Lin (Migration)

[2019] AATA 5992

Lin (Migration) [2019] AATA 5992 (12 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Yu-Heng Lin

CASE NUMBER:  1902725

HOME AFFAIRS REFERENCE(S):     BCC2018/5295365

MEMBERS:Dr Jason Harkess

DATE:12 August 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa

Statement made on 12 August 2019 at 9:55am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 500 (Student) – Diploma of Hospitality Management – not enrolled in registered course for ten months – dissatisfied with course provider – release letter not provided by course provider – financial difficulties – illness in family – positive steps to remedy situation not taken – inconsistent evidence – lack of evidence – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The Applicant is a citizen of China. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 30 January 2019 cancelling his Subclass 500 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant’s student visa was granted on 22 February 2018 with an original expiry date of 15 March 2020, providing for more than two years during which the Applicant would be permitted to reside in Australia for the purposes of full-time study. The visa was granted on the basis that he was enrolled in and would successfully complete a Diploma of Hospitality Management at Royal Gurkhas Institute of Technology (‘RGIT’).

3. The delegate cancelled the Applicant’s visa on the basis that he had breached that condition of the visa which required him to continue to be enrolled in a registered course of study.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The Applicant appeared before the Tribunal on 30 July 2019 to give evidence and present arguments. The Tribunal also received evidence from Mr Chow Wee Tan, the Applicant’s education consultant.

6. The hearing was conducted with the assistance of an interpreter of the Mandarin and English languages.

7. For the following reasons, the Tribunal has decided to affirm the decision to cancel the visa.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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. In the present case, the issue is whether the Applicant has breached condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

Did the Applicant Breach Condition 8202?

1. Condition 8202(2)(a) of the Applicants visa require’s that the Applicant remain enrolled in a full-time registered course. In the delegate’s decision record, the delegate identified the period from 1 March 2018 to 14 January 2019 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to more than 10 months during which the Applicant was alleged to be in continuous breach of the visa.

2. The delegate’s finding in this respect was 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’).[1] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database allows registered course providers to report changes in relation to a student’s enrolment status and to 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. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s COE in a course for which they had previously been enrolled and the reasons for doing so.

   [1] 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].

3. The PRISMS report obtained by the delegate indicated that the Applicant’s course provider, RGIT, cancelled the Applicant’s enrolment in the Diploma of Hospitality Management course on 1 March 2018 due to the Applicant failing to commence his studies.

4. The Department of Home Affairs wrote to the Applicant on 9 January 2019, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). That notice set out particulars of the alleged breach by the Applicant of condition 8202. The Applicant was invited to comment on these allegations before the Department moved to cancel his visa.

5. The Applicant provided a written response to the Department on 24 January 2019 (‘NOICC response’). In that response the Applicant did not concede that he had breached the visa. At the hearing before the Tribunal, the Applicant also initially disputed that he was in breach of the visa. He initially stated that he attended all classes at RGIT and completed all assignments, for the entire academic year of 2018. He insisted that the Department was incorrect in alleging that he had breached his visa.

6. When the Tribunal directed the Applicant’s attention to the fact that his evidence was fundamentally at odds with the information before the Tribunal, the Applicant remained insistent that he remained enrolled in the Diploma course and attended all classes at RGIT in 2018. The Tribunal pointed out to the Applicant that the information on the PRISMS database, as set out in the delegate’s decision record, clearly showed that RGIT had cancelled his enrolment in the course on 1 March 2018. The Tribunal advised the Applicant that he would need to produce evidence of his attendances at classes at RGIT during 2018, including assignments submitted and marks received, to refute the breach allegation. In the absence of such evidence, the Tribunal indicated that it would rely on the information derived from the delegate’s decision record and the PRISMS database. The Applicant stated that he could obtain such evidence.

