Ding (Migration)

[2019] AATA 5767

Ding (Migration) [2019] AATA 5767 (29 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yufeng Ding

CASE NUMBER:  1920660

HOME AFFAIRS REFERENCE(S):         BCC2019/1473373

MEMBER:D Triaca

DATE:29 August 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 29 August 2019 at 4:03pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 500 (Student) – Bachelor of Engineering – not enrolled in registered course for 14 months – enrolment cancelled – unsatisfactory course progress – lost interest in engineering – relationship breakdown – lack of evidence of medical conditions – steps towards returning to study not taken – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

CASES
Boettcher v Driscoll (2014) SASC 86
de Angelis v de Angelis [2003] VSC 432
Dimic v Djekovic (2014) NSWSC 1502
Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 25 July 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).

2. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course and therefore breached condition 8202 of his visa. 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 28 August 2019to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages, although the applicant’s English was sufficiently good that the majority of the hearing was conducted in English.

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. 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?

7. 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).

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

9. In his oral evidence before the Tribunal, the applicant confirmed that he was not enrolled in a registered course for the period 20 March 2018 and 14 June 2019. Accordingly, the Tribunal finds that the applicant was not enrolled and in breach of condition for a period of approximately 14 months.

10. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

11. 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.’

    Applicant’s Evidence

12. The applicant is 26 years old citizen of China. He first arrived in Australia in 2013 on a Student Visa and commenced studying a Diploma of Engineering at Monash College with a view to undertaking a Bachelor of Engineering at Monash University. He says that his family had high hopes that he would become a qualified chemical engineer.

13. His initial time in Australia was unremarkable. He successfully completed ELIOCS between February and May 2013 at Monash College before commencing the Diploma of Engineering. By his own admission, his progress was slow, but he persevered and completed the Diploma of Engineering at the end of 2015. He commenced studying the Bachelor course the following year but failed to make any academic progress. His enrolment was cancelled by Monash on 20 March 2018 due to unsatisfactory course progress.

14. He states that he has had some difficulties in Australia. He suffers from Hay Fever that is particularly bad during springtime. He went through a relationship breakdown in 2015 and states that this caused some depression, although he has never sought medical treatment and for any mental health issues and there he has never been formally diagnosed with depression.

15. However, his primary issue appears to have been that he simply did not like or enjoy his engineering studies and has no wish to become a chemical engineer. His true passion and hope for future is to be “in business”. His family, despite being business people themselves, have discouraged him from business and would prefer to complete his engineering degree. However, he says that of late, his father is more supportive of his business aspirations.

16. After his enrolment was cancelled, he returned to China. It was during this time he first discussed with his family his problems in Australia his reluctance to continue with engineering.

17. It is fair to say that his family took the view that he should complete his engineering studies.

18. He returned to Australia in July 2018. He took steps towards developing business contacts of his own in Australia, including taking meetings with some companies that had business relationships with his father in China.

19. He says that he finally decided to enrol in a business course in 2019. He says he was slow, wanting to make sure he made the correct decision about his future. He was too late to enrol in Semester one. He obtained a CoE to study a Business Degree in June 2019.

    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

20. The term “compelling need” is not defined in the PAM3. I take it to have its ordinary meaning, having regard to both the context and purpose of the PAM3 and s 116 of the Act: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (“ Project Blue Sky ”) per McHugh, Gummow, Kirby and Hayne JJ at [69]. There is nothing in s 116 or the PAM3 , or elsewhere in the Act, to indicate that Parliament intended the phrase “compelling need” to be given anything other than its ordinary and natural meaning.

21. The term compelling was the subject of detailed consideration by Crennan J (as her Honour was then) in Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (“Paduano”).  Her Honour set out the jurisprudence in relation to the words “compel” and “compelling” and the various dictionary meanings and stated, relevantly:

22. “At [35] A judge must bring to bear to the task of interpreting words of ordinary meaning, his or her understanding of common usage, especially having regard to the purpose, context and language of the relevant delegated legislation.

23. Commenting further on the adjective “compelling” in the Regulations, at [37], Crennan J said:

    “The ordinary meaning of the adjective ‘compelling’ is not confined to the meanings used by the Tribunal when it construed the legislative expression. The legislative expression is wide and unqualified. ‘Compelling’ in its wide, ordinary meaning means ‘forceful’.”

24. “Need” was considered in Dimic v Djekovic (2014) NSWSC 1502, per Hallen J, at [111] as follows: "Need", of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45]. It is different from " want ". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808, at [54]:

25. "'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely ' want ', but it falls far short of 'cannot survive without'."

26. ‘Need’ and ‘ want ’ are not interchangeable. The difference between ‘need ’ and ‘ want ’ is significant. See Boettcher v Driscoll (2014) SASC 86 at [41] per David J.

27. Having regard to these authorities, I take the phrase compelling need to have the ordinary meaning of the words, compelling, demanding attention or demanding interest or being forceful,  and need requiring something more than a mere want, but falling far short of requiring the applicant to demonstrate necessity in the sense that he cannot survive without it.

28. The Tribunal accepts that the applicant came to Australia with a purpose of studying and this is reflected in his enrolment and early course progress obtaining a Diploma of Engineering at Monash.

29. However, it is apparent that from about 2016, the applicant’s purpose was not studying, leading to the cancellation of his enrolment by Monash due to lack of academic progress. Whilst I accept his evidence that he has laboured under some difficulties including hay fever and a relationship breakdown. However, many students on student visas are forced to contend with such difficulties during their stay in Australia, being away from home and their support networks. At the same time, they are required to maintain their studies in Australia in order to comply with the strict visa conditions attaching to their visas. I do not consider the matters advanced by the applicant, collectively or alone are of such a nature that they caused him to be unable to study in Australia for an extended period of time.

30. Rather, having considered the applicant’s evidence, it is clear that the overwhelming reason that caused him to stop studying and not return to study, was that he did not like studying chemical Engineering. He now seeks a student visa to enable him to study business.

31. Ministerial Direction 69 contemplates that a reasonable change in career path should be accommodated for students on a student visa. However, this is not a situation in which the applicant sought to transfer his studies upon realising his enrolment in Engineering was unsuitable. The applicant remained enrolled without making any academic progress for some time resulting in the cancellation of his enrolment by Monash.

32. After his CoE was cancelled, he travelled to China and spent some time with his family discussing his future. Their view was he should return to complete his engineering course. He was reluctant to do so. By this stage he had determined that his future path lay in business.

33. The following matters weigh heavily against this application. Upon his return to Australia in July 2018, the applicant took no steps towards returning to study. He gave detailed evidence of his time in Australia during the second half of 2018. He threw his energy into developing business contacts, making and attending meetings with companies that had a relationship with his family business in China. Whether he was seeking employment with those companies, or seeking to enter into some form of business arrangement, it is clear that his purpose was not studying, despite living in Australia on a student visa.

34. He says that in 2019 he decided that he should study business. However, he was too late to enrol in first semester. He says he took time to decide which business course he should undertake. He could only enrol in a Bachelor of Business in June 2019.

35. I accept that if the applicant is granted a visa, he may return to study. However, his intention to study in the future must be tempered by the extent of the breach and the fact that the applicant resided in Australia on a student visa without taking any steps to remedy the situation for a considerable period of time. The Tribunal does not consider the applicant has demonstrated a compelling need to travel or stay in Australia.

    The extent of compliance with visa conditions.

36. As stated above, the applicant was in breach of his student visa conditions for approximately 14 months. This is a substantial period of time and the non-compliance with condition 8202(2) for a substantial period of time weights towards the cancelling of the visa unless the Tribunal accepts his reasons for non-enrolment.

37. The applicant’s position appears to be that he unable to study for an extended period of time due to a combination of personal factors. The Tribunal does not consider that the matters advanced by the applicant as reasons for his breach, either in isolation or collectively, operate as a sufficient reason to explain or excuse the breach.

38. In reaching this conclusion, I have regard to the fact that there was no medical evidence produced in relation to the effect of hay fever or depression. I also have regard to the applicant’s own evidence which very clearly set out his studying ceased to be his primary focus and as he lost interest in engineering he developed an passion for business.

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

39. The applicant states that his family have invested heavily in his education in Australia. He estimates that they have spent around $400,000 between course fees and living expenses since he arrived in Australia in 2013. I accept that his family have supported him financially in his time in Australia and that it will be disappointing for them, and the applicant, for him to return to China without the qualification they were hoping for. However, the applicant has achieved a Diploma from Monash, and it seems on the evidence that his failure to reach further academic heights is largely due to his personal choice to cease studying for an extended period of time. In this context, I do not consider the evidence before me amounts to significant hardship and I give this only little weight towards not cancelling the visa.

    Past and present behaviour of the visa holder towards the department.

40. The applicant appears to have co-operated with the Department and there is no adverse evidence against the applicant in this regard. I give this some weight towards not cancelling the visa.

    Whether there would be any consequential cancellations under s 140

41. There is no evidence suggesting that if the applicant’s visa is cancelled, any other persons visa will be cancelled under s 140 of the Act.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence , or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.

42. The Tribunal recognises that, if the visa is cancelled, he will become an unlawful non-citizen and may be liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. However, he may be eligible for a bridging visa that would allow his lawful presence in Australia for a short period of time so that he can finalise his affairs in Australia before departing.

43. If his visa is cancelled, the Tribunal also recognises that he will be subject to s 48 of the Act which means he will have limited options when applying for further visas, including the possibility that he may not be granted a temporary visa for 3 years from the date of the cancellation.

44. The Tribunal considers these are the intended consequences of the legislation.

45. In any event, the applicant’s evidence was that if the visa remained cancelled he would return home to India and therefore there is no indication that he would become unlawful or be subject to detention so I give this factor no weight.

    Whether any international obligations, including non-recoupment and best interests of the children as primary consideration, would be breached as a result of the cancellation.

46. The circumstances of the case are not such as to engage Australia’s international obligations.

    If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia.

47. This matter is not relevant in this application as the cancelled visa is a temporary visa and I give this factor no weight.

    Any other relevant matters.

48. There appear to be no other relevant matters of significance in relation to the present application for review.

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

    DECISION

50. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

    D. Triaca
    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.