Chen (Migration)

[2020] AATA 4458

Chen (Migration) [2020] AATA 4458 (4 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Baochun Chen

CASE NUMBER:  1933310

DIBP REFERENCE(S):  BCC2019/3261916

MEMBER:Vanessa Plain

DATE AND TIME OF

ORAL DECISION AND REASONS:         4 March 2020 at 11:03 am (VIC time)

DATE OF WRITTEN RECORD:                11 August 2020

PLACE OF DECISION:  Melbourne

DECISION:    The Tribunal sets aside the decision under
  review and substitutes a decision to cancel the
  applicant’s subclass 500 Higher Education
  Student visa.

Statement made on 11 August 2020 at 11:55am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a higher level course ceased – applicant changed to Vocational course – applicant sought to vary one subject from a package of courses – career plan for managing a restaurant – exemplary student – prompt and candid dealings with Department – decision under review set aside           

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8202

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 November 2019 to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 4 March 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral decision in case number 1933310. The applicant’s name is Ms Chen. This is an application for review of a decision dated 18 November 2019, made by a delegate of the Minister for Home Affairs to cancel the applicant’s subclass 500 Student visa under section 116(1)(b) of the Migration Act 1958.

4. The delegate cancelled the visa on the basis that the applicant did not maintain enrolment in a registered course at the same level or a higher level than the registered course in relation to which her visa was granted.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. 

5. The applicant appeared before the Tribunal on 4 March 2020 to give evidence and to present arguments.  The hearing was conducted with the assistance of an interpreter in the English and Mandarin languages. 

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside. The issue in the present case is whether the applicant, as the holder of the student visa, has breached condition 8202, schedule 8 of the Migration Regulations 1994. If the applicant has breached that condition, under section 116(1) of the Act, the visa may be cancelled.

7. The first question for determination is whether or not the applicant breached condition 8202(2)(b), that is, did the applicant fail to maintain enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which her visa was granted. 

8. An examination of the delegate’s decision record notes that information before the department indicated the applicant did not maintain enrolment in a Bachelor of Hospitality Management at the Box Hill Institute.  The Bachelor of Hospitality Management is an Australian Qualifications Framework Level 7 course.  The information before the department indicated that that course was cancelled by the education provider on 12 March 2019.

9. Further information before the department indicates that the applicant enrolled in a Certificate IV in Accounting and Bookkeeping on 3 April 2019.  That course is an Australian Qualifications Framework Level 4 course. 

10. A notice of intention to consider cancellation was sent to the applicant on 14 October 2019.  By way of a detailed written response dated 22 October 2019, the applicant sought to explain the reasons that had led to the downgrading of her course. 

11. In the applicant’s oral evidence at hearing, the applicant acknowledged that she did enrol on 3 April 2019 in the Certificate IV of Accounting and Bookkeeping, however, she sought to explain her reasons for doing so.

12. The applicant acknowledged that she understood that the downgrading of her course from an Australian Qualifications Framework Level 7 to an Australian Qualifications Framework Level 4 was a breach of her visa condition.  However, she gave extensive evidence as to the circumstances that led to the particular breach (set out below). 

13. Therefore, based on that evidence, the Tribunal is satisfied that the applicant did not comply with condition 8202(2)(b). 

14. Having found that the applicant has not complied with the condition of the visa, the Tribunal must now 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.

15. 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 (PAM 3), General Visa Cancellation Powers. 

16. The applicant was granted a Student (Temporary) (Class TU) visa, subclass 500, for the purpose of undertaking an approved course at the Box Hill Institute.  The course involved a package of courses, commencing with a Certificate III and IV in Commercial Cookery, a Diploma of Hospitality, and an Advanced Diploma of Hospitality and Management, leading to a Bachelor of Hospitality Management.  On 26 October 2018, the applicant’s visa was extended to encompass the Bachelor of Hospitality Management degree. 

17. In the applicant’s notice of intention to consider cancellation response, the applicant gave extensive reasons for the change in her course.  The applicant claimed that she wished to focus on a more practical aspect of her education, to compliment her wish to work in management in the hospitality industry in the future. 

18. The applicant gave evidence and produced substantial academic documents clearly demonstrating that she has been an exemplary student up until midway through her bachelor studies, at which point she formed the view that accounting and business studies would assist her in managing a restaurant in the future, which was her stated career goal, rather than doing a bachelor’s in precisely the same subjects that she had already completed in cookery and in her diploma.

