He (Migration)

[2020] AATA 5526

He (Migration) [2020] AATA 5526 (21 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ying He

CASE NUMBER:  2001666

HOME AFFAIRS REFERENCE(S):          BCC2019/3523383

MEMBER:Peter Newton

DATE:21 July 2020

PLACE OF DECISION:  Sydney

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

Statement made on 21 July 2020 at 1:24pm

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 – purpose of stay in Australia – circumstances giving rise to the non-compliance – responsibility of the visa holder – decision under review affirmed

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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision dated 24 January 2020 (Department’s Decision) 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 (Act).

2.The delegate cancelled the visa on the basis that the applicant did not comply with condition 8202(2) (b) attached to her student visa as she did not maintain enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which the visa was granted (i.e. a Bachelor of Business course which once completed would provide a Level 7 (Bachelor Degree) qualification from the Australian Qualifications Framework (AQF)).  The delegate was satisfied that the applicant’s enrolment in a Bachelor course was cancelled on 10 April 2017 and she did not subsequently attain 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.  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 Tribunal file records that on 5 June 2020 an Invitation to Attend the Hearing by telephone on 23 June 2020 at 10:00 am (NSW time) was sent to the applicant by email to [Email Address 1] and on 22 June 2020 at 11:00:50 am (NSW time) a SMS hearing reminder that the AAT hearing is on 23 June 2020, was sent to the applicant’s mobile number ([Mobile Number 1]).  The Administrative Appeals Tribunal Application for Review – online lodgement and payment details eM1- Application for review to the Migration and Refugee Division form records the applicant’s email address is [Email Address 1] and the applicant’s mobile number is [Mobile number 1].  On the morning of 23 June 2020 a hearing officer of the Administrative Appeals Tribunal contacted the applicant on her mobile phone ([Mobile Number 1]) and the applicant indicated that she did not wish to appear at the hearing. 

4.I am satisfied that the applicant received notice of the hearing scheduled for 23 June 2020 at 10:00 am (NSW time).  The applicant did not appear at the hearing and has not withdrawn the application for review.  Accordingly, I decided to determine the application on the papers.

5.I have reviewed the material contained in the Department of Home Affairs’ File in relation to the cancellation of the applicant’s Student (subclass 500) visa on 24 January 2020 and the Administrative Appeals Tribunal’s File in relation to the Application for Review of the Department’s Decision. The Administrative Appeal’s Tribunal file records that the applicant provided a copy of the Department’s Decision  to the Tribunal for the purpose of this review.

6.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

7.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 (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?

8.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).

9.In the present case, the applicant’s visa was cancelled on the basis that the applicant had not complied with subclause (2) (b) of condition 8202 attached to her visa granted on 20 January 2017.  The condition states (in part):

“(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; . . . ”

10.As indicated, the applicant’s student visa was granted on 20 January 2017.  The Department’s Decision states:

“ . . . Paragraph (2)(b) states she must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework (AQF) that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted.

The visa was granted in relation to the following registered courses:

CoE ID	Course	Education Provider	Start date	End date
88709914	General English Beginner to Advanced	Melbourne Institute of Technology	20/03/2017	24/08/2017
8870CB18	English for Academic Preparation	Melbourne Institute of Technology	02/10/2017	23/02/2018
8870F567	Bachelor of Business (Management)	Federation University Australia	19/03/2018	30/12/2020

The highest Confirmation of Enrolment (‘CoE’) in relation to which the visa was granted was Bachelor of Business (Management) which, once completed, would provide a Level 7 (Bachelor Degree) qualification from the Australian Qualifications Framework (AQF). Information available to the Department in the Provider Registration and International Student Management System (PRISMS) indicates that on 10 April 2017 the visa holder’s enrolment in the Bachelor course was cancelled by the education provider.

PRISMS indicates that the highest CoE the visa holder held at the time the NOICC was issued was for a Diploma of Business through Logic Entity Australia Pty Ltd. This enrolment is at AQF Level 5 (Diploma). As the visa holder is not enrolled in a course at the AQF Level 9 (Masters Degree) or Level 10 (Doctoral Degree), the circumstances of clause 8202(3) do not apply to her.

This indicates she has not complied with condition 8202(2)(b) as she has not maintained enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which the visa was granted. Based on this information, I am satisfied that there are grounds for cancelling her visa under s116(1)(b) of the Act because it appears she has not complied with condition 8202.

. . .

Reasons

The visa holder’s Student visa was granted subject to condition 8202. The visa holder’s enrolment in a Bachelor course was cancelled on 10 April 2017 and she has not subsequently attained 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. Therefore, she has not complied with a condition of her visa.

