Ju (Migration)

[2020] AATA 2778

Ju (Migration) [2020] AATA 2778 (1 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Peng Ju

CASE NUMBER:  1935246

HOME AFFAIRS REFERENCE(S):          BCC2019/3367205

MEMBER:Vanessa Plain

DATE:1 June 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 01 June 2020 at 1:13pm

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 – letter of offer to study at Bachelor level – CoE not obtained – length of non-compliance – reliance on agent – responsibility of visa holder – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 December 2019 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).

2. The delegate cancelled the visa on the basis that the applicant failed to maintain enrolment in a registered course that once completed, would provide a qualification from the Australia 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.  

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 18 May 2020 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the English and Mandarin languages.

5. 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

6. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202(2)(b) 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?

7. Condition 8202 provides as follows:

   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

   [...]

   (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.

8. Paragraph (2)(b) states the visa holder 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.

9. The applicant’s visa was granted on 2 September 2016 for the purpose of studying a suite of courses leading to a Bachelor of International Tourism and Hotel Management at Griffith University, which is an AQF level 7 course.  Prior to the commencement of the Bachelor Degree, the applicant was required to undertake and complete an English Language Program at Griffith University and a Diploma of Hotel Management at Queensland Institute of Business and Technology Pty Ltd.  

10. Information available to the Department in the Provider Registration and International Student Management System (PRISMS) indicated that on 2 March 2019, the applicant’s enrolment in the Bachelor course was cancelled by the education provider. 

11. PRISMS indicated that the highest CoE the applicant held thereafter was for a Diploma of Hospitality Management.  This enrolment is at AQF Level 5.  As the applicant was 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 them.

12. On 14 November 2019, a Notice of Intention to Consider Cancellation of Visa (NOICC) was sent to the applicant.

13. By written responses dated 21 and 22 November 2019 respectively, the applicant responded to the NOICC and agreed that there are grounds for cancellation.  The applicant provided reasons to the Department for the breach of the visa condition, as summarized by the Delegate, as follows:

    ·After the applicant’s visa was reinstated by the AAT, he was working to complete the course at QLD International Institute;

    ·The applicant then applied for a new university, which said to meet the entry requirements he needed to complete the one year course at Queensland International Institute.  A copy of a Letter of Offer was attached to his response;

    ·He intends to re-enrol in the Bachelor course and is looking forward to continuing his studies;

    ·The previous cancellation of his visa was a bad experience and he has made up his mind that he must study hard and not make any mistakes; and

    ·He hopes for the opportunity to continue studying and to complete his studies.

14. At the hearing on 18 May 2020, the applicant admitted they breached their visa condition.  The applicant stated that they didn’t know they were breaching their visa condition, that they relied upon the advice of their agent.  Th agent advised the applicant to enroll in his current course, because he was not enjoying Griffith University, the agent did not tell him he would be in breach of his visa.  The applicant informed the Tribunal that he has had an application in the AAT before.  He stated that his visa had been cancelled previously, but that the Tribunal Member hearing his case reinstated his visa, because the Member was not satisfied that he had breached a visa condition.  He stated further that he was enrolled in the Diploma of Hospitality Management which was to finish in December 2019, but his visa was cancelled.  He obtained an offer of enrolment at James Cook University to study a Bachelor degree, but they informed him he had to finish his Diploma first and they would require a graduate certificate for the Diploma before issuing the applicant with a CoE for the Bachelor degree. 

15. The Tribunal has had regard to the letter of offer from James Cook University.  The document is dated 22 November 2019 and it provides that the applicant is offered a place at James Cook University to study a Bachelor of Business.  The document further provides that in order to accept the offer, the applicant should sign the relevant pages and payment the appropriate advanced payment and provide any other requested documentation as listed in the relevant section.  The offer is indeed contingent upon the applicant demonstrating that he has successfully completed his Diploma of Hospitality Management course and it is clear as at the date of this hearing, the applicant did not obtain a CoE for this Bachelor degree.    

16. Based on the above, the Tribunal finds that the applicant has not complied with subclause (2)(b) of condition 8202 as he has not maintained enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which his visa was granted.

    Consideration of the discretion to cancel the visa

17. 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

18. The applicant’s current Student visa was granted on 2 September 2016 for the purpose of studying, among others, a Bachelor of International Tourism and Hotel Management, which once complete, would provide a qualification at AQF Level 7. The applicant’s CoE in this course was cancelled on 2 March 2019.    

19. PRISMS indicated that he then commenced study in a Diploma of Hospitality Management, which would provide a qualification at AQF Level 5.  This is two levels below the AQF level for which the visa was granted. 

20. The Tribunal acknowledges the applicant’s statement of results for his Diploma of Hospitality Management, which clearly indicates that the applicant has passed the subjects described in that document.  The Tribunal further acknowledges that the applicant procured an offer from James Cook University to study a Bachelor level degree.  The applicant stated that his agent told him that the Diploma he was studying will lead to a Bachelor degree at James Cook University, as the education provider has a relationship with James Cook University.  The applicant stated further that he met with a representative of James Cook University who told him that he had to finish his Diploma before enrolling in the Bachelor degree at James Cook University. 

