Zhou (Migration)

[2019] AATA 472

Zhou (Migration) [2019] AATA 472 (12 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zhizhen Zhou

CASE NUMBER:  1708820

HOME AFFAIRS REFERENCE(S):           BCC2017/696249

MEMBERS:Stephen Conwell (Presiding)
Vanessa Plain

DATE:12 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 12 February 2019 at 10:17am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered Higher Education course – applicant failed to re-enrol – applicant departed Australia – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 116, 362, 379
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 11 April 2017 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 had not complied with a condition of his visa being that he is enrolled in a registered course. 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 23 January 2019 the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 11 February 2019. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also issued SMS reminders about the hearing five business days and one business day before the scheduled hearing.

4. No response to the hearing invitation was received. The applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the applicant about the hearing. 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.

7. The background to the applicant’s case can be summarised from information held on the Department’s file and the delegate’s decision record. The applicant is a 26-year-old citizen of China who was granted a Student visa on 4 November 2013.

8. On 23 March 2017 the Department notified the applicant of its intention to consider cancellation of his visa. The notice of the intention to consider cancellation (NOICC) was sent by email to the applicant’s notified email address. The NOICC advised the applicant that the delegate had received information which appeared to be grounds for cancellation of his visa. The NOICC detailed the particulars for the grounds of cancellation to be that the applicant had not complied with condition 8202 which was imposed on his visa.

9. The NOICC explained that based on evidence available to the delegate, from Provider Registration and International Student Management System data, it appeared the applicant had not been enrolled in a registered course since 7 July 2016 and so did not meet the requirement of condition 8202(2)(a). The applicant was invited to respond and to address why he thought the grounds for cancellation do not exist and why he thinks his visa should not be cancelled. The NOICC included an explanation of the process for making the decision to cancel his visa, the timeframe within which he was required to respond and the consequences of a visa cancellation.

10. The applicant responded to the NOICC on 7 April 2017. The response states that the applicant did not realise the importance of enrolling in time which led to him missing the enrolment expiry date.

11. After considering the applicant’s response and all of the applicant’s circumstances the delegate emailed the applicant a Notice of Cancellation of Student visa and its Decision Record on 11 April 2017. The Decision Record stated the reason for the cancellation to be that the applicant had not been enrolled in a registered course since 7 July 2016. 

12. The applicant attached a copy of the delegate’s decision with his application for review made on 21 April 2017.

13. As the applicant did not attend the hearing the Tribunal has access only to the information and evidence contained on the Departmental and Tribunal files.

14. The issue in the present case is whether the applicant, as the holder of a Student visa, has complied with condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has not complied with that condition, under s.116(1) of the Act, the visa may be cancelled.

    Did the applicant comply with Condition 8202?

15. 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).

16. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course and so did not satisfy condition 8208(2).

17. The Department sent the applicant a NOICC dated 23 March 2017 stating that evidence before the Department indicated that he was not enrolled in a registered course since 7 July 2016.

18. The Tribunal has had regard to the information in the delegate’s decision, namely, the applicant’s Provider Registration and International Student Management System (PRISMS) record, which confirms that the applicant was not enrolled in a course of study in a registered course since 7 July 2016.  

19. The Tribunal has reviewed the evidence available to it including the documents provided by the applicant with his application for review. The applicant has provided no evidence or argument to suggest that he is, or has been, enrolled in a registered course since 7 July 2016.

20. The Tribunal notes that the applicant arrived in Australia on 28 November 2013 on a subclass 573 Student (Temporary) (class TU) Higher Education Sector visa.  He remained onshore until 25 November 2017, when the applicant’s movement record indicates that he departed Australia.

21. On the evidence before it the Tribunal finds the applicant was not enrolled in a registered course since 7 July 2016 and has not complied with condition 8202(2).  

22. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As the ground does not require mandatory cancellation under s.116(3) the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

23. 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.

24. 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 the material evidence available to it, as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

25. The Tribunal notes the purpose of a Student visa is to allow for travel to and stay in Australia, in order to study. The applicant has not been enrolled in a registered course of study on since 7 July 2016.This is an indication the applicant was not pursuing the purpose for his travel to Australia as he was not actively engaged in studies since that date.  At the time of the delegate’s decision this period of non-enrolment exceeded nine months. The Tribunal considers the breach to be significant, given the length of time in which the applicant failed to maintain enrolment.  The Tribunal also considers this to be a serious breach given the significance of enrolment in a registered course, for the visa granted.

26. Further, based on the information before it, the Tribunal is not satisfied the breach occurred in circumstances beyond the applicant’s control.  Again, based on the information before it, neither does the Tribunal consider there are extenuating or compassionate circumstances in this case.

27. The Tribunal notes that the applicant has voluntarily departed Australia and there is no additional information before it to suggest that the applicant would face any particular hardship (such as financial, psychological, emotional or other hardship) as a consequence of the visa being cancelled.  Accordingly, the Tribunal finds that the applicant would not face any particular hardship as a consequence of the visa being cancelled.

28. The applicant has provided no further information about the circumstances of his non-compliance with his visa conditions, other than his initial response to the NOICC  (stating that he did not appreciate the importance of enrolling in time). The applicant did not respond to the Tribunal by providing further information when invited so to do.

29. The applicant has no family members attached to his visa who might be affected by a decision to cancel the visa.

30. The applicant has provided no information regarding international obligations that the Tribunal would need to consider should the visa be cancelled or whether there would be a breach of Australia’s non-refoulement obligations.

31. The Tribunal notes that the decision to cancel a visa pursuant to s.116 of the Act is discretionary.  On the basis of the foregoing analysis and findings, the Tribunal finds that the considerations in favour of cancelling the visa are not outweighed by the considerations in favour of allowing the visa to stand.

32. Considering the circumstances as a whole, the Tribunal is satisfied the visa should be cancelled.

    DECISION

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

    Stephen Conwell
    Member

    Vanessa Plain
    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.