LI (Migration)

[2019] AATA 5577

LI (Migration) [2019] AATA 5577 (4 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Luo LI

CASE NUMBER:  1809498

HOME AFFAIRS REFERENCE(S):          BCC2017/3720384

MEMBER:Linda Symons

DATE:4 December 2019

PLACE OF DECISION:  Sydney

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

Statement made on 04 December 2019 at 4:04pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – course cancelled – unsatisfactory course progress – unreliable witness – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 359AA
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 March 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 between 28 April 2017 and 9 October 2017 in breach of condition 8202(2). On 5 April 2018, he applied to the Tribunal for a review of that decision.  

3. The applicant appeared before the Tribunal on 3 December 2019 to give evidence and present arguments. The Tribunal also heard evidence from his friend, Mr Jia Shu Liu. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by his registered migration agent, Mr Roger Xianwei Yu, who attended the hearing.

5. 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 AND FINDINGS

6. The issue in the present case is whether the applicant, as the holder of a Student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

   Did the applicant breach condition 8202?

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

   ·be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

   ·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).

8. In the present case, the applicant was granted a Student visa on 10 December 2014. This visa was subject to a number of conditions including condition 8202. On 25 January 2018, the delegate sent him a Notice of Intention to Consider Cancellation (NOITCC) of his Student visa. He was given an opportunity to comment on the ground for cancellation identified in the NOITCC and give reasons why his Student visa should not be cancelled.

9. In his response dated 6 February 2018, the applicant provided details as to why his Student visa should not be cancelled. He also provided to the Department of Home Affairs (the Department) a Statutory Declaration dated 1 February 2018, Confirmation of Enrolments from the Top Education Institute and the Australian Institute of Business Intelligence (AIBI), invoices from Excel Education and a Commonwealth Bank statement. The delegate cancelled the applicant’s Student visa on 29 March 2018.

10. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 29 March 2018. He also provided a letter dated 25 November 2019 from Top Education Institute confirming that he is a current student and his Academic Record from the Top Education Institute dated 27 November 2019.

11. The records of the Department of Education indicate that the applicant was enrolled in a Diploma of Human Resources Management from 21 November 2016 to19 November 2017 and his enrolment in this registered course was cancelled on 27 April 2017 for unsatisfactory course progress. He then enrolled in a Bachelor of International Business on 10 October 2017 to study from 27 November 2017 to 30 October 2020.

12. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that it may find that he had breached condition 8202(2) of his Student visa as he was not enrolled in a registered course from 28 April 2017 and 9 October 2017. He declined to respond. However, during the course of the hearing he agreed that he had breached condition 8202(2) of his Student visa. (The Tribunal notes that in his response to the NOITCC, he denied that he had breached condition 8202 of the Student visa).

13. On the evidence before it, the Tribunal finds that the applicant was not enrolled in a registered course between 28 April 2017 and 9 October 2017 and accordingly has not complied with condition 8202(2)(a) of his Student visa.

    Purpose of the visa holder’s travel and stay in Australia. Did the visa holder have a          compelling need to travel to or remain in Australia?

14. The applicant was granted a subclass 573 Student visa on 10 December 2014 and first arrived in Australia on 11 January 2015. The Tribunal accepts that the purpose of his travel to Australia was to study.

15. The records of the Department of Education indicate that the only course the applicant has completed in Australia is a 3 ½ months English language course. The Tribunal put this information to him, pursuant to s.359AA of the Act, and noted that it may find that he had not fulfilled the purpose for which the Student visa was granted to him and that his Student visa should be cancelled. He responded that what the Tribunal said was true.

16. The applicant stated that he would like to remain in Australia as he will be able to complete the course that he is currently enrolled in within five months. When asked what course he is currently enrolled him, he was unable to answer the question and referred to ‘ginger’. He has provided the Tribunal with a copy of his Academic Record from the Top Education Institute which indicates that he is enrolled in a Bachelor of International Business and failed all four subjects that he was enrolled in during the first semester of 2019.

17. The applicant stated that his parents separated in around May 2019, his grandparents were in poor health and he had an argument with his girlfriend. He stated that he felt sick and did not want to go out. He stated that it was difficult for him to concentrate so he did not attend classes or sit the examinations. He stated that he was contacted by the Top Education Institute and asked whether he wished to continue the course. He stated that he told them that he wished to continue with his studies and gave them a ‘Doctor’s certificate’ to show that he was receiving counselling. He stated that he had an online consultation with a psychologist in China which his father organised. He stated that he currently takes medication to help him sleep and this medication was brought to Australia by a friend from China.

18. The applicant has not provided the Tribunal with any evidence in relation to his physical or mental health.

19. In view of the applicant’s prior record as a student in Australia, his poor English language skills as demonstrated during the hearing, his current Academic Record which indicates that he failed all four subjects he was enrolled in in the first semester of 2019 and his alleged health issues, the Tribunal is not confident that he will complete his degree within the next five months, if at all. However, he has demonstrated some need to remain in Australia and the Tribunal gives this consideration some weight in his favour.

    The extent of compliance with visa conditions

20. The applicant was not enrolled in a registered course between 28 April 2017 and 9 October 2017. This is a substantial period of time during which he was in breach of condition 8202(2)(a) of his Student visa. The Tribunal is not convinced that he has provided a satisfactory explanation for why he was not enrolled in a registered course during this period. (See below).

21. There is no evidence before the Tribunal to indicate that the applicant has not complied with the other conditions of his Student visa. The Tribunal does not give this consideration any weight in his favour.    

