Gong (Migration)
[2020] AATA 2871
•5 July 2020
Gong (Migration) [2020] AATA 2871 (5 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Zhengke Gong
CASE NUMBER: 2002504
HOME AFFAIRS REFERENCE(S): BCC2019/4985214
MEMBER:Vanessa Plain
DATE:5 July 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Statement made on 05 July 2020 at 2:02pm
CATCHWORDS
MIGRANT – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – breakdown of marriage and mental health – visa and study history – no approach to education provider and minimal psychological consultation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision dated 31 January 2020 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 applicant failed to maintain enrolment in a registered course. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
A written invitation was sent to the applicant to attend a telephone hearing at the Tribunal, scheduled on 26 June 2020 at 3:00pm. The applicant was further advised to submit any documents upon which they may wish to rely, to the Tribunal in advance of the hearing date.
On or about 24 June 2020, the applicant provided a signed hearing response to the hearing invitation to the Tribunal in which they stated that they would not participate in the hearing and consented to the Tribunal determining the matter on the papers and without taking further steps to allow the applicant to appear.
The applicant did not provide any new information to the Tribunal in support of their review application. Therefore, the Tribunal has considered and had regard to the material before the Department and the delegate’s decision record.
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
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202(2)(a) 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, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
·be enrolled in a full time registered course: 8202(2)(a)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course.
Information available to the Department in the Provider Registration and International Student Management System (PRISMS) indicated that on 30 July 2018, the applicant’s enrolment in his registered course was cancelled and that he has not been enrolled in registered course since that time.
On 8 January 2020, a Notice of Intention to Consider Cancellation of Visa (NOICC) was sent to the applicant.
By written response dated 22 January 2020, the applicant responded to the NOICC and did not specifically articulate whether he agreed or disagreed that there are grounds for cancellation. The applicant provided reasons to the Department in response to the NOICC, as summarized by the Delegate (verbatim), as follows:
·“The visa holder has stated that he arrived in Australia in July 2015 as the primary holder of a Student visa with the intention of completing an IT course at The University of Newcastle (UoN). He advised that he met and fell in love with a girl who was an international student and that he married her at the end of that year.”
·“The visa holder acknowledged that he had failed to continue his studies while holding this visa after he decided to move to Sydney to live together with his wife. He advised that he was included as a dependent on his wife’s Student (subclass 573) visa which was in effect from 22 February 2016 to 13 July 2018.”
·“The visa holder was granted a Student (subclass 500) visa as the primary visa holder on 13 July 2018 to resume studying. However, due to the breakdown of his marriage, he experienced insomnia and anxiety and was unable to concentrate on his studies. He failed to enrol as he wanted to remain indoors and did not want to interact with people as a result of his poor mental health. He also claims that due to his marriage breakdown, he lost his friends, avoided to have contact with his parents and he became unhealthy.”
·“The visa holder has stated that sometime in July 2019 he sought medical help from a psychologist and had consultation with her. He provided an undated psychologist’s report in response to the NOICC to indicate treatment of his illness.”
·“The visa holder advised that his mental condition has improved and he believes he is now ready to live a normal life. In fact, he has intention to resume his studies at the Newcastle University and will enrol the same course as he wanted to become an IT professional in his home country.”
·“The visa holder is hoping he will be given another chance to continue his studies to compensate the amount of time and money he spent during his stay here in Australia.’
The Tribunal has had regard to the undated psychologist’s report (which the Tribunal assumed the applicant obtained in 2019) and acknowledges that the applicant has provided numerous reasons as to why he did not maintain enrolment in his registered course. Those reasons clearly pertain to him being unable to concentrate on his studies due to the insomnia and general anxiety he experienced as a result of his marriage breakdown.
The Tribunal notes that the psychologist’s report is undated. The report contains general information about the applicant’s background and his current mental status. It further provides that it may be used in support of the applicant’s appeal against the decision to cancel his student visa. That statement indicates to the Tribunal that the applicant attended upon the psychologist for assessment after he received the NOICC and not at the time when he was experiencing alleged mental health conditions which he claims resulted in his failure to maintain enrolment.
On the basis of the above, the Tribunal finds that the applicant has not complied with subclause (2)(a) of condition 8202 as he has not maintained enrolment in a registered course from 30 July 2018 onwards. Accordingly, the applicant has not complied with condition 8202(2)(a).
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 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 Procedural Instruction ‘General visa cancellation powers’.
Purpose of applicant’s travel to and stay in Australia
The Delegate’s decision record reveals that the applicant arrived in Australia on 23 July 2015 as the holder of a Student (subclass 573) visa for the purposes of completing a Bachelor of Information Technology and an English for Academic Purposes (EAP). According to PRISMS, the visa holder’s CoE in EAP was cancelled on 1 July 2016 by the education provider citing unsatisfactory attendance as the reason. As a result of not successfully completing the EAP course, the applicant’s COE in the Bachelor of Information Technology was subsequently cancelled on the same day.
Subsequently, the applicant was granted a Student (subclass 500) visa on 13 July 2018 for the purpose of studying an Advanced Diploma of Leadership and Management, a Diploma of Leadership and Management and a General English (Elementary – Upper Intermediate). However, the applicant’s enrolments in the Diploma of Leadership and Management and Advanced Diploma of Leadership and Management were cancelled on 30 July 2018 by Australian International Training College Pty Ltd for non-commencement of studies.
