Cheng (Migration)
[2020] AATA 4324
•7 September 2020
Cheng (Migration) [2020] AATA 4324 (7 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Miss Han Cheng
CASE NUMBER: 1934092
HOME AFFAIRS REFERENCE(S): BCC2019/3284452
MEMBER:Amanda Pearson
DATE:7 September 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
Statement made on 7 September 2020 at 4:32pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled at the required AQF level – consideration of discretion – academic progress – continued study after visa was cancelled – lacked the necessary skills to complete the original course – claimed need to remain in Australia to study a Masters’ Course – incorrect migration advice received – decision under review set asideLEGISLATION
Migration Act 1958 (Cth), s 116Migration Regulations 1994 (Cth), Schedule 8, Condition 8202
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision dated 22 November 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the delegate found he had not been enrolled in a registered course of study since 10 May 2019. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 28 July 2020 to give evidence and present arguments.
The applicant was represented in relation to the review by her registered migration agent.
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
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?
Condition 8202, as it applies in this case, relevantly requires that the applicant:
8202
(1) The holder must be enrolled in a full-time course of study or training if the holder is:
(a) A Defence Student; or
(b) A Foreign Affairs student; or
(c) a secondary exchange student.
(2) A holder not covered by subclause (1):
(a) must be enrolled in a full-time registered course; and
(b) Subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was grated; and
[…](3) A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a) is enrolled in a course at the Australian Qualifications Framework Level 10; and
(b) changes their enrolment to a course at the Australian Qualifications Framework level 9.
In the present case, the applicant’s visa was cancelled on the basis the Applicant has not maintained enrolment in a registered course at the same level as, or higher than, the registered course in relation to which her visa was granted. On this basis, there was grounds for cancelling the Applicant’s visa under s116(1)(b) because she had not complied with condition 8202.
The Applicant’s student visa was granted in relation to completion of a Bachelor of Commerce (Honours) course at the Monash University. Once completed, this course would provide the Applicant with a Level 8 qualification from the Australian Qualifications Framework (ACF). By the Applicant’s own admission and on the evidence before the Tribunal, on the 10th May 2019, the Applicant’s enrolment in the Bachelor with Honours course was cancelled by Monash University.
On the 23 December 2019, the Applicant completed a Diploma of Interpreting (LOTE English) through Sydney Institute of Interpreting and Translating. This enrolment is at ACF Level 5 (Diploma). Given the Applicant is not a defence, foreign affairs or secondary exchange student and or was enrolled in a course at the ACF Level 9 (Masters degree) or Level 10 (Doctoral Degree), the circumstances of subclause 2(b) of condition 8202 were not met and the Applicant’s visa was cancelled.
Consideration of the discretion to cancel the visa
Having found that the Applicant has not complied with a condition of the visa, the Tribunal must exercise its discretion to cancel the visa. 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
The Applicant arrived in Australia in April 2015. She was born in China on 23 December 1996 and is 23 years old. She is single and does not have children.
In relation to her family background, the Applicant informed the Tribunal that her Mother, Father, little sister and adopted sister live in Zheng Zhou, Henan Province. Her father works as a civil servant and her mother is a teacher.
Prior to arriving in Australia, the Applicant completed her first year in China and then moved to Singapore to complete her secondary schooling.
The Applicant explained to the Tribunal that she then came to Australia from Singapore to complete a foundation program at the University of New South Wales. She completed that course in November 2015.
Following the completion of the foundation program, the Applicant moved to Melbourne to complete a Bachelor of Commerce at the University of Melbourne. This course was completed in December 2018.
The Applicant told the Tribunal that she then enrolled in the Honours research program at Monash University. However, the Applicant claimed to the Tribunal that she did not possess the necessary coding skills required to complete the major research project. Due to a lack of coding skills, the Applicant suffered enormous pressure because she was unable to complete her research project. Consequently, the Applicant withdrew from the Honours research program because the course did not suit her needs. The Applicant told the Tribunal that whilst she attended all lectures and tutorials including the weekly tutorial tasks, she did not complete any assessment tasks of the course.
The Applicant received confirmation of her discontinuance of her enrolment in the Honours Research Course at the Monash University on 30 May 2019.
The Applicant told the Tribunal that that after discontinuing her studies at the Monash University, she was perplexed as to her future study path. Consequently, she enrolled in the Diploma of Interpreting (LOTE English) through Sydney Institute of Interpreting and Translating. The Applicant completed this course on 23 December 2019.
The Applicant further told the Tribunal that she received an offer to complete the two-year Master of Advertising Course at the RMIT. She told the Tribunal that she anticipates that she will complete this course by June 2022.
The Applicant stated she would like to stay in Australia because of her passion to complete a Masters’ course. Her long-term aspiration is to return home to be with her family and become a Marketing manager in China. The purpose being so that she is able to join a large corporate in China.
