YE (Migration)

[2017] AATA 281

YE (Migration) [2017] AATA 281 (14 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MING YE

CASE NUMBER:  1615656

DIBP REFERENCE(S):  BCC2016/2720443

MEMBER:Magda Wysocka

DATE:14 February 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 14 February 2017 at 4:59pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector visa – Enrolment in registered course – Applicant changed studies to a Diploma level course

LEGISLATION

Migration Act 1958, s 116(1)(b)

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 20 September 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).

2. The delegate cancelled the visa on the basis that a ground for cancellation under s116(1)(b) of the Act existed because the applicant breached condition 8202 of his subclass 573 visa as he was not enrolled in a registered course. A copy of the delegate’s decision record was provided by the applicant to the tribunal. 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 6 February 2017 the Tribunal wrote to the review 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 at a hearing on 2 March 2017. On 13 February 2017 the applicant’s registered migration agent informed the tribunal by email that the applicant advised he will not attend the hearing. A completed hearing response form signed by the migration agent on behalf of the applicant confirmed that the applicant did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

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

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. 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?

7. 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).

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

9. The delegate’s decision record provided by the applicant to the tribunal states that the applicant arrived in Australia on 3 November 2014. PRISMS records indicate that the applicant was enrolled in certificates III and IV in EAL and a master of business administration at this time.

10. The delegate’s decision record states that information before it indicates the applicant had not been enrolled in a registered course of study since 22 July 2015. The decision record further states that on 8 September 2016 the applicant enrolled in a certificate IV in business.

11. The applicant did not respond to the department’s notice of its intention to consider cancellation of his visa (‘NOICC’), dated 6 September 2016, and did not provide any arguments or supporting documents to the tribunal. There is no evidence before the tribunal that the applicant disputes that a ground for cancellation arises.

12. On the evidence before the Tribunal, the applicant was not enrolled in a registered course from 22 July 2015 to 8 September 2016.  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 to exercise its discretion to cancel the visa.

14. 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).

15. As noted above the applicant has not provided any response to the NOICC or supporting materials to the tribunal. The tribunal has relied upon the evidence contained in the departmental and tribunal files in considering the below factors.

    The purpose of the visa holder’s travel to and stay in Australia: delegates should assess whether the visa holder has a compelling need to travel to or remain in Australia.

16. The applicant arrived in Australia on a student visa, the purpose of which is to allow the holder to study in Australia. He was enrolled in English certificates and a master degree course upon his arrival.

17. However, the delegate’s decision record provided by the applicant to the tribunal indicates that the applicant has only finished one five month course (certificate III EAL, which he completed on 10 April 2015) since his arrival in Australia. Furthermore, his enrolment in a registered course was cancelled on 22 July 2015, less than twelve months after his arrival in Australia. The tribunal finds that the applicant’s lack of enrolment and lack of study for a significant period of time that he has remained in Australia while on a student visa are factors weighing in favour of cancelling his visa.

18. Furthermore, the applicant arrived in Australia to study a master degree as his principal course. However, prior to his visa being cancelled, he enrolled in a certificate IV in business, which is at a significantly lower level than his intended master degree studies. The tribunal further notes that the applicant’s enrolment in the certificate IV only occurred after the department issued its NOICC. The tribunal therefore places very little weight on this subsequent enrolment as evidence of the applicant’s intention to study in Australia. 

    The extent of compliance with visa conditions: delegates should assess whether the visa holder has otherwise complied with visa conditions now and on previous occasions.

19. The applicant was not enrolled in a registered course from 22 July 2015 until 8 September 2016, a period of 14 months. The tribunal gives this significant weigh in favour of cancellation of the applicant’s visa.

20. The tribunal further notes that the applicant’s visa criteria includes cl.573.231 or cl.573.223(1A) which require the applicant to be enrolled in a bachelor or master degree course, or enrolled in or the subject of a current offer of enrolment in a course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under r.1.40A. The applicant’s enrolment in a certificate IV on 8 September 2016 does not satisfy this criteria and it appears that the applicant was also in breach of condition 8516 which requires him to continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

    The circumstances in which the ground for cancellation arose: delegates should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, delegates should consider whether the relationship has broken down as a result of family violence. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder.

21. As the applicant has chosen not to respond to the department’s NOICC and has not provided any submissions or documents to the tribunal in support of his application for review, there is no evidence before the tribunal regarding the circumstances why the applicant’s enrolment in a registered course ceased from 22 July 2015 until 8 September 2016. There is nothing to indicate that there were any extenuating circumstances beyond the applicant’s control that contributed to his situation. Accordingly, the tribunal gives this factor very little weight.

    The degree of hardship that may be caused to the visa holder and any family members: delegates should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision.

22. The applicant has not provided any evidence about what hardship he or any family members would suffer. The tribunal acknowledges that the cancellation of the applicant’s student visa may be a setback for the applicant but in the absence of any specific information from the applicant, gives this little weight.

    The visa holder’s past and present behaviour towards the department (for example, whether they have been truthful and cooperative in their dealings with the department).

23. There is no information about this before the tribunal.

    Whether there are mandatory legal consequences to a cancellation decision.

24. The tribunal acknowledges that cancellation of the applicant’s student visa would likely lead to him being prevented from the grant of any further temporary visas for a period of three years. It gives this limited weight in favour of exercising its discretion not to cancel the applicant’s visa.

25. The tribunal also notes that the applicant currently holds a bridging visa and, if his student visa is cancelled, can remain lawfully in Australia until his bridging visa expires. He would become subject to detention if he remained in Australia unlawfully. There is nothing to suggest that any detention in such a hypothetical situation would be indefinite.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; whether there are persons in Australia whose visas would, or may, be cancelled under s140.

26. There is no evidence before the tribunal that these are relevant considerations.

    Any other relevant matters.

27. There is no information before the tribunal indicating that there are any other relevant considerations.

28. Having considered the above matters, the tribunal finds that the factors in favour of exercising its discretion to cancel the applicant’s student visa, namely the significant extent of the applicant’s breach and his limited study since arriving in Australia are considerable.

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.

    Magda Wysocka
    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.