Lin (Migration)

[2024] AATA 3390

Lin (Migration) [2024] AATA 3390 (31 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zhaojie Lin

REPRESENTATIVE:  Mr Yuxuan Chen (MARN: 2306576)

CASE NUMBER:  2306576

HOME AFFAIRS REFERENCE(S):          BCC2022/4247604

MEMBER:Christine Kannis

DATE:31 August 2024

PLACE OF DECISION:  Perth

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

Statement made on 31 August 2024 at 12:58pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-compliance with condition of visa – not enrolled in registered full-time course – discretion to cancel visa – COVID restrictions and online learning – agent did not forward course fees to provider – applicant’s responsibility to maintain enrolment – consent to decision without hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 359AA, 360(3)
Migration Regulations 1994 (Cth), r 1.03, Schedule 8, condition 8202(2)(a)
Education Services for Overseas Students Act 2000 (Cth), s 19(3)

CASE
Plaintiff M64/2015 v MIBP [2015] HCA 50

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 May 2023 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 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of his 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.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The hearing in this matter was originally listed on 15 July 2024.

5. On 1 July 2024, the applicant requested a postponement to enable him to obtain translated documents including documents evidencing his contact with his previous migration agent. The Tribunal postponed the hearing to 20 August 2024 and requested the applicant provide the documents on which he intended to rely by 6 August 2024.

6. On 5 August 2024, the applicant’s representative advised the Tribunal that they had lost contact with him and would continue attempting to make contact. The following documents were provided:

   • Notice of intention to report for non-payment of fees dated 12 November 21 from SIBN College to the applicant;
   • Evidence dated 26 November 2021 of the applicant’s submission of assignments to SIBN College;
   • Documents described as evidence of payments by the applicant to his previous migration agent on four occasions between 24 April 2021 and 12 November 2021;
   • Applicant’s Australian Ideal College Diploma of Leadership and Management certificate issued on 18 March 2024 for a course which started on 6 March 2023 and ended on 3 March 2024;
   • Applicant’s Australian Ideal College Transcript of Competencies achieved in a Diploma of Leadership and Management for a course which started on 6 March 2023 and ended on 3 March 2024; and
   •  Applicant’s Australian Ideal College Transcript of Competencies achieved in an Advanced Diploma of Leadership and Management for a course which started on 4 March 2024 and ending on 2 March 2025 showing completion of 4 units in Term 2.

7. On 19 August 2024, the applicant’s representative advised the Tribunal by email:

   Earlier today, around 2 pm, I was able to successfully reach Zhaojie Lin via phone. During our conversation, Zhaojie Lin confirmed that he will not be attending tomorrow's hearing.
   Given that Zhaojie Lin has not yet paid the outstanding balance for our professional services, I have decided not to attend the hearing on his behalf.

8. Attached to the representative’s email was an email from the applicant dated 19 August 2024 which stated

   I am determined not to attend tomorrow's AAT hearing

   Zhaojielin

9. On 19 August 2024, the Tribunal sent the representative the following email:

   Thank you for your email advising the applicant will not attend tomorrow's hearing.

   I confirm the information provided in the Hearing Invitation: that if the applicant does not attend the hearing a decision will be made on the basis of the information before the Tribunal.
   Please confirm that the applicant is consenting to a decision to be made on the papers.  

10. On 19 August 2024, the representative responded and provided an email dated 19 August 2024 from the applicant which advised:

    i comfirm decision to be made on the papers

11. The Tribunal is satisfied that the necessary consent has been given under s 360(2) of the Act and that, pursuant to s 360(3), the applicant is no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal

12. The Tribunal makes a decision having had regard to all the information before it, including the information provided by the applicant to the Department.

13. The applicant was represented in relation to the review.

14. 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

15. 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 (Cth) (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?

16. On 30 July 2021, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.

17. 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 full-time registered course: 8202(2)(a)

    ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than the course in relation to which the visa was granted: 8202(2)(b)

    ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

    ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

18. In the present case, the applicant’s visa was cancelled on the basis that he was not enrolled in a full-time registered course.

19. Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2]

    [1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).

    [2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act.

20. The information from PRISMS shows that the applicant was not enrolled in a registered course from 19 November 2021 to 12 March 2023.

21. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 19 November 2021 to 12 March 2023 and the Tribunal finds that he breached condition8202(2)(a) of his visa.

22. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

23. 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 in his NOICC response and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below.

24. On 2 March 2023, the Department of Home Affairs (the Department) issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 19 November 2021 and had therefore failed to comply with condition 8202(2)(a) of his visa.