19. In her evidence at hearing, the applicant candidly acknowledged that she was aware of the conditions that attach to her visa in respect of maintaining enrolment at a particular level, as required by condition 8202(2)(b).  The applicant was aware that her package course that led to her bachelor studies was an Australian Qualifications Framework Level 7 course.  Because the applicant wished to change subjects that she was studying, she consulted in late 2018 with an individual by the name of Quan Jin Wu, otherwise known as Steven Wu, who the applicant understood to be a migration agent in the employ of New Age Consulting Group, an agency located initially in the city of Melbourne and subsequently in Box Hill.

20. The applicant consulted with the migration agent for the purpose of enrolling her in a further package course of study, commencing with a certificate, then a diploma, and then ending with a Bachelor of Business Studies.  That course was consistent in the structure with her hospitality studies, such that she was under the impression that such a package course, starting out with certificates and heading to a diploma, and then heading to a bachelor, was the same as the course which originally complied with the grant of her visa.

21. The applicant paid Mr Wu to obtain enrolment for her with a different education provider to undertake her Certificate IV in Bookkeeping and Accounting.  The applicant signed various documents to which the Tribunal has had regard, clearly demonstrating that she was under the impression that the Certificate IV in Bookkeeping and Accounting would lead to a Diploma in Accounting and a Bachelor of Business Studies, majoring in accounting.  On that basis, it did not come to the attention of the applicant until such time as she received the notice of intention to consider cancellation from the department that she was in breach of her visa condition.

22. The applicant gave candid and extensive evidence supported by contemporaneous documentary evidence that she immediately contacted Mr Wu of the New Age Consulting Group to express her dismay about being in breach of her visa conditions, in circumstances where she had specifically engaged a migration agent to enrol her in a course that was consistent with the previous course in which she was enrolled, insofar as she genuinely thought that she was enrolled in an AQF Level 7 course, and was thereby in compliance with her visa conditions.

23. The applicant gave extensive evidence of her communications with Mr Wu about the content of the notice of intention to consider cancellation.  The applicant gave evidence that Mr Wu initially denied any wrongdoing and said there was no issue, or no potentially significant issue, faced by the applicant.  The applicant gave evidence that she disagreed with that position and she gave Mr Wu not only the letter from the department regarding the intention to cancel her visa, but she also informed him of written communication she’d received from her education provider, who confirmed to her that she was indeed not enrolled in a package course, but she was enrolled only in a Certificate IV of Accounting and Bookkeeping.

24. It follows that the applicant also gave extensive evidence of the communications that she partook in with her education provider seeking to clarify the status of her bookkeeping and accounting course, as she was labouring under the mistaken assumption that she was enrolled in a Certificate IV, leading to a diploma and a bachelor course on exactly the same basis as her earlier studies for which the visa was granted.  It is for that reason that the applicant genuinely believed she was not in breach of her visa condition.  Indeed, it is not the case, and the applicant has not asserted that she was unaware of her visa condition. 

25. She has laboured quite clearly under the assumption that she was in compliance with it and took reasonable steps to being in compliance with it, at all material times.  The evidence I’ve just set out supports that contention.  It has also become apparent after the applicant sought advice from Mr Wu as to what steps should be taken to deal with the notice of intention to consider cancellation that Mr Wu may not even be a registered migration agent.  It is also apparent based on searches undertaken by the Tribunal throughout the course of the hearing that there is no such consultancy as the New Age Consultancy Group. 

26. The applicant gave candid evidence in which she was clearly incredibly concerned that her suspicions were raised as to the propriety of the agency when this matter arose in relation to the notice of intention to consider cancellation being received from the department, and she requested that Mr Wu provide her with evidence of his identity.  

27. Mr Wu indeed provided her with a certified copy of his driver’s licence, and the applicant gave evidence that she found it highly suspicious that the fees she had paid, or thought she had paid, to the New Age Consultancy Group had actually gone into the bank account of Mr Wu personally.  She ascertained that by reviewing her bank statements after Mr Wu had given her a copy of his driver’s licence.  The Tribunal has had regard to those documents, and it is indeed highly likely based upon those documents and based upon the searches of the Tribunal at the time of hearing that there is no such agency as New Age Consulting Group, and that it is highly likely, or a strong inference may be drawn, that indeed Mr Quan Jin, or otherwise Steven Wu, is not a registered migration agent.

