An (Migration)

[2018] AATA 5042

An (Migration) [2018] AATA 5042 (30 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jiazhi An

CASE NUMBER:  1701239

HOME AFFAIRS REFERENCE(S):           BCC2016/4241014

MEMBER:Stephen Conwell

DATE:30 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 30 October 2018 at 2:04pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 573 (High Education Sector) – breach of enrolment conditions – extension of time granted – no response – gap in study – personal issues – parents’ divorce – excessive gaming and alcohol consumption – completed high school in Australia – lack of emotional immaturity at the time – renewed focused on studies – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 8 condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 January 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 breached condition 8202(2)(a) – enrolment. 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 17 October 2018 to give evidence and present arguments.

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.

8. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 13 April 2016. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 5 January 2017, the applicant was advised that information on the Provider Registration and International Student Management System (PRISMS) indicated he had not been enrolled in registered course of study since 27 May 2016. The applicant was advised it appeared he was in breach of condition 8202(2)(a) – and that his visa may be cancelled under s.116(1)(b) of the Act.

9. On 12 January 2017, the applicant requested an extension of time in order to respond to the NOICC, and was granted an extension until 19 January 2017. However despite the extension, the applicant did not respond to the NOICC letter.

10. At hearing the applicant confirmed that he had received the NOICC. He could not satisfactorily explain why he had not responded to it; he claimed to have not been aware that he had been granted an extension in which to respond to it.  He did not dispute there were grounds for cancelling the visa – though he did provide reasons why the visa should not be cancelled (discussed below). At hearing, the applicant also conceded he had failed to maintain enrolment in a registered course of study for around seven months.

11. 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

12. 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. However, in considering whether to exercise its discretion to cancel the applicant’s visa, 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’.

13. The applicant confirmed in oral evidence that his purpose in travelling to and stay in Australia was to study. The Tribunal received a submission from the applicant’s representative dated 12 October 2018 providing reasons why the applicant’s visa should not be cancelled. The submission is summarised as follows:

    ·       The applicant arrived in Australia in October 2012 as a high school student; he was accompanied by his father who held a Student Guardian visa. The applicant completed years 10-12 at Whites Hill State College, Queensland.

    ·       The applicant’s father returned to China when his Student Guardian visa expired. 

    ·       The applicant was accepted by RMIT to study for a course of Associate Degree in Engineering Technology leading to a Bachelor of Engineering. The course was to commence in February 2016; he relocated from Queensland to Melbourne to take his studies.   

    ·       The applicant failed to pay the full amount of his first semester fee to RMIT University. His enrolment was then cancelled by RMIT on 27 May 2016 for non-fee payment.

    ·       The applicant was notified by the Department of Immigration and Border Protection (the Department) of the intention to consider cancellation of the student visa by NOICC letter dated 5 January 2017.

    ·       The applicant did not respond to the NOICC and his Student visa was cancelled on 20 January 2017.

    ·       The applicant attempted to apply for the study rights with the Department in early 2017, however the request was denied.

    ·       In 2015 the applicant learnt of his parents’ divorce and was said to have been ‘devastated’ by the news.  His parents’ divorce had financial implications for him as his mother provided the funding for his study in Australia. 

14. The representative’s submission to the Tribunal was accompanied by the following documents:

    ·       Confidential psychological report dated 18 January 2017, by consultant psychologist, Ms Wendy Northey.

    ·       Offer of enrolment from Cambridge International College, dated 13 February 2017 for a:

    o  Diploma of Leadership and Management – 1/05/2017 to 29/04/2018

    o  Bachelor of Business (Management) – 28/05/2018 to 17/05/2020.

    ·       a previous Confirmation of Enrolment at RMIT for a Bachelor of Engineering.

    ·       Tertiary Entrance Statement and Certificate – 2015

    ·       Bio data page of the applicant’s passport.

15. The psychological report dated 18 January 2017, by consultant psychologist, Ms Wendy Northey notes that it was prepared after a single interview for psychological assessment on 12 January 2017. However the applicant’s representative stated at hearing that the applicant attended Ms. Northey on another occasion following the issuing of the report. The report is summarised as follows:

    ·       the applicant was distracted from his studies at RMIT due to his “emotionally destabilised state”. He “disengaged” from his studies in 2016 to focus upon developing an educational information technology (IT) platform as a potential “start-up” business opportunity.

