Chen (Migration)

[2019] AATA 3008

Chen (Migration) [2019] AATA 3008 (8 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Wenwei Chen
Ms Hui Yi Deng
Master Jianying Chen

CASE NUMBER:  1802044

HOME AFFAIRS REFERENCE(S):          BCC2017/3315500

MEMBER:Brendan Darcy

DATE:8 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Class TU visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 08 May 2019 at 4:07pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – struggled to complete English course – child applicant’s autism – poor standard of specialist care in China – circumstances within applicant’s control – tribunal found marginally in applicant’s favour – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140(1), 348
Migration Regulations 1994 (Cth), schedule 8, condition 8202, r 2.43(1)(la)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 January 2018 made by a delegate of the Minister for Home Affairs to cancel the first named 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 first named applicant had breached a condition imposed on his visa and the grounds for cancellation outweighed the grounds for not cancelling. 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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.

4. For the purposes of this review, the first named applicant, Mr Wenwei Chen, be referred to as the first applicant or the applicant; the second named applicant, Ms Hui Yi Deng, as the second applicant or the applicant’s spouse; and that the third named applicant, Master Jianying Chen, as the third applicant or the applicant’s child.

5. The applicants, citizens of the People’s Republic of China, appeared before the Tribunal on 24 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing and provided post hearing submissions on 17 and 30 April 2019.

7. 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

8. 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?

9. 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).

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

11. The delegate’s decision submitted to the Tribunal indicates the applicants had been granted a Subclass 573 Higher Education Sector student visa on 22 April 2015 and that they arrived in Australia on 7 June 2015.

12. The decision record stated that PRISMS records also states the applicant’s enrolment in a registered course of study had ceased on 23 March 2017 and that he did not re-enrol in any further studies of any kind.

13. As discussed during the hearing, the initial enrolment included the first English language coursework for the first academic year (at Navitas owned by La Trobe University) and a Master of Information Management and Systems at La Trobe University (LTU).

14. During the hearing, the applicant explained that he was required to extend his coursework for English as he did not achieve the required marks. This led to him re-enrolling in the English course for a further six months which led to his Master’s coursework to be re-enrolled to a further date.  

15. The Department then validly issued the Notice of Intention to Consider Cancellation (NOICC) on 3 October 2017, inviting the applicant to provide written reasons not cancel the student visa within a five-day timeframe.

16. The applicant responded to the NOICC on 3 October 2017 and provided additional material on 6 and 24 November 2017. There was no disputation in this response and accompanying material disputing the first applicant’s non-compliance, although, he provided reasons not to cancel this student visa under review.

17. A delegate on the Minister’s behalf proceeded to cancel the student visa on 24 January 2018 and the applicant validly applied to have that cancellation decision reviewed by the Tribunal on 26 January 2018 with the decision record attached.

18. The applicants provided written and oral evidence to the Tribunal, both leading up to and after the scheduled hearing on 24 April 2019 as to the reasons his visa should not be cancelled. Neither he nor his representative disputed that the applicant had not been compliant with condition 8202(2).

19. On the evidence before the Tribunal, the applicant was not enrolled in any registered course study, including a Bachelor’s or Master’s degree for higher education purposes, between 17 March 2017 and the date of cancellation on 24 January 2018 – a ten-month period. 

20. Accordingly, the applicant has not complied with condition 8202(2).

21. As the applicant has failed to comply with the visa condition, the ground for cancellation under section 116(1)(b) exists.

    CONSIDERATION OF THE DISCRETION TO CANCEL THE VISA

22. 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 third applicant’s disabilities

23. In this evaluating the Tribunal’s exercise of its discretion, it acknowledges that the applicants have submitted convincing documents that the third applicant (DOB: 18 June 2014) has been deeply relevant to its decision making.

24. Based on the submitted medical and specialist information submitted to the Department as well as the Tribunal, it is accepted that:

    ·The first applicant and his spouse became deeply concerned about the third applicant’s behaviour after a medical professional identified abnormal behaviour and delayed early developments in the first half of 2016;

    ·This led to referrals to specialists, including for a paediatric developmental assessment and a speech pathology assessment;

    ·A report from the speech pathologist dated 2 September 2017 indicates that at the age of three years the third applicant had expressive oral language delay an, socio-pragmatic skills delay and play skills delay.

    ·A May 2018 letter indicated that the third applicant is receiving applied behavioural analysis (ABA) therapy with Irabina Autism Services once a week. Attached is a psychological and speech pathology assessment which states that the third applicant’s presentation and development is consistent with a diagnosis of Autism Spectrum Disorder (level 3) with accompanying global development delay and accompanying language impairment;

    ·A specialist ‘family support and service plan’ pertaining to the third applicant was issued by the Victorian Department of Education and Training on 23 October 2017; and

    ·A 13 February 2019 ABA therapy summary report issued by Irabina Autism Services indicated the third applicant experienced marked differences.

