Zhao (Migration)

[2017] AATA 2498

Zhao (Migration) [2017] AATA 2498 (9 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yatai Zhao

CASE NUMBER:  1617760

DIBP REFERENCE(S):  BCC2016/2971340

MEMBER:Rachel Westaway

DATE:9 November 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 09 November 2017 at 5:31pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Requirement to be enrolled in a registered course – Applicant not enrolled in registered course – Applicant did not attend hearing – Mental health issues

LEGISLATION

Migration Act 1958, ss 116, 189, 198, 362B

Migration Regulations 1994, Schedule 4, PIC 4013, 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 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 the applicant was not enrolled in a registered course of study. 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. By letter dated 13 October 2017, the Tribunal wrote to the applicant advising that it had considered the material before it relating to the review and was unable to make a favourable decision on that information alone and invited the applicant to attend a hearing.  The applicant was invited to appear before the Tribunal on 9 November 2017 to give evidence and present arguments.  He was sent two text messages to remind him about the hearing on 1 November and 8 November 2017. The applicant did not respond to the hearing notice and did not attend the hearing.

4. The applicant did not appear before the Tribunal on the day and at the time and place at which his hearing was scheduled. Neither did he otherwise reply to the Tribunal’s hearing invitation letter (as he was requested). Nor did the applicant respond to the two hearing reminder texts sent by the Tribunal. In these circumstances, and 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 before it.

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. The applicant applied for review of the decision and supplied the following information at the time of applying.

   ·     A copy of the delegate’s decision

   ·     A copy of a letter of offer and agreement under the applicant’s name from Universal Institute of Technology commencing on 5 December 2016 and concluding in August 2019 with an Advanced Diploma of Leadership and Management

   ·     A copy of the response to the NOICC which the applicant sent to the Department

9. The applicant was granted a subclass 573 student visa on 6 February 2013. Contained within the decision record are details pertaining to PRISM – the Provider Registration and International Student Management System. It details that the applicant was not in a registered course of study since 23 October 2015. This was approximately twelve months prior to the applicant’s visa being cancelled. The Tribunal has not had the ability to discuss this with the applicant as he did not attend the hearing; however the Tribunal notes the evidence provided to the Tribunal by the applicant and he does not deny this.

10. On the evidence before the Tribunal, 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

11. 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.

12. 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).

13. Regarding the purpose of the applicant’s travel to and stay in Australia, the applicant stated his intention was to study. However the applicant had not been enrolled in registered course of study since 23 October 2015, approximately twelve months prior to the delegate’s decision.

14. Regarding the extent of the applicant’s compliance with any conditions to which his visa was subject, the Tribunal is not aware the applicant breached any other conditions of his visa.

15. Regarding the degree of hardship that may be caused to the applicant or his family if his visa is cancelled the Tribunal accepts he may be subject to some financial hardship. Further, if his visa is cancelled he would become an unlawful noncitizen and liable to detention under s.189 and removal under s.198 of the Act. However, based on the evidence before me I am not satisfied the applicant would be subject to indefinite detention. If the applicant’s visa is cancelled, he may also have limited options to apply for further visas in Australia. He would also be subject to PIC 4013.

16. Regarding the circumstances in which the ground cancellation arose, the applicant said in his response to the NOICC letter, that from 21 July 2014 to 21 November 2014 he had “mental and insomnia illness” which affected his school attendance and academic result. He said it affected his ability to attend classes and this subsequently affected his ability to study and his results leading to his enrolment being cancelled. He claims his school psychologist referred him to a doctor. He stated it was the first time he had been overseas by himself and he was afraid to tell his family or friends but he studied at home. He said he did not realise the seriousness of his situation and said that he did not realise he must be enrolled in a registered course in order to be a lawful student visa holder. He said it will be hard for him to return home and find a job as he has a limited education and has only completed two years of secondary school. He said he has fixed his insomnia and mental health issues and would like to return to study. He supplied a letter of offer for a new course of study. The applicant provided no evidence to support his insomnia or claimed mental health condition nor has he provided any medical evidence to support the claim that he is better. The Tribunal is not satisfied this evidence without more, should prevent it from exercising its discretion in this case.

17. The Tribunal is not aware there are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled. The Tribunal is not aware that the applicant has been uncooperative with either the Department or the Tribunal.

18. Regarding whether Australia’s international obligations would or may be breached if the applicant’s visa is cancelled, based on the information before the Tribunal I am not satisfied that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

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

    DECISION

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

    Rachel Westaway
    Senior 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.