Li (Migration)

[2020] AATA 1206

Li (Migration) [2020] AATA 1206 (1 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Fei Li

CASE NUMBER:  1913362

HOME AFFAIRS REFERENCE(S):          BCC2019/684263

MEMBER:Helen Kroger

DATE:1 April 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 01 April 2020 at 9:52am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – not enrolled in registered course – needed to provide financial support to parents – transferred to cheaper, lower-level courses – non-completion of lower-level courses – attempt to enrol in another course – claim of misconduct by agent – discretion to cancel visa – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 May 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant, Mr Li, a Chinese national, was granted a visa on the 15 November 2014 for the purposes of studying in Australia.

3. On the 2 April 2019, Mr Li  was sent a Notice of Intention to Consider Cancellation of his student visa inviting him to comment on a potential breach of condition 8202 which was imposed on his visa. The applicant provided an explanatory statement on the 8 April 2019 to the Department.

4. The delegate cancelled the visa on the basis that the applicant has not maintained enrolment in a registered course and the grounds for cancelling the visa outweighed the grounds for not cancelling the 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.

5. The applicant appeared before the Tribunal on 18 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s girlfriend, Ms Wang. Mr Li was not represented by a lawyer or migration agent.

6. The applicant provided a copy of the delegate’s decision record for the purpose of the Tribunal’s consideration.

7. 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

8. 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?

9. 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).

10. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant was invited to respond to the NOICC on the 2 April 2019 and provided a written submission in response on the 8 April 2019.

11. At hearing, the alleged breach (as discussed by the delegate in his/her decision), was put to the applicant and reference was made to the delegate’s decision record that indicated that the applicant had not been enrolled in a registered course of study since 13 October 2018. This was not disputed by the applicant during the hearing, who provided an explanation as to why he didn’t continue his studies.

12. On the evidence before the Tribunal, namely the applicant’s admission during the hearing and the explanatory statement sent to the Department on the 8 April 2019, the Tribunal finds that the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

13. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

14. 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’.

15. The Tribunal has considered the applicant’s evidence provided at the hearing along with his response to the Department on the 8 April 2019. The Tribunal invited the applicant to provide any further documentation to support his appeal application and offered a period of 7 days to submit further evidence. Whilst the applicant indicated during the hearing that he wished to have the opportunity to present further supportive evidence, the Tribunal has no further evidence before it to consider, subsequent to the hearing.

16. The Tribunal has carefully considered all the evidence before it including the response to the delegate and the submission during the hearing in its exercise of discretion as outlined below.

    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

17. The applicant is a Chinese national who is 29 years and 7 months of age. He first travelled to Australia in November 2014 for the purpose of studying a Bachelor of Engineering at the University of Wollongong. He subsequently transferred to Wentworth Institute of Higher Education enrolling in a Diploma of Business, that he did not successfully complete, later enrolling in a Diploma of Leadership and Management and later a Diploma of Software Diploma.  The applicant indicated to the Tribunal that he had successfully completed the pre-requisite English Language Program after arriving in Australia in 2014, and had not successfully completed any further studies since that time. He explained that he had graduated in an engineering degree at home in China, and travelled to Australia to complete a secondary degree that he claimed would improve his opportunities in China.

18. The applicant was unable to provide an account of the subjects he undertook and completed, indicating that his attendance rate to classes “was an issue” and that he ran out of money at one stage as he had to provide financial support to his parents. He claims that he studied until the middle of 2018 or the beginning of 2019 and the Tribunal invited him to provide any supporting documentation for the period from 2015 to 2019, following the hearing, to support this claim. The Tribunal has considered his submission that it was a long time ago and that as such, he couldn’t remember the various details in relation to his studies. In considering this claim, the Tribunal has taken into account the applicant’s claim that he has graduated in engineering immediately before coming to Australia, the applicant’s testimony during the hearing that he had been studying since 2015 and had not completed any courses in Australia since that time (the evidentiary basis being the audio file), and his claim that he couldn’t remember various details. The Tribunal finds it implausible that the applicant would not be able to provide any account of the subjects he enrolled in Australia, particularly given the length of time since his arrival in 2015 and that he has previous experience in the education sector (not withstanding that experience was in China) and provided him with the opportunity to submit any further documentary evidence after the hearing. The Tribunal has received no further documentation for its consideration. The Tribunal is not unsympathetic with his claim that he had to provide financial support to his parents during his studies, money that he had saved before coming to Australia to direct to his fees, and that this affected his capacity to remain enrolled, and that he subsequently could only afford to enrol in a Diploma course. The applicant confirmed to the Tribunal that he understood the conditions attached to his visa, relevantly, the requirement that he remain enrolled in a higher education sector.

19. At the hearing, the applicant claimed that his initial intention was to complete his study and return to China, and that after struggling to study and finding the fees expensive at the University of Wollongong, that he transferred to Wentworth Institute to a management diploma that incurred cheaper fees. He then indicated that his attendance rate was “an issue” and his agent suggested enrolling with a third college. He indicated that he did not complete these studies.