7. As the hearing progressed, the Applicant changed his initial position on the alleged breach, quite significantly. He stated that he stopped attending RGIT’s campus in or around January and February 2018. The Tribunal asked the Applicant whether he could remember the last time he set foot on RGIT’s campus. The Applicant stated that he last attended the campus in December 2017. The Applicant provided reasonably clear evidence that he had completely disengaged as a student at RGIT by the time the academic year had started in 2018, and certainly by the time that RGIT cancelled his enrolment on 1 March 2018.

8. Accordingly, on the evidence, the Tribunal is satisfied that the delegate was correct in finding that the Applicant had breached condition 8202(2)(a) of his student visa for the period of time that was alleged.

Consideration of Discretion to Cancel Visa

1. 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 the 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’). The matters that ought to be considered are specifically listed in PAM3 as follows:

   ·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);

   ·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;

   ·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;

   ·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;

   ·the Applicant’s past and present behaviour towards the Department (eg, whether they have been truth and co-operative in their dealings with the Department);

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

   ·whether there are mandatory legal consequences arising from a decision to cancel the visa;

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

Circumstances Giving Rise to Breach of Condition 8202

1. There were a variety of circumstances to which the Applicant directed the Tribunal’s attention, which the Applicant submitted should, in combination, be considered as basis for not cancelling his visa.

2. The first point relates to his dissatisfaction with the course provider and the quality of the education that was provided. Essentially, the Applicant stated that he was not satisfied with RGIT and their teaching staff. Accordingly, he ceased his studies. That, of course, is his prerogative. However, if he chooses to do this, he must enrol in another registered course of study to maintain compliance with Condition 8202. He did not do so.

3. This, then, leads to the second point raised by the Applicant. He stated in evidence that, following his cessation of studies at RGIT, he was unable to obtain a ‘release letter’ from RGIT that provided written confirmation that he had been released from his obligations as a student. Such a letter, it was suggested, would enable him to approach other registered course providers and apply to enrol in another course. Without a release letter, he argued, he would be hampered in attempting to do so.

4. The Applicant’s submission in this respect was supported by the evidence of his education consultant, Mr Chow Wee Tan. Mr Tan gave evidence that, without a release letter from RGIT, the Applicant would have found it difficult to obtain an enrolment with another registered course provider. The Tribunal inquired of Mr Tan as to what exactly it was that would have prevented the Applicant from approaching another course provider to enrol in another course if a previous course provider had terminated their relationship with the Applicant. Mr Chow was insistent that, without a release letter, it would have been very difficult for the Applicant. Beyond Mr Tan’s insistence that this was the case, no further evidence in support of this contention was provided to the Tribunal.

5. The submission of the Applicant, supported by the evidence of Mr Tan, struck the Tribunal as somewhat bizarre. In the Tribunal’s view, once RGIT had terminated the Applicant’s enrolment and, by implication, its contractual relationship with the Applicant, there was nothing preventing the Applicant from enrolling in another course at a different course provider. The Tribunal rejects the Applicant’s submission in this regard, as well as the evidence of Mr Tan. The Applicant had a valid student visa. Presented with such evidence, and if the Applicant otherwise met the relevant course eligibility criteria, an alternative course provider would have enrolled the Applicant in another course upon payment of the necessary fees. By doing so, the Applicant would have been placed in a position of compliance with Condition 8202.

6. The third point raised by the Applicant relates to potential financial difficulties that the Applicant was having. There was some suggestion in the Applicant’s evidence that he may have had difficulty in meeting the tuition costs of his courses. However, this evidence was very vague. In any event, it is an essential condition for the grant of the student visa that the visa applicant demonstrate that they in a financial position to maintain their ability to meet their tuition and living costs for the duration of their stay in Australia. On the limited material before the Tribunal, the financial circumstances of the Applicant have not had any bearing on the Tribunal’s consideration of whether his visa should be cancelled.

