ZHANG (Migration)

[2019] AATA 6755

ZHANG (Migration) [2019] AATA 6755 (26 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr ZHONGBO ZHANG

CASE NUMBER:  1728185

HOME AFFAIRS REFERENCE(S):          BCC2017/2920278 PNJ

MEMBER:Michael Biviano

DATE:26 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 26 September 2019 at 5:07pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of travel and stay – unsatisfactory academic progress – substantial period of non-compliance – 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

1. This is an application for review of a decision dated 18 October 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that he had not been enrolled in a registered course of study from  23 January 2017 and he was not compliant with condition 8202 of his visa. The delegate went on to consider that the factors in favour of cancellation outweighed those against cancellation. 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 by his representative on 22 August 2019, by email informed the Tribunal that he would not be appearing at the hearing scheduled for 30 August 2019 and also filed a Response to Hearing Invitation confirming the applicant and his representative would not be appearing at the hearing.

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

5. It is appropriate to highlight that the decision-maker is not required to make the applicant’s case, it is for the applicant to satisfy the Tribunal that the requirements of the Act and the Regulations have been met.  Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicants in as much detail as is necessary to enable the examiner to establish the relevant facts.

6. 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

7. 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?

8. 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).

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

10. The decision record of the delegate of the Department of Immigration and Border Protection dated 18 October 2017, which was provided to the Tribunal by the applicant, confirms that the Department cancelled the Student (Temporary)(Class TU) Vocational Education and Training Sector (Subclass 572) visa which was granted on 27 May 2016 (Decision Record).

11. The applicant had initially arrived in Australia on 21 June 2010, after obtaining an initial TU 570 (Student) visa on 9 June 2010.  The applicant was granted two further TU 572 Student visas on 16 October 2013 and 27 May 2016.

12. The Decision Record confirms that the applicant failed to maintain his enrolment in a registered course of study after his confirmation of enrolment (CoE) in Diploma of Business was cancelled on 23 January 2017 by Ausietech Investments Pty Ltd citing non-commencement of studies.

13. By reason of the lack of information supplied by the applicant in relation his enrolment status, on 4 September 2019 the Tribunal obtained a copy of his enrolment records from the Provider Registration International Student Management System database (PRISMS records). The PRISMS records confirm that the applicant ceased enrolment in the Diploma of Business course on 23 January 2017, due to non-commencement of studies and he was not enrolled in a registered course of study from that date, which is consistent with the period in which the delegate found that the applicant was not enrolled in a course of study.

14. In accordance with its obligations pursuant to s.359A of the Act, on 9 September 2019,              the Tribunal sent a letter to the applicant enclosing a copy of the PRISMS records, explaining to the applicant what the PRISMS records are, the relevance of the documents to the review and the consequences of it relying on the information contained in the documents. The Tribunal invited the applicant to comment on or respond to the invitation or seek an extension of time in which to comment on or respond to the information contained in the documents by 23 September 2019 (Request for Comment).

15. The applicant via his representative wrote to the Tribunal by email on 23 September 2019              confirming that the applicant had nothing to provide in response to the Request for Comment.

16. The applicant has not submitted any evidence to the Tribunal or taken issue with the applicant not being enrolled in a registered course of study from 23 January 2017 to the date of the cancellation of the visa, being 18 October 2017.

17. On the evidence before the Tribunal, the applicant was not enrolled in a registered course between 23 January 2017 and 18 October 2017. Accordingly, the applicant has not complied with condition 8202(2). As this was a condition which attached to his visa, the applicant has therefore breached a condition of his visa and the visa is liable to cancellation under s.116(1)(b).

    Consideration of the discretion to cancel the visa

18. 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

19. The applicant has been in Australia for nine years and two months on three study visas. However the PRISMS records reveal that the applicant has been enrolled in the following courses since arriving in Australia:-

    • He completed an Intensive English Course (Beginner to Advanced) (two to 52 weeks) between 28 June 2010 and 6 May 2011;
    • He completed a Certificate III in Business between 12 August 2011 and 9 February 2012;
    • He completed a General English Course (Beginner to Advanced) between 18 March 2013 and 29 March 2013;
    • He completed a Diploma of Management between 8 April 2013 and 13 September 2013;
    • He completed a Diploma of Software Development between 11 November 2013 and 7 November 2014;
    • He has had cancelled:-
    1. two enrolments in Certificate IV in Business;
    2. two enrolments in Diploma of Business;
    3. two enrolments in Diploma of Accounting and one enrolment in Advanced Diploma of Accounting;
    4. two enrolments in Diploma of Management; and
    5. two enrolments in Advanced Diploma of Information Technology; and
    • He was last enrolled in a Diploma of Business which was cancelled on 23 January 2017 because of non-commencement of studies.

20. On the evidence before the Tribunal, the applicant has been in Australia since June 2010, being nine years and three months and he has completed two English courses, a Certificate III and two diplomas, and since the completion of the Diploma of Software Development in November 2014, he has not completed any other courses of study.

