CHEN (Migration)

[2019] AATA 2434

CHEN (Migration) [2019] AATA 2434 (4 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr YIJUN CHEN

CASE NUMBER:  1711187

HOME AFFAIRS REFERENCE(S):           BCC2017/1080609

MEMBER:Mr S Norman

DATE:4 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 04 July 2019 at 12:40pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – no response to hearing invitation – ground for cancellation – not a genuine student – consideration of discretion – only completed two English language courses since arrival – study gaps – significant breach – mental health issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 119, 362B
Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 May 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 of the Migration Act 1958 (the Act). The delegate cancelled the visa under s.116(1)(fa) – not a genuine student. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

2. The Department delegate’s decision was lodged with the Tribunal.

3. The applicant was represented in relation to the review by his registered migration agent. However, on 27 May 2019 the Tribunal issued the applicant (by email to his authorised recipient) a hearing invitation letter advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 4 July 2019. No response to the Tribunal’s hearing invitation letter was received. Two SMS (hearing reminder) texts were sent to the applicant’s mobile phone shortly prior to the hearing. Again no response was received.

4. In its abovementioned letter of 27 May 2019, the applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.  

5. The applicant did not appear before the Tribunal on the day and at the time and place at which his hearing was scheduled. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

6. 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

7. 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)(fa) of the Act. 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?

8. A visa may be cancelled under s.116(1)(fa)(i) if the Minister is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

9. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the decision-maker may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision.

10. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 6 January 2015. By Notice of Intention to Consider Cancellation (NOICC) dated 28 April 2017, the applicant was advised that based on the evidence before the Department (referred to below) it appeared he may not be a genuine student. Therefore, it appeared there may be grounds for cancelling his Student visa under s.116(1)(fa) of the Act as it appeared his primary purpose for holding a Student visa was not for the purpose of study and that he may not be, or may not likely be, a genuine student.

11. On 5 May 2017 and 8 May 2017, the applicant responded to the NOICC. However, he did not dispute that grounds for cancellation may exist. Be that as it may, based on the evidence before the Tribunal, I am satisfied the applicant’s visa may be cancelled under s.116(1)(fa) – not a genuine student.

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

    Consideration of discretion

13. 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’.

14. The applicant arrived in Australia on 3 February 2015. Regarding the purpose of the applicant’s travel to and stay in Australia, his visa was granted in order for the applicant to study:

    ·     Academic English (COE 6D5D2D47) at UTS: Insearch

    ·     UTS Foundation Studies (Standard) (COE: 6D5D3E70) at UTS: Insearch

    ·     Bachelor of Nursing (COE: 6D84A942) - at UTS

15. However, information contained in the Provider Registration and International Student Management System (PRISMS) indicated:

    ·     on 24 April 2015, the applicant finished the Academic English course

    ·     on 12 February 2016, the applicant’s enrolment in the UTS Foundation Studies course was cancelled for unsatisfactory attendance. Consequently, his enrolment in the Bachelor of Nursing course was cancelled on 11 March 2016 for non-commencement of studies

    ·     on 22 March 2016, the applicant enrolled with Kaplan Business School P/L in the following courses:

    ·Diploma of Business (COE: 7DB65B50), for the period 16 March 2016 – 4 March 2017

    ·Bachelor of Business (COE: 7DBCA597), for the period 15 March 2017 to 2 March 2019

    ·     on 12 August 2016, the applicant’s enrolment in the above Diploma of Business was cancelled for “student notifies cessation of studies”. Consequently the applicant’s Bachelor of Business course was cancelled on 12 August 2016

    ·     on 23 September 2016, the applicant enrolled in a General English (Elementary – Upper Intermediate) course (COE: 84BFD158), at International Education Specialist College P/L 

    ·     on 28 October 2016, the applicant completed the above-mentioned General English (Elementary – Upper Intermediate) course