28. Based on those matters, the Tribunal is satisfied that there are compelling reasons for the breach which were not reasons within the control of the applicant.  The Tribunal is also satisfied that the applicant has taken all reasonable steps after being made aware of the breach of her visa condition; that is to say, she’s made inquiries of the University of South Australia to do a Bachelor of Business at that university.  She produced her communications with the university to that effect.  She demonstrated the fact that it was at all relevant times her intention to maintain her enrolment in the appropriate AQF Level course.

29. She has received an offer of enrolment via email from the university to which the Tribunal has had regard, which clearly sets out that the particular Bachelor of Business which has been offered to the applicant is $32,600, and that that course fee must be paid before a formal enrolment is to be issued.  The applicant gave evidence that she did not wish to pay those fees in circumstances where her visa was cancelled, and the Tribunal accepts that’s an entirely satisfactory course of conduct to take in the circumstances.

30. Based on those matters, the Tribunal is satisfied that the reason for the breach was not reasonably within the control of the applicant, and I give those matters significant weight in favour of the visa not being cancelled.  As to the applicant’s purpose for travel and stay in Australia, it is clear based on the evidence I’ve set out above that she has demonstrated that her primary purpose of being in Australia was for the purpose of study.  The Tribunal is satisfied based upon the extensive documentary evidence produced that she’s clearly an exemplary student.

31. Notwithstanding that the purpose of the visa ceased when the applicant downgraded her enrolment to a Certificate IV in April 2019, for the reasons I’ve already set out related to the breach, I give this very little weight in favour of cancelling the visa.  As to the extent of complying to visa conditions, it is clear the applicant has not complied with condition 8202(2)(b), however, given the reasons for the breach, which I have already set out, I give this noncompliance no weight in favour of cancelling the visa.  The Tribunal notes that there is no evidence before it of any other breaches of any other visa conditions, and I give this some weight in favour of not cancelling the visa.

32. As to a degree of hardship that may be caused if the applicant’s visa is cancelled, the Tribunal notes that the applicant has spoken of various hardship that she will endure if her visa is cancelled, specifically anxiety as to how to address her family if she returns home without her bachelor degree qualifications.  And given the circumstances which I have described relating to the breach, and particularly all the applicant’s evidence about the steps that she took to remain in compliance, and the steps she took after she realised she was in breach, the Tribunal finds that it would be manifestly unfair to cancel the visa in the circumstances, and her hardship would be compounded by the cancellation of her visa in the circumstances, and I give this some weight in favour of the visa not being cancelled.

33. As for the applicant’s past and present behaviour towards the department, the Tribunal notes that the applicant responded promptly and candidly to the notice of intention to consider cancellation.  She has taken steps to liaise with an officer from the department situated in Adelaide as soon as she received the notice of intention to consider cancellation, and she has taken steps to explain to the officer in Adelaide from the department the circumstances which led to her visa breach which are consistent with the evidence she has given at hearing today, and which is consistent with the responses set out in her response to the notice of intention to consider cancellation.  I give this good behaviour weight in favour of not cancelling the visa.

34. There are no persons in Australia whose visas would be consequently cancelled under section 140 of the Act as a result of the visa holder’s visa cancellation.  I therefore give this factor no weight in favour or against cancelling the visa.  If the visa were to be cancelled, the applicant would be excluded from making certain types of visa applications.  She may be liable to detention and deportation as a result of the cancellation of the visa, and given the circumstances that I have set out above that relate to the breach of the visa conditions, this would be manifestly unfair, and I give this some weight in favour of the visa not being cancelled.

35. As above, it is clear that the breach does not reveal any bad faith at all on the part of the applicant, and was occasioned by matters not reasonably within her control, and it is patently clear that she was labouring under a genuine mistake of believing she was in full compliance with her visa conditions, which she was acknowledged she was at all times fully aware.  It is also clear that she has been the victim of the individual who it is highly likely is not a registered agent, and based on all these matters, it’s clear that the considerations I have arrived at on examining all the evidence before me are leaning towards the visa not being cancelled, and I so find.

36. Given the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled. 

37. The Tribunal sets aside the decision under review and substitutes the decision not to cancel the applicant’s subclass 500 higher education Student visa.  T

38. his is an oral decision made at 11.03 am on 4 March 2020. 

    DECISION

39. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s subclass 500 Higher Education Student visa.

    Vanessa Plain
    Member