21. Having regard to the applicant’s circumstances, the Tribunal accepts that the applicant may have travelled to Australia intending to study and he studied in Australia, but given his conduct in Australia of not being enrolled in a registered course from 23 January 2017 to the date of cancellation of the visa on 18 October 2017, being nearly 10 months without an explanation and not completing any courses since November 2014, it reveals an intention on behalf of the applicant that he is staying in Australia but he is not intending to study. The Tribunal gives this factor substantial weight towards the visa being cancelled. 

    The extent of compliance with visa conditions

22. The applicant was not enrolled in a course of study from 23 January 2017 until the cancellation of the visa on 18 October 2017 being a period of nearly 10 months which is a substantial period of time. Therefore, the applicant has not complied with condition 8202(2) for a substantial period of time. The non-compliance with condition 8202(2) for such a substantial duration of time may weigh towards cancelling the visa unless the Tribunal accepts his reasons for non-enrolment.

23. The applicant did not respond to the Notice of Intention to Consider Cancellation (NOICC) of Student Visa sent to him by the Department on 26 September 2017 and has not provided the Tribunal any reasons or explanation why he was not enrolled and whether he was responsible for not being enrolled in a course of study.

24. By reason of the period of not being enrolled, the failure to explain the reasons for not being enrolled and the duration of the breach, the Tribunal gives this some weight towards the visa being cancelled.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the applicant or applicant’s family

25. The applicant has not given any explanation as to what if any hardship he will suffer as a result of the cancellation. The Decision Record confirms that there is no evidence of any family members of the applicant who will be negatively impacted by the cancellation of the visa. 

26. The Tribunal considers that the above matters give no weight towards the visa not being cancelled.

    Circumstances in which ground of cancellation arose

27. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.

28. The Decision Record confirms that the applicant failed to maintain his enrolment in a registered course of study after his CoE in Diploma of Business was cancelled on 23 January 2017 by Ausietech Investments Pty Ltd citing non-commencement of studies. This is also confirmed by the PRISMS records.

29. It is the visa holder’s responsibility to be aware of the visa conditions that apply to their visa and to know what their visa conditions mean. The visa holder is obliged to comply with their visa conditions during their prescribed period of stay and be aware of the consequences of not complying with their visa conditions.

30. The Tribunal accepts that the applicant would have been aware when he was granted the TU 572 Student visa, that it had condition 8202(2)(a) imposed on it, which includes that he must maintain being enrolled in registered course of study while he holds the Subclass 572 Student visa. The Tribunal also accepts that the applicant would have been fully aware that if he ceased his studies and ceased to be enrolled in a registered course of study, as occurred on 23 January 2017, he was in breach of his visa and realised that it would impact on his eligibility to hold the Subclass TU 572 Student visa.

31. The applicant has not responded to the NOICC or proffered an explanation to the Tribunal about why he was not enrolled in a registered course of study from 23 January 2017 until the cancellation of the visa on 18 October 2017.

32. Ultimately the responsibility regarding enrolment rests with the student.

33. In light of the lack of any explanation by the applicant as to why he was not enrolled, the substantial period for which the applicant was not enrolled and therefore in breach of condition 8202(2), the Tribunal finds that the circumstances of the cancellation were within his control and responsibility. The Tribunal gives this matter substantial weight towards the visa being cancelled.

    Past and present behaviour of the visa holder towards the Department

34. According to the Decision Record, the applicant had not responded to the Department’s NOICC. However there was no other evidence that the applicant had been uncooperative towards the Department. The Decision Record of the Department confirmed that he had not been uncooperative towards the Department. The Tribunal gives this some weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

35. This matter is not relevant in this application as the Tribunal is not aware of any other person in Australia whose visa would be cancelled under s.140. The Tribunal gives this factor no weight towards the visa not being 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

36. If the Tribunal decides to affirm the decision to cancel the visa under these grounds, then the applicant will become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, pursuant to s.48 of the Act the applicant will have limited options to apply for further visas in Australia, so he would need to depart Australia and apply from overseas for most types of visa.

37. Further, if the Tribunal decides to affirm the decision to cancel the TU 572 Student visa under these grounds, this will come within the identified risk factors to make the applicant meet Public Interest Criterion 4013, so it will prevent him from being able to apply for a new visa from overseas if he has to depart Australia.

38. However these consequences are the intended consequences of the legislation when a visa is cancelled under these grounds.

39. Further, there is no indication on the evidence before the Tribunal, that the applicant would become unlawful or be subject to detention if his visa is cancelled.

40. Accordingly the Tribunal gives this factor no weight towards the visa not being cancelled.

    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

41. This matter does not appear relevant in this application and the applicant has not made any claims that relate to this consideration. The Tribunal gives this factor no weight towards the visa being cancelled.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

42. This matter is not relevant in this application as the cancelled visa is a temporary visa. The Tribunal gives this factor no weight towards the visa not being cancelled.

    Any other relevant matters

43. The Tribunal is not aware of any other relevant factors in relation to whether the visa ought to be cancelled.

    Conclusion

44. The Tribunal has considered the matters and documents before it, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Michael Biviano
    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.