    ·     on 14 March 2017, the applicant enrolled in a Diploma of Accounting course (COE: 8B0E4349), at York Business Institute P/L

    ·     at the time of the delegate’s decision (being 17 May 2017), it was noted the applicant was then studying a Diploma of Accounting - for the period 10 April 2017 to 8 April 2018  - though no evidence of course completion was lodged

16. In the applicant’s response to the NOICC, he said he felt sorry for the violation of his Student visa conditions; he claimed it was because his “psychological situation” deteriorated after his arrival in Australia; he had now adjusted himself and promised he would comply with visa conditions. He now wanted a further opportunity to study in Australia. He said he had a study plan to ensure his study is now effective.

17. The Tribunal notes that students may change and vary their study plans after arrival in Australia. However, at the time of the delegate’s decision (being 17 May 2017), the applicant had only completed two English language courses since he had arrived in Australia on 3 February 2015. Further, at the time of the delegate’s decision, the applicant had not studied in Australia for a cumulative period in excess of five months. After considering all the evidence, the Tribunal is not satisfied the applicant’s present intention is to reside in Australia for the purposes of study.

18. Based on all the accepted evidence herein, neither is the Tribunal satisfied the applicant has a compelling reason to travel to or stay in Australia.

19. Regarding the extent of compliance with Student visa conditions, the Tribunal notes that Student visas are granted for the purposes of allowing noncitizens to travel to and reside in Australia for the purposes of study at an appropriate level. However, since arriving in Australia the applicant had only completed two English language courses. Notwithstanding that Student visa holders may change their study plans after arriving in Australia, based on the accepted evidence herein, the Tribunal is satisfied the applicant’s breach has been significant.

20. Regarding the degree of hardship that may be suffered by the applicant or his family if his Student visa is cancelled, in his response to the Department the applicant said his parents’ health was ‘not good’; he feared the impact the cancellation of his visa may have on his parents; he referred to his psychological situation; and he referred to his initial difficulties in adjusting himself to Australia. However, other than oral claims, and one medical report obtained after he received the NOICC (discussed below), there was no material corroborating evidence in support of these submissions. However, the Tribunal will accept that if the applicant’s visa is cancelled, he or his family may be subject to some limited hardship.

21. Regarding the circumstances in which the ground for cancellation arose, the applicant claimed:

    ·     his travel to Australia constituted the first time he was away from his family and he had to look after himself. He said he had been spoilt by his family and upon arrival he had to deal with his own ‘issues’ and this distracted him from his study

    ·     after commencing the Foundation Studies at UTS, the applicant was unable to keep up with his studies. He said due to his poor English language proficiency and lack of medical background, he could not cope with the study and had struggled with assignments and homework. He also said he suffered from anxiety and depression as his efforts were unrewarded

    ·     he said because of his introverted personality, he did not engage with crowds or communicate with other people. He did not have any school friends and was lonely and homesick. He wanted to return home but was aware that his parents had invested a lot of money in his study abroad.

    ·     the applicant also said he was afraid of airplanes and had difficulty breathing during flights. This had prevented him from returning to his home to tell his parents about his problems in Australia. He said it was not easy for him to tell them his problems over the ‘video chat’

    ·     due to his psychological issues the applicant could not concentrate on his study or attend classes. His enrolment was then cancelled at the end of 2015. He did however then tell his parents about his situation and they were disappointed in him but encouraged him to study further and transfer to another school. It was then he moved to Kaplan Business School to study a Diploma of Business and a Bachelor of Business

    ·     he had initially chosen to study a nursing degree because his parents advised him and he then did not have a clear idea for his future. His ensuing poor academic results and lack of confidence in himself in nursing, proved to him that he was not suitable to be a nurse. It was then he decided to study business. However his mental condition did not improve and he still suffered from insomnia

    ·     he attempted to escape from the academic stress and high expectation from his parents while suffering from the problem of excessive drinking and game addiction. As a consequence he ceased his studies at the Kaplan Business School

    ·     subsequently, the applicant’s parents checked his study progress. They supported and encouraged him even though they knew he had failed the Diploma of Business course.

