Chen (Migration)

[2018] AATA 4993

Chen (Migration) [2018] AATA 4993 (22 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hao Chen

CASE NUMBER:  1701384

HOME AFFAIRS REFERENCE(S):           BCC2016/4329822

MEMBER:Stephen Witts

DATE:22 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 22 October 2018 at 1:42pm

CATCHWORDS

MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – genuine student – lack of academic progress – family member’s sickness – psychological condition – opportunity to rectify visa – significant study gap – duration within in Australia – re-enrolment and course cancellations – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth),

ss 116, 119

CASES

MIMA v Hou [2002] FCA 574

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 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(fa)(i) on the basis that the applicant is not, or is likely not to be, 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.

3. The applicant appeared before the Tribunal on 17 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

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. 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)(i).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?

   s.116(1)(fa) - not a genuine student

7. 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.

8. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

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. According to the delegate’s decision record, provided to the Tribunal by the applicant, the applicant first arrived in Australia from China on 24 December 2014. This was subsequent to him being granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa which was granted on 10 December 2014.

11. According to the delegate’s decision record the applicant has demonstrated a substantial lack of progress in his study over a significant period of time whilst choosing to remain in Australia on a visa solely existing for his engagement to study.

12. According to the delegate’s decision record the delegate cancelled the applicant’s visa on 20 January 2017 on the basis that the applicant is likely not to be a genuine student and that his primary intention in Australia is not, or is not likely to be, to undertake study.

13. According to the applicant’s evidence, and to the applicant’s  PRISMS record, reviewed with the applicant in accordance with s.359AA, since his arrival here in 2014 the applicant has been enrolled in the following courses:

    a)English Language Program (4-60 weeks) from 5 January 2015 until 5 June 2015 completed

    b)Certificate IV in Tertiary Preparation Program cancelled on 15 June 2015

    c)IELTS Preparation Course (Intermediate to Advanced) finished on 17 August 2015

    d)Diploma of Business Administration (52 weeks) cancelled on 20 June 2016

    e)English for Academic Purposes (Upper Intermediate) (12 weeks) cancelled on 12 May 2017

    f)Bachelor of Business cancelled in July 2017

    g)Bachelor of Business Administration cancelled in July 2017

14. The delegate asserted that the applicant is not a genuine student on the basis that the applicant has only completed English courses since he arrived in Australia on 24 December 2014 demonstrated that the applicant did not have a genuine intention to study at a higher degree level.

15. The delegate also contended that the applicant had not been enrolled for eight months from 15 April 2016.

16. According to the delegate’s decision record the applicant was notified of the intention to consider cancellation on 12 January 2017 and this notice invited the applicant to respond in writing. The delegate received a response on 18 January 2017. In this response the applicant did not agree that there were grounds for cancellation. The applicant provided reasons why the visa should not be cancelled and did not agree that there was non-compliance with his visa condition. The Tribunal has considered the visa holder’s response at this time.

17. In this statement the applicant stated that he had had a number of problems that made study difficult for him here in Australia including a sick aunt  who, he stated, has been suffering from cancer, and also that he had had problems with his mental health:

    “I cannot help myself at all and my friend took me to visit doctor for helping my situation. The doctor comforted me and asked me to reply to the immigrations email as soon as possible and to express my situation to the officer.

    To be honest, in these two years, I’ve been gone through a very hard time in my life. I was exhausted both physically and mentally and all I want is just a chance to study. As a 20 years old young student, I see no point that I have too busy dealing with the school administration, education agents and the family tragedies. I was supposed to spend all my time and effort in my studies and I want to focus in it. I have clearly told my situation and request to the agent in the very beginning when I asked them to apply RMIT University for me.

    I’m not familiar with the administration and school transferring procedure, that why I went through an agent, and I have no idea where and how to check my CoE status. As the Macquarie University staff said, they are not sending the cancelled CoE’s two students at all. I don’t even know my CoE’s been cancelled until last. I did everything the agent asked me to do and I joined in the IELTS preparation class and the RMIT placement test for getting the English result for RMIT. I did everything to gain the chance for study and of course I paid all the school fees to different schools at the agent asked me to pay.

    Now I have confirmed that I can have the chance in place to study so I hope you can consider my situation and consider not to cancer my visa at this point all me and my family will be very disappointed on me. I especially don’t want to fail in this part because me, my grandfather and my family all have expectations on myself. I cannot imagine if I have to go back to China without anything at this point.”

18. The applicant provided to the delegate a copy of a psychologists report dated 14 January 2017 (delegates file folio 44) that stated that the applicant:

    “was in high risk of developing depressive disorders, so it is very beneficial if Mr Chen received further therapeutic sessions and manage his problem personality traits”

19. The applicant provided to the delegate an admission card from the Guangdong Provincial Hospital (delegates file folio 35-36) dated 25 March 2016 which indicated that his aunt was suffering from a serious medical condition. It indicated that the date of admission was 25 March 2016 and the date of discharge was 12 October 2016.

