LI (Migration)

[2020] AATA 1937

LI (Migration) [2020] AATA 1937 (15 May 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr HAOLAN LI

CASE NUMBER:  1811713

HOME AFFAIRS REFERENCE(S):          BCC2017/4007959

MEMBER:  Stephen Conwell

DATE:  15 May 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 15 May 2020 at 11:00am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – pre-existing, recurrent medical condition and returns to home country for treatment – continuing study – department’s notice in junk email box, so applicant unable to respond in time – visa would have expired in any case – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), 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 April 2018 made by a delegate of the Minister for Home Affairs 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 delegate cancelled the visa on the basis that that the applicant was not enrolled in a registered course and therefore had breached condition 8202 of his visa. 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 Tribunal exercised its discretion to hold the hearing by telephone.

4. The hearing was held during the coronavirus (COVID-19) pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick. It also considered the consequences of further delay if the hearing was not to be conducted by telephone. The applicant did not raise any concerns as to conducting the review hearing by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The applicant was represented in the review hearing by his registered migration agent (agent).

6. The applicant participated in the telephone hearing on 14 May 2020 to give evidence and present arguments. The applicant’s agent also participated in the telephone hearing. The Hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The applicant provided a copy of the decision record to the Tribunal.

8. 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

9. 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?

10. 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)

    ·     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).

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

Case Number 1811713  Page 2 of 7

1. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 7 July 2015. By Notice of Intention to Consider Cancellation (NOICC) dated 13 February 2018, the applicant was advised by the Department of Home Affairs (Department) that information on the Provider Registration and International Student Management System (PRISMS) indicated that he had not been enrolled in a registered course of study between 31 March 2017 and 6 February 2018 and as a consequence it appeared he was in breach of condition 8202(2)(a) and that his visa may be cancelled under s.116(1)(b) of the Act. The applicant did not respond to the NOICC.

2. Based on information contained in PRISMS and reported in the decision record the delegate made a finding the applicant had not been enrolled in a registered course of study between 31 March 2017 and 6 February 2018. Therefore, the delegate made a finding the applicant did not meet the requirements of condition 8202(2)(a) and proceeded to cancel his visa.

3. The applicant’s agent provided a written submission to the Tribunal dated 10 May 2020 (Submission) which admits the applicant’s breach of condition 8202 and therefore does not dispute that there are grounds for cancellation.

4. The applicant’s written Submission to the Tribunal is summarised below. Accompanying the Submission were supporting documents, such as emails, academic records and medical certificates :

   ·     the applicant admits his breach of condition 8202 and does not dispute that there are grounds for cancellation;

   ·     he was granted a Student visa on 7 July 2015. He arrived in Australia shortly afterwards to study for a double degree (Information Technology and Commerce) at the Australian National University (ANU)

   ·     a month or so before his arrival in Australia the applicant was admitted to a hospital in Hunan Province, China from 10-19 June 2015 for a serious medical condition affecting both his knees. The condition was diagnosed as synovitis as well as damage to the meniscus and cruciate ligaments in both knees, evidenced by a medical certificate from the hospital, signed by the doctor-in-charge, Liu Zhenyun, dated 11 January 2017;

   ·     although the applicant appeared to be in remission when he first arrived in Australia in July 2015, the medical problem concerning both knees required him to China in September 2015; as a consequence he was unable to complete his first year of study in Australia. In 2016 the applicant’s studies were again interrupted by persistent knee problems and he returned again to China for treatment. His unsatisfactory course progress prevented him from sitting for semester exams;

   ·     on 27 February 2017 the applicant appealed to ANU to reconsider his exclusion from study on the basis of his persistent medical issues. By email of 29 May 2017 ANU reversed its decision and permitted the applicant to enrol again for semester 2, 2017;

   ·     unfortunately the applicant’s knee problems persuaded him to return to China in September 2017 for further treatment at the University of Hong Kong-Shenzhen Hospital, where he underwent surgery for “degenerative changes of the knee joint”. This meant that the applicant was unable to progress in his studies in 2017 for a third consecutive year;

   ·     the Department NOICC issued in February 2018 was delivered to the applicant’s ‘junk mailbox’ and he was therefore unaware of it and unable to respond in the time allowed;

Case Number 1811713  Page 3 of 7

·     when he learnt of the cancellation of his Student visa on 18 April 2018 the applicant immediately emailed the Department, expressing his confusion regarding the decision since as far as he knew, he remained enrolled at ANU;

·     the applicant’s persistent medical issues with his knees, which pre-dated his arrival in Australia, have prevented him from successfully completing his studies in Australia. In particular his medical condition was the reason for his non-enrolment for the period, 31 March 2017 to 6 February 2018;

·     the applicant’s university, ANU has been sympathetic to his medical issues and have allowed him to re-enrol on several occasions upon his return to Australia, following medical treatment in China. The applicant remains enrolled as a current student at ANU. This should be seen as evidence that the applicant’s is a genuine student who is determined to complete his studies in Australia;

·     the applicant has spent almost five years in Australia attempting to study a double degree at bachelor level. His studies have been interrupted each year by his recurrent knee problems. During his time in Australia, his university entrance exam results (for entry to a Chinese university) have expired, meaning that he would not be permitted entry into a public university in China. Should he be required to return home to China to complete his studies, his only option would be to seek enrolment in a private university, which are not as highly regarded as the public universities or as a an overseas university, such as ANU.

