Li (Migration)

[2017] AATA 2441

Li (Migration) [2017] AATA 2441 (22 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shipei Li

CASE NUMBER:  1620164

DIBP REFERENCE(S):  BCC2016/3368353

MEMBER:Michael Ison

DATE:22 November 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 22 November 2017 at 12:26pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Not been enrolled in a registered course – Lack of evidence of acceptance of enrolment – Failure to remedy breach

LEGISLATION
Migration Act 1958, ss 116(1)(b), 362B(1A)(a)
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 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.The applicant is Mr Shipei Li, a 27 year old Chinese citizen.

3.The delegate cancelled the visa on the basis that Mr Li had not been enrolled in a registered course of study since 1 January 2016, contrary to the requirements of condition 8202(2)(a) of Schedule 8 to the Migration Regulations 1994 (the Regulations).  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.On 23 October 2017, Mr Li was invited to attend to appear before the Tribunal to give evidence and present arguments in relation to his application for review. The hearing was scheduled for 16 November 2017. 

5.On 24 October 2017 Mr Li’s registered migration agent emailed the Tribunal to advise that Mr Li would not be attending the hearing. Mr Li’s registered migration subsequently confirmed in writing that Mr Li did not withdraw his application for review. The hearing was not cancelled and the Tribunal remained prepared to hear Mr Li’s application. Mr Li did not appear before the Tribunal on 16 November 2017.

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

7.Accordingly, this decision is made pursuant to section 362B(1A)(a) of the Migration 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.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

9.The Tribunal has had regard to the material contained on Tribunal case file 1620164 and the Departmental case file BCC2016/3368353.

10.The issue in the present case is whether Mr Li, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration 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?

11.Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that Mr Li:

·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).

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

13.      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 Li] have (sic) not been enrolled in a registered course of study since 1 January 2016.” [1]

[1] Tribunal file folio 3.

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

15.Mr Li responded to the Department’s NOICC by sending a 5 page response dated 11 November 2016.  Mr Li’s response also included 5 pages of attachments. In his response, Mr Li acknowledged “… my failure to enroll (sic) in a course since January 2016.” [2] Mr Li’s response did not challenge the enrolment details provided in the Department’s NOICC.

[2] Department file folio 9.

16.Based on the information before the Tribunal, the Tribunal is satisfied that Mr Li was not enrolled in a registered course of study with an approved provider from 1 January 2016 until Mr Li’s student visa was cancelled on 18 November 2016. Accordingly, Mr Li has not complied with condition 8202(2).

Consideration of the discretion to cancel the visa

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

18.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 Mr Li 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

19.The Department accepted in its decision letter that there was no evidence before the Department to suggest that Mr Li’s original intention for travel to and stay in Australia was not for the study purposes stated in his visa application.

20.The Tribunal accepts, as the Department did, that at the time of application for his visa Mr Li’s stated intention was to travel and stay in Australia temporarily to study.

21.However, the Tribunal gives this consideration little weight towards not cancelling Mr Li’s visa. Mr Li has failed to enrol in a registered course since 1 January 2016 but has remained in Australia. Prior to the cancellation of his visa, Mr Li had over 10 months to rectify his failure to maintain enrolment, but did not do so.

The extent of compliance with visa conditions

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

23.In its decision letter the Department noted that it had no evidence that Mr Li has not complied with any other condition of his visa.

24.Mr Li failed to enrol in a registered course for over 10 months prior to the cancellation of his visa. The Tribunal considers the extent of Mr Li’s non-compliance with condition 8202 to be significant.

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

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

26.Mr Li’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 Li’s student visa is cancelled.

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

28.Whilst Mr Li has not directly addressed the hardship he or his family may suffer if his student visa remains cancelled, his response to the NOICC has clearly set out the importance Mr Li now attaches to completing his studies.

29.Mr Li’s submission identifies the importance of his studies to his career path and also to honouring the wishes and memory of his grandfather. The Tribunal is able to infer that Mr Li is likely to feel he will be hindered in his career and earning capacity if he does not complete his Australian studies. Mr Li is also likely to feel he has not properly honoured his grandfather’s memory and wishes. The Tribunal accepts that this would cause Mr Li financial, psychological and emotional hardship.

