Hong (Migration)

[2018] AATA 5862

Hong (Migration) [2018] AATA 5862 (22 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Liang Hong

CASE NUMBER:  1702370

HOME AFFAIRS REFERENCE(S):           BCC2017/218581

MEMBER:Helen Kroger

DATE:22 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 22 October 2018 at 12:16pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – not enrolled in registered course for more than 12 months – emotional distress – family issues – lack of evidence – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116
Migration Regulations 1994, Schedule 8, condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 February 2017 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 applicant, Mr Hong, a China national, was granted a visa on the 14 March 2014 to study in Australia.

3. On the 24 January 2017, Mr Hong was sent a Notice of Intention to Consider Cancellation of his student visa inviting him to comment on a potential breach of condition 8202 which was imposed on his visa. The applicant did not respond to the NOICC nor provided a statement of explanation to the delegate. On the 9 October 2018, an explanatory statement was provided to the Tribunal by an appointed migration representative on behalf of the applicant.

4. The delegate cancelled the visa on the basis that the applicant has not maintained enrolment in a registered course and the grounds for cancelling the visa outweighed the grounds for not cancelling the 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.

5. The applicant provided a copy of the delegate’s decision to the Tribunal and appeared before the Tribunal on 16 October 2018 to give evidence and present arguments. The applicant’s appointed migration representative attended the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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 (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?

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 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).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant was invited to respond to the NOICC on the 24 January 2017, and no response was received by the Department indicating the reasons why the visa should not be cancelled. The applicant provided a written statement to the Tribunal through his appointed migration representative on the 9 October 2018 before the hearing on the 16 October 2018. At the hearing, the alleged breach (as discussed by the delegate in his/her decision), was put to the applicant and reference was made to the delegate’s decision record that indicated that he discontinued his enrolment in a registered course of study mid 2015 after completing only one term of his Diploma of Commerce course. This was not disputed by the applicant during the hearing who provided an explanation as to why he didn’t continue his studies.

10. On the evidence before the Tribunal, namely the applicant’s admission during the hearing and the explanatory statement sent to the Tribunal on the 9 October 2018, the Tribunal finds that 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.

12. 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’.

13. The Tribunal has considered the applicant’s evidence provided at the hearing along with the written submission provided to the Tribunal on the 9 October 2018.

14. The information provided to the Tribunal at the hearing has been considered by the tribunal in its exercise of discretion as outlined below.

    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

15. The applicant is a Chinese national who is 23 years and six months of age. He first travelled to Australia in October 2010 to study English and commenced Year 10 secondary school studies in 2011. He successfully completed Year 12 in 2013 and enrolled in a Bachelor of Agriculture at the University of Melbourne, commencing March 2014. He explained to the Tribunal that he was encouraged to enrol in this Faculty by his parents who consider the agriculture sector to be of great significance that will potentially provide many opportunities and future career prospects. The applicant claims that he found the subjects, that were largely science and math based, particularly difficult and hard, and that he did not enjoy studying the course. His parents have strongly influenced the applicant’s choices, and sent him to Australia to complete his secondary school education, with a view to continuing in higher education studies.  He was an only child for a considerable time until a sister was born in 2011. His family live in China.

16. The applicant submitted to the Tribunal in his written explanatory statement along with the evidence provided at the hearing, that he decided to change courses and enrolled in a Diploma of Commerce at Deakin University in mid 2015.  At the same time he claims that he suffered extreme emotional distress that manifested itself in many ways including total disengagement from family and friends, and he didn’t attend classes. The personal family issue that he claims caused a deep depression related to the biological identity of his sister who was born in 2011, and at that stage was 4 years of age. His parents had been experiencing relationship issues and it was disclosed that the biological father of his sister was a former acquaintance of his mother’s. The applicant explained the dramatic impact this had on his state of mind, and the significance and shame of this revelation within the cultural context. The applicant became very isolated, cut off all contact, indicated that he was in a depressive state for a year, not talking to anyone at all for two to three months and at this time dropped out of his studies.  He claims that he spoke with an Aunty in Australia who attempted to counsel him. His mother paid his course enrolment fees and accordingly was aware of the situation. In addition to his evidence, a personal explanatory statement from his mother was provided to the Tribunal, including medical information relating to her family. 

