Li (Migration)

[2019] AATA 4328

Li (Migration) [2019] AATA 4328 (20 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Boyuan Li

CASE NUMBER:  1804051

HOME AFFAIRS REFERENCE(S):           BCC2017/3916111

MEMBER:Donna Petrovich

DATE:20 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 20 September 2019 at 4:06pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – not enrolled in registered course – non-payment of fees – administrative error – mental health – death of relative – mother’s health issues – lack of family support – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116
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 6 February 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the visa holder was not enrolled in a registered course of study according to PRISMS records from 9 MY 2017, and therefore did not meet  with the requirements of condition 8202(2)(a). 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 applicant appeared before the Tribunal on 28 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Boniface Town the applicant’s immigration agent. 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.

5. 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

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 comply with 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’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

9. The applicant at the time of cancellation was enrolled in at Homes College Studying a Bachelor of Business which commenced in February 2017. The applicant told the Tribunal at the hearing that there had been a misunderstanding around the payment for his course.  He highlighted a receipt on his file from Holmes college detailing payment for $8,820.00 dated 6 April 2017 receipt Number NO40675752663, which Holmes college told the applicant that they did not receive. The applicant told the Tribunal that the College referred the non-payment to the Department as an un-enrolled student.  When questioned about whether the applicant pursued the issue with the University he told the Tribunal that Holmes College told him it was too late that there was nothing they could do as the matter was now with the Department. The applicant told the Tribunal that because of his mental state, he did not pursue the matter any further and had given up.  He stayed at home, did not tell anyone of his problems and became isolated, overeating and playing computer games.

10. The Tribunal requested that the applicant provide the member with evidence no later than the 5 September 2019 that the amount was in fact withdrawn. The applicant also told the Tribunal that he was suffering from depression at the time as a result of his mother’s illness from Cancer and the passing of his Grandfather. The applicant told the Tribunal he had become isolated during this time and did not confide in anyone about his illness. The Tribunal requested that evidence of treatment be provided if available. The applicant was not enrolled between 9 May 2917 and 3 January 2018. 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).

    Consideration of the discretion to cancel the visa

11. 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

12. The applicant first arrived in Australia as a fifteen year old in 2009, to study year 10 at Hamilton College, located in Hamilton, country Victoria. He commenced his studies as a boarder and completed his VCE in 2011. He then commenced study at RMIT in Melbourne, studying Bachelor of Electronic Engineering and completed his first year of studies successfully and started his second year of studies in 2013.

13. The applicant told the Tribunal that he had been a good student and was achieving good results.  He received advice that his mother had been diagnosed with cancer in July 2014, and became distressed and his grades began to suffer. He admits that he only passed half of his subjects and was referred to a student councillor.  He returned home to China at the conclusion of the academic year to spend time with his family. Returning to Australia in 2015 to continue his study.  The applicant told the Tribunal he was 19 years old and missing his family.  He had become depressed and did not have the life skills to cope he was referred to a psychologist and prescribed anti- depressant medication.  He was advised in July 2016 that his grandfather had been diagnosed with cancer and subsequently passed away.

14. The applicant was already struggling with his grades and wanted to return home to be with his family, but felt obligated to continue with his studies.  He was excluded from RMIT due to poor academic progress in 2016.

15. He then sought enrolment with Holmes College to commence a Bachelor of Business and commenced study in February 2017.  His enrolment was cancelled in May 2017 due to non- payment of fees.

16. The applicant told the Tribunal that he has since this time sought ongoing treatment for his depression with a psychologist and is now looking after his health and has become engaged with friend and family about his mental and physical health.

17. The applicant provided the Tribunal with academic records of his studies at Melbourne City Institute where he is enrolled in a Certificate iv in Business (April 2018- September 2018), Diploma of Leadership and Management October 2018 – September 2019) and a Diploma of Screen and Media (Oct 2019-Sept 2020).   

18. The Tribunal in considering the applicant’s reason for travel and stay in Australia determines that circumstances which have impacted on the applicant and his study and progress have been significant. The Tribunal has in its deliberations considered that the applicant has been in Australia since the age of fifteen without family or parental support and acknowledges the difficulties and stress this may place on a person of this age.

19. The tribunal is willing to accept that the applicant’s purpose was to travel and stay in Australia to study; and in this case gives some weight in favour of the visa not being cancelled.    

    The extent of compliance with visa conditions

20. The applicant was not enrolled in a registered course from 9 May 2017. The applicant’s visa was cancelled 6 February 2018.  The applicant remained in Australia without having complied with the conditions of his visa for a period of 9 months.

21. The applicant told the Tribunal in evidence at the hearing that his enrolment was cancelled by Holmes Institute due to non-payment of fees, not poor academic performance.  The applicant in his submission to the Tribunal disputed this, and stated that he had paid the amount of $8,820.00 on the 6 April 2017 receipt number NO40675752663. This was drawn to the Tribunals attention as there was a receipt from Holmes Institute on the department file. 

