Lin (Migration)

[2020] AATA 725

Lin (Migration) [2020] AATA 725 (14 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Junye Lin

CASE NUMBER:  1935154

HOME AFFAIRS REFERENCE(S):          BCC2019/3285739

MEMBER:D Triaca

DATE:14 March 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 500 (Student) visa.

Statement made on 14 March 2020 at 5:31pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment and study at lower level than visa requirements – enrolment in higher-level course cancelled by education provider – subsequent re-enrolment in another higher-level course with another provider – genuine intention to study – decision under review set aside

LEGISLATION

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

Migration Regulations 1994 (Cth), Schedule 8202(2)(b)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 December 2019 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) (delegate’s decision).

2. The Applicant is a citizen of China and is 21 years old. He seeks review of the delegate’s decision cancelling his Subclass 500 student

   Original Visa Grant

3. The Applicant’s visa was granted on 5 November 2018. It was granted because a delegate of the Minister had determined that he met the primary criteria for the grant of a student visa.[1]

   [1] The primary criteria for the grant of student visa are set out in the Migration Regulations 1994 (Cth), Sch 2, cls 500.211 to 500.218.

4. The visa had an original expiry date of 21 September 2023 before it was cancelled. It provided for more than two years five months during which the Applicant would be permitted to reside in Australia for the purpose of full-time study.

   Reasons for Cancellation

5. The Applicant’s visa was cancelled because the delegate determined that a legal basis for cancellation had been established under s 116(1)(b) of the Act. The delegate found that the Applicant had not complied with a condition of his visa. Specifically, the delegate found that the Applicant had failed to comply with that condition of the visa which required him to maintain enrolment in a registered course of study that, once completed, would provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa had been granted.

6. Upon making that finding, the delegate proceeded to consider all other relevant circumstances before concluding that the Applicant’s visa ought to be cancelled.

7. The delegate’s reasons are set out in a decision record. A copy of that record was provided to the Tribunal by the Applicant when he lodged his review application on 12 December 2019.

   Issues for Determination by Tribunal

8. The first issue requiring consideration by the Tribunal is whether the ground for cancellation under s 116(1)(b) of the Act is made out, namely whether the Applicant did not comply with a condition of his visa. If the Tribunal determines that ground for cancellation is made out, the second issue requiring consideration is whether the Applicant’s visa ought to be cancelled.

   Hearing of Application

9. The Tribunal convened a hearing to consider the merits of the application on 13 March 2020. The Applicant appeared before the Tribunal by video link to give evidence and present arguments.

10. The Applicant was assisted by an interpreter.

    Tribunal’s Determination

11. The Tribunal has concluded that the decision to set aside the delegate’s decision.

    GROUND FOR CANCELLATION

    Applicable Law

12. Section 116(1)(b) of the Act provides that the Minister may cancel a visa if satisfied that its holder has not complied with a condition of the visa. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’), when the visa was granted.

13. Condition 8202(2)(b) attaches to all student visas and creates a continuing obligation for the duration of the visa.[2] It requires the visa holder to maintain enrolment in a registered course of study that, once completed, would provide a qualification from the Australian Qualifications Framework (‘AQF’) that is at the same level as, or at a higher level than, the registered course in relation to which the visa had been granted.

    [2] Migration Regulations 1994 (Cth), Sch 2, cl 500.611(1)(a).

14. The AQF is an objective measure for categorising courses within the Australian education system. It creates a hierarchy of levels associated with all courses that are registered under its framework. The AQF level of a particular course is an indication of the relative complexity of the course and the depth of achievement and the autonomy required that successful completion of the course represents. A course that is classified as AQF Level 1 (Certificate I) has the lowest levels of course complexity, achievement depth and student autonomy. A course that sits at AQF Level 10 (Doctoral Degree) has the highest levels.[3]

    [3] The AQF is administered by the Department of Education and Training. See generally <>

    The imposition of Condition 8202(2)(b) draws attention to the fact that all student visas are issued for a specific kind of study purpose that is tailored to the particular visa holder. The visa holder is legally obliged to adhere to that study purpose for the duration of their stay in Australia. While the condition contemplates that, at some point after the visa has been issued, the visa holder may have good reason for changing their course of study, they are specifically prohibited from ‘downgrading’ to a simpler course. In that regard, Condition 8202(2)(b) is one of many student visa conditions designed to ensure that Australia’s student visa program is not abused.

    Has the Applicant Failed to Comply with Condition 8202(2)(b)?

15. The applicant arrived in Australia in November 2018 and enrolled in a package of courses including a Bachelor of Commerce, the Bachelor course was an AQF level of 7. The delegate found that the applicant‘s enrolment was cancelled on 12 April 2019, meaning that the applicant was in breach of condition 8202(b) for a period of approximately 7 months at the time of the delegate’s decision.

16. The delegate’s findings were based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[4] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. It is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued.

    [4] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

17. In his evidence before the Tribunal, the applicant admitted the delegate’s allegations were true and correct and he accepted that had been in breach of the conditions of the student visa as alleged because he had downgraded his enrolment from an AQF Level 7 course to an AQF Level 4 course.

    Conclusion

18. Based on the evidence before the Tribunal, it is reasonably clear that the Applicant was in breach of his visa as alleged by the delegate. The Tribunal finds that the Applicant did not comply with Condition 8202(2)(b) of his visa.

    Applicant’s Evidence.

19. The applicant arrived in Australia in November 2018. He enrolled in a package of courses that included an undergraduate study package of 1 year foundation and six months of English leading to a Bachelor of Commerce at the University of Sydney. His family was advised by an education agent in China that the foundation program was the best pathway to University study.