17. According to the delegate’s decision record provided by the applicant to the Tribunal, he enrolled in a Diploma of Commerce (MIBT) in February 2015 after cancelling his enrolment in the Bachelor of Agriculture, with the COE cancelled as he didn’t commence studies. He then enrolled in a Diploma of Commerce (Deakin) in March 2016, and the COE was cancelled due to non-commencement of studies. The applicant then enrolled in a Diploma of Leadership & Management (Cambridge International College) and a Bachelor of Business (Cambridge), but with the cancellation of his student visa in February 2017, the College cancelled his enrolment. The applicant has not disputed the delegate’s account of his enrolment record that indicates that he has only studied for a total of fifteen months during this time.

18. The applicant has stated that because he hasn’t finished any higher level degrees in Australia, that it is impossible to find a good job. In his explanatory statement to the Tribunal, it is not clear if he is reflecting on the employment situation in Australia or China. In his migration agent’s submission to the Tribunal, it is claimed that the applicant married in July 2017 to an Australian citizen.

19. The Tribunal has carefully considered all the evidence before it and gives some weight in favour of the applicant given he did commence his first year of the Bachelor of Agriculture after completing Year 12. The Tribunal has considered the decision of the applicant’s parents to send him to Australia when he was 14 years of age to be educated in Australia and have the benefit of an Australian education. The Tribunal has also considered the personal family issue that caused his fragile emotional state, and notes that he was unable to provide any medical evidence to support this claim. Given the significance of the period of time when the applicant was not enrolled in a registered course of study and did not attempt to contact the Department to advise them of the circumstances, the Tribunal finds that these considerations outweigh any weight given in favour of not cancelling the applicant’s visa.

    The extent of compliance with visa conditions

20. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal is mindful of the significance of the breach.  As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

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

21. The applicant explained at hearing the significance of his parent’s decision to send him to Australia at the age of 14 years to complete his secondary schooling before embarking on higher education sector studies. He spoke at length about the emotional difficulty he had in reconciling the knowledge that his sister had a different biological father to him, the way in which this would be considered in China, the cultural nuances that would impact on he and his family and the “shame” he felt.  Whilst he explained that he was talking again with his mother, that he continued to love his sister, and that his family had continued to strongly encourage him to resume his studies, it was apparent that the applicant still became upset when discussing the subject.

    The applicant submitted that his future prospects were greater if he were to complete an Undergraduate degree in Australia, with an extraction from his submission below.

    Undergraduate degree is my dream because I clearly understand that a deep learning can sharpen my skills and enhance my professional knowledge. With the degree, I can look for a job and adapt into working environment easier in the future.

22. His parents are civil servants in China who continue to financially support him. He married an Australian citizen in 2017 and there is no evidence before the Tribunal to indicate whether his wife would return to China with him, should his visa be cancelled.

23. The Tribunal has considered the evidence before it, including the financial and personal commitment and investment in the applicant to ensure that he received an Australian education and qualification. The Tribunal appreciates the disappointment that would be experienced by the family and applicant should the visa be cancelled and has also considered the emotional state of the applicant and how he has dealt with personal, family issues of a sensitive nature. The Tribunal has also considered the claim that the applicant has married in mid 2017 to an Australian citizen.

24. The Tribunal appreciates that a cancellation would cause some emotional duress to the applicant and his immediate family and that the applicant and his wife would need to consider their options in regard to their relationship. However the Tribunal gives more weight to the significance of the breach, and the time that has elapsed since the applicant was enrolled, than the hardship potentially caused to the applicant and his Partner and the distress caused to his family.

    Circumstances in which ground of cancellation arose

25. As outlined above, the applicant submitted both at hearing and by way of written submission, the personal circumstances around the time when he cancelled his studies. His full written statement to the Tribunal is extracted below :

    My name is Liang Hong, I am currently holing BVE in Australia. I first came to Australia in Oct.2010. I finished VCE program from East Doncaster Secondary College at the end of 2013, and then enrolled Into Bachelor of Agriculture at the University of Melbourne in March 2014 under my parents' suggestion. Duringthe period of study of Bachelor of Agriculture program, I gradually realized that agriculture program was too difficult, which included a lot of biology, chemistry and relevant units. Instead, I found I have the real interests in business program. However, based on my academic result, I could not make internal transfer; asa consequence, I finally made decision to transfer to Deakin College (Former name: MIBT) to study Diploma of Commerce course, followed by Bachelor of Commerce at Deakin University.