30.Similarly, the Tribunal is prepared to infer that Mr Li’s parents would be disappointed in him if, having spent so much on his education, Mr Li returned to China without completing his studies in Australia. The Tribunal accepts that this would cause Mr Li’s parents psychological and emotional hardship.

31.The Tribunal places some but not considerable weight on this consideration supporting the Tribunal not exercising its discretion to cancel Mr Li’s student visa.

Circumstances in which ground of cancellation arose.

32.Summarising his response to the Department’s NOICC, Mr Li explained the circumstances of his breach of his student visa as follows:

·Mr Li was a high achieving student in China;

·In August 2015 Mr Li found out his grandfather, who had a significant role in Mr Li’s upbringing, was seriously ill;

·At that time Mr Li was in the final semester of a Master of Financial Analysis course upon completion of which he was to study a Master of International Business;

·Upon hearing of the illness of his grandfather, Mr Li cancelled his enrolment in the Master of International Business so he could return to China at the end of the semester to care for his grandfather;

·Before Mr Li could return to China his grandfather passed away on 14 October 2015;

·Mr Li was profoundly affected by the death of his grandfather;

·At the end of the semester Mr Li returned to China to visit his grandfather’s grave and worship him as Mr Li’s culture required;

·Whilst in China Mr Li’s parents arranged for him to see a psychiatrist who diagnosed Mr Li with “… moderate depression symptoms…” [3];

·Mr Li subsequently returned to Australia as he and his parents thought it would assist with his recovery from depression. However, in Australia Mr Li felt isolated and his symptoms of depression grew worse;

·Mr Li also has a history of severe stomach pain that can spread to other parts of his body. This condition had been successfully treated prior to Mr Li starting his studies in Australia in 2014 but Mr Li found that from early 2016 the condition returned, exacerbating his symptoms of depression;

·Mr Li, on the advice of his parents, went to see a psychotherapist in Australia and very quickly found all his symptoms began to steadily improve, to the point where Mr Li felt that at the time of writing his response to the NOICC on 11 November 2016, he had “… almost recovered fully…” [4];

·Mr Li subsequently enrolled in a Diploma of Interpreting and Advanced Diploma of Translation;

·Mr Li is confident of finding work in the translation and interpreting field upon his return to China;

·Mr Li acknowledges that he is partly to blame for his failure to comply with his visa conditions but also feels that he does not deserve to have his visa cancelled as there are legitimate reasons for his breach as the circumstances were beyond his control.

[3] Departmental file, folio 8.

[4] Departmental file, folio 10. The medical report is dated 20 December 2015.

33.Mr Li’s response to the NOICC attached documents providing evidence of his medical conditions and an offer of enrolment. These supporting documents included a 3 page report from the psychotherapist treating Mr Li in Australia.

34.Mr Li’s response cited the offer of enrolment as being dated 28 November 2016. The offer of enrolment on the Department’s file provided to the Tribunal is dated 11 November 2016 and is for a 23 week Diploma of Interpreting.

35.Other than the claims made in Mr Li’s response to the NOICC, the Tribunal has no evidence before it that Mr Li accepted the offer of enrolment or commenced studying either the interpretation or translation course.

36.The Tribunal accepts that the illness and death of Mr Li’s grandfather had a profound effect on Mr Li.

37.However, the medical evidence provided by Mr Li to explain the medical effect of his grandfather’s death on him is of limited value. The diagnosis provided by the doctor in China appears to be based on a single consultation with Mr Li. The report provided by the psychotherapist in Australia is based on two sessions with Mr Li.  The report states Mr Li first saw the psychotherapist on Thursday 10 November 2016, has seen the psychotherapist twice and the report itself is dated Monday 14 November 2016.

38.The Tribunal does not accept as credible that Mr Li could be suffering symptoms of depression that are so severe that he was incapable of studying for 10 months and then with two visits only a day or days apart to a psychotherapist Mr Li feels almost fully recovered. Accordingly, the Tribunal gives this evidence very little weight against the Tribunal exercising its discretion to cancel Mr Li’s visa.

39.The medical evidence in relation to Mr Li’s chronic stomach pains is noted in the Department’s decision letter as relating to a hospitalisation in China in February 2013, when Mr Li did not hold a student visa. Mr Li did not provide any medical evidence to substantiate his claims of severe stomach pains during the period he held a student visa. Accordingly, the Tribunal gives this evidence very little weight against the Tribunal exercising its discretion to cancel Mr Li’s visa.