1. These arguments and documents were not before the Department.

2. Having regard to the information in the PRISMS as outlined in the decision record and confirmed as correct by the applicant’s Submission and oral evidence, the Tribunal finds that the applicant ceased to be enrolled in a registered course of study between 31 March 2017 and 6 February 2018.

3. 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).

4. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

   Consideration of the discretion to cancel the visa

5. 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 Australia

6. The delegate found that the breach demonstrated that the applicant was no longer in Australia in accordance with the original purpose of his visa to study. The delegate did not have the benefit of a response from the applicant to the NOICC. The Tribunal has the benefit of the written Submission and of hearing the applicant’s oral evidence. This evidence was not available to the delegate. On the evidence the Tribunal finds that the applicant’s attempts to study have been derailed by persistent and serious medical problems with both knees. Whilst he has not produced evidence of seeking and being granted leave of absence, his

Case Number 1811713  Page 4 of 7

timely requests for re-enrolment have been accepted by ANU, allowing him to resume his studies until his medical problems recurred, requiring further medical intervention. He has continued to study through this cumbersome process of regular re-enrolment up to the present time. The Tribunal finds therefore that the applicant has demonstrated his purpose as being to study despite the difficult circumstances arising from his medical problems. The Tribunal give this factor some weight towards exercising its discretion to set aside cancellation of the visa.

the extent of compliance with visa conditions

1. As above, the applicant has not complied with condition 8202(2) for a considerable period of
   time, exceeding 10 months. The Tribunal considers the applicant’s period of non-enrolment to be a serious breach of a visa condition. However the Tribunal find that the applicant has compelling reasons for the breach, being his serious and recurrent medical issues. The Tribunal gives weight to the fact that by allowing him to re-enrol in his studies despite his unsatisfactory academic progress, the ANU accepts that the applicant’s difficult personal circumstances have been an unfortunate and unavoidable impediment to the pursuit of his study goals. Whilst the Tribunal find that the applicant did breach the condition, given the circumstances of the breach, the Tribunal give this little weight towards the visa being cancelled.

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

2. The applicant has described the difficult personal circumstances that led to him seeking re-enrolment each time he has returned to Australia following medical treatment in China. The Tribunal accept that cancellation of his Student visa has caused the applicant considerable personal detriment and inconvenience. It is a credit to the applicant’s persistence that he has continued to pursue his original study goals.

3. The Tribunal accepts the submission that due to the time he has spent in Australia his university entrance scores for pursuing tertiary studies in China have now expired. Therefore if the applicant is unable to complete his studies in Australia it would be difficult for him to seek enrolment in a public university in China of similar stature to ANU. The Tribunal finds that cancellation of his Student visa would result in considerable hardship to the applicant and adversely affect his pursuit of tertiary qualification. Given the circumstances above, the Tribunal find that the continuation of the cancellation would cause the applicant undue hardship; the Tribunal gives this factor significant weight towards exercising its discretion to set aside cancellation of the visa.

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

4. The circumstances that led to the cancellation of the applicant’s enrolment have been described above. The applicant did not reply to the NOICC. This meant that he was unable to explain how his personal circumstances had affected his studies. On the limited information available to it the Department proceeded to cancel the applicant’s visa.

5. Having considered the written Submission and having the benefit of the applicant’s oral evidence the Tribunal can discern no attempt by the applicant to avoid study, mislead his provider or the Department. The Tribunal is satisfied that the applicant is a genuine student whose academic progress has been impeded by serious and recurring medical problems. The Tribunal give this factor significant weight towards exercising its discretion to set aside cancellation of the visa.

Case Number 1811713  Page 5 of 7

past and present behaviour of the visa holder towards the Department

1. The applicant’s lack of response to the NOICC appears to have been inadvertent, since it went unnoticed to his ‘spam’ folder. In all other respects it appears he has communicated promptly and truthfully with both the Department and ANU. The Tribunal give this factor some weight towards exercising its discretion to set aside cancellation of the visa.

   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

2. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained. The applicant may also be barred from returning to Australia for up to three years. He has presented no specific evidence in relation to this factor. However given the circumstances as set out above this would be manifestly unfair and the Tribunal give this some weight in favour of exercising its discretion to set aside cancellation of the visa.

   whether there would be consequential cancellations under s.140

3. The Tribunal is satisfied there are no persons in Australia whose visas would, or may, be cancelled under s.140 as a consequence of the applicant’s visa being cancelled.

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

4. This consideration does not appear to be relevant and the applicant has not made any claims in relation to it.

   Any other relevant matters

5. The Tribunal notes that the applicant’s visa would otherwise have expired on 30 September 2019. He will have to apply for a new visa within a short period if he wishes to study in Australia. Due to changes in the Migration Regulations, Class TU visas Subclasses 570 to 576 have been replaced by Class TU Subclass 500 Student visas as from 1 July 2016.

6. The Tribunal finds that there are no other relevant matters.
   Summary

7. The Tribunal is mindful of the lengthy period of non-compliance and the seriousness of the breach, however having considered the evidence individually and cumulatively, the Tribunal finds on balance there are persuasive reasons why it should exercise its discretion to set aside cancellation of the visa.

8. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

   DECISION

9. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

   Stephen Conwell
   Member

   Case Number 1811713  Page 6 of 7

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.

Case Number 1811713  Page 7 of 7