Lai (Migration)

[2017] AATA 2751

Lai (Migration) [2017] AATA 2751 (6 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zhaoyin Lai

CASE NUMBER:  1620138

DIBP REFERENCE(S):  BCC2016/3310843

MEMBER:Michael Ison

DATE:6 December 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 06 December 2017 at 4:23pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Length and seriousness of breach of condition – Failure to enrol in a registered course – Lack of credibility to key claims

LEGISLATION
Migration Act 1958, ss 116(1)(b), 362B(1A)(a)
Migration Regulations 1994, Schedule 8 Condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 18 November 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. Mr Lai, the applicant, is 20 years old and arrived in Australia in February 2015 from China.

3. The delegate cancelled Mr Lai’s visa on the basis that Department of Immigration and Border Protection records indicated that Mr Lai had not been enrolled in a registered course of study from 27 November 2015, contrary to the requirements of condition 8202(2)(a) of Schedule 8 to the Migration Regulations 1994 (the Regulations). The delegate went on to consider that the considerations in favour of cancellation outweighed those against cancellation and cancelled the visa.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether Mr Lai’s visa should be cancelled.

5. On 23 October 2017, Mr Lai was invited to appear before the Tribunal to give evidence and present arguments in relation to his application for review. The hearing was scheduled for 14 November 2017.

6. On 30 October 2017 Mr Lai’s registered migration agent emailed the Tribunal to advise that Mr Lai “… is not contactable by any means”.[1]

   [1] Tribunal file, folio 49.

7. Mr Lai’s application for review was not withdrawn. The hearing was not cancelled and the Tribunal remained prepared to hear Mr Lai’s application. Mr Lai did not appear before the Tribunal on 14 November 2017.

8. As Mr Lai did not attend the scheduled hearing and given the written response of his registered migration agent, the Tribunal is satisfied Mr Lai has chosen not to participate further in the Tribunal’s review process.

9. Accordingly, this decision is made pursuant to s.362B(1A)(a) of the Act which enables the Tribunal to make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal.

10. For the following reasons, the Tribunal has concluded that the decision to cancel the Mr Lai’s visa should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The Tribunal has had regard to the material contained on Tribunal case file 1620138 and the Department case file BCC2016/3310843.

12. The issue in the present case is whether Mr Lai, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Regulations. If he has breached that condition, under s.116(1) of the Act, his visa may be cancelled.

    Did the applicant comply with condition 8202?

13. 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)(a)

    ·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).

14. In the present case, Mr Lai’s visa was cancelled on the basis he was not enrolled in a registered course.

15. The Department’s decision dated 18 November 2016 records:

    Based on evidence available to me in the Provider Registration and International Student Management System (PRISMS), it appears [Mr Lai] has not been enrolled in a registered course of study since 27 November 2015.[2]

    [2] Tribunal file, folio 27.

16. The Department’s decision also records that the Department sent Mr Lai a Notice of Intention to Consider Cancellation of his visa (NOICC) on 4 November 2016.

17. Mr Lai responded to the NOICC by sending a 39 page submission to the Department on 11 November 2016. Mr Lai’s submission included eight pages responding directly to the NOICC and 31 pages of attachments and supporting documents.

18. Mr Lai’s registered migration agent made a similar submission with Mr Lai’s application for review to the Tribunal dated 29 November 2016. Apart from including the Department’s decision letter, some extracts of Mr Lai’s passport and a ‘re-worked’ version of Mr Lai’s NOICC submission[3], the two submissions are essentially the same. The rest of the attachments included in both submissions are the same.

    [3] The submission from Mr Lai’s agent is a ‘re-worked’ version of Mr Lai’s submission because it contains the same information, largely in the same order, often just using slightly different grammar. The latter version leaves out a half page timeline and three pages that specifically responded to the genuine temporary entrant requirements from Mr Lai’s earlier submission.