25. The Tribunal also notes that the third applicant demonstrated some of the diagnoses behaviours associated with disabilities outlined in the submitted information.

26. The Tribunal accepts that the third applicant has three diagnosed behavioural and/or intellectual disabilities or conditions: autism spectrum disorder; language delay where the child only has limited verbal skills; and learning developmental delays where the child’s behaviour and learning considerably lags that of most children his age.

27. The Tribunal also has considered the representative’s submission as part of the NOICC response pertaining to ‘best interest of the child’ section and the treatment of children with autism spectrum disorder and development or intellectual disabilities in China in general. Below is an extract:

    BEST INTEREST OF THE CHILD

    […]

    In this regard, the best interests of the Applicant's 3-year old's son must be taken into account.

    We note that the Applicant's son is currently undergoing multiple medical tests and consulting with various medical practitioners and therapists to confirm a diagnosis for the Applicant's son's developmental and behavioural concerns. However, we are instructed that a very possible diagnosis is autism.

    The Applicant and his family are citizens of China, and if the Applicant's visa is cancelled, then they would have no alternative but to return to China.

    We refer to various publications in respect of autism in China, as well as the treatment and support networks available to care for and support children and families of children who suffer from autism.

    In an SBS news article ( it reports that there are an "estimated 7.5 million children in China" who suffer from autism, but that "experts believe there are more autistic people there than those with cancer, AIDS and diabetes combined".

    Tragically, however, "there is still a lack of understanding about the disorder, meaning poor diagnosis and treatment" and even then, "only the rich can afford proper diagnosis and treatment."

    Specifically, it reports on the grim future of many children of families who resort to desperate measures, including children who are 'constantly tied to a chair' to prevent disruptions and episodes of self-harm.

    According to SBS,

    "There is no national public welfare system for people with autism in China and a recent study by the Beijing Normal University shows that nearly thirty per cent of all families affected by autism can't afford to send their child to a special needs schooL"

    A similar reporting by the Wall Street Journal ( indicates that,

    "China has a long way to go in providing high-quality autism intervention to everyone who needs it."

    It goes on to state that,

    "In all of mainland China, there are only four board-certified behavior analysts — an internationally recognized credential — to treat autism."

    A publication released by the Autism Support Network

    ( refers to statistics and reports issued by the World Health Organization and states that:

    "...disabilities both physical and neurological are often hidden away and seen as "a family's problem" to deal with, but little more. Supportive services are few.

    For those families that have children with autism, the combined lack of community awareness and available services can be devastating. Schools will often refuse to accept those with more severe autism, and parents are left with the daunting prospects of how to care for their child and — more specifically — face the prospects of what might become of their child when grown to adulthood after they are gone. Some families go so far as to commit family suicide rather than to face that future burden." (Our emphasis)

    It is evident that autism and the support network needed for the care, development and support for families with children with autism is severely lacking in China. Even so, the above demonstrates that the limited resources and support available in China are far and in between, and certainly not accessible by everyone.

    Tragically, even in facilities that supposedly exist to treat and provide care to children with autism, a British news reporting ( brings to light the detrimental and deplorable 'treatment' provided.

    It describes of the severe lack of specialist care for Chinese parents in their country's public health care system, often with extreme waiting periods to attain any assistance from autism centres.

    The article reports on the death of a 3-year old Chinese by who ultimate died at the hands of the 'specialist' offering treatment to the child. The child's mother stated that,

    "We had no other choice but to send [our child] to this centre, as there was nothing else available."

    In the present case, the Applicant desires nothing more than the best for him and his family. His intentions to study English for 50 weeks, following which, he would commence his Master studies in Australia, was for the betterment of his future as the primary caregiver of his wife and their young child. The reality of the Applicant's child's potential diagnosis, or at the very least, developmental and behavioural impedance has caused great distress for both the Applicant and his wife. […].

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

28. According to the decision record, the substantial period of non-compliance with condition 8202 it appeared that the applicant’s original intention for his travel to and stay in Australia was not for the purpose of study. The applicant did not respond to the NOICC to elaborate on this factor.

29. The first applicant came to Australia as a graduate of Bachelor in Computer Science. He explained that although he graduated in 2004 and worked in information support on a full time basis earning a middle range salary, he wanted to gain strong qualifications by attaining a Master’s degree in order to improve his capacity to attain a better paying job, especially as he now has a family.