21. Based upon the above, the Tribunal is satisfied that the applicant’s original purpose for entry and stay in Australia was for the purpose of study.  However, the Tribunal is concerned by the timing of the applicant’s procurement of the letter of offer from James Cook University, being shortly after receipt of the NOICC and the Tribunal note’s that despite the applicant’s intention to enroll in a Bachelor degree, he has not enrolled in a Bachelor degree and has not been enrolled in a Bachelor degree course since 2 March 2019.

22. Therefore, the purpose for which the visa was granted ended on 2 March 2019 and the purpose of the applicant’s current stay in Australia is therefore no longer in line with his visa and has not been in line with his visa for over 12 months.

23. The Tribunal affords this consideration some weight in favour of cancelling the visa.

    The extent of compliance with visa conditions

24. The applicant has not maintained enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which his visa was granted, resulting in non-compliance with subclause (2)(b) of condition 8202.  

25. Given the length of time that has passed since non compliance since 2 March 2019 when the applicant’s enrolment was cancelled, the Tribunal considers his non-compliance with condition 8202(2)(b) to be significant.  

26. The Tribunal acknowledges that the applicant did not intentionally breach the condition and accepts his claims that he did not know he was in breach by failing to maintain enrolment in an AQF level 7 course, because he relied on the advice of his agent.  However, the Tribunal considers it is the responsibility of visa holders to be aware of the conditions that attach to their visa.    

27. There is no evidence before the Tribunal to indicate that the applicant has not complied with further conditions attached to the visa. 

28. However, the Tribunal considers the requirement to maintain enrolment at the correct AQF level to be an important condition for the grant of the student visa and the Tribunal therefore 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

29. The applicant provided a written statement in support of his application in which he stated that an Australian graduation certificate will give him advantages in the highly competitive market in China.  If he goes back to China without completing his education, it will make it difficult for him to survive in Chinese society.  He says that he has a good academic record and wants the opportunity to finish his studies in Australia. 

30. In his evidence at hearing, the applicant expressed similar sentiments to those I have set out in the preceding paragraph. 

31. The Tribunal acknowledges that failure to complete a Bachelor qualification in Australia may be a setback for the applicant.  However, the Tribunal notes that there is no evidence before it to suggest that the applicant could not complete Bachelor studies at an education provider in China if he is required to depart the country.

32. The Tribunal further acknowledges that the applicant would suffer from some emotional and financial hardship as a result of being unable to complete his intended studies.  However, the Tribunal notes that there is no evidence of any family members in Australia who would be adversely affected by the cancellation of the applicant’s visa.

33. Further, the applicant’s visa expired naturally on 31 December 2019.  The Delegate’s decision record indicates that there was no evidence before the Department indicating that the applicant had lodged a new visa application for the purpose of enabling him to undertake and complete a Bachelor level degree.  This indicates that he would certainly not have been able to complete a Bachelor degree in the time allocated to the visa the subject of this application. 

34. The Tribunal gives these considerations some weight against cancelling the visa. 

    The circumstances in which the ground for cancellation arose

35. The ground for cancellation arose because the applicant did not maintain enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which his visa was granted, resulting in non-compliance with subclause (2)(b) of condition 8202 attached to his visa.

36. In the applicant’s NOICC response, the applicant provided a list of reasons regarding the circumstances in which the grounds for cancellation arose, as set out above.  The applicant stated in sworn evidence that they didn’t know they were breaching their visa condition, that they relied upon the advice of their agent.

37. The Tribunal accepts that the applicant took steps to correct his non-compliance with condition 8202(2)(b) by applying for enrolment in a Bachelor degree at James Cook University.  However, as set out earlier, the visa expired naturally on 31 December 2019 and the applicant has not lodged a further visa application.  It is therefore impossible for the applicant to undertake the Bachelor course during the currency of the visa the subject of this application. 

38. The Tribunal considers that it is the responsibility of all visa holders to be aware of the conditions attached to their visas, and the actions required by them in order to maintain compliance with visa conditions.  It is the responsibility of a student visa holder to contact the Department before they take any action to significantly change their circumstances (such as ceasing studies without obtaining alternate enrolment at the appropriate AQF level or not commencing further studies) and to clarify any consequences that may result from such a change, as the conditions of the visa are clearly set out in the visa grant notice or available through the Department’s Visa Entitlement Verification Online service.

39. According to departmental records, at no time did the applicant contact the Department for this purpose.    

40. Based on the above, the Tribunal finds that the reasons for the breach of the visa condition were not due to matters that were reasonably outside of the control of the applicant and the Tribunal gives this consideration significant weight in favour of cancelling the visa.

    The visa holder’s past and present behaviour towards the Department

41. 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.

42. 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

43. 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

44. 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.

45. However, these are mandatory and intended consequences of the legislation and given that the circumstances giving rise to the breach were reasonably within the control of the applicant, the Tribunal does not consider this to be manifestly unfair and the Tribunal therefore gives this consideration little weight against cancelling the visa.

    Australia’s international obligations

46. 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

47. The Tribunal has no further evidence before it of any other relevant matters.

48. Although the matters set out above do not reveal any bad faith on the part of the applicant, it is clear based on all the evidence set out above, that the reasons for the breach of the visa condition were not matters that were outside of the control of the applicant. 

49. 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.

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

    DECISION

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

    Vanessa Plain
    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.