In response to the Notice, the visa holder provided explanations regarding the non-compliance. She states that she was unaware she was required to maintain enrolment at the AQF level to which her visa was granted. She also states that her friend told her she should enrol in a Diploma course and then study at an undergraduate level. However, I consider it to be the visa holder’s responsibility to ensure they are abiding by their visa conditions.

While I acknowledge the visa holder’s explanations she has provided in response to the Notice, I do not consider that they mitigate the non-compliance.

Therefore, as the visa holder’s Student (subclass 500) visa was granted in relation to an AQF level 7 course and she has failed 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, I am satisfied that grounds for cancellation under s116(1)(b) exist.”

1. The Department’s Decision indicates that in response to the Notice of Intention to Consider Cancellation (NOICC) dated 17 December 2019 the applicant provided a written response on 19 December 2019.  I have reviewed that written response.  The applicant provided to the Tribunal the identical written response in support of her application for review.  The written response provided by the applicant states:

2. In her written response the applicant did not dispute that she has not maintained enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which the visa was granted (i.e. the Bachelor of Business (Management course)).

3. Based on the information contained in the Department’s Decision which I have set out above and as the applicant did not dispute that she has not maintained enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which the visa was granted (i.e. the Bachelor of Business (Management course)), I find that the applicant has not complied with subclause (2)(b) of condition 8202 attached to her visa.

   Consideration of the discretion to cancel the visa

4. 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 in her written response, by reference to the following factors in the Department’s Procedural Instruction ‘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

5. The applicant was born in China on [date].  The Department’s Decision records that the applicant was granted a Student (subclass 500) visa on 20 January 2017 to undertake and complete the General English Beginner to Advanced course (887009914), the English for Academic Preparation course (8870CB18) and the Bachelor of Business (Management) Course (8870F567).

6. In her written response, referred to above, the applicant submitted that: “. . . I applied for English course at Australia Onsung International College.  When I studied for one year, I successfully passed the school language test, entered Time Academy in April 2018, and started Diploma of Leadership and Management . . . I transferred to Abbey School in April 2019 to keep studying diploma course.  After studying for more than half a year, I feel that I have gradually adapted to my study in in Australia . . . I wish that I can finish my studies before returning home. . . ”

7. On 2 July 2020 the Tribunal sent to the applicant and Invitation to Comment on or Respond to Information in accordance with s 359A of the Act.  The Invitation to Comment on or Respond to Information attached a copy of the record from the Provider Registration and International Student Management System (PRISMS) contained in the Department’s file which records the following:

8. The Invitation to Comment on or Respond to Information invited the applicant to respond to each entry in the PRISMS record by 16 July 2020.  In accordance with s 359A of the Act, the Invitation to Comment on or Respond to Information states, amongst other things:

   “. . .

   This information is relevant to the review because the Tribunal considers that the information contained in the PRISMS record would provide grounds for affirming the decision under review;

   If we rely on this information in making our decision, we may find that you have never completed any registered course of study, you have failed to maintain enrolment a registered course at the same level as, or higher level than, the registered course in relation to which the visa was granted (i.e. a Bachelor of Business course which once completed would provide a Level 7 (Bachelor Degree) qualification from the Australian Qualifications Framework) and you are presently not enrolled in any course of study. These factors support a finding that the purpose of your stay in Australia is no longer aligned with the purpose of study as required by her Student visa and on the evaluative exercise the Tribunal is required to undertake, these factors give significant weight in favour of cancelling the visa.

   . . . ”

9. The Tribunal did not receive a response to the Invitation to Comment on or Respond to Information.

10. The evidence before the Tribunal establishes that on 20 January 2017 the applicant was granted a Student (subclass 500) visa for the purpose of studying the two English courses  and the Bachelor of Business (Management) course outlined above.  The evidence before the Tribunal establishes that the applicant did not complete any of those courses and each course was cancelled. The evidence before the Tribunal establishes that the applicant obtained enrolment in a Diploma of Leadership and Management course and enrolment in a Diploma of Business course and her enrolment in each of those courses was cancelled for unsatisfactory course progress.

11. As the applicant has never completed any registered course of study, has failed to maintain enrolment at the required AQF level and is presently not enrolled in any course of study, I am satisfied that the purpose of her stay in Australia is no longer aligned with the purpose of study as required by her Student visa.  I give this consideration significant weight in favour of cancelling the visa.

    ·     The  extent of compliance with visa conditions

12. Condition 8202 is a mandatory condition applied to student visas which obliges visa holders to remain enrolled in a course of study and, depending on the course, either meet attendance requirements or meet academic progress requirements.

