CAI (Migration) - [2018] AATA 1193

CAI (Migration) [2018] AATA 1193 (7 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr TIANYI CAI
CASE NUMBER:  1709346
DIBP REFERENCE(S):  BCC2017/874074
MEMBER:Tigiilagi Eteuati
DATE:7 March 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Statement made on 07 March 2018 at 7:35pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Requirement to maintain enrolment – Enrolment cancelled – Failure to complete preparatory English courses - Grounds for cancellation exist – Consideration of discretion – Whether the applicant has the ability to undertaken relevant courses – Limited English language skills – Repeated failures in preparatory courses
LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 116(1)(b)
Migration Regulations 1994, r 1.40A, Schedule 2, cl 573.223(1A), 573.231, Schedule 8, Conditions 8202, 8516
CASES
Singh v Minister for Immigration & Anor [2015] FCCA 2998
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 21 April 2017 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).
The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not meet the condition of his visa to continue to satisfy primary and secondary criteria for the grant of his 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.
The applicant appeared before the Tribunal on 30 January 2018 to give evidence and present arguments. 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 his registered migration agent. The representative attended the Tribunal hearing.
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
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.
Does the ground for cancellation exist?
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 attached to the applicant’s visa. This condition requires that a visa 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.
In the present case, the delegate found that the applicant had failed to continue to satisfy the criteria for the grant of his visa in paragraph 573.223(1A) or the alternative criteria in paragraph 573.231 of Schedule 2 to the Migration Regulations 1994 (regulations).
For a person in the applicant’s circumstances these criteria can be summarised as Smith J did at paragraph 31 of his reasons in Singh v Minister for Immigration & Anor [2015] FCCA 2998 as follows:
“In summary, in order to satisfy the criteria for the grant of a class TU visa by reference to subclass 573; an applicant in this applicant’s circumstances had to either:
have had, both at the time of application and at the time of decision, a confirmation of enrolment in a course of study for the award of, relevantly a bachelor’s degree [or in this case a Master’s degree] or
at the time of decision be enrolled in or be the subject of the current offer of enrolment in a course of study specified by the Minister.”
The courses currently specified by the Minister are contained in instrument IMMI14/015 made pursuant to regulation 1.40A. The courses specified for a subclass 573 visa are:
·     Diploma (Higher Education);
·     Advanced Diploma (Higher Education);
·     Bachelor Degree;
·     Graduate Certificate (Higher Education);
·      Graduate Diploma (Higher Education);
·      Associate Degree; and
·     Masters by Coursework
Education providers apply to have their courses registered as either Higher Education (HE) courses or other courses including Vocational Education and Training (VET) courses, English Language Intensive Courses for Overseas Students (ELICOS) courses and foundation programs, under a system established under the Education Services for Overseas Students Act 2000 (ESOS Act).
Details of courses which have been registered are contained in the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and the status of a course, for example whether a course is a HE or VET course can be determined by examining the register. This can be done through the CRICOS website at >
The Minister’s delegate determined that the applicant had not met the criteria in paragraphs 573.223(1A) or the alternative criteria in paragraph 573.231 of Schedule 2 to the regulations since 17 August 2016 when his enrolment in a Master of Business was cancelled. This is consistent with the records held by the Department and was conceded by the applicant. The applicant re-enrolled in a Master of International Business degree on 20 June 2017 after his visa was cancelled. A copy of the delegate’s decision was provided to the Tribunal by the applicant.
On the basis of the above information, the Tribunal finds that the applicant ceased to meet paragraph 573.223(1A) when his enrolment in the Master of Business was cancelled on 17 August 2016 and he did not meet the alternative criteria in paragraph 573.231 as he was not enrolled in a course specified by the Minister in IMMI14/015.
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
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 applicant said that when he arrived in Australia in November 2015 he was enrolled in an English language course to be followed by a Master of Business degree at QUT. The applicant said that he found the English language course too difficult and was unable to successfully complete it by mid-2016 when the course finished. As a result the applicant did not commence the Master of Business degree and his enrolment in that course was cancelled on 17 August 2016. The applicant claimed that QUT did not advise him that they would cancel his enrolment and did not provide him any assistance. Similarly, the applicant complained that the Department did not provide him with immigration assistance when he requested it after receiving the Notice of Intention to Consider Cancellation (NOICC) from the Department.
The applicant enrolled in another English language course which was to be completed by September 2016. However, the applicant was again unable to complete that course. He said that hearing difficulties and pressure from his family affected his ability to successfully complete the course.