    Degree of hardship that may be caused

22. In his response to the NOITCC, the applicant stated that he wants to further his studies in Australia. He stated that his parents have high hopes of him and he does not want to let them down. He stated that he wants to become a well -educated person so that he can find a good job when he returns to China. He stated that an Australian education can enable him to learn some job-ready skills. He stated that the cancellation of his Student visa will have a serious impact on him and his family. He stated that he is an only child and his parents have spent a lot of money on his education in Australia. He stated that it will be impossible for him to continue his tertiary education in China because he will not be able to pass the National Entrance Examination held in China every year. He stated that his parents will be disappointed in him and think that the money they had spent on his education had been wasted.

23. During the hearing, the Tribunal asked the applicant what hardship may be caused to him if his Student visa is cancelled. He responded that it was his intention to finish his course, graduate and return to China. He stated that now it seems unlikely that he can complete the course.

24. The Tribunal gives this consideration some weight in the applicant’s favour.   

    Circumstances in which the ground for cancellation arose

25. The circumstances in which the ground for cancellation arose are that the applicant failed to maintain enrolment in a registered course between 28 April 2017 and 9 October 2017 resulting in the breach of condition 8202(2)(a) of his Student visa and the cancellation of this visa.

26. In his response to the NOITCC, the applicant denied that he had breached condition 8202 of his Student visa. He stated that he enrolled in a Diploma of Human Resources Management at AIBI at the end of 2016 and paid part of his tuition fees at that time. He stated that he subsequently made further payments of his tuition fees in March 2017, May 2017 and September 2017. He provided the Department with Confirmation of Enrolments from the Top Education Institute and the Australian Institute of Business Intelligence (AIBI), invoices from Excel Education and a Commonwealth Bank statement. He claimed that he did not receive any emails or letters from AIBI that he had a problem with his enrolment or any warning letters from AIBI. He claimed that he was shocked when he received the NOITCC from the Department (on 25 January 2018). He questioned how AIBI could say he was not enrolled when he was paying his fees.

27. During the hearing, the Tribunal discussed with the applicant his response to the NOITCC and the supporting documents he provided the Department. The Tribunal pointed out to him a number of problems with those documents and questioned why he was paying fees to AIBI in September 2017 if he was not attending classes at AIBI at that time. The Tribunal also pointed out to him that the supporting documents did not prove that he had paid fees to AIBI as claimed. He stated that he did not receive any receipts for the payment of fees to AIBI that were paid through his education agent.

28. In any event, the evidence before the Tribunal indicates that the applicant’s enrolment at AIBI was cancelled on 27 April 2017 for unsatisfactory course progress and not for non-payment of fees. Therefore, the explanation he provided the Department is not relevant to the reason why his enrolment was cancelled.

29. The applicant gave evidence to the Tribunal that he attended AIBI for three months in the first semester of 2017 and did not attend AIBI thereafter as they reported him to the Department. The Confirmation of Enrolment from the Top Education Institute indicates that it was issued on 10 October 2017. This evidence is not consistent with his claims to the Department that he did not receive any emails or letters from AIBI that he had a problem with his enrolment or any warning letters from AIBI and was shocked when he received the NOITCC from the Department (on 25 January 2018).

30. The Tribunal finds the applicant to be an unreliable witness and does not accept that he did not receive any notification from AIBI that there was a problem with his enrolment particularly in view of his own evidence to the Tribunal and his conduct.

31. During the hearing, the applicant claimed that he was not aware of the conditions of his Student visa. The Tribunal finds this to be implausible and is not accept it. In any event, it is his responsibility as the holder of a Student visa to ensure that he is aware of the conditions under which the Student visa was granted to him and to ensure that he complied with those conditions.

32. The Tribunal does not give this consideration any weight in the applicant’s favour.

    Past and present behaviour of the applicant towards the Department

33. The Tribunal is of the view that the applicant sought to mislead the Department in his response to the NOITCC when he claimed that he did not receive any emails or letters from AIBI that he had a problem with his enrolment or any warning letters from AIBI and was shocked when he received the NOITCC from the Department (on 25 January 2018). His evidence to the Tribunal was that he did not attend AIBI after the first three months of the first semester in 2017 and could not attend AIBI in the second semester of 2017 because AIBI had reported him to the Department. He enrolled at the Top Education Institute on 10 October 2017.

34. The Tribunal does not give this consideration any weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140 of the Act

35. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in a consequential cancellation of another person’s visa under s.140 of the Act. The Tribunal does not give this consideration any weight in his favour.

    Legal consequences of a decision to cancel the visa

36. If the applicant’s Student visa is cancelled, he will become an unlawful non-citizen and may be liable to detention under s.189 of the Act and removal under s.198 of the Act if he does not voluntarily depart Australia or resolve his immigration status. However, he may be eligible for a Bridging visa that would allow his lawful presence in Australia for a short period of time so that he can finalize his affairs in Australia before departing.

37. If the applicant’s Student visa is cancelled, he will be subject to s.48 of the Act which means that he will have limited options when applying for further visas while in Australia and Public Interest Criterion 4012 may prevent him from being granted particular temporary visas for a period of three years from the date of cancellation. These are the intended legal consequences of a decision to cancel a visa. The Tribunal does not give this consideration any weight in his favour.   

    Australia’s international obligations

38. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in the breach of Australia’s international obligations. The Tribunal does not give this consideration any weight in his favour.

    Any other relevant matter

39. The Tribunal is not aware of any other relevant matter.

    CONCLUSION

40. Having considered all the evidence cumulatively, the Tribunal is of the view that the grounds for cancelling the applicant’s Student visa outweigh the grounds for not cancelling his Student visa. Therefore, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    L. Symons
    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.