Jiang (Migration)
[2020] AATA 3283
•25 June 2020
Jiang (Migration) [2020] AATA 3283 (25 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Songjun Jiang
CASE NUMBER: 2002725
HOME AFFAIRS REFERENCE(S): BCC2019/4945440
MEMBER:Vanessa Plain
DATE:25 June 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Statement made on 25 June 2020 at 12:55pm
CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant was not enrolled in a full time registered course – breached condition 8202 – unsatisfactory course progress – decision under review affirmedLEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994 (Cth), Schedule 8STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision dated 3 February 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 was not enrolled in a registered course of study. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 25 June 2020 to give evidence and present arguments.
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.
An examination of the Delegate’s Decision Record reveals that the applicant was granted a Student (Temporary) (class TU) subclass 500 visa on 10 April 2017 for the purpose of undertaking a Bachelor of Information Technology. That course was cancelled on 20 November 2017 for unsatisfactory course progress and non commencement of study. The applicant obtained enrolments in an Advanced Diploma of Business leading to a Bachelor of Business at Acknowledge Education Pty ltd. On 23 August 2018, these enrolments were cancelled and the applicant was not enrolled in a course, until 16 January 2018, when he obtained an enrolment in a Diploma of Leadership and Management at Dalton College.
A Notice of Intention to Consider Cancellation (NOICC) of the visa was issued to the applicant on 6 January 2020.
The applicant responded to the NOICC in writing on 18 January 2020. In that response, he sought to explain the reasons for his period of non-enrolment and provide reasons why the visa should not be cancelled. He stated that he was shocked when he received the NOICC and deeply regretted not carrying out his duties as an international student.
At the hearing, the applicant acknowledged that he was not enrolled in registered course between 23 August 2018 and 16 January 2020.
On the evidence before the Tribunal as set out above, the Tribunal is satisfied that the applicant did not maintain enrolment in a registered course of study from 23 August 2017 to 16 January 2020 and on that basis, he 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
In his written response to the NOICC, the applicant gave reasons why his visa ought not be cancelled, as summarized in the Delegate’s decision record, as follows”
·‘He indicated that the circumstances in which the ground for cancellation arose were outside of his control as “the darkest period I have ever experienced since I came to Australia did actually affect my life and mind to a large degree, which further led to my absence from school” [sic]. Specifically, he stated that he met a girl online, lent money (which should be used to pay for his tuition fees) to her and then realised that he “was completely fooled by her trick”. Because of this experience, he “felt extremely depressed and low, and was not in mood at all to attend classes” [sic]. He was also “broke and unable to pay for tuition fees”. It also affected the relationship with his parents who decided to stop supporting him financially.’
·‘He claimed that if his visa is cancelled, his life will be destroyed because his future
·“would be dim and dark if I return to my home country, unemployed and illiterate, and I would be regarded as a good-for-nothing both by my families and the society. It would be the end of the world for me, and I cannot imagine how my life would be” [sic].’
·‘He is currently enrolled in the Diploma of Leadership and Management course through Dalton College. He provided evidence that he has applied for the Bachelor of Business (Management) through RMIT for 2021 intake as he “intend to further my studies and try to improve myself” [sic]’
In his sworn evidence at the hearing, the applicant provided reasons that were consistent with the written reasons set out in his statement, as follows:
·The applicant couldn’t’ pay his fees for the Advanced Diploma of Business, which he half a semester in, before he stopped going to class. The financial trouble he incurred was a result of the difficulty he got into in a romantic relationship that turned sour. This caused him difficulty with his parents too.
·He is planning on going to RMIT to do a Bachelor course, he applied for it but due to his visa being cancelled, he does not have a letter of offer from RMIT at this stage.
·He stated that the incident with the woman he met is complex to describe. He is not the type of person who talks to others or seeks assistance/help from others.
·His purpose for being in Australia is to study and he wants to complete his degree and have a chance to study.
·He described the hardship of having to return to China without a degree, because it is very difficult to obtain a job in China without higher level education.
·He stated further that the situation with his parents will cause him some stress, having to return home in the circumstances (without a qualification).
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
The applicant arrived in Australia on 18 October 2012 on a Student (subclass 573) visa for the purpose of undertaking study in registered courses in Australia.
He was subsequently granted his current Student (subclass 500) visa on 10 April 2017 to undertake studies in a Bachelor of Information Technology degree. The PRISMS indicated to the Delegate that the applicant has not completed any course of study since the grant of his current Student visa. The Bachelor of Information Technology CoE was cancelled on 20 November 2017 due to unsatisfactory course progress and non-commencement of study. The applicant acknowledged the he did not hand in assignments which lead to the cancellation of this course.
The applicant then obtained enrolments in an Advanced Diploma of Business and Bachelor of Business at Acknowledge Education Pty Ltd. However, on 23 August 2018, these enrolments were cancelled by the education provider due to student notifies cessation of studies and non-commencement of study. The applicant informed the Tribunal that he encountered financial difficulty, due to the difficulties he experienced with the woman he met online and could not pay his fees, so he stopped going to class.
The applicant continued to reside in Australia without a valid enrolment for a period of approximately 17 months.
The Tribunal notes that since the applicant received the NOICC on 06 January 2020, he obtained an enrolment in a Diploma of Leadership and Management which was cancelled when his visa became cancelled, however, given the long period between enrolments, the Tribunal considers that the applicant had sufficient time to rectify his situation by enrolling in a registered course of study, but he only elected to do so after he was issued with the NOICC.
