at 11:22am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of visa not fulfilled – decision under review affirmed

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

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 29 August 2018 made by a delegate of the Minister for Home Affairs 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 issue in this case is whether the 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 applicant appeared before the Tribunal on 2 July 2019 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Mandarin and English languages.

5. 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

6. 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. Relevant 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.

   Did the applicant comply with Condition 8202?

7. On 13 June 2013 the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. 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.

8. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since his enrolment in a Bachelor of Science was cancelled on 22 March 2017. His enrolment in a Master of Professional Engineering was cancelled on 6 March 2017. Having regard to the information in the PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 22 March 2017. The Tribunal finds that he breached condition8202(2)(a) of his visa.

9. 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

10. 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.

11. On  15 August 2018 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of his visa. 

12. The applicant did not respond to the NOICC. He told the Tribunal that he didn’t receive the NOICC. The Tribunal noted that Departmental records show that on 15 August 2018 the applicant provided an email address by phone. The NOICC and the Decision Record were sent to this email address. The Tribunal also noted that the email address provided by the applicant on 15 August 2018 is the same email address he provided on his Application for review form. The Tribunal is satisfied that the NOICC was sent to the applicant at his last known address to the Minister.

13. The applicant told the Tribunal that he ceased to be enrolled from 22 March 2017 because he was unable to complete the course due to it being too difficult. He said the school told him his marks were too low and he could re-enrol again in two years. He said this conversation took place after his enrolment was cancelled.

14. The Tribunal put to the applicant that he would have been aware that he was in breach of a condition of his visa when he ceased to be enrolled in a registered course. He conceded that he was aware he was in breach of a condition of his visa. The Tribunal asked him what action he took with respect to his study after cancellation of his enrolment. He said he didn’t contact the Department but he contacted a migration agent who verbally advised him that he could try and transfer to a different school and study a less difficult course. He said he took no further action to enrol in any study.

15. The Tribunal asked the applicant what he did from cancellation of his enrolment until cancellation of his visa, a period of 17 months. He said he went overseas for four weeks in mid-2018 but otherwise he did nothing. He did not work and said he is financially supported by his family.

16. When asked about the hardship that may result from cancellation of his visa the applicant said if he cannot complete the Mechanical Engineering course it will be a major failure for him. Despite saying that the course was too difficult for him he still wants to complete it and has undertaken some “self-study” of the subjects he previously failed such as Physics.

17. Noting that more than two years have passed since his enrolment was cancelled the Tribunal asked the applicant whether he had made enquiries of any education providers about future enrolment. He said he had not done so.

18. The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.

    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

19. The applicant told the Tribunal his purpose in coming to Australia was to study Mechanical Engineering. At the time the NOICC was issued the applicant had not been enrolled in a registered course for 17 months. 

20. 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. 

21. The Tribunal questioned the applicant as to whether there were any compelling reasons for him to remain in Australia. He said there were none. 

22. 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

23. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal gives this some weight in his favour.

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

24. The Tribunal accepts that the applicant will be disappointed if his visa is cancelled however it is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

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

25. The applicant’s visa was cancelled as a result of his failure to maintain enrolment. The applicant said his enrolment was cancelled because of his low marks. He said he has undertaken some “self-study” since cancellation of his visa however no other evidence was provided to support this contention or to indicate that the applicant has a genuine desire to successfully undertake the study for which his visa was granted.

26. The applicant offered no evidence of any other circumstances which gave rise to the cancellation of his visa.

27. 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. The Tribunal finds this weighs in favour of visa cancellation.

    Past and present behaviour of the visa holder towards the department

28. Nothing adverse is known about the applicant’s past and present conduct towards the Department.  The Tribunal gives this some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

29. The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled.

    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

30. 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 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 however finds in itself to not be sufficient to weigh in the applicant’s favour. 

    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

31. There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation.

    Any other relevant matters

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

    Conclusion

33. 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 is 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.

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 Class TU visa.

    Christine Kannis
    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.