    In Feb. 2015, I transferred to Deakin College to study Diploma of Commerce course, and I withdrew my enrolment after one trimester course. My COE at Deakin College was cancelled on 16 July 2015. During the period from July 2015 to Nov. of 2016, I didn't enrolled In any registered course because

    The painful things happened in my life, which badly affected my emotions and made me depressed.

    I have alittlesister who wasbornin 2011. She brought bright and great joy to my whole family, especially to me, as I was the only child in the family in the past. Although we met only few times a year due to my overseas study, we enjoyed close relationships and treasured every moment that we spent together. However, my happy life was ending in the middle of 2015. The relationship between my father and mother was broken because my father was not the biological father for my sister. I love my mother, but I really hated what she did to me and to our family. The news gave me a bigshock and ruined all what I expected in my life. I felt that mylifewas completely collapsed, andin a longtime,I refused to talk to my mother andsister, and was in a very bad emotions. I lost appetite, felt depressed and nervous, and suffered a lot through insomnia. I was self-isolated and stopped communication with my friends for a long time, sometimes, I even locked myself in the room. I spent almost one year to recover from it. Since the middle of 2016, I gradually accepted this fact and contacted withmy mother and sister. Anyway, my sister was Innocent. Since the middle of June, my grandfather's health was getting worse. He was in hospital for several times due to the serious illness, which made me very worried and depressed again. I have a very close relationship with my grandfather, and I really worried that  he  would suddenly left me. His most wanted wish is to see me graduate from University. Under my family's support and consultation, I finally relived from depressed emotions attheendof2016.

    I understand that I had waste a lot  oftime, so I decided to  cheer up and to  go back to study again. Through applying, I appreciated that Cambridge International College (CIC) gave me opportunities to issue me the packaged offer. My COEs were received in Dec. 2016.

26. At hearing, the applicant was visibly agitated when describing the personal circumstances he experienced when learning of his sister’s paternity. At the same time he discussed the difficulty he had in studying agriculture and the strong science bias embedded in the degree course he was studying. The Tribunal has noted his change to a diploma in business and that he contacted the course provider to advise that he wasn’t continuing with his studies. Whilst the Tribunal gives consideration to the above circumstances and is not unsympathetic with the situation the applicant found himself in, the Tribunal has considered the applicant’s actions in not contacting the Department to advise the delegate of the situation or not considering other possible courses of action in view of the requirements imposed on the visa that the applicant held. Given these circumstances, the Tribunal gives limited weight to these reasons provided by the applicant and more weight to the period in which the applicant was not enrolled in a registered course of study. As such, the Tribunal finds that these considerations outweigh any weight given in favour of the applicant and not cancelling the visa.

    Past and present behaviour of the visa holder towards the department

27. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach.

    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

28. It is unlikely that the visa applicant would be detained but rather provided with a time limited period in which he can leave the country or apply for review of the decision.

    Whether any international obligations would be reached as a result of a cancellation

29. There is nothing before the Tribunal to indicate there are international obligations to consider.

    Any other relevant matters

30. The Tribunal notes that the applicant did not respond to the NOICC sent on the 24 January 2017 and the application for review was received on the 10 February 2017. The applicant’s explanatory statement with supporting documentation is dated 9 October 2018. Whilst the applicant seeks to continue studying in Australia, there is no evidence before the Tribunal to indicate any further plans or intentions. The applicant is married to an Australian citizen and his parents continue to financially support him. Whilst the Tribunal is not unsympathetic to the applicant’s personal circumstances, the applicant has an extended family who continue to support him and there is nothing to suggest that this would not continue if he returned to China. Subject to the requirements set out in the Act, s.48(1)(b)(ii) regarding further visa applications, a cancellation of his visa does not prevent him from re applying at a later stage or have an application for said visa made on his behalf.

31. The Tribunal has considered the applicant’s statements however the breach is significant. As a visa holder who is bound by the conditions on the visa, he made no attempt to inform the Department or rectify the situation and the Tribunal places significant weight on the length of the breach. The fact that the applicant was upset with his mother does not explain why he dropped out of classes of over twelve months. As such, the Tribunal finds that the length and significance of the breach outweighs the applicant’s explanations.

1. The Tribunal has considered all factors listed above both individually and cumulatively in the context of the breach. The Tribunal finds that the breach in excess of two years is significant in the context of a student’s study period and the fact that he would be well aware of the expectations placed on him, along with the fact that he made no attempt to contact the Department, and indeed, made no attempt to return home. As such, considering the circumstances as outlined by the applicant during the hearing, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   Helen Kroger
   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.