19. For the purposes of the rest of this decision, I refer to the two submissions as Mr Lai’s submission.

20. In his submission Mr Lai stated that:

    ·he commenced his studies in a Diploma of Business at Monash College in 2015;

    ·he discontinued his studies at Monash College in November 2015 to return to China to visit his gravely ill grandfather;

    ·on 14 December 2015, before he left for China, Mr Lai sought to transfer his studies to an undergraduate course at Deakin University;

    ·he left for China on 17 December 2015;

    ·he received an offer of enrolment in a Bachelor of Commerce from Deakin University on 18 January 2016;

    ·due to his grandfather’s health deteriorating, Mr Lai stayed in China longer than he had anticipated, missing the commencement of the first semester in 2016;

    ·Mr Lai returned to Australia on 19 February 2016;

    ·Mr Lai missed the start of the school semester which meant he could not resume his studies until July 2016;

    ·however, Deakin university said Mr Lai could not commence his Bachelor studies immediately and needed to complete a “pathway course” which caused him to also miss the July 2016 enrolment;

    ·having to study a pathway course did not suit Mr Lai, who intended to complete his studies in as short a time as possible so he could return to China to help care for his grandfather. Mr Lai chose to try to transfer his studies again;

    ·he then intended to enrol in a Bachelor of Information Technology at the University of Canberra, but it did not have a November enrolment;

    ·his career plan is to return to China to gain experience in the information technology sector, preferably with an overseas company, and then eventually establish his own information technology business with friends who have a similar interest;

    ·Mr Lai chose to continue English language studies in Melbourne, having already signed an application form in October 2016 to start the undergraduate course at the University of Canberra in February 2017;

    ·Mr Lai completed two English language courses, with the second course concluded on 11 November 2016, with the school holidays then commencing; and

    ·During this time, Mr Lai’s student visa was cancelled by the Department on 18 November 2016 and he subsequently returned to China in 2017.

21. Mr Lai claims in his response to the NOICC that he studied the two English language courses in 2016 to “… bridge the study gap”.[4] In its decision letter the Department noted the courses were not registered courses, nor were they delivered by an approved provider.[5]

    [4] Department file, folio 9.

    [5] Tribunal file, folio 25.

22. Based on the information before the Tribunal, the Tribunal is satisfied that Mr Lai was not enrolled in a registered course of study with an approved provider from 27 November 2015 until Mr Lai’s student visa was cancelled on 18 November 2016. Accordingly, Mr Lai has not complied with condition 8202(2) and the ground for cancellation of his visa is made out.

    Consideration of the discretion to cancel the visa

23. Having found that Mr Lai has not complied with a condition of his visa, the Tribunal must consider whether to exercise its discretion to cancel his visa.

1. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

   The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel or remain in Australia

2. The Department in its decision letter did not make any conclusive statement in relation to what Mr Lai’s original purpose was in coming to Australia. The decision letter only noted:

   During the application process for his student visa [Mr Lai] stated that his intended purpose of travel to and stay in Australia was to study.[6]

   [6] Tribunal file, folio 26.

3. Given the lack of evidence to the contrary, the Tribunal accepts that at the time of application for his visa Mr Lai’s intention was to travel and stay in Australia temporarily to study.

4. However, the Tribunal gives this consideration little weight towards not cancelling Mr Lai’s visa. Mr Lai has failed to enrol in a registered course since 27 November 2015 but has remained in Australia. Prior to the cancellation of his visa, Mr Lai had nearly 12 months to rectify his failure to maintain enrolment, but did not do so.

   The extent of compliance with visa conditions

5. There is no information before the Tribunal to indicate that Mr Lai is in breach of any condition of his visa, other than condition 8202.

6. Mr Lai failed to enrol in a registered course for nearly 12 months prior to the cancellation of his visa. The Tribunal considers the extent of Mr Lai’s non-compliance with condition 8202 to be significant.

7. The Tribunal places considerable weight on this consideration supporting the Tribunal exercising its discretion to cancel Mr Lai’s student visa.

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

8. Mr Lai’s response to the Department’s NOICC does not address the hardship, if any, that he, his family or anyone else may suffer if Mr Lai’s student visa is cancelled.

9. The Tribunal has no information before it as to the financial circumstances of Mr Lai or his family.

10. Whilst Mr Lai has not directly addressed the hardship he or his family may suffer if his student visa remains cancelled, his response to the NOICC has set out the importance Mr Lai attached to completing his studies.

11. The Tribunal is able to infer from Mr Lai’s response to the NOIC that he is likely to feel he will be hindered in his career and earning capacity if he does not complete his Australian studies. The Tribunal accepts that this would cause Mr Lai financial and possibly emotional hardship.

1. Similarly, the Tribunal is prepared to infer that Mr Lai’s family (including his grandfather) would be disappointed in him if, having spent a considerable amount of money on his education in Australia, Mr Lai returned to China without completing his studies in Australia. The Tribunal accepts that this could cause Mr Lai’s family emotional hardship.