The Tribunal gives some weight to the fact that the Applicant commenced her studies on arrival in Australia and has completed her Diploma of Interpreting after her visa was cancelled on 22 November 2019. The Tribunal also gives some weight to the fact that the Applicant lacked the necessary skills to complete the research course at the Monash University. The Applicant has asked the Tribunal not to cancel the visa because she wishes to complete a Masters’ course and has stated that obtaining an Australian education is considered prestigious because the standard is high. If she is prevented from studying in Australia because her visa is cancelled, then she claims she will be at a significant disadvantage. The Tribunal gives some weight to the Applicant’s claimed need to remain in Australia to study a Masters’ Course.
Circumstances in which the ground of cancellation arose
The Applicant claimed she had had difficulties completing the Honours research program at the Monash University because she did not possess the necessary coding skills required to complete the major research project.
The Applicant went on to explain that she withdrew from the Honours research program because the course did not suit her needs.
The Applicant did not take any time off after discontinuing her Honours research studies. She enrolled in a Diploma of Interpreting (LOTE English) through the Sydney Institute of Interpreting and Translating. The Applicant completed this course on 23 December 2019.
The Applicant further told the Tribunal that she received an offer to complete the two-year Master of Advertising Course at the RMIT. She told the Tribunal that she anticipates that she will complete this course by June 2022.
The Tribunal asked why she did not respond to the Notice of Intention to Consider Cancellation dated 17 October 2019. The Applicant told the Tribunal that when the notice arrived by registered mail to her home, she was not at home. A card was left for the Applicant in her letterbox advising her about the registered mail. The Applicant claimed she was not aware about the card until she was told about it by her landlord two weeks later. At the time when she collected the registered post, she received a telephone call from a friend and automatically put the registered mail unopened in her bag.
The Applicant then explained that she did not discover her visa was cancelled until she applied in November 2019 for her Masters’ course at RMIT. It was at this time that she contacted her migration agent who asked her to check her emails and mailbox. It was at this time when the Applicant opened the registered mail that she discovered that she had received the Notice of Intention to Consider Cancellation dated 17 October 2019.
The Tribunal has given some weight to his claim that he experienced difficulties studying the Honours research course at Monash University. Despite her skill-based difficulties, the Applicant completed a Diploma course after discontinuing her Honours course and not a Masters’ course. The Applicant took 6 months to complete her Diploma course and following completion enrolled in a Masters’ of Advertising course. Individually and cumulatively the issues put forward by the Applicant pertaining to the circumstances in which the breach occurred are given enough weight to explain why the Applicant was not enrolled.
The extent of compliance with visa conditions
The Applicant has stated that she has complied with all other conditions on her visa. There is nothing before the Tribunal to indicate that this is not the case. The Tribunal gives this some weight in favour of the Applicant with not cancelling the visa, however, remains mindful that it expected that all visa holders adhere to the conditions on their visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Applicant explained that if her visa is cancelled that she will return to China and complete her studies in China or another country. She will return to live with her parents.
The Applicant claimed she will hurt her parents if her visa is cancelled as they have spent a lot of money.
The Tribunal accepts that the cancellation of a visa is disappointing. It also accepts that a significant amount of money is invested in a person in order to set them up in a country to live independently in order to study.
The Tribunal also accepts that the hardship is felt by family members who may also feel let down and disappointed.
The Tribunal accepts that a cancellation may contribute to the emotional pressure and stress that the Applicant may already be facing.
The Tribunal gives these reasons some weight in its considerations.
Past and present conduct of the visa holder towards the department
There is nothing before the Tribunal to indicate any adverse conduct by the Applicant to the Department and as such the Tribunal gives this some weight in favour of the Applicant.
Whether there would be consequential cancellations under s140
This is not relevant to the Applicant.
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
If the visa is cancelled, the Applicant would need to obtain migration advice pertaining to her status.
Australia’s International obligation
There is nothing before the Tribunal to suggest that the cancellation of the visa holder’s visa would breach any international obligations. The Tribunal places no weight on this in favour of the Applicant.
Any other relevant matters
The Applicant indicated that her migration agent had advised her that her visa would not be affected because she had received a confirmation of discontinuance of studies from the Monash University. She further claimed that her migration agent had advised her to complete the diploma course as a bridging course as she wanted to complete a communication degree. She stated that her migration agent had told her that she would not be in breach of a condition of her visa if she completed a diploma course.
At the hearing, the Applicant’s migration agent confirmed that the Applicant was provided incorrect advice regarding enrolling and completing a Diploma course. As this advice reinforced the Applicant to complete a diploma course and not a Masters’ course at first instance after the Applicant discontinued her Honours course, the Tribunal places significant weight on this in favour of the Applicant.
Considering the circumstances, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
Amanda Pearson
MemberATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(1) The holder must be enrolled in a full time course of study or training if the holder is:
(a)a Defence student; or
(b) a Foreign Affairs student; or
(c) a secondary exchange student.
(2) A holder not covered by subclause (1):
(a) must be enrolled in a full time registered course; and
(b) subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
(c) must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:
(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a) is enrolled in a course at the Australian Qualifications Framework level 10; and
(b) changes their enrolment to a course at the Australian Qualifications Framework level 9.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Natural Justice
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