Bian (Migration)

[2019] AATA 1376

Bian (Migration) [2019] AATA 1376 (7 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Boyuan Bian

CASE NUMBER:  1708685

HOME AFFAIRS REFERENCE(S):           BCC2017/589802

MEMBERS:Sean Baker (Presiding)

Michael Biviano

DATE:7 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 07 May 2019 at 11:59am

Statement made on 07 May 2019 at 3:40pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – completed only 3 subjects since arrival – length of non-enrolment – unconvincing explanations for non-compliance – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140
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 4 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 been enrolled in a registered course of study from 2 August 2016. The delegate went on to consider that the factors in favour of cancellation outweighed those against cancellation. The delegate decided to cancel the 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.

3.The applicant appeared before the Tribunal on 19 March 2019 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. The representative attended the Tribunal 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 applicant had arrived in Australia on 21 October 2013, after obtaining an initial student visa TU 573 to study a suite of courses including foundation course language, diploma of management and bachelor degree of management.

10.The applicant did not start the foundation course, but instead he commenced a English  language course at Deakin University which he commenced in November 2013. However he  did not complete the course because he failed one subject 3 times. He filed a review with the University, which was unsuccessful and he left the course in September 2014.

11.In October 2014 the applicant then completed an exam to enter Zarah Institute of Education to study a Diploma of Management. In 2015, he began studying the Diploma of Management and gave evidence that he believed that he had completed the Diploma of Management at the end of 2015. The applicant tendered a Statement of Attainment from Zarah Institute of Education at the hearing which confirmed that he had completed 3 components that form part of the Diploma of Management. The statement did not confirm that he completed the Diploma. It would be expected that a student would be required to undertake more than 3 subjects/competencies to complete the diploma.

12.The applicant was given the opportunity after the hearing to submit further documents from Zarah Institute, confirming that he had obtained the diploma, but he did not do so.

13.In late 2015, the applicant transferred to WIT (which the Tribunal understood to be Western Institute of Technology) to undertake the same Diploma of Management. The applicant gave evidence that he was encouraged to transfer courses by a friend who he studied with at Zarah Institute and his agent. He gave evidence that he made no enquiries about the course and the facilities at WIT, but had been told by his agent that attendance was not compulsory as long as the tuition fee was paid. The applicant gave evidence that he commenced the diploma in April 2016 and he attended WIT only on 3 occasions. He abandoned the course and did not pass any units because he stopped studying when he discovered that there were very few students studying at WIT. No documentation confirming the enrolment with WIT was submitted to the Tribunal. 

14.The applicant conceded in evidence that he was not enrolled in a registered course after 2 August 2016 up until his visa was cancelled on 4 April 2017.

15.On the evidence before the Tribunal, the applicant was not enrolled in a registered course between 2 August 2016 and 4 April 2017. Accordingly, the applicant has not complied with condition 8202(2). As this was a condition which attached to his visa, the applicant has therefore breached a condition of his visa and the visa is liable to cancellation under s.116(1)(b).

Consideration of the discretion to cancel the visa

16.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’

the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

17.The applicant gave evidence that he came to Australia to study and undertake a suite of courses including foundation course language, diploma of management and bachelor degree of management. However the applicant struggled with the foundation course after 1 year in Australia and he transferred to Zarah Institute and then to WIT to complete a Diploma in Business Management. The applicant gave evidence that while at the Zarah Institute and WIT he had only successfully completed 3 subjects.

18.On the evidence before the Tribunal, the applicant has been in Australia since October 2013, being 5 ½ years and he has only completed 3 subjects.

19.The applicant gave evidence that notwithstanding he was not attending WIT, he thought that he continued to remain enrolled in a course of study at WIT. He gave evidence that had he known that he was not enrolled, he would have immediately attended to enrolment. However the Applicant gave evidence he was not undertaking any study in a course of study, from when he enrolled at WIT, in April 2016 to when his visa was cancelled in April 2017. I note that this is a long period of time not to be studying in Australia, which creates doubts as to whether the applicant travelled and stayed in Australia for the purpose of study.

20.The applicant has given evidence that if possible he intends to remain in Australia to fulfil his academic goal and now undertake study and commence an Advanced Diploma of Leadership and Management at St Peter Institute commencing 22 April 2019 and concluding 10 January 2021, and then complete a Bachelor of Commerce. The applicant tendered a letter of offer from St Peter Institute confirming an offer of enrolment in the Advanced Diploma of Leadership and Management.