    ·       Initially the applicant had been relieved to relocate from Brisbane to Melbourne and escape the strict attention of his father who remained in Brisbane.  However his parents’ divorce and his new-found freedom from parental oversight resulted in the applicant losing his “sense of perspective” in relation to his studies.

    ·       Instead of studying, the applicant focused on his IT interests for the remainder of 2016 which included program development and recreational gaming.

    ·       During 2016 the applicant had twice weekly telephone contact with his mother in China and had a phone call with his father in Brisbane once a fortnight.  This lack of parental oversight together with the applicant’s level of emotional immaturity, led to the misdirection of his focus from his studies to his IT pursuits.

    ·       Apart from spending too much time in 2016 on his gaming and IT pursuits, the applicant shows no established tendency towards addictive behaviours.

    ·       Whilst the applicant might not have suffered clinical depression in 2016, he was possibly experiencing “an emotional vacuum in terms of support at a time when he most needed it.”

    ·       In 2016 the applicant for the first time was without direct parental supervision; it was also when he first learned of his parents’ divorce the previous year. When this is taken into account along with his youth, the applicant’s lack of study in 2016 might be seen “as a form of self-selected gap year.” 

    ·       The applicant has not studied in his home country of China since 2012 and has no Chinese tertiary entrance qualifications; these factors would make it difficult for him to enrol in tertiary studies there.

    ·       The applicant “is now more emotionally mature and psychologically stable than he was in early 2016 … I am reasonably confident that he can succeed here if given a second chance to demonstrate his commitment to honour the strict terms of a Student visa should he be afforded the opportunity once more.”

16. In his oral evidence the applicant admitted that for several months during 2016 he spent approximately 15 hours a day engaged in recreational gaming and drinking alcohol.  He confirmed that he did not seek medical advice or treatment for psychological counselling at the time.  His interview with Ms Northey on 12 January 2017 was his first contact with a psychologist. 

17. The applicant’s evidence is that he has long since stopped his excessive consumption of alcohol and has reduced his recreational gaming activities to a few hours a day.  He confirmed that should his visa remain cancelled he would struggle to enrol in tertiary studies in China, having no Chinese tertiary entrance qualifications.

18. The applicant does not want to return to China without a qualification.  He does not want to let his parents (in particular, his mother) down.

19. The applicant confirmed that his mother works in insurance in China and she was and remains, his financial sponsor.  If he is given ‘a second chance’ to complete tertiary studies in Australia, he hopes to join his mother in the insurance industry upon his return to China.

20. The Tribunal notes that the applicant came to Australia as a 15 year old and completed three years of high school to obtain an offer of enrolment into a well-regarded course and university.

21. The Tribunal gives weight to the applicant successfully completing high school whilst under the guardianship of his father. 

22. The Tribunal gives significant weight to the fact that during 2016 the applicant was for the first time in his life without direct parental supervision and was also confronted with the news of his parents’ divorce which occurred in the previous year.

    The extent of compliance with visa conditions

23. The applicant has confirmed that he has not been enrolled in a registered course of study for a lengthy period, namely seven months. Prior to this, the applicant does not appear to have breached conditions on his visa during his first three years in Australia. The Tribunal gives some weight in favour of the applicant for his unblemished record in high school.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

24. The applicant informed the Tribunal that he has not yet told his parents that his visa has been cancelled, as they will be very disappointed and his mother’s financial support will have been wasted. His mother wants him to return with a qualification – indeed he would be ‘in limbo’ should he have to return to China without an Australian tertiary qualification.

25. He informed the Tribunal that in in the circumstances he believes it would be better for him to change from studying engineering to a business degree which will help him gain entry into his mother’s profession of insurance.

26. The Tribunal notes that the letter of offer from Cambridge International College states that enrolment in the Bachelor of Business degree is conditional upon successful completion of the Diploma course.