40.Mr Li stated in his response to the Department’s NOICC that circumstances beyond his control have contributed significantly to his failure to maintain his enrolment. On the evidence before the Tribunal, the Tribunal accepts that the death of Mr Li’s grandfather was beyond his control and did contribute to his failure to maintain his enrolment.

41.The Tribunal does not accept that all the circumstances of Mr Li failing to maintain his enrolment were beyond his control. Mr Li was first diagnosed with “depression symptoms” in China on 20 December 2015. Based on the information Mr Li has provided to the Department in his response to the NOICC Mr Li did not seek further treatment until after he received the Department’s NOICC on 4 November 2016.

42.Upon receiving treatment in Australia Mr Li’s states he made a very rapid and seemingly comprehensive recovery from his depression symptoms.

43.Mr Li stated since first seeing the psychotherapist on 10 November 2016 and writing his response to the NOICC on 11 November 2016 he:

“… noticed immediate improvements as I have started to develop new and healthy friendships. [Doctor] recommended that I change my diet and unhealthy eating habits, and also to exercise on a regular basis. As I followed all her instructions, I was treated successfully with great ease.” [5]

[5] Tribunal file, folio 10.

44.Mr Li did not directly address in his response to the NOICC why he did not seek further treatment for his depression for over 10 months after first being diagnosed in China. His response states that he was not rational and felt very isolated and lonely in Australia with his depression negatively affecting all areas of his life.

45.The Tribunal does not find Mr Li’s claims to be credible. The Tribunal does not accept that Mr Li was incapable of seeking further treatment or that he could have made such a significant recovery within the short period of time or after only two psychotherapy sessions. The Tribunal also does not accept that Mr Li could form significant new friendships in that time or that a change of diet and change of exercise regime would have a significant effect on Mr Li after only a few days.

46.Accordingly the Tribunal gives little weight to Mr Li’s claims in relation to this consideration and finds the lack of credibility to those claims supports the Tribunal exercising its discretion to cancel Mr Li’s student visa.

Past and present conduct of the visa holder towards the department

47.The Department’s decision letter states that there is no evidence that Mr Li has been uncooperative with the Department.

48.The Tribunal gives this consideration some weight in favour of not exercising its discretion to cancel Mr Li’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

49.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.

50.The Department’s decision letter acknowledged there are some potential legal consequences for Mr Li arising from the breach of his student visa:

51.“If [Mr Li’s] visa is cancelled he will become an unlawful non-citizen and liable to detention under s189 and removal under s198 of the Migration Act 1958. [Mr Li] will have limited options to apply for further visas in Australia and may be required to return to his country of origin.” [6] 

[6] Tribunal file, folio 2.

52.The Tribunal acknowledges that the possible cancellation of Mr Li’s student visa may have specific legal consequences for him. These could include making Mr Li 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 and Mr Li 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 Li obtaining another temporary visa until at least 19 November 2019.

53.There is no evidence before the Tribunal as to what Mr Li 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 Li’s favour against the Tribunal exercising its discretion to cancel his visa as these consequences would have been known to Mr Li and the Tribunal has found the circumstances of his breach were largely within his control.

Whether there would be consequential cancellations under s.140

54.This consideration was not relevant in this review.

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

55.This consideration was not relevant in this review.

Any other relevant matters

56.As Mr Li 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

57.The Tribunal has considered all information on the Department’s file and the Tribunal’s file, including the NOICC dated 4 November 2016, Mr Li’s response dated 11 November 2016 and the Department’s decision dated 18 November 2016.

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

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

·his failure to remedy that breach when he could, particularly by seeking timely medical or other help and treatment after an early diagnosis in China and the absence of any supporting medical evidence since November 2016;

·the lack of any evidence before the Tribunal that Mr Li has accepted the November 2016 offer of enrolment or re-commenced his studies in any other registered course with an approved provider;

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

·the improbable explanation of his recovery from his grief and depression that were the main cause of him not being able to study.

59.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 Li’s visa, which included:

·there being no evidence before the Tribunal that Mr Li 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 would cause Mr Li or his family;

·the acknowledgement that the death of Mr Li’s grandfather caused him considerable grief;

·there being no evidence that Mr Li had been uncooperative with the Department; and

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

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

DECISION

61.      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.