20. The Tribunal has also considered a statement provided by the applicant to the Tribunal (AAT file folio 204-208) which stated that:

    “Being in Australia was the first time I stepped out of my home country. In a new city, an unfamiliar place, are usually think of my family and my grandfather. I began to have sleep difficulty. Sometimes, I went into tears. This might be the result of a provisional period. In the classroom, I felt depressed. However, I did not notice I had a psychological problem.”

21. The applicant, in this statement, outlined that he had been having various problems with his enrolments and his study here in Australia; also with his migration agents and with his overall mental health:

    “I try to overcome the psychological disorders. My psychological report has stated that my condition is likely to improve to optimistic side, with a positive energy from my family members and professional advice from psychologists. I trust and there is still a chance to turn around. If I am able to study I would like to study the original course of study and I will treat my study program seriously to prove that I am a good student with a good academic result. I came to Australia to study. I was faced with a series of complicated cheats by irresponsible agents who caused a breach of my student visa conditions without my knowledge. I did not know the cancellation of my COE so I missed the opportunity to re-enter a course of study. I have been a genuine student. I have had a genuine intention to study. However, mislead by three unprofessional and irresponsible agents (Kitty Wong, Kevin Jiao, and Eric Li). But during all the time, I have been studying an IELTS training course. I have got documentary evidence to show that I have been studying. I want to say I have been a genuine student.”

22. The Tribunal has considered the evidence provided by the applicant in this matter and finds that the applicant is not a genuine student whose primary intention is to undertake study here in Australia for the following reasons.

23. The Tribunal, although acknowledging that the applicant had been suffering from some form of psychological condition, namely some form of depressive condition, finds that the applicant could have deferred his study for a period of time and returned home prior to continuing his study here in Australia. The Tribunal therefore finds that this is not an adequate explanation for his poor study here in Australia.

24. The Tribunal, although acknowledging that the applicant’s aunt had been seriously ill during some of this period of time since his arrival here in 2014 finds that this is not an adequate explanation for the applicant’s study history here in Australia including his many enrolments and course cancellations. The Tribunal finds that the applicant cannot adequately explain his study history here through that family situation and hold that issue responsible for his many enrolment cancellations and lack of study progress here in Australia.

25. The applicant, and the applicant’s representative, stated that the applicant had been very poorly served by a number of migration agents here in Australia and in China and that this was a significant reason why the applicant had not been able to study here successfully and maintain his enrolments. The applicant’s representative, on behalf of the applicant, stated that in one case the applicant’s migration agent instructed his client, the applicant, not to attend classes for his Certificate IV in Tertiary Preparation Program as the agent would assist the applicant in finding a better enrolment. It was also asserted by the applicant that a lack of communication between migration agents in China and here in Australia made it impossible for him to study effectively here.

26. The Tribunal has considered the applicant’s evidence in regard to his problems with his migration agents and with the education providers’ administrative procedures and does not lend significant weight to these assertions made by the applicant as an explanation for his poor study history here in Australia. The Tribunal finds that the explanations provided by the applicant for his cancelled COE’s for non-attendance and other reasons cannot be blamed on advice he may or may not have received from his education provider or migration agent. The Tribunal finds that the applicant must take some responsibility for his enrolments and for maintaining his enrolments and study here in Australia.

27. The Tribunal is concerned that the applicant has not been successful in studying registered courses and has not progressed academically and finds that the applicant is not a genuine student whose primary intention is to undertake study in Australia.

28. For the above reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa) 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

29. 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

30. The applicant came to Australia to study in December 2014. He claims to have come to Australia to further his education stating an Australian qualification is considered highly in China and that “my father is in business and knows that the study environment here is much better”. However there is not sufficient evidence before the Tribunal to indicate that the applicant was ever committed to studying successfully here in Australia and he has only completed an IELTS course and an English Language Program since his arrival here. However he continued to enrol and re-enrol in courses that in some cases were cancelled prior to commencement. The applicant had every opportunity to rectify his visa and course study structure before coming to Australia or when in Australia and he did not.

31. The Tribunal therefore gives no weight to this in favour of the applicant not to cancel the visa because the applicant has not provided sufficient evidence from the time the visa was granted to indicate he was committed to making a success of his study here in Australia.

32. There is not sufficient evidence before the Tribunal to indicate that the applicant has a compelling need to travel or remain in Australia. There is nothing preventing the applicant from studying his business related courses back in his home country of China once he has completed his study and exam requirements for study.

33. The Tribunal is not satisfied that the applicant has a compelling need to travel to or remain in Australia which would mean his visa should not be cancelled.