2. As the Tribunal is only inferring the hardship Mr Lai and his family may face from the cancellation of his student visa, it places little weight on this consideration supporting the Tribunal not exercising its discretion to cancel Mr Lai’s student visa.

   Circumstances in which a ground of cancellation arose

3. The circumstances of Mr Lai’s breach of his student visa are set out in paragraph 18 above.

4. Mr Lai’s response to the NOICC attached the following documents:

   ·two medical certificates from China providing evidence of his grandfather’s medical condition;

   ·an application form to study a Bachelor of Business at Deakin University;

   ·an offer of enrolment in a Bachelor of Commerce at Deakin University dated 18 January 2016;

   ·email correspondence from Deakin University about a deferral of studies;

   ·confirmation of enrolment in a full-time English language course between 1 March 2016 and 30 June 2016;

   ·confirmation of enrolment in a full-time English language course between 1 August 2016 and 11 November 2016;

   ·academic records for the above two courses, showing Mr Lai’s International English Language Testing System (IELTS) scores;

   ·Mr Lai’s IELTS answer and task sheets showing completed work and results; and

   ·an application form to study a Bachelor of Information Technology at the University of Canberra.

5. The attachments to Mr Lai’s response to the NOICC are consistent with his recollection of the circumstances leading to the cancellation of his student visa, as set out in his response to the NOICC and summarised in paragraph 18 above.  

6. The Tribunal accepts that the illness of Mr Lai’s grandfather had a profound effect on Mr Lai and he had a genuine reason and need to return to China.

7. However, Mr Lai has not completed any higher education sector studies since first arriving in Australia in February 2015 and has not been enrolled in a relevant registered course with an approved provider since 27 November 2015.

8. The Tribunal does not accept that the circumstances leading to the cancellation of his student visa were beyond his control.

1. The main reason for Mr Lai’s breach of his visa appears to be his changing education providers and courses regularly. Mr Lai started with a Diploma of Business at Monash College, which is a two year course leading to acceptance to the second year of a Bachelor of Business or Commerce at Monash University. Mr Lai discontinued those studies on 27 November 2015, close to when he would have completed the first year of those studies. Mr Lai says he would not have had a good result anyway, because of the impact news of his grandfather’s illness had on him.

2. Mr Lai then sought to transfer his studies to a Bachelor of Commerce at Deakin University, but his IELTS test results were not high enough to able to commence such Bachelor studies.

3. Mr Lai then subsequently sought to transfer his studies to a Bachelor of Information Technology at the University of Canberra, but his visa was cancelled before he received an offer of enrolment from the University of Canberra.

4. Mr Lai on at least two occasions missed university study commencement dates delaying his study by four months the first time and over six months the second time.

5. Allowing for the compassionate circumstances, the issues leading to the cancellation of his visa were still within Mr Lai’s control. He did not return to China to visit his grandfather until 17 December 2015. This was late enough in the year that Mr Lai could have completed, rather than discontinue, the first year of his Diploma of Business studies at Monash College, even if that result had been a poor one.

6. If Mr Lai had not discontinued his Monash College studies then he could have potentially deferred those studies, avoiding being in breach of his visa.

7. Mr Lai chose to stay in China to be with his grandfather rather than return to commence his studies on time in 2016. Again, allowing for the compassionate circumstances for the delay, the Tribunal has some doubt about Mr Lai’s NOICC response in this regard. Mr Lai states he returned to Australia on 19 February 2016 which is well before the commencement of trimester one in March each year for most Australian universities.

8. The Tribunal also doubts Mr Lai’s explanation in his NOICC response about the circumstance for him not commencing study at Deakin University. The offer of enrolment from Deakin was clearly subject to completion of offer acceptance forms and provision of evidence to support the information required in those forms[7].

   [7] Department file, folios 22-23.

9. The entry requirements for courses, particularly at a major university like Deakin University, are generally stated on their internet websites and are available for any potential student to see, prior to enrolling. This includes IELTS score requirements for international students. Mr Lai either did know or should have known what overall IELTS score Deakin required before he could commence the Bachelor of Commerce course.

10. Mr Lai’s NOICC response also assumes that he would receive an offer of enrolment from the University of Canberra.[8] As he was seeking enrolment in a course for a Bachelor degree, he would likely have encountered the same IELTS score issue he had encountered at Deakin University.

[8] Department file, folios 9 and 10 (rear side), both 2^nd last paragraphs.

