1500167 (Migration)

[2015] AATA 3394

1500167 (Migration) [2015] AATA 3394 (10 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss XIXUAN HUANG

CASE NUMBER:  1500167

DIBP REFERENCE(S):  BCC2014/2598397

MEMBER:Magda Wysocka

DATE:10 September 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 10 September 2015 at 11:06am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 December 2014 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had breached condition 8516, which was attached to her Subclass 573 Higher Education sector visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. A copy of the notice of cancellation of the applicant’s student visa was provided with her application for review.

3. The applicant appeared before the Tribunal on 3 August 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Alice Li. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by her registered migration agent.

4. 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

5. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

6. In making this decision the tribunal has had regard to the applicant’s submissions to the department of 23 October 2014 as well documents and submissions provided to the tribunal before and after the hearing in this matter, which have included evidence of the applicant’s completion of a certificate IV in small business, her secondary school results and academic transcript regarding her diploma of business from TK Melbourne, showing that she has completed two out of eight subjects for that qualification. 

   Does the ground for cancellation exist?

   s.116(1)(b) - non-compliance with conditions

7. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 is attached to the applicant’s visa. This condition requires:

   The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

8. The applicant confirmed that she was granted the Subclass 573 visa on 19 September 2012 under the Streamlined Visa Processing (SVP) arrangement on the basis of her enrolment in a Foundation Studies course and a Bachelor of Commerce course at Swinburne University.

9. A Notice of Intention to Consider Cancellation (NOICC) of the applicant’s subclass 116 visa was sent to her on 10 October 2014 advising her that it appeared that she was no longer enrolled in a bachelor or masters degree course and therefore did not continue to be a person who would satisfy cl. 573.231 or 573.223(1A). The NOICC indicated that it appeared that the applicant had breached condition 8516 as a result. The applicant provided a response to the NOICC in which she did appear to dispute that she had breached the visa condition. 

10. The applicant confirmed at her hearing that she commenced her Foundation Studies course on 22 October 2012 but claimed that in August 2013 she ceased her Foundation Studies course. She enrolled and commenced studies in a certificate IV course in small business management at ‘TK Melbourne’ on 28 October 2013. She is not aware when her enrolment for all courses at Swinburne ceased as she advised this was done by her former migration agent, but confirmed that she did cease her enrolment at Swinburne. PRISMS records indicate that the applicant’s enrolment in the bachelor of commerce course ceased on 5 March 2013.

11. The applicant did not dispute at the hearing that she had breached condition 8516. Clauses 573.231 and 573.223(1A) require that an applicant be in enrolled in, or is the subject of a current offer of enrolment in a principal course specified for 573 courses. The applicant did not continue to satisfy these criteria.

12. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

13. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel to and stay in Australia

14. The applicant first came to Australia in July 2010 on a subclass 571 visa. She was attending a language course and went to Preston Girls Secondary College where she completed Year 11. She studied Year 12 at Taylors College but did not finish it; she wanted to do a commerce degree and thought that she would not have much choice of commerce-related studies in VCE but had more courses in foundation studies. Prior to coming to Australia, she did half of Year 10 in China and then went straight into the language course and then Year 11.

15. The tribunal accepts that the applicant came to Australia for the purpose of studying and is willing to accept on the evidence before it, including the applicant’s decision to commence a Foundation Studies course due to the variety of commerce-related courses it offered, that the applicant had intended to commence bachelor studies in commerce.

    Reason and extent of any breach of a visa condition (if relevant); and circumstances in which ground of cancellation arose

16. The applicant advised that she started her Foundation Course on 22 October 2012 but stopped in August 2013. She found she could not adjust to the environment and the system. She did not have satisfactory results. Because of that, the instructors had quite a number of talks with her about being more active in class and being more responsive and she became very stressed. She claimed that students also had a bias against her, meaning that because of her results, she could not get any groups to study with her. She failed her units but she has no evidence of that. She stopped the course and started attending another school.

17. She did some research and consulted an agent. She was told there was a school called TK. The TK system is like a college; if you study at TK and if you want to go to university, you can get credits for some of the units. She enrolled in a Certificate IV of Small Business Management in October 2013. She does not know when she ceased her enrolment for the Swinburne course as it was all done by her agent but thinks that it was at the same time she enrolled in the TK course.

18. She was asked if her agent told her anything about her having to be enrolled in higher education course for the subclass 573 visa. She stated that he did not. She stated that when the agent referred her to TK, he told her that if she studied a diploma or certificate IV, she could still undertake a bachelor course. She has not applied for any other type of student visa. The applicant stated that she was not aware that there was a requirement that she needed to be enrolled in a higher education course. The agent said that it was alright and there were other students that the agent helped that did the same thing.