21.Having regard to the applicant’s evidence, the Tribunal accepts that the applicant may have travelled to Australia intending to study and he intends studying in Australia in the future, but given his conduct in Australia as set out below and his ability to only complete 3 subjects since his arrival in October 2013, the Tribunal gives this only little weight towards the visa not being cancelled.  

the extent of compliance with visa conditions

22.The applicant gave evidence that he was not enrolled in a course of study from 2 August 2016 until the cancellation of the visa on 4 April 2017 being a period of 8 months which was a substantial period of time. Therefore, the applicant has not complied with condition 8202(2) for a substantial period of time. The non-compliance with condition 8202(2) for such a substantial duration of time may weigh towards the cancelling the visa unless the Tribunal accepts his reasons for non-enrolment.

23.The applicant in evidence gave a number of reasons why he was not enrolled and those reasons are set out below. The Tribunal does not find them compelling and not convincing reasons as to why he was not enrolled in a course of study.

24.The applicant ultimately accepted in evidence that he was responsible for not being enrolled and the substantial period of non-enrolment for which the applicant provided little evidence with what he did with his time. By reason of the unexplained period of enrolment and the duration of the breach, the Tribunal gives this some weight towards the visa being cancelled.

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

25.The Tribunal asked the applicant if he or other members would suffer hardship if the visa was cancelled. The applicant gave evidence that the visa cancellation would cause him substantial hardship as he had been required to remain in Australia for 2 years without work or study, while his appeal of the decision of the Department awaited hearing. He gave evidence that if the visa remained cancelled he would not be able to face his mother who is not in good health.

26.In a short written submission received after the hearing, the applicant’s representative submitted that the applicant’s mother had cancer in 2012 and a return to China without a qualification will devastate his mother and could impact upon his mother’s health. The Tribunal finds that while the applicant’s mother would be disappointed that her son has not attained his qualifications, that is not a matter which would constitute a degree of hardship sufficient to weigh as to whether the visa ought be cancelled.

27.Further in the post-hearing submissions the applicant’s representative contended that the applicant had completed year 11 in China only and not completed a High School Certificate and it is unlikely he would be able to complete tertiary studies in China. No sworn evidence was given by the applicant as to that fact at the hearing. The Tribunal is concerned by that submission by reason that if the applicant has not completed his high school certificate as is being submitted, then it is unclear he would have been entitled to enrol in an Australian tertiary intuition such as Deakin University and obtain his student visa TU 573. The Tribunal nonetheless accepts the applicant may have difficulties undertaking further studies if he returns to China, but also considers that the applicant has not established that this would constitute a significant level of hardship.

28.The Tribunal considers that the above matters gives some weight towards the visa not being cancelled.

circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. 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 as to the circumstances that lead to the cancellation of the visa.

30.Firstly he gave evidence that he transferred to WIT from Zarah Institute based on being encouraged to do so by one of his fellow students at Zarah Institute and his agent to study the same course, being a Diploma of Management. When questioned about what research he had done into the course and WIT before enrolling there, he said that he had not done any research into the course or the institute. Such response was surprising considering that the applicant contends that his reason for coming to Australia was to study.

31.The applicant gave evidence that he had enrolled in the Diploma of Management course at WIT, notwithstanding he claims that he had completed that same diploma at Zarah Institute. When questioned about why he would undertake to study a course that he said that he had already completed, he was unable to provide an explanation and the Tribunal finds his evidence on this matter not being credible.

32.The applicant gave evidence that one of the reasons that he was attracted to the course was that his agent had told him that his attendance at WIT was not required and not checked. He claimed he was told as long as he paid his fees he would remain enrolled. The Tribunal finds such evidence as to his reasons to study this course, which he believed did not require attendance, is inconsistent with the motivation and intention of a person who is seeking to study. 

33.The applicant claims that he attended WIT on 3 occasions and after attending classes he was unhappy with the course and the institute as their facilities were inadequate and there were only 2-3 students studying the course at WIT. He decided not to attend the course any further.

34.He claims that he was not notified by WIT that his enrolment had lapsed or that he needed to pay for another semester. He gave evidence that if he had been notified that he needed to pay fees, he would have paid another semester’s fees.

