1516827 (Migration)

[2016] AATA 4435

1516827 (Migration) [2016] AATA 4435 (8 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bingguang Xiang

CASE NUMBER:  1516827

DIBP REFERENCE(S):  BCC2015/2934710

MEMBER:David Corrigan

DATE:8 September 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 571 Schools Sector visa.

Statement made on 08 September 2016 at 4:40pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 November 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 571 Schools Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that that the applicant had not complied with condition 8202(2) as he had not been 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. The applicant appeared before the Tribunal on 8 September 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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?

6. 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).

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course of study.

8. The delegate’s decision submitted to the Tribunal indicates the applicant had been granted a Subclass 571 Schools Sector student visa on 13 January 2015.  It also shows that Provider Registration and International Students Management System (PRISMS) records indicate that the applicant was not enrolled in a registered course of study from 17 July 2015 until the date of the decision (17 November 2015).  At the hearing, the applicant did not dispute that he was not enrolled during that period

9. On the evidence before the Tribunal, the applicant was not enrolled in a registered course of study from 17 July 2015 until 17 November 2015 when the delegate made her decision.  Nor was he the holder of a Subclass 560 or 571 (Schools Sector) visa as a secondary exchange student.  Accordingly, the applicant has not complied with condition 8202(2).

   Consideration of the discretion to cancel the visa

10. 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.

11. 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).

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

12. The applicant told the Tribunal that he completed an English for Secondary Schools course from 19 January 2015 until 5 June 2015 and PRISMS records indicate that he finished this course and was later enrolled into secondary school courses.  Accordingly, the Tribunal is prepared to accept that he travelled to Australia with the intention to study and has given this factor some weight in his favour.

    The extent of compliance with visa conditions

13. The Tribunal has taken into account that the applicant was in breach of condition 8202(2) for a fair period of time from 17 July 2015 until 17 November 2015.  Overall it considers the extent of the breach is a factor that points to cancelling the visa.

14. The Tribunal has no evidence before it that the applicant has not complied with other visa conditions.  It considers this is a consideration that is in his favour and it has taken this into account and given it some weight.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

15. The applicant was originally enrolled in a secondary schools course at Sunbury Downs College for the period of 13 July 2015 until 20 December 2017.   However, he has claimed that unluckily he was told after completing his English studies there that they had closed their international program for that year. He submitted a copy of an email, dated 5 May 2015, from an officer of the Victorian Department of Education & Training that supports his claim as it states that the school was unable to place him due to a resourcing issue.  He claimed that an education agent quickly arranged for him to go to Melbourne Senior Secondary College (MSSC) because it was the only one that would take him quickly.  He stated that the next day after he was enrolled there, his agent was notified that the school was shut down by a government authority.  The Tribunal accepts this is the case given media reports that the Victorian Registration and Qualifications Authority ordered the school to close by 10 July 2015.[1]

    [1] The Age, Melbourne private secondary school forced to shut, 12 August 2015,

16. The applicant has claimed that the principal or a tutor of MSSC arranged for him to go to Holmes Institute (HI) and that he studied there for a month when HI were finalising his guardianship and welfare arrangement.   He also claimed that MSSC transferred the fee ($12,770) he and his family had paid for tuition there to HI.  He submitted a copy of an email, dated 12 August 2015, from HI to his education agent stating that they did not request the applicant to pay anything as they were awaiting the payment from the government and they were trying to issue a Confirmation of Enrolments (CoE) for students from MSSC.

17. The applicant claimed that he stopped studying at HI because they did not want to issue him a CoE.  He said he went to see the Principal but he did not explain why they were doing this and the Principal told him as he had been excluded from the school there would be no refund issued.   He also claimed that on 11 November 2015, the Principal rang up his visa agent and said they had been unable to issue a CoE due to a guardianship problem.  He claimed the Principal also said there was a form he had not filled in.  The applicant claimed that as a young man of 16, he lost his direction given all the problems and that the Notice of Intention to Consider Cancellation and the decision were sent to an email address he did not check regularly and he barely managed to appeal within the time frame.  

18. The applicant submitted a copy of a letter from a Mr Yitong Wang, dated 31 August 2016, who said he has known the applicant for two years.  It states that they enrolled together at HI after MSSC was shut down and that the applicant went to classes with him for almost a month but there were some admission issues that forced him to stop studying there.  Mr Wang said he also had admission problems at HI related to welfare and tuition transfer from MSSC and that he only received his CoE on 14 October 2015.