The Tribunal acknowledges the applicant’s claims that they intend to continue studying in Australia. However, the delegate’s decision record states that according to PRISMS, the applicant does not hold a current or future enrolment in a CRICOS registered course of study with an education provider in Australia and there is no evidence before the Tribunal at the time of this decision to indicate that the applicant is enrolled in a course, or has taken substantive steps towards enrolling in a course.
The delegate’s decision record reveals that on 10 December 2019, the applicant was included as a dependent in an application for a Skilled - Independent (SI 189) (Points-Tested) visa, which demonstrate that the applicant wishes to remain in Australia for a purpose that is not aligned with the purpose for which the student visa was granted.
The Tribunal affords this consideration significant weight in favour of cancelling the visa.
The circumstances in which the ground for cancellation arose
The ground for cancellation arose because the applicant did not maintain enrolment in a registered course of study, resulting in non-compliance with subclause (2)(a) of condition 8202 attached to the visa, from 30 July 2018 onwards.
As set out above, the applicant procured a psychologist’s report, which is undated, in support of his claims that the circumstances that led to him failing to maintain enrolment were due to him being depressed as a result of his marriage breakdown and therefore being unable to concentrate on his studies.
The Tribunal acknowledges these claims, however, it is unable to place significant weight upon them, because the report does not provides as to when the applicant attended upon the psychologist for the initial and/or any subsequent consultations and there is no medical evidence before the Tribunal to indicate that the applicant was suffering from any medical condition prior to the issue of the NOICC. Critically, the report does not provide an opinion to the effect that the applicant was suffering from a mental health condition that prevented him from maintaining his enrolment.
The Tribunal is of the view that it is reasonable to have expected that if the applicant was of the view that he was unable to maintain enrolment in a registered course of study due to his mental health circumstances, that he could have deferred his studies and returned to his home country rather than remain in Australia in continued non-compliance with a condition of his visa. There is no evidence before the Tribunal to indicate that the applicant took steps to defer or that he was suffering from a mental health condition so grave in its nature that he was prevented from seeking a deferral of his studies due to the medical condition.
Based on the above, the Tribunal finds that the reason for the breach of the visa condition was not due to matters outside of the reasonable control of the applicant
The Tribunal gives this consideration significant weight in favour of cancelling the visa.
The extent of compliance with visa conditions
The applicant has not maintained enrolment in a registered course, resulting in non-compliance with subclause (2)(a) of condition 8202. The Tribunal has made a finding above that the reason for non compliance was not due to a matter outside of the control of the applicant.
Given the length of time that has passed since non compliance, being from 30 July 2018 onwards, the Tribunal considers the non-compliance with condition 8202(2)(a) to be significant.
There is no evidence before the Tribunal to indicate that the applicant has not complied with further conditions attached to the visa, however, the Tribunal considers that the requirement to maintain enrolment is an important requirement for the grant of a Student visa.
The Tribunal gives this consideration some weight in favour of cancelling the visa.
The degree of hardship that may be caused to the visa holder and any family members
The Tribunal acknowledges the applicant’s claims that time and money would be wasted if he could not complete his studies and that cancellation may also cause him some difficulty with his family.
There is no evidence that any family members in Australia will be negatively impacted by the cancellation of the applicant’s visa and he has been included as a dependent in a Skilled - Independent (SI 189) (Points-Tested) visa application lodged on 10 December 2019 which indicates that he is in a de facto relationship with a Chinese citizen.
The Tribunal gives these considerations some minor weight against cancelling the visa.
The visa holder’s past and present behaviour towards the Department
The applicant responded promptly to the NOICC and there is no evidence before the Tribunal to suggest that the applicant has been uncooperative with the Department or departmental staff.
The Tribunal gives this consideration a little weight against cancelling the visa.
Whether there are any persons in Australia whose visas would, or may, be cancelled under s140
The circumstances of this case are not such that any person’s visa would be consequentially cancelled under s140 of the Act. The Tribunal therefore does not give this factor any weight for or against a decision to cancel the visa for this consideration.
Legal consequences of a decision to cancel the visa
If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if she does not voluntarily depart Australia. The applicant would also be affected by section 48 of the Act, which may prevent her from applying for certain visas while in Australia, and Public Interest Criterion 4013, which may exclude her from being granted a visa for a specific period of time in the future.
However, these are mandatory and intended consequences of the legislation and given that the circumstances giving rise to the breach were not reasonably outside of the control of the applicant, the Tribunal consider these consequences would not be manifestly unfair in these circumstances.
The Tribunal therefore gives this consideration some weight in favour of cancelling the visa.
Australia’s international obligations
There is no evidence before the Tribunal to indicate the applicant has children in Australia, nor whether cancelling the visa would lead to a breach of Australia’s non-refoulement obligations. As there is no information before the Tribunal, the Tribunal does not give any weight for or against cancelling the visa for this consideration.
Any other relevant matters
The Tribunal has no further evidence before it of any other relevant matters.
The matters set out above do not reveal any bad faith on the part of the applicant, however, it is clear based on all the evidence set out above, that the reasons for the breach of the visa condition were not occasioned by matters that were outside the control of the applicant.
It is also clear that the considerations the Tribunal has have arrived at, on examining and weighing all the evidence before the Tribunal, lean towards the visa being cancelled and I so find.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Vanessa Plain
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
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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