Lian (Migration)

[2018] AATA 404

Lian (Migration) [2018] AATA 404 (16 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Weichen Lian

CASE NUMBER:  1702200

DIBP REFERENCE(S):  BCC2016/3724728

MEMBER:Fiona Meagher

DATE:16 February 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 16 February 2018 at 6:05pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Not enrolled in registered course – Period of breach – Failure to contact Department – Failure to inform education provider

LEGISLATION
Migration Act 1958, s 116
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 7 February 2017 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 delegate cancelled the visa on the basis that the applicant had not complied with condition on the visa he had been granted. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. A copy of the delegate’s decision was provided with the application for review.

3. The applicant appeared before the Tribunal on 12 December 2017 to give evidence and present arguments.

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 affirmed.

   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. The applicant’s visa was granted on 20 March 2015. The applicant’s enrolment in the Higher Education Sector course, namely a Bachelor of Business, was cancelled on 21 December 2015. He then applied to study an Advanced Diploma of Engineering, and according to the delegate’s decision, ceased those studies on 20 June 2016. Therefore he was not enrolled in a registered course of study since 20 June 2016.

9. 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

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

11. 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 the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

12. The applicant was sent a Notice of Intention to Consider Cancellation (NOICC). In his response he stated:

    Hi, this is Weichin Lian. I receive this Notice of Intention to Consider Cancellation. I spoke to the chairman of the institution and he assured me that there is no problem going on at all of my degree. Anyway. I have attached my current C.O.E. as file. Please reply to me or Robin ASAP as this matter is critical.

13. On 30 January 2017, the applicant emailed the Department a copy of his confirmation of enrolment for an Advanced Diploma of Engineering course at Intech Institute of Technology Pty Ltd, which he studied during the period of from February 2016 to 20 June 2016. Also on that date, the Department emailed the education provider, Intech Institute of technology to enquire as to whether the applicant was currently enrolled in a registered course with them. The education provider confirmed that the applicant had not been actively enrolled with them since 20 June 2016.

14. The applicant told the Tribunal that he had been in Australia since 2006, when he attended year 10 of senior high school at Logan Christianity College. He said that he studied years 10, 11 and 12 in Australia, and received an OP five. He said that he lived with his legal guardian, his uncle. He said that he then stayed on in Australia for further study. The applicant told the Tribunal that he has been back to China for holidays, but otherwise has been here for 11 years as a student.

15. The applicant said that in 2009 he applied to do science and engineering at both QUT and Griffith University, received offers from both and chose to attend Griffith for engineering. The applicant said that he studied for a year during which he passed one subject and failed three. The applicant said that in 2009, which was his first year of university study, he was struggling with University lifestyle. He said that he was living by himself and had to work at McDonald’s to pay rent. He said that he had to study at the same time and had trouble keeping up. He said that is why he failed three of the four subjects.

16. In 2010, the applicant told the Tribunal, he went back to China for three months to seek help from his parents. He was unable to remember the months during which he returned to China. He said that talking to his parents and having time enabled him to recover, and he reapplied for the same subjects in 2011. He said that for the balance of 2010 he lived in Australia. He said he did not work, he asked his uncle for money.

17. In 2011, the applicant said that he passed all three of the subjects he had failed in 2009. He said that in 2012 he undertook the second year of his engineering degree at Griffith, and passed all of the subjects.

18. The applicant said that in 2013 he had problems again with his family – he said he became embroiled in a fight with his parents who did not like his then girlfriend. As well, he said his grandmother died in May 2013. After some obfuscation the applicant told the Tribunal that he did not pass two subjects in the first semester of 2013. He then said that for the rest of 2013 he spent his time applying for a business degree and waiting for a confirmation of enrolment. He said he was aware that the university was considering expelling him because of his poor grades, which eventually happened. The applicant said that he thought he’d been expelled because he did not provide sufficient evidence in the appeal regarding his grades. He said that when he passed subjects he only just passed them.

19. The applicant said that after his enrolment in engineering at Griffith had been cancelled, he looked at doing other degrees such as business. He said that during 2014 and 2015 he moved to Townsville and undertook a Bachelor of Business at James Cook University. He said he did not finish the degree, despite the fact that he was getting credits and failing no subjects. He said he thought he was going really well but decided that business was not really what he wanted to do. He said that he really wants to do engineering and science.