19. She did the Certificate IV course for seven months and finished it in May 2014. She then started a diploma in Small Business at TK in June 2014; she has completed half of it. She was unable to complete the course because her student visa was cancelled by the department. Because of that, the school cancelled her enrolment. She currently has a bridging visa E. When asked if she had applied for permission to study on that visa, she advised that she was not aware that she could do that.

20. In response to the NOICC, the applicant provided to the department a letter of offer for a bachelor of business from Stott’s College. When asked about this at hearing, she advised that this was done by her previous agent, but now she wants to get in to another college. She wants to do a bachelor of management, maybe at RMIT. She was asked if she has obtained any offer of enrolment in that course. She stated that she approached them but since she does not have study rights they did not give her any offer.

21. She was asked why she wanted to do a bachelor of management when she previously wanted to do commerce. She stated that she used to do commerce in Swinburne but then realised that she might fail some subjects so decided to find another course.

22. She was asked why the agent organised the letter of offer from Stotts College for her. She stated that it was when her visa got cancelled; she had seven days to lodge a review. That is why the agent applied for the college for her. Her initial intention was to enrol in a university.

23. The tribunal noted that her subclass 573 visa was granted on the basis of enrolling in a higher education course and that it was a condition of her visa to be enrolled in such a course.  She stated that at that time she was not aware that the subclass 573 visa required her to study a higher education course and thought she could study anything like a diploma or certificate.

24. The tribunal put to the applicant at her hearing that it may not accept that she was not aware of this and that it is up to her to be aware of requirements for visas that she is applying for. The tribunal further put to her that she had stated she obtained the visa under the SVP stream and that it was the delegate’s view that she had taken advantage of those processes to obtain the student visa. The applicant did not provide a response.

25. The tribunal put to her that the letter of offer from Stott’s College was issued after the notice of intention to consider cancelling her visa was sent, and that based on this and her evidence regarding her ‘agent’s actions’, the tribunal may not view this letter was evidence of her genuinely intending to enrol in a higher education sector course.

26. The applicant stated that she wanted to do it step by step and that she first wanted to do a certificate, then a diploma and then enrol in a bachelor’s course. When asked what she intends to do after she finishes all her studies, she stated that she wants to engage in work that has to do with commerce.

27. She was asked what she was doing since her visa was cancelled. She stated that she stayed at home doing assignments for the diploma. She was doing assignments and in the meantime waiting for the visa to be issued. She hoped that she could complete her diploma course.

28. The applicant stated that when she transferred to TK, she received a letter from Swinburne saying that her attendance rate was too low. She went to the department on Lonsdale St to give them an explanation. She does not know what her agent said to the department.

29. She was asked if her former agent helped her with the response to the notice to consider cancelling her visa. She stated that when she got this notice of cancellation, she went to her previous agent but there was nothing they could do to help her. They told her that the only option she had was to go back for three years or she can lodge an application for a visa but she had to lodge it while she was in China. The agent requested the letter of offer from Stotts College for her and told her that if that did not work, she would need to go back to China. She confirmed that her former agent wrote the response to her NOICC. The tribunal note that it did not appear from any of the documents that she had provided in that response that she had an agent assisting her. She stated that the agent said that they did not want any bad record on their profile that they had a visa rejected and advised her to lodge it herself.

30. The applicant was asked if she had contacted the department to advise that she had transferred to TK. She stated that she did not but her former agent said he did and that the department said that it would be fine. The applicant stated that she had some issues with the department and her visa; they asked her to go to the department to give an explanation. It seems that Swinburne did not want to let her go. Her agent was dealing with the department; it seems that they resolved the issue for her.  She had no idea what happened or what was happening. The agent only asked her to go to the department and lodge some documents. She thinks it was a medical report because she had appendicitis and she lodged a medical report. She thinks it was also to tell them about changing to TK College. When asked, she stated that she has no evidence of this. The tribunal noted that in her response to the department she claimed that she got permission from the department but her evidence today indicated that she does not seem to know what actually happened.

31. The tribunal finds that the applicant, on her evidence, was in breach of her visa condition for 21 months, which the tribunal regards as significant.

32. The applicant’s evidence regarding the problems that she faced in her studies at Swinburne were on the whole vague. She has not provided any documentation to corroborate her evidence to the tribunal regarding the problems she faced nor has any evidence been provided regarding the advice she claims she received from her former migration agent. As put to the applicant, none of the documentation the applicant provided to the department in response to the intention to cancel her visa lists a migration agent appointed to represent her. While the tribunal is willing to accept that the applicant may have received some advice or assistance in responding to the NOICC, it gives little weight to her claims that she was misled or not informed of the requirement to maintain enrolment in a higher education sector course by a migration agent. 