30. The applicant acknowledged he had not completed his English language course work and that he failed to gain the required score for Level 6 English on two occasions, which he attributed to the distress and difficulties on him and the second applicant following his child’s diagnoses.

31. Noting that the applicant spent as much as ten months not re-enrolling in any coursework at all, the Tribunal has concerns that this behaviour indicated that the applicant had disengaged his studies altogether.

32. However, in considering the evidence as a whole, the Tribunal is satisfied the applicant is a conscientious father who values education and understands that it will improve his capacity to advance his career in information technology and to provide for his family. It accepts the applicant is a genuine student who is genuinely motivated with the academic capacity to complete both his English language and Master’s coursework but had lived with a degree of distress due his child’s disabilities.

33. The Tribunal finds there is sufficient evidence not to doubt the first applicant’s intention to complete a Master’s degree. Based on the available information, cumulatively considered, the Tribunal is overall satisfied that the first applicant’s purpose of travelling to Australia was to study and places substantial weight in this overall finding in favour of not cancelling the visa.

    The extent of compliance with visa conditions

34. There is no evidence before the Tribunal to indicate the applicant did not comply with other conditions. The delegate decision does not record any information about further non-compliance. The applicant was not enrolled in a registered course for a substantial period of ten months. The Tribunal considers this significant to the question whether his visa should be reinstated. The Tribunal gives this factor regarding non-compliance some weight towards the visa remaining cancelled.

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

35. During the scheduled hearing, the applicant articulated the degree of hardship that may be caused by the visa remaining cancelled would be significant due to the applicant’s child.

36. For instance, the applicant did not specifically advance in any detail the financial impact on him if his visa remains cancelled. Accordingly, the Tribunal places very little weight on the material impact on the applicant if his visa remains cancelled. Nevertheless the Tribunal acknowledges there will be some degree of financial hardship if the visa remained cancelled, in the sense of his earning capacity will be more limited in China than if he had completed a Master’s degree. For this reason, the Tribunal places some limited weight in favour of the applicant’s visa not remaining cancelled. 

37. Based on the weight of available and accepted evidence, the Tribunal concurs with the applicant that returning to China with his wife and his child with autism spectrum disorder and developmental delays will be considerably challenging, given the lack of overall specialised and tailored support available to families with children with the accepted behavioural and/or intellectual disabilities, if this visa remains cancelled. It is accepted that these challenges are compounded by the high degree of stigma against children with such disabilities and their parents and that this strongly invites the Tribunal to consider the emotional and psychological hardship that may be caused if this visa remains cancelled. The Tribunal places considerable weight on this consideration in favour of the visa not remaining cancelled.

38. Overall the Tribunal gives these hardships considerable weight towards the visa not being cancelled.

    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.

39. The fact remains that the applicant was not compliant with condition 8202 between March 2017 and until January 2018 when the visa was cancelled.

40. It is argued by the first applicant that he not only struggled to complete his English language coursework due the third applicant’s developmental difficulties, but that his enrolment was cancelled due to the amount of time and distress in making appointments and caring for his son and his distressed spouse. It is further claimed that that the applicant was unable to re-enrol in any timely manner due the same difficulties.

41. There is no evidence that the applicant applied to defer or suspend his coursework due to the challenges in 2016. (Deferral means the suspension of studies for compassionate or compelling reasons once the studies have begun; not the re-issuing of Confirmation of Enrolments (CoEs) for the same coursework with the same provider with different start or census dates, as discussed in the scheduled hearing when the applicant used ‘deferment’ interchangeably). While it is accepted as a factor, it does not adequately explain the circumstances leading up to his non-compliance.

1. It is noted that the first applicant did genuinely attempt to pass his English language assessment in March 2017 and it is accepted that he sought to re-enrol. It is accepted that the applicant, as claimed, was told he was able to re-enrol by one university official at LTU only to be told by another he could not. It is accepted the applicant submitted evidence that he sought to re-enrol at Deakin University in April 2017 but he did not as that education provider insisted the applicant undertake 15 weeks of English coursework and he refused given he had completed Level 1-5 of similar coursework at LTU. This would indicate that the applicant did have the capacity to re-enrol. There is no further evidence the applicant attempted to re-enrol other education providers until only after the issuing of the NOICC and he was provided with any CoEs right up to the date of cancellation of his visa.

2. Furthermore the Tribunal does not accept the situation, while distressing, was so time consuming and serious that he could not complete his studies adequately or that he was so pre-occupied with making and attending appointments with specialists and others while he was studying in 2016. He also had the emotional and practical support of his spouse, who it is accepted endured a distressing situation.  It does not satisfactorily account for his inability to improve on his English language Level 6 assessment scores in early 2017.