The applicant said that from September 2016 until March 2017 he was not enrolled in any course. The applicant would have been in breach of condition 8202 once he ceased to be enrolled in a course in September 2016. The applicant said that between September 2016 and March 2017 he undertook his own study and tried to obtain an IELTS score which would allow him entry into a Master degree course. The applicant provided evidence of having completed two such IELTS tests and said that he undertook a further two IELTS tests but was unable to achieve a score which would allow him entry into a Master degree course.
The applicant then enrolled in a third English language course in March 2017. However he said that he was unable to complete that course as his visa was cancelled in April 2017. It appears that the no-study condition did not attach to his current bridging visa and the applicant enrolled in a fourth English language course, this time at Griffith University in June 2017. At the same time, the applicant enrolled in a Master of International Business degree at Griffith University to begin in February 2018 once he had completed the English language course.
At the hearing on 30 January 2018 the applicant indicated that he anticipated that he would successfully complete the English language course on 2 February 2018 but provided no evidence of his progress to date.
The applicant claimed that if his Visa remained cancelled that he would suffer hardship as he would be unable to complete a Master’s degree course in Australia. The Tribunal indicated that, as the applicant had his Visa cancelled for breach of condition 8516, it did not appear that the applicant would be subjected to any prohibition on applying for another visa offshore. The applicant then indicated that if his visa remained cancelled that his parents may withdraw financial support for his studies in Australia.
The Tribunal raised with the applicant its concern that, as the applicant had failed to pass any courses in Australia, including any pre-requisite English language courses, that the applicant may not have the ability to successfully undertake a Master’s degree in Australia. The Tribunal indicated that its concern was heightened by the applicant’s failure to achieve an IELTS score sufficient for entry into a Master’s degree program and the poor level of English language skills that the applicant displayed at the hearing.
The applicant said that at times in the past he had on occasion scored high marks in practice tests while undertaking English language courses. He said that he would work hard to try to successfully complete a Master’s course. The applicant indicated that he still had a hearing disability which prevented him from hearing properly during lectures and contributed to his failure to pass any courses.
The Tribunal has decided to affirm the decision to cancel the applicant’s student visa.
The Tribunal finds that, as the applicant has failed to pass any courses in Australia, including any pre-requisite English language courses, that he has failed to score the required IELTS score for entry into a Master’s degree and because of the poor level of English language skills that the applicant displayed at the hearing, the applicant does not have the ability to successfully undertake a Master’s degree in Australia.
The applicant provided no evidence of having a hearing problem but the Tribunal is willing to accept that applicant has an ongoing hearing problem which has contributed to his failure to pass any courses. The applicant has provided no evidence that this hearing problem has been resolved such that it would not contribute to a failure to pass courses in the future. Similarly, the Tribunal accepts that the applicant had pressure to succeed placed upon him by his family but gave no evidence that this pressure has been alleviated.
While the applicant appears to place blame on QUT and the Department for failing to provide him with assistance the Tribunal places very little weight on these claims. The applicant complained that QUT did not warn him that his enrolment in the Master of Business degree would be cancelled and did not notify him that his enrolment in that course had been cancelled. However the applicant knew that in order to commence the Master’s degree in mid-2016 that he was required to have successfully completed an English language course. The applicant knew that he didn’t complete the English language course and never attempted to commence the Master’s degree. As the Master’s degree commenced in mid-2016 and the applicant had failed to meet the prerequisites for that course, he should have known that his enrolment in the Master’s degree would cease if he failed to meet the prerequisites.
Similarly the applicant appears to claim that the failure of officers of the Department to provide him with immigration assistance was in some way responsible for the cancellation of his visa. This claim is rejected. It was the applicant’s responsibility to inform himself of the conditions of his visa and to comply with those conditions. It was not the role of officers of the Department to provide the applicant with immigration assistance. The applicant could have sought the assistance of a migration agent but did not do so.
The Tribunal is willing to accept that the applicant and his family members may experience minor disappointment that the applicant’s visa was cancelled before he was able to complete a course in Australia. However, the Tribunal does not accept that the applicant will suffer any significant hardship as a result of the cancellation of his Visa. There is no prohibition on the applicant applying for another student visa offshore and the Tribunal does not accept that the applicant’s family will refuse to fund his study unless the cancellation decision is set aside. Whether or not the decision is set aside, the applicant has yet to commence a Master’s degree and the applicant has provided no reason why his family would pay for the course if the cancellation decision is set aside but would not if it is affirmed.
The Tribunal finds that the applicant’s serious breach of condition 8516 and the applicant’s lack of ability to successfully undertake a Master’s degree in Australia heavily outweighs any hardship that he or his family members may face because of the cancellation of the applicant’s visa.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Tigiilagi Eteuati
Member