19. The Tribunal consider the closure of MSSC to be an extenuating circumstance beyond the applicant’s control and a matter that supports not cancelling the visa.  The Tribunal found the applicant’s description of what happened at HI at the hearing and in his written submission a bit difficult to accept given it is not clear why HI would have had a problem with his guardianship arrangement when he has not had this problem with other secondary education providers and why the Principal would not give him a reason for his exclusion and not tell him directly if guardianship issues were the reason.  It also finds it odd that the applicant’s parents have not pursued legally or through other channels the substantial amount of fees that were paid to MSSC and said to be transferred to HI who did not enrol him.  The Tribunal finds it difficult to determine what did happen and why the applicant was not given a CoE, but it notes that the applicant was born on 15 August 1999 and that all these events took place when he was 15 years old or just after he turned 16 years old and that he was dependent on adults (his visa agent and his parents) to address these problems of obtaining enrolment for him.  It also notes the applicant was relatively new to Australia having arrived in January of 2015.  It accepts that he attended classes at HI for a month but it considers it unclear, on the evidence before it, as to why they did not enrol him and excluded him from their program.

20. Considering all of the evidence, the Tribunal finds that the breach of the condition occurred generally in circumstances that were extenuating and broadly beyond his control.  It considers the circumstances considered as a whole do not generally support the cancellation of the visa. 

    The degree of hardship that may be caused to the visa holder and any family members: decision-makers should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision

21. The Tribunal accepts that the cancellation of the visa may lead to the applicant having to return to China.  However he could study secondary school there and his parents appear to be well off given their ability to fund his secondary school study in Australia.

22. The Tribunal considers on the evidence before it, the applicant and his family members are not likely to face any significant degree of financial, psychological, emotional or other hardship if his visa is cancelled and has given this only limited weight in his favour. 

    The visa holder’s past and present behaviour towards the Department (for example, whether a person has been truthful in statements or co-operative in their dealings with the Department)

23. The Tribunal has no evidence before it that the applicant’s past and present behaviour towards the Department has been untruthful or unco-operative.  It considers this is a consideration that is in his favour and it has taken this into account.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140

24. There are no other persons whose visas would, or may be cancelled and the Tribunal finds this factor is not relevant.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

25. The applicant did not raise any matters that indicated that there would be any breach of any obligations under any relevant international agreements.  However, the Tribunal notes that the applicant is 17 years of age and that under the Convention on the Rights of the Child, it should treat as a primary consideration his best interests.  Whilst the applicant would be able to undertake secondary studies in China, it has taken into account that an Australian education is likely to be of benefit to him in the future.  It has given this factor some weight as a reason not to cancel his visa.

    The impact of cancellation on any victim of family violence, or if family violence is a factor

26. The applicant did not raise any matters that indicated that this was an issue and the Tribunal finds this factor is not relevant.

    Whether there are mandatory legal consequences to a cancellation decision, such as:

    ·     whether indefinite detention is a possible consequence of the cancellation decision , if a person cannot be removed from Australia consistently with Australia’s non-refoulement obligations 

    ·     whether there are provisions in the Act which prevent the person from making a valid application for a visa without the Minister personally intervening (for example, s46A, s46B, s48, s48A, s91E, s91K and s91P of the Act) and

    ·     whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and liable to be detained under s189, and liable for removal under s198.

27. The applicant told the Tribunal he is currently on a bridging visa.Therefore, the cancellation of his student visa will not directly lead to him becoming an unlawful citizen.  Whilst the applicant may eventually become an unlawful non-citizen and liable for detention and removal, the Tribunal gives this factor only limited weight in his favour and finds it does not outweigh other factors that point to the cancellation of the visa.  The Tribunal is not satisfied, on the evidence before it, that indefinite detention is a possible consequence of the cancellation decision because he cannot be removed from Australia consistently with Australia’s non-refoulement obligations. 

28. There are no provisions of the Act that that prevent the applicant from validly applying for a protection visa without the Minister personally intervening.  Whilst he may be prevented from making a valid application for other visas without the Minister personally intervening, this is only a factor that the Tribunal gives limited weight in his favour to.   

    Any other relevant matters

29. After the cancellation of his visa, as evidenced by a CoE, the applicant through his mother and an agency enrolled in a secondary education course at Lyndale Secondary College commencing from 27 January 2016.  He claimed that he attended this school but due to unequal treatment about the shoes he was wearing he became reluctant to attend and was excluded from the school in March 2016.  PRISMS records indicate that this occurred on 28 March 2016.  He claimed that he had big and unusually shaped feet and that wearing leather shoes caused him blisters and that he was regularly criticised and subject to detention for his footwear and that the teachers would not accept his explanation for the footwear he had on.

30. The applicant has recently enrolled at Western Senior Secondary College in a course that commenced on 17 August 2016 and which is due to end on 3 January 2018.  The applicant told the Tribunal at the hearing that he was attending classes there and they did not have a uniform so he did not have to wear leather shoes.  The delegate’s decision notes that the stay period of the visa was until 15 March 2018 so the undertaking of this course should not exceed the length of the visa.   The Tribunal is not particularly convinced by the applicant’s explanation as to his failure to continue his secondary studies at Lyndale, but it has taken into account in his favour that he has enrolled in another secondary school course and is undertaking studies there.

31. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

32. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 571 Schools Sector visa.

    David Corrigan
    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.