13. Student visas are granted for the purpose of studying towards, and achieving, an educational qualification in Australia.  The student visa program provides an avenue to allow non-citizens and non-permanent residents to study in Australia.  In order to be granted a student visa, the visa holder’s primary intention must be to study, maintain enrolment, attendance and course progress, in a Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) registered course.

14. The PRISMS record quoted above indicates the applicant has not been enrolled in a Bachelor course (or higher) since 10 April 2017 and has failed to maintain enrolment in any registered course of study since 19 December 2019.  As the applicant has failed 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, she is in breach of condition 8202(2)(b).  As the applicant has failed to maintain enrolment in any registered course of study she is in breach of condition 8202(a).  I give this consideration significant weight in favour of cancelling the visa.

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

15. The written response provided by the applicant submits that the she has “been studying hard for these years.  I sincerely hope you can give me the chance to complete my study.”  I give no weight to this submission because the PRISMS record quoted above records the applicant has not completed any course and she has been enrolled in and has failed to maintain enrolment in any registered course since 19 December 2019.  Accordingly, if the Department’s Decision is affirmed, this will not prevent her from completing a course of study because at the time of the decision there is no evidence that she is enrolled in and studying a registered course of study.  To that extent, if the Department’s Decision is affirmed, the applicant will not suffer hardship.

16. There is no evidence of any hardship that may be caused by the cancellation of the applicant’s visa.  Notwithstanding this, I accept that a degree of hardship may be caused if the decision of the Department is affirmed, and I give this consideration some but little weight in the applicant’s favour against cancelling the visa.  

    ·      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  

17. The applicant’s written response submits that her poor English language, “doubts about my study plan” and the encouragement of a friend, contributed to her changing her studies from a Bachelor level to a Diploma level.  I give no weight to this submission because: - the applicant obtained a student visa as a foreign student and came to Australia to study the courses for which her student visa was grant; I consider that it is the responsibility of a visa holder to understand the terms and conditions of a visa and to take all necessary steps to comply with the terms and conditions of a visa; I consider that a responsible student holding a student visa would promptly notify the Department of Home Affairs of any difficulty in complying with the terms and conditions of a visa and, if appropriate, seek a change of any conditions of a visa that the visa holder was having difficulties complying with; there is no evidence that the applicant notified the Department of Home Affairs of any difficulties she was experiencing in complying with the terms and conditions of her visa until after she received the NOICC; and there is no evidence that the applicant sought a variation of the terms and conditions of her visa. 

18. The applicant also submits she was unaware of her visa conditions. I give no weight to this submission because I consider that it is the responsibility of a visa holder to understand the terms and conditions of a visa and to take all necessary steps to comply with the terms and conditions of a visa.

19. The applicant’s student visa was cancelled because the applicant failed to maintain enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which the visa was granted (i.e. the Bachelor of Business (Management course)).  I give this consideration significant weight in favour of cancelling the visa.

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

20. There is no information to indicate any specific matters of relevance regarding the applicant’s behaviour towards the Department.  There is no evidence the applicant has been unco-operative with the Department of Immigration.  On the evaluative exercise I am required to undertake, I regard this consideration as neutral. 

    ·     Whether there would be consequential cancellations under s.140

1. There are no dependant visa holders.  Accordingly this factor is not relevant to the Tribunal’s consideration of whether the visa should be cancelled.

   ·     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

2. If the Tribunal affirms the decision to cancel the applicant’s visa, the applicant will be 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 from Australia. Additionally, the applicant will be subject to section 48 of the Act which means that she will have limited options to apply for further visas in Australia. She will also be subject to Public Interest Criterion 4013, which may prevent her from being granted particular temporary visas for a specific period.

3. The Tribunal accepts that there will be mandatory legal consequences to the applicant if it affirms the decision to cancel the applicant’s visa.  However, these consequences are the intended consequences of a visa holder’s failure to comply with the terms of a visa.  Accordingly, on the evaluative exercise I am required to undertake, I regard this consideration as neutral.

   ·     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

4. There is no evidence indicating that the circumstances of this case are such that would engage Australia’s International obligations and the cancellation of the visa would lead to a breach of Australia’s international obligations.  Accordingly, on the evaluative exercise I am required to undertake, I regard this consideration as neutral.

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

5. This factor is not relevant to the Tribunal’s consideration of whether the visa should be cancelled.

   ·     Any other relevant matters.

6. I am not aware of any other relevant matters in relation to the Tribunal’s consideration of whether the visa should be cancelled.  

   Conclusion

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

   DECISION

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

   Peter Newton
   Member

   
   

   ATTACHMENT

   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.