20. Accordingly, the applicant said that he enrolled in a Diploma, which would lead to an Advanced Diploma in Engineering at Intech. He said that he studied “through”, and got the certificate of enrolment finished in June/July, but had no certificate of enrolment for the last half of 2016, although he said that he should have had one because he was still studying at Intech. He said that he continued to study after June/July and that he received the email from the Department in January. The applicant told the Tribunal that he had asked the principal of Intech whether there was anything wrong with his enrolment, and been assured by the principal that there was nothing wrong with his current situation. The applicant’s evidence in this regard was vague and evasive.

21. The Tribunal pressed the applicant on the issue regarding the absence of a certificate of enrolment for the last half of 2016. The applicant conceded that there is none, and acknowledged that he knew that the original certificate ran out in the middle of 2016, but that he did nothing more about it. He said that the Diploma was going well and he was passing all of the subjects. His explanation in relation to the absence of a certificate of enrolment from after June 2016, was that it was “because of the double degree and the fact that he was doing a diploma”.

22. The Tribunal asked about hardship likely to be suffered by himself or family members which might result from the cancellation of his visa. He said that there would be hardship to himself because this is his career in Australia, and that family members would be angry that he had allowed such a thing to happen.

23. The applicant said that he went to the principal of Intech in January 2017 when he received the Department email, and that he was told that everything was okay. He said at that stage he did not know that he did not have a second certificate of enrolment. He said that at the time he received confirmation of the cancellation of his enrolment, he went back to the principal, who told him that he could not back date a certificate of enrolment.

24. The applicant concluded his evidence by saying that he has been in Australia for 11 years – and that his career is here in Australia. He said he has done no harm in Australia, and has donated to the children’s foundation every month, even when he had to work to pay his rent. He said that at the moment he is getting money from his uncle, and that he had waited eight months for the Tribunal appeal, and really hoped that he would get a fair trial out of the hearing.

25. The Tribunal has considered the circumstances in which the grant of cancellation arose, the extent of the breach and reasons for the breach as contended in the applicant’s oral evidence.

26. The purpose of a student visas is to enable the visa holder to undertake study in Australia. The applicant has not been enrolled in a registered course since June 2016, and about six months elapsed from that date until the date the NOICC was issued.

27. The Tribunal accepts that the applicant may have suffered some mental distress during 2010 when he claims his grandmother died, and gives that some weight. However, based on the evidence, the Tribunal finds that the applicant’s breach of condition 8202 of his visa to be significant because he did not maintain enrolment, which is a significant breach, given the central importance of enrolment to a student visa, and the period in respect of which he did not maintain enrolment.

28. The applicant’s evidence was unclear in regards to when he contacted his education provider about his certificate of enrolment, and the Tribunal is best able to conclude that it was not until 2017 after the NOICC was received. Further, the applicant made no attempt to contact the Department at the point when he was no longer enrolled. In this regard, the Tribunal notes that the applicant had been in Australia since 2006, and should have been aware of the importance of complying with conditions attached to temporary visas.

29. Having considered all of the matters raised by the applicant at hearing, the Tribunal finds that it is positively satisfied that the applicant’s non-compliance with the visa condition was not due to exceptional circumstances beyond his control. As stated above, the Tribunal accepts that the applicant may have suffered mental stress and grief in 2010 when he claims his grandmother died, however the Tribunal notes that that was many years prior to the eventual issuing of the NOICC, and cancellation of the visa and accordingly finds that there are no extenuating or compassionate circumstances in this case.

30. The Tribunal accepts that the applicant may suffer hardship by cancellation of his visa because he will not be able to apply for a visa to return to study in Australia in the near future. The Tribunal also accepts that the applicant has been in Australia for a relatively long time (11 years) and there is nothing before it to indicate he has done harm in Australia. The Tribunal is also prepared to accept that the applicant may have been donating to the children’s foundation every month even when working to pay his rent. There is nothing before the Tribunal to indicate that the applicant’s past and present conduct towards the department has been adverse.

31. There are no persons in Australia whose visas would, or may, be cancelled under s.140. There is nothing to suggest, and the applicant does not claim, that Australia has obligations and relevant international agreements that would be breached as a result of the visa cancellation.

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

    DECISION

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

    Fiona Meagher
    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.