3. Moreover the applicant had more than eight months and after the valid issuing of the NOICC to seek out a new enrolment. The applicant had ample opportunity to address his non-enrolment but he did not.

4. In making these assessments about the extenuating circumstances leading to the applicant’s non-compliance with condition 8202, the Tribunal does accept his stressful circumstances with his child were genuinely beyond his control and it is accepted that they were extenuating and even exceptional, worthy of compassionate consideration. Nonetheless the Tribunal does not accept these circumstances were so extenuating or beyond his circumstance whereby the applicant was unable to study and pass English language coursework to avoid non-compliance with condition 8202 or to re-enrol in a timely manner following the cancellation of his enrolment in March 2017 to mitigate that non-compliance.  

5. Accordingly, the Tribunal places on this assessment of the applicant’s circumstances leading to the cancellation of his visa a notable – but, not a considerable - amount of weight in favour of the applicant’s student visa under review not remaining cancelled.

   Past and present conduct of the visa holder towards the Department

47.    According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department. There is no evidence of any adverse information in this regard before the Tribunal. Accordingly the Tribunal gives this some little weight in his favour.

If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

1. Not relevant.

   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

2. The Tribunal accepts that if the visa remains cancelled that the applicants would have limited opportunities to remain in Australia and may have to depart or be detained. The applicants may also be barred from returning to Australia for up to three years.  In relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

   Whether there would be consequential cancellations under s.140

3. The first applicant’s spouse and child who are applicants in this review application are dependants impacted upon by the cancellation of this visa.

4. It is not unreasonable nor an unintended consequence of the legislation that family members who hold secondary temporary visa holders are cancelled when the primary visa holders are cancelled. It will keep their migration statuses align and prevent one them being able to remain in Australia while the other must depart.

5. The Tribunal accepts that they will be both adversely affected by the cancellation of this visa and that those negative implications are exacerbated by the third applicant’s disabilities and the poor way that such children and their family, including the second applicant as the primary care giver, are treated in China as outlined in the NOICC response. The Tribunal places a notable amount of weight on these considerations in favour of the visa not being cancelled. 

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

6. During the scheduled hearing, the first applicant expressed his concerns about the quality and accessibility treatment of autistic and/or developmentally delayed children in China, not just by the education system but by the wider society. He argued China does not have tailored treatments and that given the third applicant’s young age that this was the best time to treat the child and that remaining in Australia would be in the best interest of the child. The Tribunal noted that the submission prepared by the applicant’s earlier representative as part of the applicants’ NOICC response was detail and well-referenced (see extract above).  It is further noted that the submission argued that Australia may be in breach of the Convention of Rights of the Child (CROC) if the applicants are removed, voluntarily or otherwise, from here to China. The Tribunal acknowledges that the best interest of the child remains a primary consideration for decision makers and the child is undertaking therapies at a critical period of time in his neurological and behavioural development.  As the applicant’s NOICC submission illustrates, it appears that Chinese services for children with autism spectrum disorder plus other developmental challenges are severely limited and inaccessible and that punitive practices towards children with such disabilities remain widespread. The available country information in this regard is persuasive.  The Tribunal is deeply and sympathetically concerned that the third applicant’s rights to development and to enjoy all the rights of the CROC without discrimination may be adversely affected if he were to return to China. It therefore does give this consideration some notable but not considerable weight in favour of the visa not being cancelled.

7. The first applicant did not advance any specific claims that that he or the second applicant specifically faces a well-founded fear of persecution for a nexus reason relevant to the Refugees Convention or any other reasons might breach other humanitarian obligations under other international treaties or protocols.  As none of the applicants have applied for protection visas, it remains open to the applicants to seek Australia’s protection obligations and therefore it gives this factor a little weight in favour of the visa being cancelled.

   Any other relevant considerations

8. There are no more relevant considerations in this decision.

   Conclusion

9. Having found that the first named applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

10. Considering the evidence provided and on weighing the above factors, the Tribunal has placed more weight on the cumulative findings and evidence in favour of not cancelling the first named applicant’s student visa over those countervailing findings and evidence in favour of cancelling the visa.

11. The applicants should be aware that the Tribunal only reached this decision marginally in the first applicant’s favour.

12. The Tribunal notes that the first named applicant will have to apply for a new visa in a short period if he wishes to study in Australia and that he wishes to pursue vocational education and training. Due to changes in the Migration Regulations, neither Subclass 572 nor Subclass 573 visas are available to the applicant, as the Minister has made reductant Subclasses 570 through to 576 visas. They were replaced by Class TU Subclass 500 student visas on 1 July 2016.

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

    DECISION

14. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Class TU visa.

15. The Tribunal has no jurisdiction with respect to the other applicants.

    Brendan Darcy
    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.