33. The tribunal has had regard to the fact that the applicant has claimed that she was unaware of the requirement of her subclass 573 visa that she maintain enrolment in a higher education course. However, it is the applicant’s responsibility to be aware of the requirements and conditions of her student visa and the tribunal is not satisfied that this factor outweighs the significance of the applicant’s breach.

34. The applicant’s representative claimed that the applicant’s completion of a certificate and her enrolment in a diploma was evidence that she was a genuine student and her witness referred to the applicant engaging in study on her own at home. The tribunal has given this some weight. However, while this may be the case, as put to the applicant at hearing, there is little evidence before the tribunal indicating that the applicant intends to study at the higher education sector level. The letter of offer from Stotts College was issued after the applicant was notified that her student visa may be cancelled and the applicant conceded that it was obtained to prevent her visa from being cancelled. The evidence before the tribunal does not indicate that the applicant ever enrolled in this bachelor course. Her evidence at hearing about future enrolment in a higher education course was vague and speculative. The applicant’s evidence at her hearing appeared noncommittal, claiming that she wanted to do a management degree ‘maybe’ at RMIT and that if she gets into the course she will ‘give it a try’. 

35. On the evidence before it while the applicant may have originally intended to enrol a higher education sector course when she first came to Australia, the tribunal is not satisfied on the evidence before it that the applicant intends to genuinely study at the higher education level.

    The degree of hardship that may be caused to the visa holder and any family members

36. The applicant advised that she is already 21 years old and has not been studying for six months. During that period, all her co-students have been studying. Up to now she has a certificate IV and wants to obtain a diploma. She further stated that it would be hard for her to get a job with just her certificate IV if she went back to China. The basic requirement in China is to obtain a bachelor degree; this is what she wants to do. The applicant’s witness, Ms Li, referred to the applicant being very stressed due to her visa issues and having lost some weight as a result.

37. According to the applicant, she has parents and a younger brother in China and an older sister permanently residing in Sydney who is married to an Australian. Her parents own a concrete/cement business. Her parents are hardworking people and recently it has been difficult for them to make money because of restrictions that have applied. Her written response to the department also states that she does not want to disappoint her parents again.

38. The tribunal accepts that the cancellation of the applicant’s visa has caused her distress which may have resulted in some weight loss. The tribunal does not accept however that such distress or any discomfort felt by the applicant at not being able to study for the past several months while her fellow co-students students is significant so as to outweigh the significance of the breach.

39. The tribunal further gives little weight to the applicant’s claim that it would be difficult for her to get a job in China with just a certificate IV and that a bachelor’s degree was the ‘basic requirement’. The applicant’s evidence about her intended career plans was vague and undetailed and the tribunal does not accept that the applicant would be unable to obtain a job in China or that any difficulties she may face in obtaining a job would outweigh the significance of the visa breach.

40. While the tribunal understands that the applicant does not wish to disappoint her parents, it does not accept that she would suffer any hardship as a result of this. The applicant’s evidence about her parents’ financial difficulties was vague and lacking in detail and, while they may have to pay additional expenses if the applicant’s visa were cancelled, the tribunal does not accept that they would suffer hardship as a result.

41. In these circumstances, the tribunal finds neither the applicant nor any member of his family would suffer any hardship for these reasons as a result of the cancellation of his visa.

    Past and present conduct of the visa holder towards the department

42. Following the issue of the NOICC the applicant has responded within relevant timeframes to the department’s correspondence in relation to the cancellation of his visa.  The tribunal is not aware of any adverse conduct on the part of the applicant towards the department beyond the matters discussed above.

    Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

43. The applicant currently holds a bridging visa and, if her visa is cancelled, can remain lawfully in Australia until her bridging visa expires. Should the applicant remain in Australia after the expiry of that visa, without any other visa being granted, she would become unlawful and subject to detention.  There is nothing to suggest that any detention in such a hypothetical situation would be indefinite.

    Whether there would be consequential cancellations under s.140; whether any international obligations would be breached as a result of the cancellation; and the impact on any victims of family violence

1. The evidence before the tribunal does not indicate that the above matters are applicable to the applicant’s circumstances and the applicant has not made any claims in relation to these matters.  The tribunal finds that these matters are not relevant.

   Any other relevant matters raised by the visa holder

2. No other relevant matters were raised by the applicant.

3. Having regard to the applicant’s circumstances and the factors listed above as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

4. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

   Magda Wysocka
   Member