    ·     due to his bad English language proficiency, he undertook a one-month General English course to improve his English proficiency. He also attempted to return to his normal life by drinking less, not using computers and going to a gym. While he then tried to adjust his mental and physical status, he did not realise the severity of not being enrolled in a registered course as a Student visa holder. He is now sorry and regretful

    ·     The applicant then decided to study a Diploma of Accounting course because he hoped that Accounting would provide him more opportunities in China and he was ‘good at maths’. He also said he had now been making efforts to control himself. He also said he would consult with a psychologist regularly until he recovers

22. The applicant also lodged:

    ·     a COE (7DB65B50) for a diploma of Business, Kaplan Business School P/L

    ·     a COE (6D5D3E70) for a UTS Foundation Studies Standard

    ·     a COE (8B0E4349) for a Diploma of Accounting, York Business Institute P/L

    ·     a COE (4BFD158) for a General English (Elementary Upper Intermediate), International Specialist College P/L

    ·     a Certificate of Academic English 3, UTS Insearch, dated 24 April 2015

    ·     a Academic Record for the applicant, Academic English 3, dated 24 April 2015

    ·     a copy of a Initial Psychological Assessment Report, dated 4 May 2017

23. In their decision, the delegate noted that based on the evidence before them, the applicant did not maintain his study plan. Importantly, the delegate was not satisfied the applicant was demonstrating a pathway to educational qualifications in Australia. The fact he had only completed two English language courses since arriving in Australia, did not indicate he was a genuine student.

24. The delegate noted the applicant’s claims to have struggled in his initial studies due to personal and psychological issues. After then considering the Initial Psychological Assessment Report, the delegate (and now the Tribunal) noted this indicated the applicant was reporting symptoms of high levels of Clinical Depression and Anxiety. The report dated 4 May 2017 indicated the applicant’s assessment had taken place on the previous day, being 3 May 2017. Based on that evidence, the delegate (and now the Tribunal) was not satisfied the applicant was suffering from these conditions at the time he breached his study criteria. The delegate noted the applicant had responsibilities to study or at least access help to resolve his claimed problems; and the only psychological report was dated after the NOICC was issued.

25. Further, the delegate (and now the Tribunal) noted the applicant did not contact the Department or seek a deferment from his education provider until his alleged concerns were remedied.

26. The delegate also acknowledged the applicant’s claimed fear of flying. As did the delegate, the Tribunal notes the claim to be afraid of flying did not apparently prevent the applicant from travelling to Australia. Perhaps more importantly, the delegate (and now the Tribunal) also noted that the applicant arrived in Australia on 3 February 2015, 1 December 2015, and 11 March 2016. It was also noted that he had departed Australia on 11 November 2015 on 14 January 2016. This is further evidence to indicate that the claimed fear of flying is not a reason to explain why the applicant failed to continue his studies. Further, and apart from having completed two English language courses, the Tribunal has no evidence the applicant had successfully completed any other course at the time of its decision.

27. Next, the Tribunal has no evidence that the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s Student visa is cancelled.

28. Next, if the applicant’s visa is cancelled he would become an unlawful non-citizen and liable to be detained under s.189 and removed under s.198 of the Act. However, there is no evidence before the Tribunal that has satisfied me the applicant would be subject to indefinite detention. Further, after considering the evidence the Tribunal is satisfied the applicant could temporarily retain his Bridging visa in order to remain in the community to organise his affairs prior to departing Australia.

29. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 of the Act, and would have limited options to apply for further visas in Australia.  He would also be subject to PIC 4013; meaning he might not be granted a temporary visa for three years from the date of cancellation. 

30. After then consider the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Mr S Norman
    Member

    
    

    ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.