Kong (Migration)

[2019] AATA 2412

Kong (Migration) [2019] AATA 2412 (25 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jie Kong

CASE NUMBER:  1809562

HOME AFFAIRS REFERENCE(S):           BCC2018/146423

MEMBER:D. Triaca

DATE:25 June 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 25 June 2019 at 3:19pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – English language proficiency requirement imposed on Master’s course – enrolled in unregistered English course – did not understand impact on visa compliance – inadvertent error – genuine intention to study – offer of employment condition on qualification – decision under review set aside

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 4 April 2018 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 was not enrolled 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.

3. The applicant appeared before the Tribunal on 7 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by her registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   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 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, 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)

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

9. It is common ground that the applicant did not have a CoE since July 2017. In written submissions provided to the Tribunal dated 19 March 2018[1] and in her oral evidence before the Tribunal, the applicant conceded that she was not enrolled in a registered course since 24 July 2017. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

   [1] The written submission are dated 19 March 2017, but it is apparent this is incorrect having regard for the fact that the NOICC was sent to the applicant in March 2018.

   Consideration of the discretion to cancel the visa

10. 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’.

    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 Austraila; Extent of non compliance with visa conditions.

11. The applicant was issued a Confirmation of Enrolment (CoE) to study a Master of Globa Media Communication at University of Melbourne with the condition she achieve an International English Language Testing System (IELTS) score of 6.5 with no band less than 6.

12. She states that she did not understand the requirement that course requirements in relation to the IELTS. However, once in Australia, she enrolled in an English course at Hawthorn Language Centre and started taking IELTS from November 2016. Despite her attempts, by February 2017, she had not achieved the required level of IELTS and was unable to commence the Master of Global Media & Communications.

13. Her evidence is that she particularly struggled with the writing component of the English testing. She says she enrolled in and continued to study English courses. She provided evidence of her having undertaken courses in Advanced General English at Hawthorn Learning Pty Ltd, an English language teaching school endorsed by the University of Melbourne as a provider of English language intensive courses for overseas students.

14. In mid-2017, she commenced studying at Wenbo Education Academy in Melbourne. Wenbo is a private language teaching school that advertises itself as helping students in Australia achieve their best results in IELTS, but it is not a registered course. She states that at the time she undertook private studying for IELTS she did not understand the difference between unregistered and registered study and at no stage did the private education provider indicate to her that it was not registered and she did not know that she was not complying with the visa requirements at the relevant time. Further, she states that the introduction to the private education provider was suggested by her classmates at Hawthorn Learning and she had become aware of others studying privately in order to boost their IELTS results.

15. She states that she studied at the Wenbo Education Academy for a period of approximately 6 weeks of 25 hours per week over a period of months in the second half of 2017. She states she paid approximately $70 per hour for this private course. She states she attempted the IELTS at least five times but could not pass the entry requirement. She states she missed the entry requirement by 0.5 points in her final attempt.

16. The Tribunal accepts her evidence that she did not understand that by ceasing her enrolment in the English language courses she was undertaking at Hawthorn and enrolling in an the unregistered English course as an alternative, she would be breaching a condition of her student visa. She did not understand that the Hawthorn course was a registered course and the Wenbo course was not a registered course and the critical importance of her being enrolled in a registered course for the purposes of complying with her student visa.

17. It appears on the evidence that the applicant‘s focus during 2017 was on studying English in order to improve her IELTS and enable her to enrol in her chosen course at Melbourne University. Having failed to obtain the required result, she has shifted her focus to a secondary preference, being a Master of Media, Practice and Industry. She has an offer to commence that course at UTS in July 2019. She is confident about her ability to complete this course and states that it is well regarded within the industry she hopes to find employment in in China.

18. The Tribunal accepted the applicant’s evidence that her non-compliance with the condition 8202 was due to an inadvertent error and if she had realised that ceasing her enrolment in the registered course and enrolling in an unregistered course would have had the effect of breaching her visa she would not have done so. In giving her the benefit of the doubt, the Tribunal took into account that at the relevant time, her English language proficiency was inadequate and it is possible she did not understand the critical importance of being enrolled in a registered course.

19. The Tribunal also accepts that the applicant arrived in Australia with an intention to study and intends to study further, evidenced by her plans to enrol at UTS. The Tribunal considers her attempts to continue to study in Australia including her enrolment in an English for Academic Purposes course and paying that tuition, and the fact she has attempted the IELTS tests on multiple occasions are indicative of a genuine intention to study.

20. Tribunal gives this factor weight towards the visa not being cancelled.

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

21. There is no specific evidence of hardship before the Tribunal. The Tribunal takes into account that there would be some financial hardship to due to her having paid fees towards further study which would be lost if the visa was cancelled.

22. She states, and the Tribunal accepts, that it would be difficult for her to be accepted into similar study in China due to her age and her not meeting the course requirements in China.

23. The Tribunal also takes into account that the applicant’s evidence is that she has an offer of employment to work as journalist at CRI, where her father worked, in China and that if her visa were cancelled, and she returned to China without any form of qualification, the job opportunity would be lost. The Tribunal considers there is some financial hardship to the applicant.

    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, the visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.

24. The circumstances of the visa cancellation are set out above.

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

25. There is no evidence before the Tribunal that the applicant has been uncooperative towards the Department and the Tribunal gives this some weight in his favour.

    Whether there would be consequential cancellations under s 140.

26. This matter is not relevant in this application and I give this factor no weight.

    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.

27. The applicant gave evidence that if the visa were cancelled she would return to China and therefore there is no indication that she would become unlawful or subject to detention. Accordingly, I give this factor no weight.

    Whether any international obligations, including non-refoulement and best interests of the children as primary consideration, would be breached as a result of the cancellation.

28. This matter does not appear relevant in this application as the applicant gave evidence she would return to China and if the visa was cancelled and did not give any reasons as to why she could not return to China. I give this factor no weight.

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

29. This matter is not relevant as the cancelled visa is a temporary visa and I give this factor no weight.

    Any other relevant matters.

30. The Tribunal takes into account that the applicant was the recipient of an insurance pay out when her father died and in those circumstances she is financially able to support herself whilst she studies in Australia.

31. There do not appear to be any other relevant matters in relation to the visa application.

32. The Tribunal has considered the applicant’s evidence, her documents, and written submissions filed on her behalf. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

33. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    D. Triaca
    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.