20. The applicant commenced studying English on 12 November 2018. Once he had started studying, he decided he would prefer to study a Diploma course as a pathway to the Bachelor’s course rather than commence with the Foundation studies. His reasoning was that the Diploma course would enable him to study Business concepts sooner than foundation and this was where his interest lay. However, as he had not finished year 12 in China, he was required to first complete a Certificate IV course.

21. Accordingly, in 2019 he transferred his studies to Wentworth Institute and commenced studying the Certificate IV course. At this time, his enrolment in the Bachelor’s course was cancelled. He says that transferring courses did not mean he had ceased to be interested in the Bachelor’s course. His intention was to study at a higher level and he says that he began investigating a suitable Bachelor level course. He says that he did not appreciate the significance of the cancellation of his enrolment in the Bachelor’s course noting that he was not scheduled to commence studying at the Bachelor’s level until August 2020 at that time.

22. He appears to have struggled to progress at Wentworth. In July 2019 he transferred his studies to Harbourside Institute of Australia. In January 2020 he completed his Certificate IV in Business at Harbourside and provided the Tribunal with a copy of his Certificate and Academic Transcript.

23. In November 2019 the applicant was given a letter of offer from RMIT to study English, Diploma of Information Technology and Bachelor Business (Accountancy). The has accepted the offer, and provided the Tribunal with a Confirmation of Enrolment (CoE) from RMIT in a English for Academic Purposes; Diploma of Information Technology and a Bachelor of Business Accounting.

24. The CoE‘s confirm that the applicant has paid RMIT $20,060 in course fees and that the applicant is holding a valid Overseas Health Cover with Allianz for the period 5 November 2018 to 4 October 2023.

    Consideration of discretion to cancel visa

25. Having found that the Applicant failed to comply with a condition of his visa, the Tribunal must proceed to consider whether his visa should be cancelled.

    Relevant Factors

26. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

27. The matters that ought to be considered are specifically listed in PAM3 as follows:

    (a)    the purpose of the Applicant’s travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;

    (b)    the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant’s control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);

    (c)    the extent of the Applicant’s compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;

    (d)    the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;

    (e)    the Applicant’s past and present behaviour towards the Department (e.g. whether they have been truthful and co-operative in their dealings with the Department);

    (f)    whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;

    (g)    whether there are mandatory legal consequences arising from a decision to cancel the visa;

    (h)    whether Australia has obligations under any relevant international agreements that would be breached as a result.

    Purpose of Applicant’s Stay in Australia

28. The Tribunal accepts that the applicant’s purpose of coming to Australia was to study. He enrolled in his chosen course almost immediately upon arrival.

29. The applicant has studied continuously since arriving in Australia. He has successfully completed the Certificate IV course.

30. The applicant is currently studying at RMIT and is enrolled in an AQF level 7 course.

31. The issue for the applicant is that when he commenced studying in the Certificate level course, his enrolment in the Bachelor’s course was cancelled by the University of Sydney and he was in breach of the condition 8202(b) for a period of approximately 7 months. The Tribunal regards this as a serious breach of his visa conditions.

32. However, the Tribunal considers that it is in the applicant’s favour that he provided a sensible explanation for his transfer to the Certificate IV course and the fact he has subsequently enrolled in the Bachelor level course at RMIT. It is also in his favour that he has accepted the offer of RMIT and paid approximately $20,000 in course fees. This is indicative of a genuine intention to study. Whilst the enrolment in the Bachelor’s course does not rectify the breach, the Tribunal considers that these matters tend to mitigate the breach.

33. It is also relevant to the application that the completion date for the RMIT offer is 10 November 2023. The applicant’s original visa expiry date was 21 September 2023. Accordingly, allowing the applicant to remain in Australia to complete the RMIT course will only result in him remaining in Australia for an additional 2 months. This seems a minor extension of his time in Australia.

    Circumstances Giving Rise to Ground for Cancellation

34. The Tribunal has regard to the applicant’s evidence set out above.

35. The Tribunal must balance the seriousness of the breach with matters that were submitted by the applicant by way of mitigation. In particular the Tribunal notes that the applicant continued to study during the period of the breach at the level he was supposed to be studying at that time.

36. The issue was his future enrolment and he is now enrolled in a course at an appropriate level. The Tribunal accepts that the prepayment of course fees in the vicinity of $20,000 is indicative of a genuine intention to study.

37. These matters weigh in favour of not cancelling the applicant’s visa.

    Hardship

38. The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia and complete his education.

39. The Tribunal accepts that if the visa is cancelled the applicant will suffer some degree of disappointment and embarrassment associated with returning home to China without a degree. He states it will be difficult for him to gain suitable employment without a degree, although there is no real evidence to support this.

40. The Tribunal considers that the applicant will suffer financial hardship in the sense that cancelling his visa will likely result in him forfeiting the $20,060 he has paid in course fees to RMIT.

41. The Tribunal otherwise acknowledges that both the Applicant and his family will suffer some degree of emotional hardship and disappointment if his visa is cancelled and he is forced to return to China.

42. The Tribunal considers the applicant will suffer some hardship in the event that the visa is cancelled and this weighs against cancelling the visa.

    Applicant’s Behaviour towards Department

43. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department. There is no adverse evidence before the Tribunal in that regard.

    Other Visa Holders

44. There do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

    Legal Consequences

45. The Tribunal notes that if his visa is cancelled, the Applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. They reflect the seriousness of the breach of a visa condition.

46. The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements to depart Australia. He is a citizen of China and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia.

    International Obligations

47. The Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

    Conclusion

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

    DECISION

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

    D Triaca
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.