22. The Tribunal was provided with Bank Statements as requested by the member and agreed to by the applicant at the hearing as proof of payment of fees to Holmes Institute.  Details of the receipt and Bank Statements are consistent in the amount the date and receipt number, and would seem to prove that at the least there has been an error which has disadvantaged the applicant. The applicants statement page 13 of 25 Commonwealth Bank shows $8820.00 to Holmes on 6 April 2017

23. The Tribunal has also considered why the applicant did not pursue his cancellation of enrolment with the department and the reason that he was un-enrolled for a period of 9 months.  The applicant told the Tribunal that Holmes Institute had told him that he had not paid and “that it was too late, that the matter had been referred to the department”.

24. In considering these circumstances the Tribunal can see that an administrative error may have led to this circumstance, and because the applicant was suffering from depression he did not pursue the matter as vigorously as he may have if he were well at the time.

25. The Tribunal would consider that the applicant’s non-compliance with his visa conditions for 9 months significant, however under these circumstances the applicants provision of bank statements which prove payment of his course fees and possible error by Holmes Institute, in this case the Tribunal is prepared to accept that the applicant did not pursue his enrolment more vigorously because of his health and circumstances at the time; and that he became unenrolled through a possible administrative error. 

26. Accordingly the Tribunal places some significant weight in favour of the applicant in this regard.

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

27. The applicant told the Tribunal that he looks forward to returning to China and developing a career in Marketing for Business using the skills that he has learnt undertaking Diploma of Screen and media due to be completed 10 October 2020 and his studies in Cert iv in Business, and a Diploma of Leadership and Management which he has completed or nearly completed at the time of decision. The applicant spoke of his disappointment of the time he has spent away from family, if he was unable to complete his study. He did speak optimistically about the life lessons that he has learnt and accepts that there are areas that he had let himself and his parents down, and that he is now a better person for the hardships that he has undergone.  He asks to be allowed to complete his current study and then go home to China to his family.

28. The Tribunal notes that in the event that applicant’s visa is cancelled under s.48 of the Act he may have limited options available to him if applying for further visa in Australia. In addition he will be subject to Public interest Criterion 4013 which means that he may not be granted a temporary visa for three years from the date of cancellation.

29. The Tribunal accepts that the applicant may suffer psychological and emotional hardship as a result of his visa being cancelled and gives consideration to the applicant’s presentation and positive attitude to his current study and his desire to go home after such a long time away from his family and from such a young age.

30. As such the Tribunal acknowledges that if the applicant’s visa is cancelled he will suffer some hardship by having to return to China without completing his qualifications and as such has given some weight to the hardship the applicant may suffer in the event his visa is cancelled.

    The circumstances in which the grounds for cancellation arose       

31. The applicant conceded to the Tribunal in his response to the NOICC that there were grounds for the cancelation of his visa in accepting that he was not enrolled. The applicant expressed at the Hearing that he had not pursued his loss of  enrolment vigorously once he was told by Holmes Institute the matter had been referred to the department because he was affected by depression which he later sought help for.  He stated that his visa should not be cancelled by reason that he had paid his fees and had proof of payment which Holmes Institute did not accept.

32. The Tribunal acknowledges that if there has been an error either in the Banking of the fees, or an administration error which has disadvantaged the applicant and caused him to become unenrolled, this in itself could be viewed as circumstances beyond his control if this is accepted by the Tribunal as the reason for him not being enrolled.

33. This factor coupled with the lack of acceptance by Holmes Institute of their being an error or omission on their part could explain the feeling of being overwhelmed the applicant experienced, which goes toward understanding his lack of attention to this matter for a period of nine months.  This is further explained by the applicant in his submission regarding health issues he was experiencing with untreated depression, which has since been diagnosed and treated.  As indicated by the guidelines that as a general rule , a visa should not be cancelled in circumstances in which the ground for cancellation were beyond the visa holders control.

34. With consideration for the applicants present age, health condition, and lack of family support as a Student in a foreign country since the age of 15.  The applicant also faced additional pressure in relation to the stress his mother’s health issues, and passing of his Grandfather placed on him.  The Tribunal in this case places significant weight in favour of the applicant’s visa not being cancelled.

    Past and Present Behaviour of the applicant

35. The applicant has been cooperative and courteous in all his dealings with the Tribunal.  No adverse information has been provided to the Tribunal and as such some weight is given in consideration of this factor.

    Persons in Australia whose visa would be cancelled under s.140

36. The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s.140 of the Migration Act 1958 (“the Act”). According to the Departments records there are no person in Australia whose visa may be cancelled under s.140 of the Act.

    Are there 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 ae provisions in the Act which prevent the person from making a valid visa application with the Ministers intervention.

37. The applicant understood that he would need to return to China if his visa was cancelled. I acknowledge that he would need to apply for a bridging visa E to remain lawfully in Australia so that he can finalise any outstanding matters and it was discussed with the applicant that he would be subjected to Section 48 of the Act which would limit his options for returning to Australia or applying for other visas

    Whether there would be consequential cancellations under s.140

38. Not relevant in this case

    Any other relevant matters.

39. Not relevant

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

    DECISION

41. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Donna Petrovich
    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.