35.Ultimately the responsibility regarding enrolment rests with the student and the Tribunal is not persuaded by his reasons for non-enrolment. The applicant would have had the opportunity if he was unhappy with WIT and the course he was enrolled to study to seek other alternatives. The applicant did not give sworn evidence that he had attempted to make enquiries to study at another institute. Further the applicant would have been aware from his previous studies in Australia that the failure to pass units and not pay fees each semester to confirm enrolment would likely to result in non-enrolment in the course of study.

36.Notwithstanding these matters the applicant conceded in evidence he was responsible for the non-enrolment and he bore responsibility for his own actions.

37.The applicant gave little detail on what he was doing while enrolled but not studying at WIT and when he was no longer enrolled from 2 August 2016 to 4 April 2017. He gave evidence that he had worked during his stay in Australia in a chinese restaurant for 3 days and other than that he not undertaken any significant paid work. He gave evidence that his parents had paid for all of his expenses while studying in Australia.

38.He admitted that he was very young when he came to Australia and had admitted making mistakes while here.

39.The applicant in evidence also submitted that during his stay in Australia he had experienced other factors while in Australia, which he claimed was relevant including that he had been scammed, he had been ill and gambled money at the casino. However those matters did not go to the circumstances why he was not enrolled.

40.In submissions the applicant’s representative claimed that the applicant was depressed during 2016 and was a mitigating factor for the non-enrolment. The applicant requested additional time to provide medical report from 2016 in relation to the applicant’s medical condition. A translated medical certificate from Luo Hechun, physician, in China at Peking University People’s Hospital dated 5 January 2016 was submitted to the Tribunal which diagnosed the applicant with moderate depression and made numerous suggestions to avoid fatigue and stress. However it does not make any recommendations about the applicant not being fit to undertake any study.

41.The Tribunal also considers that while the medical certificate is relevant to the applicant’s mental state as at January 2016, it does not address his actual mental state as at the time of not being enrolled from 2 August 2016 to 4 April 2017 and does not address why he was not enrolled.

42.The central purposes of the student visa is to study and for the 8 month substantial period the applicant was not enrolled, he was not studying. In fact on the applicant’s own evidence he did not study once he enrolled at WIT, when added to the period of non-enrolment this totals 12 months. While the Tribunal has had regard to the applicant’s claims that he wishes to study, the Tribunal had some difficulties in accepting such evidence light of his previous conduct.

43.The Tribunal has considered the applicant’s explanations for why he was not enrolled for this substantial period and therefore in breach of condition 8202(2). The Tribunal does not accept the circumstances were beyond his control or that the circumstances indicate reasonable explanations for not being enrolled for such a period of time. The Tribunal gives this matter very significant weight towards the visa being cancelled.

past and present behaviour of the visa holder towards the department

44.According to the decision record, the applicant had not responded to the Department’s notice of intention to consider the cancellation of the visa. However there was no other evidence that the applicant had been uncooperative towards the Department. The Decision Record of the Department confirmed that he had not been uncooperative towards the Department. The Tribunal gives this some little weight in his favour.

whether there would be consequential cancellations under s.140

45.This matter is not relevant in this application and I give this factor no weight.

whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

46.The applicant gave evidence that if the visa remained cancelled he would return to China and therefor there is no indication that he would become unlawful or be subject to detention and I give this factor no weight.

whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

47.This matter does not appear relevant in this application as the applicant gave evidence that if the visa remained cancelled he would return to China and he did not give any reasons as to why he could not return to China and he has not made any claims that relate to this consideration. I give this factor no weight

if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

48.This matter is not relevant in this application as the cancelled visa is a temporary visa and I give this factor no weight.

any other relevant matters.

49.The applicant gave evidence that he had not made up his mind what he would do if the visa was cancelled but he would return home. The applicant requested he be given a second chance to complete his studies, otherwise the 5 years he has stayed in Australia would be meaningless where he has missed his family over that time and important events with friends at home. He pleaded that he did not want to return without his qualifications. The Tribunal has had regard to his responses, but in light of the findings above  it adds very little to his case and the Tribunal gives it very little weight to the visa not being cancelled.

50.The Tribunal has considered the applicant’s evidence at the hearing, the documents provided and the submissions made at the hearing and after the hearing, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

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

Sean Baker
Member

Michael Biviano
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.