25. On 7 and 15 March 2023, the applicant responded to the NOICC via his migration agent and provided the following information:

    • The grounds for cancellation are acknowledged however there are compelling reasons and events beyond the applicant’s control that lead to this situation.
    • He first arrived in Australia on 17 August 2018, holding a student visa and enrolled in a language and business course. On 3 February 2019, he successfully completed the language course and obtained a graduation certificate. Subsequently, he successfully progressed to the main business course and his studies have been going smoothly.
    • In early 2020, the COVID-19 pandemic caused Australia to close its schools and transition to online teaching. Many online courses were pre-recorded and there was no interaction between teachers and students during class, which led to his loss of interest and becoming very passive.
    • Despite the dull life during the pandemic, he made sure to meet the attendance requirements and complete his assignments on time. However, in early April 2021, his agent in China contacted him and said his visa was about to expire and if he wanted to continue to reside in Australia he had to apply for a new course as soon as possible. At the time he was completing his course at the original school and he asked his agent if it was possible to continue studying at the same school. However, his agent told him he had completed the relevant courses and could now progress to a diploma course. Since his interest field is business he applied and paid the tuition fees for IBN College business course and trusted his agent in China to help apply for a new student visa.
    • After he enrolled in the new school he felt the courses were more challenging and many times he couldn't understand. The school allows online appointments with teachers for tutoring which enabled him to complete his assignments on time. However when he started enrolling at the new school his agent told him that future tuition fees needed to be paid to their account and must be paid by them. Under their urging his mother paid one year tuition fee to his agent in advance.
    •  In November 2021, he received a call and email from the school telling him he owed tuition fees. He contacted his agent in China and left a message that the school had notified him to pay tuition fees and hoped they could pay as soon as possible because he didn't want his CoE to be cancelled due to non-payment of fees. His agent replied several days later telling him they had paid his tuition fees and instructed him to continue his study. The Christmas holiday approached and he submitted his assignments on 29 November and 8 December, respectively before the school went on vacation.
    • After returning from the Christmas break, his courses continued and he did not notice any issues. However in March 2022 he discovered his course schedule had disappeared and only his assignments were available to view. He contacted his agent and they informed him that the school had stated that he only needed to complete his assignments to obtain his graduation certificate.  
    • Afterwards he did not receive any notifications from the school regarding fees or course progress. He submitted his assignments and has been waiting for them to issue his certificate and notify him of any further course details. Finally he received an email from the school requiring students to return to in-person classes in March 2023 which was in line with his original expectation of returning to school in March as per the school's notice。
    • The notice from the Immigration department that his visa is considered to be cancelled came as a shock.  He contacted his previous agent but they did not respond. He reached out to the school and learned that his CoE had been cancelled long ago due to his failure to pay tuition which also explained why there were no course schedules on his online account. More importantly, the tuition paid to his agency in November 2021 was never received by the school. He contacted his agent several times but received no response. His mother went to the agent's office and found that they had disappeared. His family learned through various sources that his agent had already absconded with the money of many people.
    • He is deeply aware that he must have made mistakes and should not have blindly followed the advice of the agent.
    • Currently, through a friend's introduction, he enrolled at a new school - Australian Ideal College, and began full-time studies on 6 March 2023.
    • His currently lives with his nephew and he is a full-time student. Since he came to Australia they have been taking care of and supporting each other. If his visa is cancelled, he can only return to China, which will seriously affect his studies and life. Especially now that he is in his final year of undergraduate studies and needs to write many reports, He does not want his departure to cause unnecessary trouble and pressure for his nephew.
    • If his visa is cancelled, it will be a great shame for him and his family. They sent him abroad hoping he could receive a better education, but now, if he returns to China, he will not be able to find suitable courses to continue his studies.
    • In China competition is extremely fierce, and it is difficult for individuals without a graduation certificate or skills to find good jobs. Even washing dishes requires a bachelor's degree. His family is not wealthy, and if he cannot successfully complete his studies he will only become part of the lower class in society.

26. At the time of responding to the NOICC the applicant provided the following documents:

    ·Queens College certificate and Statement of results dated 3 February 2019 for General English (Beginner to Advanced) course;

    ·CoE for Diploma of Leadership and Management created on 13 March 2023;

    ·CoE for Advanced Diploma of Leadership and Management created on 13 March 2023; and

    ·Copy of his passport.

27. The applicant’s PRISMS record shows he has completed four courses, a General English (Beginner to Advanced) in 2019, a Diploma of Business in 2020, an Advanced  Diploma of Business in  2021 and a Diploma of Business in 2021. PRISMS shows his enrolment in  an Advanced  Diploma of Business course was cancelled on 19 November 2021 due to Non-commencement of studies. This is the enrolment relevant to the decision under review.  