20. The applicant submitted that he paid an agent AUD$3400 to enrol him in a course and provided the Tribunal with a copy of the payment details. These details do not indicate what the payment was for. In his response to the NOICC in his written response to the delegate, he claims that this money was paid for the first term tuition fees of a course on 30 November 2018. He explained to the Tribunal that he followed the agent up on numerous occasions and that the agent didn’t enrol him, that “he was a victim in this situation” and that he demanded the agent refund him his money. The Tribunal has considered the document provided by the applicant that indicates that a payment was successful, however this document does not indicate what the payment was intended for. The date on this document indicates that the aforementioned payment was made on 30 November 2018, one month after the education provider advised the Department that the applicant was no longer enrolled. According to PRISMS as indicated in the delegate’s decision (provided by the applicant to the Tribunal for its consideration), the applicant had completed a course with the George Education Group Pty Ltd, otherwise known as the Wentworth Institute. The Tribunal has reviewed both the document and the oral evidence provided at hearing, along with the response to the NOICC which is dated 2 April 2019.

21. The Tribunal is satisfied that the applicant made an attempt to enrol in another course, and gives this some weight and it has considered the period of time when the applicant was not enrolled. Whilst the Tribunal accepts the applicant’s claim that he followed up the agent on numerous occasions, the Tribunal has considered the significance of the period of time that the applicant was not enrolled, namely from October 2018 to April 2019. As such, the Tribunal gives less weight in favour of the applicant and more weight to the six month breach during which the applicant was not enrolled in an approved registered course of study.

    The extent of compliance with visa conditions

22. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions of the visa and the Tribunal is mindful of the significance of the breach. As such, the Tribunal gives minimum weight to the fact that there appears to be no additional breaches.

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

    The applicant submitted a written response to the NOICC that is extracted below and the Tribunal invited the applicant during the hearing to comment on this further and asked him to comment on the degree of hardship that may be caused if his visa cancellation was affirmed.

    “I have already realised this issue and try to figure it out.

    In fact I’m a victim in this situation, I transferred 3,400 AUD to my agent (Jiaming Group) for the first term tuition fee on 30 Nov 2018. However, I have not gotten any instructions from my agent. He keeps me waiting. But now the agent promises me to enrol again as soon as possible.

    I have been studying and living in Australia more than four years with my wife since November 2014, and our student visa (573) will be expired at September 2019. We love the studying environment and multi-culture here so much, and she is applying for her student visa now.

    I spent nearly 100,000AUD for the cost about living and tuition fees, I don’t want to stop studying here. My time and money are all wasted if my visa is cancelled. It’s unfair to me.

    I want to complete my studies and get the certification in Australia. Because every job need certificate during the interview in my country, which will be vital for my future career and my entire life. Please give a chance to study here for the next four months.”

23. The applicant claims that he has been living in Australia for five years and that he loves the country. He explained to the Tribunal that he is accustomed to the lifestyle, that he has spent a lot of money and that it would be disappointing if he was to return to China without a certificate. He claims that an Australian certificate provides opportunity for self-development in China as further academic credentials will give him an opportunity to earn a better income.

24. He told the Tribunal that he has separated from his wife, who he referenced in the above written response and was supported at the hearing by his girlfriend Ms Wang. Ms Wang presented as a witness at the hearing and spoke to the hardship circumstances the applicant would potentially face if his visa was cancelled.

25. Ms Wang told the Tribunal that she witnessed the $3400 payment to the agent and that Mr Li had made attempts to follow up the agent with regard to his enrolment. She indicated that he travelled to Australia immediately after his graduation in China and as such, was not employed as a graduate. With the lapse in time, she claims that it would be difficult for him to find work in the area of his degree, and as such, would suffer financial hardship. In addition to this, she claims that due to the coronavirus, he would not be able to find a job or support himself.

26. The Tribunal has carefully considered the evidence before it, and given particular regard to the oral submissions of both Mr Li and Ms Wang at the hearing. Whilst the Tribunal accepts that it would be disappointing for the applicant should he return to China, given that he has spent money to live and study in Australia, and that he likes and is accustomed to living here, the Tribunal gives more weight to the type of visa that the applicant held, namely a student visa, and the purpose of that visa is to be enrolled in a registered course of study and less weight to his claim of disappointment and the money already spent.

27. The Tribunal accepts that the applicant followed up with the agent but finds that a period of six months of non-enrolment to be a significant time during which the applicant did not secure a COE with a registered education provider. The Tribunal gave extensive consideration to Ms Wang’s claims that the applicant would be unable to work and therefore subject to financial hardship as he had not worked as a graduate in engineering before coming to Australia and that the coronavirus would prevent him from finding a job.