1. The Tribunal notes his IELTS score had improved from an overall 5.25 at 30 June 2016[9] to an overall score of 5.75 at 11 November 2016[10]. Generally, universities require an overall IELTS score of 6 as the minimum entry requirement for a Bachelor degree course, although the Tribunal does not have any evidence before it as to what were the specific requirements at the time Mr Lai sought enrolment at both Deakin and Canberra. In these circumstances the Tribunal gives only very limited weight to Mr Lai’s future study plans and attempts to re-enrol prior to his visa being cancelled against exercising its discretion to cancel his visa.

   [9] Department file, folio 18.

   [10] Department file, folio 18 (rear side).

2. Accordingly the Tribunal gives little weight to Mr Lai’s overall claims in relation to this consideration due to the lack of credibility to the key claims Mr Lai made. As a result, the Tribunal places considerable weight on this consideration supporting the Tribunal exercising its discretion to cancel Mr Lai’s student visa.

   Past and present conduct of the visa holder towards the department

3. The Department’s decision letter states:

   [Mr Lai] has been cooperative with the Department and has provided information when requested…[11] 

   [11] Tribunal file, folio 25.

4. The Tribunal gives this consideration some weight in favour of not exercising its discretion to cancel Mr Lai’s student visa.

   If breach relates to a breach of r.2.43(1)(a) by a Subclass 457 visa holder – mitigating, compassionate and compelling factors

5. This consideration was not relevant in this review.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

6. This consideration was not addressed in the Department’s decision.

7. The Tribunal acknowledges that the possible cancellation of Mr Lai’s student visa may have specific legal consequences for him. These could include making Mr Lai an unlawful non-citizen which may prevent him from being granted another temporary visa. That could occur if the criteria for such temporary visa includes public interest criteria 4013 (risk factors) and Mr Lai fails to make out compelling and compassionate circumstances for the grant of such a visa or the Minister refuses to intervene. This could prevent Mr Lai obtaining another temporary visa until at least 19 November 2019.

8. There is no evidence before the Tribunal as to what Mr Lai will do, in terms of his departure from Australia, if his student visa is cancelled. The Tribunal gives the significant potential consequences of cancellation some, but only modest, weight in Mr Lai’s favour against the Tribunal exercising its discretion to cancel his visa as these consequences would have been known to Mr Lai and the Tribunal has found the circumstances of his breach were largely within his control.

   Whether there would be consequential cancellations under s.140

1. This consideration was not relevant in this review.

   Whether any international obligations would be breached as a result of the cancellation

2. This consideration was not relevant in this review.

   Any other relevant matters

3. As Mr Lai did not accept the invitation to appear before the Tribunal to give evidence and did not provide any written submissions to the Tribunal, this consideration was not relevant in this review.

   Conclusion

4. The Tribunal has considered all information on the Department’s file and the Tribunal’s file, including the NOICC dated 4 November 2016, Mr Lai’s response dated 11 November 2016, the Department’s decision dated 18 November 2016 and the submission from Mr Lai’s registered migration agent dated 29 November 2016.

5. The circumstances the Tribunal gave weight to that supported the Tribunal exercising its discretion to cancel Mr Lai’s student visa included:

   ·the length and seriousness of the breach of condition 8202(2)(a) of Mr Lai’s student visa;

   ·his failure to remedy that breach when he could have, particularly by deferring and not cancelling his initial Diploma studies;

   ·the Tribunal’s view that the breach did not occur due to circumstances outside Mr Lai’s control; and

   ·the lack of credibility to the key claims made by Mr Lai in his response to the NOICC (and in his registered migration agent’s later and similar submission to the Tribunal).

6. These circumstances outweighed the weight the Tribunal was able to give to the circumstances that went against the Tribunal exercising its discretion to cancel Mr Lai’s visa, which included:

   ·there being no evidence before the Tribunal that Mr Lai had breached any other condition of his student visa;

   ·the limited information the Tribunal has or was able to infer about the hardship cancellation of his student visa could cause Mr Lai and his family;

   ·the acknowledgement that the illness of Mr Lai’s grandfather caused him considerable stress and anxiety;

   ·there being evidence that Mr Lai had been cooperative with the Department; and

   ·the potential of adverse legal consequences for Mr Lai if his student visa is cancelled.

7. Considering the circumstances as a whole, the Tribunal concludes that Mr Lai’s visa should be cancelled as the considerations favouring the exercise of the discretion to cancel Mr Lai’s student visa outweigh the considerations against the exercise of the discretion.

   DECISION

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

   Michael Ison
   Senior 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.