7. Fourthly, the Applicant raised the situation with respect to the chronic illness of his father in China. The Applicant provided documentary evidence in support of the claim that his father is suffering a chronic and debilitating medical condition which appears to have been ongoing at least since 2015. The Tribunal accepts this evidence. It also accepts that it would be difficult for the Applicant being away from his father in such circumstances. However, sickness of family members are unkind life stressors that everyone must deal with at some point. Non-Australian citizens on student visas in Australia are no exception. Many student visa holders are forced to contend with such difficulties during their stay in Australia. They are all burdened in a similar way in that they are having to deal with some degree of emotional turmoil while away from their families in their home country. At the same time, they are obviously burdened with having to maintain their studies in Australia in order to comply with the strict visa conditions attaching to student visas. Many such students are young adults, just like the Applicant.

8. In such circumstances, registered course providers and Department have in place policies that permit the exercise of discretion for compassionate reasons that will allow a student visa holder some latitude in having to deal with a difficult personal situation. The cancellation of an enrolment and the subsequent cancellation of a visa is a last resort. However, the exercise of a discretion to refrain from cancelling an international student’s enrolment, or to refrain from cancelling their visa, is premised on the visa holder taking positive steps to bring their personal issues to the attention of the relevant authorities and by producing evidence that corroborates their claims. In this case, the Applicant did not do so. He neither contacted staff at his course provider, nor staff at the Department, to inform them of any personal difficulties he may have been having.

9. It is difficult for the Tribunal to fathom why the Applicant chose not to prioritise compliance with his visa conditions by recommencing his studies. The Applicant stated that he was looking for alternative education providers, but there is very little credibility to be found in this contention. There is no psychological evidence, beyond that the evidence of the Applicant himself, that provides an adequate account of his mental state at the time. The Tribunal is therefore unable to form any view as to whether the Applicant was suffering any clinically diagnosable mental health condition that puts his suffering into a category that goes beyond the ordinary mental difficulties that ordinary people generally suffer on a day to day basis in dealing with life’s stressors, and that this may have been a cause of him effectively doing nothing to get his studies back on track.

10. In these circumstances, the Tribunal is not satisfied with his explanation as to why he remained in continuous breach of his student visa for the period alleged by the delegate.

Purpose of Applicant’s Stay in Australia

1. The purpose of the Applicant’s stay in Australia, as reflected in the essential purpose of a student visa, is to study on a full-time basis. That purpose was effectively defeated when the Applicant ceased studying.

2. The Applicant stated in evidence that he wishes to continue with studying in Australia so that he can return to his home country with an Australian qualification. However, his evidence in this respect was somewhat vague and lacking in substantial direction. The Tribunal is of the view that his claims of wanting to continue with formal studies in Australia are somewhat disingenuous having regard to the reasons set out in paragraphs [18] to [27] above. The Tribunal is unable to discern a compelling need for the Applicant to remain in Australia.

Extent of Applicant’s Compliance with Visa Conditions

1. The Applicant’s breach of his visa, which was to last for more than 2 years, commenced just one week after it was granted. In effect, the Applicant never made any realistic attempts to comply with the fundamental condition of his student visa from the outset of the visa grant period. This is a significant factor that weighs in favour of cancelling his visa. As outlined in the Tribunal’s reasons in in paragraphs [18] to [27] above, the Applicant’s attempts at re-enrolling in a registered course of study, to resume compliance with Condition 8202, were virtually non-existent or, at the very least, unsatisfactory.

Hardship

1. The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia and complete his education. The Tribunal accepts that it would be difficult for him were he not allowed to complete successfully an Australian qualification.

2. However, that desire must be tempered with the extent of his non-compliance with the conditions of the visa. It was a student visa which obliged him to prioritise studying in Australia the entire time he has been here. In the Tribunal’s view, he has not provided a satisfactory explanation for not complying with that fundamental condition. Indeed, it seems that he has achieved nothing at all in terms of study progress for the entire operational period of the visa. It seems that he has fundamentally failed to utilise his student visa effectively for the purpose it was designed to serve.

Applicant’s Behaviour towards Department

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

Other Visa Holders

1. 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

1. 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 visa conditions.

2. 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

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

Conclusion

1. In all the circumstances, the Tribunal is satisfied that the Applicant’s visa ought to be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa.

Dr Jason Harkess
Member