Zhao (Migration)

[2018] AATA 5674

Zhao (Migration) [2018] AATA 5674 (28 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Qianqian Zhao

CASE NUMBER:  1620284

HOME AFFAIRS REFERENCE:                BCC2016/3117817

MEMBER:Lilly Mojsin

DATE:28 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 28 November 2018 at 4:59pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – poor attendance record – unsatisfactory course progress – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 116, 140, 189, 362
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 28 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 delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course and therefore had breached condition 8202(2) of her visa.

3. The applicant appealed that decision to this Tribunal, attaching a copy of the Department decision to her application.

4. The applicant was notified that the Tribunal had considered the material before it but the Tribunal was unable to make a favourable decision on this information alone. The applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review, on 28 November 2018 at 9.00 am.

5. The applicant was advised that, if she failed to attend the scheduled hearing and an adjournment was not granted, the Tribunal might make a decision on the review without taking any further action to allow or enable her to appear before the Tribunal.

6. The applicant did not acknowledge the Tribunal correspondence, the applicant did not attend the Tribunal on 28 November 2018 at 9.00 am and the Tribunal has received no explanation.

7. In these circumstances, pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

   Did the applicant comply with Condition 8202?

9. 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).

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

11. A notice of intention to consider cancellation [NOICC] was sent by the Department to the applicant[1] on 4 October 2016 and the notice invited the applicant to respond in writing.  No response was received by the Department.

    [1] BCC2016/3117817  Folio  7

12. The applicant  was granted a TU 573 Higher Education Sector student visa on 24 September 2014 in order to study English for Academic Purposes (Upper Intermediate to Advanced), 12 January 2015 – 26 June 2015 and Bachelor of Graphic Design, 10 August 2015 – 30 June 2018.

13. On 25 October 2016, Macquarie Education Group Australia Pty Ltd provided to the Department a copy of the applicant‘s General English Progress Reports indicating that the applicant had unsatisfactorily progressed in her course. Macquarie Education Group Australia Pty Ltd also reported that applicant‘s unsatisfactory course attendance.

14. The applicant then commenced to study a Diploma of Software Development course at Australian Higher Education Services Pty Ltd with course period from 15 August 2016 to 11 August 2017. On 14 October 2016, Sydney College of Business and Information Technology advised the Department that the applicant’s overall attendance was 0% since the course started on 15 August 2016. The applicant was also enrolled in an Advanced Diploma of Information Technology course at Australian Higher Education Services Pty Ltd for a course commencing on 14 August 2017 and ending on 10 August 2018.

15. The delegate found that the applicant has not completed any course since she arrived in Australia on 30 September 2014 and she was not enrolled in a principal course required by her TU573 student visa at the time of the Department decision.

16. In light of the above information, 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

17. 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.

18. The Tribunal has had regard to matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

19. The applicant has not provided any information to the Department or the Tribunal that she has a compelling need to remain in Australia. The Tribunal weighs this factor in favour of cancellation.

20. 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 cancellation.

21. Given the applicant's failure to attend the hearing, the Tribunal is not aware of any hardship which will result from cancellation of her visa. The Tribunal weighs this factor in favour of cancellation.

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

23. 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. The Tribunal weighs this factor neither in favour nor against cancelling the visa.  

24. There are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing before the Tribunal to suggest that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation. The Tribunal weighs this factor neither in favour nor against cancelling the visa.  

25. In regard to the purpose of the student visa to enable the visa holder to undertake study in Australia, the Tribunal places great weight on applicant not being enrolled in a registered course since 2015 when her enrolment was cancelled by the education providers for non-commencement of studies.

26. As 3 years have passed since the applicant was last enrolled, the Tribunal finds the applicant's breach of condition 8202 of her visa to be significant because she did not engage in study for which her visa was granted and she was not fulfilling the purpose of her travel to and stay in Australia. The Tribunal weighs this factor in favour of cancellation.

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

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

    DECISION

29. 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.