The Tribunal acknowledges the difficulties the applicant endured as a result of a romantic relationship turning sour, but the fact remains that the applicant did not hold valid enrolment for a period of approximately 17 months and although he has taken steps to re-enrol in a Bachelor course at RMIT, he has not achieved that task before the cancellation of his visa in circumstances where he has had a significant period of time in which he could have achieved that task.
The Tribunal considers the period of non enrolment to be a substantial period during which his purpose of stay was not for study, and not in line with the purpose of his Student visa was granted.
The Tribunal gives these considerations some weight towards the visa being cancelled.
The extent of compliance with visa conditions
The applicant has not complied with condition 8202(2)(a). The applicant has provided reasons for the breach which are set out above, namely, that due to financial stress occasioned by a romantic relationship turning sour, he was unable to pay his course fees to maintain enrolment. He stated further that the relationship had an adverse effect on his mood and he became quite depressed and dark about the whole situation.
The Tribunal notes that by virtue of the applicant’s enrolment in the Diploma of Leadership and Management in January 2020, he currently does not comply with condition 8202(2)(b) of his visa which requires him to maintain enrolment at the correct Australian Qualification Frameworks (AQF) level in which his visa was granted. The Diploma is an AQL level 5 course and his visa was granted for a Bachelor degree which is an AQF level 7 course.
The applicant informed the Tribunal that he was unaware of this condition 8202(2)(b).
The Tribunal considers that the requirement to maintain enrolment is integral to the grant of a student visa. When applicants apply for student visas, they warrant to the Department that they have sufficient funds to cover their tuition and living costs.
Further, while the Tribunal acknowledges the applicant’s struggles as set out above, the Tribunal is not satisfied that these matters constitute matters that were reasonably outside of the control of the applicant, therefore, the Tribunal is not satisfied that the failure to maintain enrolment was due to a reason that was beyond the control of the applicant.
Further, the Tribunal considers it to be the responsibility of visa holders to be cognisant of the conditions that attach to their visa and to contact the Department before undertaking different courses so as to clarify any consequences that may flow from changing courses and to ensure maintained compliance with visa conditions.
The Tribunal gives these considerations some weight in favour of the visa being cancelled.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant gave evidence that he will suffer hardship if his visa is cancelled, because it will be difficult for him to return to China and obtain a good job without higher education. It is clear that the applicant is concerned about bringing shame to his family and being shunned by his family and society. The Tribunal also acknowledges that the applicant may experience some difficulty by not being able to complete his course in Australia.
Based on the matters set out above, the Tribunal accepts that the cancellation has led to some personal detriment for the applicant which would be compounded by the continuation of the cancellation of the visa and the Tribunal gives this a little weight towards the visa not being cancelled.
Circumstances in which ground of cancellation arose
The ground for cancellation arose because the applicant did not maintain enrolment in a registered course of study for approximately 17 months.
The applicant’s reasons are set out in his written response to the NOICC and in his evidence at hearing as set out above.
In short, the applicant claimed that “several months ago” he was “tricked” by a girl he met online and transferred his tuition fees to her. This adversely affected his relationship with his parents who decided to stop supporting financially. As a result, the applicant contended that he began to feel extremely depressed and low, and was not in the right mood to attend classes. In his oral evidence, the applicant candidly admitted he did not have sufficient funds to pay his fees as a result of these matters.
The Tribunal is unable to place significant weight on the applicant’s claims of having been extremely depressed as he has not produced any medical evidence to support these claims.
Notwithstanding that the Tribunal acknowledges that the applicant suffered some difficulty as a result of this relationship, the Tribunal cannot be satisfied that these particular circumstances that led to the breach of the visa condition were outside of the control of the applicant.
The Tribunal notes that the applicant could have sought a deferment from his course if he “felt extremely depressed and low” particularly in circumstances where he was not inclined to seek professional help for his trouble because, as stated above, he is not the type of person to seek help from others.
Further as set out above, when an applicant for a student visa applies to the Department for that visa for the purpose of studying in Australia, the applicant warrants in their application form, that they have sufficient funds to cover to the cost of the course tuition and living expenses for the duration of their proposed course. The reasons for the applicant ultimately not having sufficient funds was not due to a reason beyond the control of the applicant in this case.
The Tribunal therefore finds that the reason for the breach of the visa condition was reasonably within the control of the applicant and the Tribunal gives this consideration significant weight in favour of cancelling the visa.
Past and present behaviour of the visa holder towards the Department
The applicant has conducted himself in good faith in his dealings with the Department and its staff. He responded to the NOICC promptly and in some details.
The Tribunal gives this some weight in favour of the visa not being cancelled.
Whether there would be consequential cancellations under s.140
There is no evidence before the Tribunal of any consequential cancellations as a result of the applicant’s visa being cancelled. The Tribunal therefore gives this factor no weight for or against cancelling the visa for this consideration.
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
If the visa were to be cancelled, the applicant would be excluded from making applications for certain types of visas and may be liable to detention and/or deportation if he does not depart the country. However, these are mandatory consequences of the legislation and in view of the fact that I have found that the reason for the breach of the visa was reasonably within the control of the applicant, I give this little weight in favour of the visa not being 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
Not applicable.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
Not applicable.
Any other relevant matters
There are no other relevant matters for consideration.
Although the matters set out above do not reveal any bad faith on the part of the applicant, it is clear based on the evidence that the reason for the breach of the visa was reasonably within the control of the applicant.
It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, 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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Statutory Construction
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Procedural Fairness
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Jurisdiction
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