28. Whist the Tribunal accepts that there could be potential employment challenges that the applicant would need to address should he immediately return to China, the Tribunal has considered the applicant’s evidence that he had personally saved money for his tuition fees before coming to Australia and that he was required to direct some of this money to his parents to assist them, that meant that he couldn’t continue to afford to be enrolled in a bachelor degree. Accordingly, the Tribunal is satisfied that whilst the applicant could face employment challenges immediately, the Tribunal is satisfied that he is sufficiently resourceful to explore further employment opportunities in the long term that would mitigate financial hardship, given that he has had previous work experience in China.  The Tribunal considered the claims around coronavirus and the effect it is having on the workplaces around the world and accordingly available jobs, and is satisfied that whilst coronavirus is a global phenomenal effecting all countries, that it presents  similar challenges for all countries. With the virus starting in China, and China actively introducing measures to control its spread, the Tribunal is satisfied that any employment limitations in China are no greater than they would be anywhere else in the world, noting that China has started to ease its local restrictions on movement for Chinese nationals throughout the country, as compared to some other countries.

29. Having considered all the personal circumstances and the evidence before the Tribunal, as referenced and extracted above, the Tribunal gives more weight to the significance of the breach, the time that has elapsed since the applicant was enrolled, than the hardship potentially caused to the applicant.

    Circumstances in which ground of cancellation arose

30. The applicant indicated in his response to the NOICC, as extracted above, and in his oral evidence to the Tribunal, that he was aware of his non-enrolment and had paid $3400 to his agent to enrol him with another education provider on 30 November 2018. He confirmed to the Tribunal that he not been enrolled since 13 October 2018. He indicated that he followed up his agent a number of times as the agent had not responded with a confirmation of receipt of the monies or a COE. Ms Wang, a witness at the hearing, confirmed to the Tribunal that she had witnessed his attempt to contact the agent. The applicant was invited to provide any further documentation to support his claim that he had been a “victim”, including any academic records to indicate his course progress. Whilst the applicant indicated to the Tribunal that he was interested in providing further documentation, the Tribunal has not received any further submissions for its consideration.

31. There is no evidence before the Tribunal to indicate that the applicant applied to any education provider to enrol in a registered course of study after October 2018 when his COE ceased, enrolment in a registered course of study being a condition attached to the applicant’s visa, or that he contacted the Department to advise them of his changed circumstances.

32. The applicant in his various submissions has indicated that he had “attendance issues”, that he found the subject content different and challenging to the course he completed in China, when he first arrived in Australia, and that he had financial issues and could not cover the cost of a higher education degree course as he needed to provide financing to his parents.

33. The Tribunal in carefully considering the applicant’s various submissions, finds that it is not a unique circumstance to the applicant that he would find the education systems at variance in terms of academic standard, and that many students would need to reconcile the different academic standards and procedures to satisfactorily complete studies. Whilst the Tribunal has some sympathy with the applicant in financially supporting his parents when necessary, the applicant confirmed to the Tribunal that he was aware of the fees required before coming to Australia having personally saved money to cover the cost.

34. Given the circumstances as outlined above, the Tribunal gives limited weight to these reasons provided by the applicant and more weight to the period in excess of six months in which the applicant was not enrolled in a registered course of study. As such, the Tribunal finds these considerations outweigh any weight given in favour of the applicant and not cancelling the visa.

    Past and present behaviour of the visa holder towards the department

35. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in its dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach.

    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.

1. It is unlikely that the visa applicant would be detained but rather provided with a time limited period in which he can leave the country or apply for review of the decision. The applicant would be excluded for a period of three years from applying for another visa to Australia as a consequence of the cancellation and the Tribunal gives this little weight in favour of the applicant.

   Whether any international obligations would be reached as a result of a cancellation

2. There is nothing before the Tribunal to indicate there are international obligations to consider.

   Any other matters

3. The applicant submitted to the Tribunal that he was unable to apply for a COE with any other education provider since his visa cancellation and there is nothing before the Tribunal to indicate this advice to the applicant. He explained to the Tribunal that his parent’s changed financial circumstances has meant that he can no longer afford to undertake a bachelor degree and wishes to complete a diploma in Australia. He explained to the Tribunal that whilst he is a Graduate in Engineering, from a University in China, that a ‘certificate’ from Australia would improve his prospects. The Tribunal has given this claim some regard and is not satisfied that an engineering degree completed in China is in inferior to a diploma undertaken with an education provider in Australia, that largely provides courses for overseas students.

4. Whilst the Tribunal is not unsympathetic to the applicant’s wish to stay in Australia so he can continue to study, the Tribunal does not consider it unreasonable for the applicant to be aware of the conditions attached to his visa, namely, satisfactory enrolment with a registered education provider.

5. The Tribunal has considered all factors both individually and cumulatively in the context of the breach. The Tribunal finds that the breach of six months is significant in the context of a student’s study period and the fact that he was aware of the expectations placed upon him along with the fact that he did not seek to defer his studies within the necessary timeframe or make any attempt to contact the Department.

6. As such, considering the circumstances as outlined by the applicant and witness during the hearing and the written explanatory statement in response to the NOICC, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   Helen Kroger
   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.