YU (Migration)

YU (Migration) [2019] AATA 4655 (28 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr WEIHENG YU
CASE NUMBER:  1830903
HOME AFFAIRS REFERENCE(S):           BCC2018/1778808
MEMBER:Elizabeth Tueno
DATE:28 October 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 28 October 2019 at 11:05am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – high school language preparation course – did not pass the exams – young age – responsibility to comply with visa conditions – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 18 October 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had not complied with condition 8202(2)(a) because he was not enrolled in a registered course. The delegate was not satisfied that the grounds for cancelling the visa were outweighed by the grounds for not cancelling it. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 28 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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
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?
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
At the hearing, the applicant accepted that he had breached condition 8202 as he is not currently enrolled in a course of study. He confirmed that from July to December 2017 he was enrolled in a high school language preparation course. He initially stated that he completed the course in December 2017 but then said that he did not in fact pass the exams for the course and was therefore unable to go on to commence high school as planned. He stated that he has not been enrolled in a course since 20 December 2017.
On the evidence before the Tribunal, the applicant was not and is still not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).
Consideration of the discretion to cancel the visa
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 case, including matters raised by the applicant, and matters 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
The applicant is an 18 year Chinese national. He gave evidence that he came to Australia for the purpose of studying at a language school and then high school. There was no evidence presented at the hearing, nor contained in the department’s file, that the applicant came to Australia for any purpose other than study. Accordingly, the Tribunal gives this some weight against cancelling the visa.
The circumstances in which ground of cancellation arose
The applicant stated in evidence that he was 17 years old when he arrived in Australia in July 2017. He attended a language course at Whitehall Institute in Brisbane from July to December 2017. He was also enrolled in high school preparation course in Brisbane. The applicant said that he did not pass his exams in the language school and was refused when asked to sit them again. He said that he could not attend high school without passing the exams and as a result he had no other option but to stay at home every day. The applicant said that since December 2017, he has not looked into studying the language course at any other education provider.
The applicant said that he was receiving a lot of pressure from his family, which was making him stressed and he stayed at home all the time. His only family in Australia is an Uncle whom he used to live with but he now lives by himself. He confirmed that he does not work and is supported financially by his parents. He said that he has not told anyone about not passing the exams.
The applicant said he has found a student migration agent who has told him he will help him find a school in Sydney that does not require the completion of a language course if his visa is not cancelled. When asked why he had not investigated such a course earlier, he said that since his visa was cancelled on 18 October 2018 (approximately 10 months after he ceased studying) he has been on a bridging visa and he was unsure whether this allowed him to enrol in a course of study.
Despite the applicant’s young age, the Tribunal considers that it is the applicant’s responsibility to comply with the conditions of his visa. The applicant made no attempt to enrol in another language course and try to pass his exams again. While the Tribunal accepts that this would have been a stressful time for the applicant, there was no medical evidence to support a finding that his stress levels prevented him from enrolling and studying in another language course.
Accordingly, in light of the above the Tribunal gives this weight in favour of cancelling the visa.
The extent of compliance with visa conditions
Aside from not complying with condition 8202, there is no evidence to suggest that the applicant has not complied with any other condition of his visa. However, the applicant complied with the conditions of his visa for only six months before he became non-compliant in December 2017 and he has continued to be in breach of condition 8202 ever since. The Tribunal takes this and gives this a small amount weight in favour of cancelling the visa due to the length of time the applicant has been non-compliant.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
When asked about what hardship might be caused if his visa were to cancelled, the applicant said that his family had hoped he could successfully complete high school here, that this would be idea. He said his family had spent a lot of money on him studying here and he feels ok about that. He said if he were able to stay in Australia to continue his studies, that this would be good and that otherwise, he would feel useless and in the future he would not be confident and would not have any hope. The applicant said that if he returned to China without completing his studies in Australia, he would not continue his studies in his home country. He said even without the language barrier in china, he would not study in China because he does not have a “good mental status”
The Tribunal accepts that there would be some financial hardship suffered by the applicant’s family, however the applicant said that he is “ok” with the money invested in his failed attempt at studying high school in Australia. The Tribunal notes that there was no medical evidence presented by the applicant at the hearing that could elucidate the impact on the applicant of not passing his high school preparation exams and being unable to study further in Australia. The Tribunal accepts that the applicant would experience a lack of motivation after not passing his exams here. However, the Tribunal does not accept the applicant’s reasons for being unable to go onto study in his home country in China.
Accordingly, the Tribunal gives no weight in against cancelling the visa.
Past and present behaviour of the visa holder towards the department
As noted above, aside from not complying with condition 8202 there is no evidence to suggest that the applicant has not complied with any other condition of his visa. Nor is there any evidence to suggest that the applicant has not engaged appropriately with the department. Accordingly the Tribunal gives this some weight against cancelling the visa.
Whether there would be consequential cancellations under s.140
This is not applicable.
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
The applicant gave no evidence about any legal consequences for him, nor did he make any submissions about this.
There are a number of mandatory consequences as a result of the cancellation of the applicant’s visa, including not being permitted (with exceptions) to make an onshore visa application as a result of the cancellation.
If the visa is cancelled, a legal consequence would be that the applicant would not be able to apply for another student visa. Subject to any appeal rights he may exercise, if the applicant chooses to remain in Australia unlawfully, he could be liable for removal and detention. The applicant could also be precluded from making any further visa applications for a period of three years as a result of Public Interest Criterion 4013.
The Tribunal is satisfied that those consequences are intended lawful consequences of the legislation and, in the applicant’s case, do not mean that the visa should not be cancelled. Accordingly, the Tribunal does not give weight against cancelling the visa under this consideration.
Australia’s international obligations
There is nothing before the Tribunal to suggest that the cancellation of the applicant’s visa would breach any international obligations. Accordingly, the Tribunal finds this consideration neutral and does not weigh in support or against cancelling the visa.
Any other relevant matters
The applicant did not give evidence about any other matter that would be relevant to the review of the cancelation of his student visa.
Considering the circumstances as a whole, the Tribunal finds that the factors that weigh in favour of cancelling the visa outweigh the factors against cancelling the visa. Accordingly, the Tribunal finds that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Elizabeth Tueno
Member

Migration Regulations 1994
…
Schedule 8
8202 (1) The holder must be enrolled in a full‑time course of study or training if the holder is:
(a) a Defence student; or
(b) a Foreign Affairs student; or
(c) a secondary exchange student.
(2) A holder not covered by subclause (1):
(a) must be enrolled in a full‑time registered course; and
(b) subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
(c) must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:
(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
(ii) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3) A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a) is enrolled in a course at the Australian Qualifications Framework level 10; and
(b) changes their enrolment to a course at the Australian Qualifications Framework level 9

[2019] AATA 4655

28 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction