Gao (Migration)

[2018] AATA 5805

Gao (Migration) [2018] AATA 5805 (19 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Bingjie Gao

CASE NUMBER:  1621339

HOME AFFAIRS REFERENCE(S):           BCC2016/2461898

MEMBER:Wendy Banfield

DATE:19 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 19 December 2018 at 3:11pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – not enrolled in registered course – accounting studies – failed to progress as student over long period of time – length of time spent in Australia in breach of visa conditions unreasonable – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 140

Migration Regulations 1994, Schedule 8, condition 8202, PIC 4013

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 September 2016 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(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the grounds the applicant had not complied with visa condition 8202(2)(a). The condition states a visa holder meets the requirements of the subclause if they are enrolled in a registered course. The Department found the applicant was not enrolled to study while holding a Student Visa and had therefore breached a mandatory condition of her 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 6 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   Evidence of the visa applicant

4. At the time of the hearing, the applicant submitted a Certificate and Academic Transcript for a Certificate IV course in Accounting from New Cambridge College Sydney dated 25 February 2018. The applicant submitted evidence to the Department before the visa was cancelled including Award Certificates, 2013 Screenshot of results from University of Wollongong, Student Report UOW College for English studies in 2013, COE for Certificate IV in Accounting and applicant’s written response to NOICC letter.

   The hearing

5. The applicant stated she arrived in Australia on 24 December 2013 to study a four year Mathematics and Finance degree. In China she completed high school and obtained approval to enrol in University of Wollongong. She said she began the course but studying in English was difficult also she had never lived independently and found it hard taking care of her personal living and study. The applicant said she studied English for one year which helped a lot but she could not understand everything.

6. According to the applicant she studied her degree for almost a year but wanted to change from Wollongong to Sydney as she was concerned about her safety at night and was not able to drive. The applicant gave evidence that she spoke to the university and told them she was finding the course difficult. She said the students in her course were mostly local and they did not have problems with English while she could not understand everything despite reading the textbook. The applicant said she also had no background in the subject.

7. The applicant said she applied to transfer from Wollongong University but was not permitted to and could not get proper assistance from agents, despite them telling her they would help. She said she received a Notice of Intention to Consider Cancel (NOICC) from the Department. The applicant claimed she thought an agent was contacting the university but it turned out they were not.

8. After receiving the NOICC from the Department, the applicant said she realised she could not go back to Wollongong to study so another agent helped her enrol in a Sydney college to take a Certificate in Accounting. The applicant conceded it was only after she received a NOICC letter from the Department that she re-enrolled to study in Sydney. The Tribunal asked the applicant to explain what she was doing between November 2014 and August 2016. She said she did not work during that period but read books and studied something relevant to finance and accounting herself as it would be useful to her in future. The applicant reiterated she believed her agent was still trying to get her release from University of Wollongong. The Tribunal reminded the applicant it was a requirement of her visa that she maintain enrolment and continue to study. The applicant said her auntie in Australia supported her while she was not studying. She advised she completed a Certificate IV in Accounting in February 2018 and still wants to attend university to study something relevant to maths and finance.

9. Regarding any hardship that may result if the visa is cancelled, the applicant said she is nearly 26 and only has her high school qualifications. She said she had not gained any degree yet, or anything other than English courses, an Academic Skills course and a Certificate IV in Accounting. The applicant was asked to comment on having been in Australia for nearly six years and not re-enrolling in a Bachelor degree. The applicant said she was unable to while her case was before the Tribunal. The applicant was asked whether she contacted the Department about transferring to another university or about her lack of enrolment. She said she responded about what happened when she received a NOICC letter and it was only then that she found out her COE had been cancelled. The applicant claimed she had not been informed by Wollongong University that her enrolment had been cancelled.

10. The applicant said there were no consequential cancellations that would occur if her visa is cancelled. The Tribunal then explained that if the visa is cancelled, she would have to depart and may not be able to apply for another visa to Australia for three years as she would have to satisfy relevant public interest criteria. The applicant said she appreciated taking English at the University of Wollongong but her previous agent and the staff at university were responsible for the Department’s decision to cancel the visa because they did not do their job properly. She also submitted that exclusion for three years was not fair because she came to Australia to study but personal safety was more important and that is why she wanted to study somewhere where there are more people.

11. While studying at University of Wollongong, the applicant said she had sought assistance when she had difficulty with the course and also attended additional classes. However, the applicant said most international students are studying Accounting rather than maths and finance. She said as the only international student in the tutorials, it was stressful because of the language barrier. The applicant stated she was not studying now as she does not have a valid visa.

12. Regarding her plans in future, the applicant said she still wants to learn about finance and would like to apply to Sydney University, UNSW or UTS because of their ranking. However, the applicant has not yet applied due to not having a visa. The applicant referred again to having difficulty with English and living independently in Australia but said she feels better about it now. The Tribunal referred the applicant again to the relevant period when she was not enrolled to study and asked her how she spent her time if she did not work.  She said she did not work because she did not think she could, so she lived with her auntie and went to church to practice her English.

13. 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

14. 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?

15. 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).

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

17. The applicant was enrolled to study English Language Programs and a Bachelor of Mathematics and Finance at the University of Wollongong.  The applicant completed the English courses and began the Bachelor degree but did not continue. As a result her enrolment at University of Wollongong was cancelled and she was not enrolled to study from 21 November 2014 to 11 August 2016 (the relevant period), a period of more than one year and eight months. The applicant did not dispute the finding that she had not been enrolled for the relevant period but claimed she had thought an agent was arranging for her to withdraw from the University of Wollongong and transfer to Sydney. The applicant claimed she was never advised by the university that her enrolment had been cancelled. The Tribunal finds it was the applicant’s responsibility to ensure she maintained enrolment and continued to study. She was no longer attending university in Wollongong and was also not studying in Sydney and was aware that she was not complying with her visa conditions. It was not open to the applicant to do nothing until she received a NOICC letter from the Department.

18. 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

19. 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 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 applicant travelled to Australia as the holder of a student visa which was granted on 13 December 2012 and was valid until 6 September 2016. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

21. In responding to the Department considering cancelling her visa the applicant claimed Wollongong University did not agree to release her and that education agents she consulted took her money but did not deal with her issue. She said despite the passing of time she still wanted to study and therefore enrolled at “NCCS” (New Cambridge College Sydney). This is the college where the applicant obtained a Certificate IV in Accounting in February2018.

22. The Tribunal notes the applicant has stated she wishes to re-enrol in a Bachelor degree in 2019 at a university in Sydney. However, she did not provide specific reasons for wanting to obtain qualifications in Mathematics and Finance, or a Bachelor degree. She did not demonstrate specific plans for her future and advised only that she wanted to be able to get an education and a better job.

23. The Tribunal has carefully considered the evidence before it and is satisfied the applicant originally came to Australia to study. However, while the applicant may say she wants to continue her studies, she has not demonstrated a powerful or convincing reason for doing so. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

24. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal gives this aspect some weight in the applicant’s favour.

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

25. During the course of the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of her visa being cancelled. In response the applicant stated she is nearly 26 and only has her high school qualifications. She said that in Australia she has only studied English courses, an Academic Skills course and a Certificate IV in Accounting but does not yet have a degree. In a written response to the Department the applicant claimed she valued education and had initially studied satisfactorily including receiving awards for attendance and contribution.

26. The Tribunal acknowledges that the cancellation of the visa would mean the applicant would not be able to continue her studies in Australia and this may cause a level of financial, psychological or emotional hardship. The Tribunal has given some weight in the applicant’s favour in this regard.

27. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why the visa should not be cancelled.

    ·     circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

28. The grounds for cancellation arose because the applicant had been granted a student visa in 2012 to allow her to study a Bachelor degree at the University of Wollongong but she discontinued studying and did not maintain enrolment as required by the terms of her visa. After her enrolment ceased in November 2014 the applicant moved from Wollongong to Sydney to reside with her aunt and did recommence studying until August 2016. According to the applicant she studied her undergraduate course for almost a year but did not continue or complete the course. The applicant gave two reasons for failing to continue her studies. The first was that she wanted to change location from Wollongong to Sydney because she was concerned about her personal safety in a low population area. The second reason was because of the difficulty of the course. The applicant claimed that despite her best efforts she could not follow the course because of language problems and the difficulty of the subject matter.

29. The applicant said she applied for release from Wollongong University but her request was denied. The applicant’s evidence was that she consulted agents to assist and until she received a NOICC letter from the Department, she had thought her agent was consulting with the University on her behalf but it became evidence they were not. She also claimed she had never been informed by the University that her enrolment had been cancelled.

30. The events described by the applicant are not adequate reasons for her to stay in Australia while disregarding the mandatory conditions of her student visa and failing to study or progress as a student over a long period of time. It is not credible that for more than 18 months the applicant assumed she was still enrolled at Wollongong University despite not attending and that an agent was liaising with the institution about her release. The applicant was vague regarding her activities during the period she was not enrolled or studying stating only that she read material related to mathematics and finance and practiced her English skills.

31. The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. Wanting to relocate from Wollongong to Sydney, and finding the course difficult are not sufficient reasons for failing to comply with visa conditions for an extended period. Also in addition to failing to maintain enrolment or study for the relevant period, when the applicant did re-enrol to study it was at a significantly lower level and in a different subject matter. The Tribunal does not consider the circumstances in which the ground for cancellation arose are reasons why her visa should not be cancelled.

    ·     past and present behaviour of the visa holder towards the department

32. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.

    ·     whether there would be consequential cancellations under s.140

33. There is no evidence before the Tribunal that there would be any consequential cancellations 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 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

34. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit her options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a further visa for up to three years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not be cancelled.

    ·     whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

35. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

36. The Subclass 573 Student Visa is not a permanent visa.

    ·     any other relevant matters

37. The applicant claimed in her oral evidence at the hearing that her previous agent and the staff at University of Wollongong were responsible for the Department’s decision to cancel the visa because they did not do their job properly. She also submitted that the possibility she may be excluded from obtaining a visa for three years was not fair. The applicant claimed she came to Australia to study but her personal safety was more important which is why she decided to study in Sydney where there are more people than Wollongong. The Tribunal does not consider these claims to be reasonable or accurate. While the applicant may have had problems with agents that she sought assistance from, the Tribunal has no independent evidence in that regard. Also, without evidence, the Tribunal does not accept Wollongong University would not have advised her about her enrolment being cancelled or that their staff were otherwise at fault.

1. There are no other relevant matters raised by the applicant that constitute reasons why the visa should not be cancelled.

   Conclusion

2. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh in her favour, on balance, the Tribunal is satisfied that the majority of considerations weigh heavily against the applicant. The Tribunal considers the length of time the applicant has spent in Australia having breached her visa conditions to be unreasonable. The Tribunal is not satisfied the problems encountered by the applicant account for her failure to comply with the terms of her visa.

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

   DECISION

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

   Wendy Banfield
   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.