27. The Tribunal accepts that the applicant would face some degree of hardship should his visa be cancelled. He was sent to Australia from a young age in order to complete secondary school. Many international students come to Australia at a tertiary level. The applicant came as a callow youth to complete his secondary school education; he was offered a place in a reputable Australian tertiary institution. After spending a pivotal part of his education in Australia, to return to China without a tertiary qualification would be a significant disappointment to him and his mother, given her financial investment and parental expectations of the applicant.

28. The Tribunal is also cognisant that the applicant has spent three of his formative years in Australia completing high school. If the visa is cancelled, the applicant will be prevented from returning to Australia for three years. The Tribunal gives some weight to these hardships.

    Circumstances in which ground of cancellation arose. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

29. The applicant gave evidence regarding the events of 2016 and was truthful regarding his obsession with recreational gaming and his excessive alcohol intake over several months in 2016. The Tribunal has regard to the psychological assessment report by Ms. Northey.

30. The applicant stated that in the past 18 months or so since stopping his excessive drinking and online gaming, he has expanded his interest, becoming involved in sports, (badminton, soccer and basketball) and made new friends. The Tribunal gives significant weight in favour of the applicant given these circumstances.

    Past and present conduct of the visa holder towards the department

31. The applicant did not respond to the Department, despite seeking an extension of time in which to do so.  The Tribunal gives some weight to this lack of response. However since engaging a migration agent, the applicant’s conduct towards the Department has been timely and responsive.  The Tribunal notes that in early 2017 the applicant requested the Department to grant him study rights, however that request was declined.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

32. If the applicant’s visa was cancelled he would be required to depart the country within a short time frame. He confirmed that he would be able to return to China and live with his mother.

    Whether there would be consequential cancellations under s.140

33. The applicant confirmed at the hearing that he is the only person on his visa.

34. Whether any international obligations would be breached as a result of the cancellation

35. This is not relevant to the applicant.

    Any other relevant matters.

36. The applicant’s representative made a submission at the conclusion of the hearing. She stated that it is hard to be a young student studying abroad. She stated that the applicant did not pay his term fees on time and that was the start of his studies in 2016 ‘unravelling’. She confirmed that the applicant is an only child and his mother has made a significant financial and emotional investment in his studies in Australia.

37. The Tribunal has considered the circumstances pertaining to this applicant and has placed a significant amount of weight on the applicant’s successful studying in Australia prior to the breach. He achieved good VCE results which earned him a place at RMIT on a study pathway towards an Engineering degree.

38. In 2016 the applicant experienced life for the first time without the structure and discipline of his parents’ oversight. This was compounded by his learning of his parents’ divorce in 2015. The Tribunal accepts the psychological assessment by Ms. Northey that whilst the applicant may not have been clinically depressed at the time, he was most likely “in something of an emotional vacuum in terms of support at a time when he needed it most.”

39. Under these circumstances, and given his level of emotional immaturity at the time, the applicant lost focus of his studies and succumbed to the allure of recreational online gaming and alcohol for much of 2016. The Tribunal accepts that his cumulative circumstances of psychological distress from his parents’ divorce as well as his new-found freedom as a young adult were all factors contributing to his loss of focus on his studies.

40. The applicant should have informed RMIT or the Department and/or sought professional medical care or counselling, however the Tribunal accepts that given the applicant’s emotional immaturity and state of mind at the time, it is unlikely that he would have entertained such rational thoughts, or, if he did, would have acted upon them.

41. The consequences of a cancellation would mean the applicant would be barred from applying for a visa for three years and would return to China without a tertiary qualification. Whilst the Tribunal accepts that he might be able to study in China, the applicant would most likely have difficulty in doing so, given his lack of Chinese qualifications for entry into university.  Furthermore cancellation would mean that the applicant would leave Australia with an adverse immigration record and no qualification. 

42. The Tribunal accepts that the applicant sees the value of completing his business degree in order to follow his mother into the insurance sector, where he will have her support and mentoring.  The Tribunal accepts Ms. Northey’s assessment of the applicant that he is “now more emotionally mature and psychologically stable  …[and] now fully aware that he must fully commit to tertiary study and complete his degree without disruption.”

43. The Tribunal has considered both individually and cumulatively, the issues put forward by the applicant and concludes that the visa should not be cancelled.

    DECISION

44. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Stephen Conwell
    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.