    The extent of compliance with visa conditions

34. The applicant was granted a student visa in order to study in Australia. As such his intention must be to study, maintain enrolment, attendance and course progress, in a higher education registered course. The applicant has not done this and has only completed English courses, an IELTS course and an English Language Program, since he arrived in Australia on 24 December 2014. The applicant has also had a significant study gap when the applicant was not enrolled for eight months from April 2016.

35. The applicant has had a significant period of non-compliance with conditions on his student visa and as such the Tribunal gives this no weight in not cancelling he visa.

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

36. The applicant stated that he has a mother and father back in his home country and two younger brothers.

37. The applicant stated that his father worked in international trade and was a successful businessman. The applicant indicated that his father wished him to obtain a qualification here in Australia and then return home and work in his father’s business.

38. The applicant stated that he would suffer hardship if he was not able to study here in Australia and go back to China with a qualification that would enable him to get a start in business in China.

39. The applicant stated that he needed to get a good qualification to help his father in his business and that his father was relying on him to do that. He stated that it would be difficult for him to go back and pursue studies back in his home country as he has not finished his secondary school education and would have to sit a competitive exam to be able to complete his high school education and then go on and get another qualification.

40. The applicant stated that he had an obligation to look after his younger brothers and that if he does not get a good education he will not be able to do so and that if he has to go back to China without studying successfully here in Australia he will not get a chance to achieve a higher education. He stated that a qualification gained here in Australia would allow him to be “privileged over normal people” and that he gave a promise to his deceased grandfather that he would achieve a good education outcome. The applicant asserted that if he didn’t get a good qualification he may not be able to take up a position in his father’s business. He stated that he was now 23 and if he was not able to study here in Australia he may not get an opportunity to study back in his home country.

41. The Tribunal acknowledges that the cancellation of the applicant’s visa would be disappointing to the applicant and his family and that there are financial and emotional consequences.  However, the Tribunal is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

42. The Tribunal does not accept that the applicant would not be able to study in some form back in his home country that would allow him to work in his father’s business. The Tribunal is also concerned that the applicant has now been here for some years without being able to effectively study and that effective and successfully completed study may not be possible for the applicant here in Australia as he has not been able to cope adequately with any study demands here up until this point.

43. Overall, looking at the circumstances cumulatively, the Tribunal is not satisfied that in this case there is a degree of hardship that means that the applicant’s visa should not be cancelled.

    Circumstances in which grounds of cancellation arose

44. As stated above, the applicant first arrived in Australia from China on 24 December 2014. This was subsequent to him being granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa which was granted on 10 December 2014.

45. The delegate cancelled the applicant’s visa on 20 January 2017 on the basis that the applicant is likely not to be a genuine student and that his primary intention Australia is not, or is not likely to be, to undertake study.

1. The applicant stated that he did not accept that his visa cancellation was justified and continued to assert that the issues he had with his study enrolments were due to poor advice and service from several migration agents.

2. The Tribunal gives no weight in favour of the applicant not to cancel a visa because whilst it is plausible that he received incorrect advice, the responsibility sits with the applicant to ensure he meets the requirements of the visa and given he knew this before he left China he could have delayed his departure until the correct course and visa were in place. The applicant continued to compound the issue by re-enrolling in high level courses and then finding his enrolment was cancelled because he did not commence the course. The Tribunal does not consider the circumstances in which the ground for cancellation arose to be beyond the applicant’s control.

   Past and present conduct of the visa holder towards the Department

3. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings.

   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

4. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice pertaining to his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion.

5. However, the Tribunal is not satisfied that there are consequences of the cancellation which mean that the visa should not be cancelled.

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

6. There is nothing before the Tribunal to indicate our international obligations to consider.

   Any other relevant matters

7. The Tribunal has given consideration to the applicant’s evidence in regard to any reasons why the applicant should be granted a student visa. In particular the Tribunal has considered the applicant’s evidence regarding the difficulties associated with returning to China without any specific qualifications. The Tribunal appreciates that an education from Australia may enhance the applicant’s career, however if he does not achieve this, it would not prevent him from gaining employment in China, or in working in some capacity with his father’s business in international trade, and the applicant did not give any other evidence to indicate a detrimental effect if the visa was cancelled. The population of China is significant and there are many people in full-time employment without a specific education from Australia.

8. The Tribunal has considered the applicant’s statements and evidence given at hearing however the breach is significant. The Tribunal has considered all factors listed above both individually and cumulatively in the context of the breach. The Tribunal finds that the breach is significant and the fact that he would be well aware of the expectations placed on him and that returning home which was an option during his time here on a student visa. As such, considering the circumstances as outlined by the applicant, the Tribunal concludes that the visa should be cancelled.

9. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

    Stephen Witts
    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.