Zhou (Migration)

[2018] AATA 5201

Zhou (Migration) [2018] AATA 5201 (26 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yangke Zhou

CASE NUMBER:  1816329

HOME AFFAIRS REFERENCE(S):           BCC2018/193297

MEMBER:Ann Duffield

DATE:26 September 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 26 September 2018 at 11:43am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – 573 Higher Education Sector visa – not enrolled in a registered course of study – breach of condition 8202– Decision under review affirmed 

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, PIC 4013

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 May 2018 made by a delegate of the Minister for Home Affairs 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 did not comply with condition 8202(2)(a) in that he was not enrolled in a  registered course of study between 25 July 2017 and March 2018.  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 appeared before the Tribunal on 26 September 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by his registered migration agent but he did not appear at the scheduled hearing.

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.

9. The Tribunal put to the applicant that his records showed that he was enrolled in an English language program from 1 August 2016 to 7 October 2016. He confirmed this was the case and also that he completed this course. The applicant confirmed that he had not been enrolled in any courses from June to October 2017 and from October 2017 until February 2018.

10. The Tribunal put to him that he subsequently enrolled and cancelled his enrolment in a further three courses. In particular the Tribunal put to the applicant that he enrolled in the Bachelor course in Flinders College in Melbourne in April 2018 after he was notified by the department that it was considering cancelling his visa.

11. The Tribunal asked the applicant why he cancelled his enrolment in this course and he told the Tribunal that he did not like the school or its methods of teaching. The Tribunal put to the applicant that it was not until after he was notified of this hearing on 6 September 2018 that he subsequently enrolled in another diploma of business course at Newton College in Melbourne. The Tribunal put to the applicant that his enrolment in these courses seemed to be motivated by visa requirements than any commitment by him to continue his studies to completion. The applicant claimed that he was still very young and had family difficulties in the past year, including the death of his grandfather as the reasons why he did not enrol in any courses. He said that he had been uncertain about what he should study but was now committed to his course at Newton College.

12. The Tribunal put to the applicant that it appeared that he had not satisfied the relevant criteria and asked for him to comment. The applicant agreed that he had not been enrolled in the relevant period, claiming his youth and family difficulties as the reason why.

13. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the Tribunal is not satisfied that the applicant has complied with condition 8202(2). 

    CONSIDERATION OF DISCRETION / CONCLUSIONS

    Consideration of the discretion to cancel the visa

14. 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’

15. The applicant has claimed that his compelling reason to travel and remain in Australia is that he wishes to complete his studies. The Tribunal put to him that he had several opportunities to do that over the past several years and yet he had cancelled several courses and only completed his English language course. The Tribunal put to him that it did not appear that his commitment to his studies was particularly strong such that it would amount to a compelling reason. The applicant said he was still only young and had made mistakes but was now committed to his studies. He said that his parents would be very disappointment in him if his visa was cancelled.

16. Asked if he or his family would suffer any particular hardship if his visa was cancelled the applicant told the Tribunal that it would be difficult for him to get into university if he returned to china. He said that he would have to start over again and his parents had already invested heavily in him. The applicant claims that if his visa was cancelled he would be very depressed and have to take medication. He told the Tribunal that he wanted to continue his studies here.

17. The applicant has no family members in Australia and shares accommodation with other students. He does not have a relationship with an Australian citizen or any children here. He has not worked since his arrival and hence will not leave an Australian business or individual in any difficulty or facing any particular hardship should he leave.

18. The Tribunal has found that the applicant did not comply with his visa conditions and hence gives no weight in favour of the applicant on this consideration. The applicant was aware of his visa conditions and despite enrolling in a course in response to the notice of intention to cancel, he nevertheless cancelled that course and only re-enrolled in another course the day after the Tribunal invited him to a hearing. This behaviour does not indicate to the Tribunal that the applicant has any commitment at all to his studies and the circumstances of his cancellation are entirely of his own making.

19. There is no evidence before the Tribunal that the applicant has been uncooperative with the department or the department’s staff. No other persons will be affected by the cancellation of the applicant’s visa and the Tribunal is not satisfied that Australia would be in breach of any international obligations if the applicant’s visa was cancelled.

20. The Tribunal notes that a decision to cancel the applicant’s visa would result in him being unable to meet PIC 4013 and hence he may not be approved for a further visa within the next three years.

    CONCLUSION

21. Having carefully considered the totality of the applicant’s circumstances individually and cumulatively, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Ann Duffield
    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.