28. Given the applicant’s failure to attend the hearing the Tribunal was not able to put his PRISMS record to him for his comment or response under s 359AA of the Act.  Accordingly, the Tribunal places no weight on the applicant’s PRISMS record save for the enrolment in an Advanced Diploma of Business course was cancelled on 19 November 2021. This enrolment was discussed in the NOICC and in the delegate’s decision and the Tribunal considers that the applicant has been given an opportunity to respond to this enrolment cancellation and has not disagreed with the information.

29. The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.

    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

30. The purpose of the applicant’s visa was to enable him to study. The applicant was not enrolled in a course of study for a period of  1 year 4 months prior to the issuing of the NOICC. The Tribunal finds the applicant’s breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.

31. There is no specific definition of 'compelling' in either the Act or the Regulations. To be ‘compelling’, the reasons in question must force or drive the decision-maker irresistibly to some end.[3]  

    [3] Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31].

32. Given the applicant’s failure to appear at the hearing, the Tribunal was unable to ask him whether there was a compelling need for him to remain in Australia. In his response to the NOICC he said he lives with his nephew and since he came to Australia they have been taking care of and supporting each other. He said if his visa is cancelled he can only return to China  which will seriously affect his studies and life and he does not want his departure to cause unnecessary trouble and pressure for his nephew. The response to the NOICC was provided in March 2023 and there is no current evidence as to whether there is a compelling need for the applicant to remain in Australia.

33. The applicant’s non-engagement in the study for which his visa was granted for an extended period of 1 year 4 months, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

    The extent of compliance with visa conditions

34. The applicant has not complied with condition 8202 of his student visa because he has failed to maintain enrolment in a full-time registered course of study from 19 November 2021 to 12 March 2023. There is no evidence before the Tribunal that he has not complied with the other conditions attached to his visa.

35. The applicant’s non-compliance for a period of 1 year 4 months from cancellation of his enrolment until the issuing of the NOICC weighs in favour of visa cancellation.

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

36. Given the applicant’s failure to appear at the hearing the Tribunal was unable to ask him whether hardship may be caused by the cancellation of his visa. In his response to the NOICC the applicant said if his visa is cancelled he can only return to China which will seriously affect his studies and life. In the NOICC response the applicant said if his visa is cancelled it will be a great shame for him and his family.

37. The Tribunal gives the hardship that may be caused to the applicant and his family some weight against cancellation.

    Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control

38. The applicant’s visa was cancelled as a result of his failure to maintain enrolment. The applicant was not enrolled in a course for 1 year 4 months prior to the issuing of the NOICC.

39. In his NOICC response the applicant claimed that his non-enrolment was caused by his previous migration agent not paying his tuition fees despite the applicant having paid the migration agent the funds to pay the fees. The applicant requested a postponement of the hearing on the basis that he wanted to obtain documents (translated) to support his claim. Despite the granting of the requested postponement, the applicant did not provide any documents and appears to have not provided any further instructions to his representative.

40. The Tribunal has no probative evidence to support the applicant’s claim that his previous migration agent did not pay his fees and absconded with his money and the money of many people. Therefore the Tribunal is unable to find that this is the reason for the applicant’s non-compliance. 

41. The Tribunal notes that even if the applicant had an agent who assisted him, that does not diminish his own responsibility to check that his fees have been paid. In the Tribunal’s view it is the responsibility of a visa holder to be aware of the conditions of their visa and remain compliant with them.   

1. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The Tribunal finds there are no extenuating or compassionate circumstances in this case and this weighs in favour of visa cancellation.

   Past and present behaviour of the visa holder towards the Department

2. There is no evidence before the Department that the applicant has behaved inappropriately with the Department and the Tribunal gives this factor no weight in its considerations.

   Whether there would be consequential cancellations under s 140

3. There is no one attached to the applicant’s visa and as such the Tribunal gives this factor no weight in its considerations.

   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

4. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s 189 and removed from Australia pursuant to s 198. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant and gives this some weight against cancellation.

   Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

5. There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation and the Tribunal gives this factor no weight in its considerations.

   Any other relevant matters

6. The Tribunal is not aware of any other considerations in relation to the cancellation.

   Conclusion

7. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of his visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant was not fulfilling the purpose of his travel to and stay in Australia as he was not undertaking the study for which his visa was granted. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa. It will not be in breach of Australia’s international obligations. The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

8. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled. 

   DECISION

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

   Christine Kannis
   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.