Liu (Migration)

[2020] AATA 1846

Liu (Migration) [2020] AATA 1846 (6 March 2020)

DECISION RECORD

DIVISION:		Migration & Refugee Division
APPLICANT:		Mr Cheng Liu
CASE NUMBER:		1933676
HOME AFFAIRS REFERENCE:		BCC2019/3262076
MEMBER:		Dr Jason Harkess
DATE:		6 March 2020
PLACE OF DECISION:		Melbourne
DECISION:		The Tribunal sets aside the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa and in its place substitutes a decision not to cancel the visa

Statement made on 06 March 2020 at 2:39pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered higher level course ceased – applicant changed to vocational courses – education provider recommended initial Vocational courses – voice recording of incorrect education advice – applicant later re-enrolled in degree course – financial hardship – decision under review set aside  

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2; Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

INTRODUCTION AND OVERVIEW

Student Visa Cancellation – Application for Review

1. The Applicant is a citizen of China and is 23 years old. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 22 November 2019 cancelling his Subclass 500 student visa pursuant to s 116(1) of the Migration Act 1958 (Cth) (‘the Act’).

Original Visa Grant

1. The Applicant’s visa was granted on 14 January 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.

1. The visa had an original expiry date of 30 August 2021 before it was cancelled. It provided for more than two years seven months during which the Applicant would be permitted to reside in Australia for the purpose of full-time study.

Reasons for Cancellation

1. 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.

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

1. 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 27 November 2019.

Issues for Determination by Tribunal

1. 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

1. The Tribunal convened a hearing to consider the merits of the application on 30 January 2020. The Applicant appeared before the Tribunal by video link to give evidence and present arguments. The Tribunal also received evidence by video link from Ms Sarah Jian, the Applicant’s current education agent.

1. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

Tribunal’s Determination

1. The Tribunal has concluded that the decision to cancel the Applicant’s visa ought to be set aside in this case.

GROUND FOR CANCELLATION

Applicable Law

1. 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.

1. 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).

1. 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 < type="1">

2. 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)?

Delegate’s Allegations and Findings

1. As the delegate’s decision record notes, the Applicant’s visa was originally granted on the basis that the Applicant was enrolled in, and would successfully complete a Certificate IV in English followed by Bachelor of Business (International Restaurant Management). The Bachelor’s course, being the higher-level course of the two courses for which the visa was granted, sits at Australian Qualifications Framework (‘AQF’) Level 7.

1. As the delegate’s decision record further notes, on 12 June 2018 the Applicant’s enrolment in the Bachelor’s course was cancelled by the course provider due to the non-commencement of studies. This was approximately five months after the visa was granted and before he had even commenced the course. The Applicant subsequently enrolled in a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery and an Advanced Diploma of Hospitality Management at the same course provider. These courses sit at AQF Levels 3, 4 and 6, respectively.

1. 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].

1. The cancellation of the Applicant’s enrolment in the Bachelor’s course amounted to a breach of Condition 8202(2)(b). The Applicant’s subsequent enrolments in the Certificate III, Certificate IV and Advanced Diploma courses did not restore the Applicant’s enrolment status to a non-breaching position. That is because the highest AQF Level at which any of those courses sit is Level 6 (the Advanced Diploma). The delegate found that the Applicant had continued to breach Condition 8202(2)(b) of his visa because he had downgraded his enrolment from an AQF Level 7 course to an AQF Level 6 course.

Applicant’s Response to Allegations

1. The Department of Home Affairs (‘the Department’) wrote to the Applicant by letter dated 15 October 2019, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). The NOICC set out particulars of the matters that have been summarised above and put the Applicant on notice that the Department was concerned that he may be in breach of Condition 8202 of his visa. The Applicant was invited to comment on these concerns before the Department determined whether his visa should be cancelled.

1. The Applicant responded to the NOICC in writing on 16 October 2019 (‘the Applicant’s NOICC response’). In that response, the Applicant did not dispute that he was in breach of Condition 8202 of his visa as alleged, although he sought to explain the circumstances giving rise to the breach.

1. At the hearing before the Tribunal on 30 January 2020, the Applicant admitted that he was in breach of Condition 8202(2)(b) of his visa as alleged.

Conclusion

1. 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.

CONSIDERATION OF DISCRETION TO CANCEL VISA

1. 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

1. 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’.

1. 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 (eg, 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

1. The visa which the delegate cancelled was the Applicant’s first Australian student visa. The visa was granted so that the Applicant could complete a Bachelor’s course. It was not granted so that he could complete Vocational Education and Training (‘VET’) level courses, which is what the Certificate III, Certificate IV and Advanced Diploma courses represent. The Applicant’s actions in downgrading his course therefore amount to a fundamental violation of the purpose for which his visa was granted. The Tribunal regards this as a factor in favour of cancellation.

1. However, the Tribunal has considered the possibility that the purpose of the Applicant’s visa can potentially be restored by the Applicant undertaking to enrol in and successfully completing another Bachelor’s course. The Applicant has provided such an undertaking in the course of the Tribunal hearing. Having regard to the circumstances giving rise to the breach of his visa, as set out below, the Tribunal also considers that the Applicant did not deliberately intend to breach his visa conditions. Although operating under a misapprehension as to his legal obligations, the Tribunal ultimately accepts the Applicant to be a witness of truth.

1. The Applicant provided a Confirmation of Enrolment (‘CoE’) document bearing CoE reference code B4189A58. This CoE indicates that on 22 January 2020 the Applicant re-enrolled in a Bachelor Business (International Restaurant Management) at the same course provider which will commence on 6 January 2021. The course is related to the current VET-level courses referred to above and will commence when he has completed those. The CoE also indicates that he has pre-paid an initial tuition fee of $16,887, corroborating his claim that he is genuine in his wish to pursue the Bachelor’s course in international restaurant management. This evidence weighs in favour of not cancelling his visa.

Circumstances Giving Rise to Ground for Cancellation

1. The Tribunal has considered the circumstances giving rise to the breach of his visa, as explained by the Applicant in the course of giving evidence at the hearing on 30 January 2020. The Applicant arrived in Australia as originally planned and commenced his studies in English. Prior to the start of the term of the Bachelor’s course, he was invited by the course provider’s staff for an information session about the course. At this point, the Applicant said he started to have some doubts as to whether he should be commencing a Bachelor’s course in restaurant management before undertaking practical training so he could learn the essential skills of a cook. After consultation with staff at the course provider, he decided that he would adjust his education pathway and enrol in the VET-level course referred to above. As noted above, the Tribunal found the Applicant to be a witness of truth and therefore accepts this evidence.

1. After coming to the view that he should undertake a Certificate III, Certificate IV and Advanced Diploma course, he consulted his then education agent as to whether such a change would be feasible. He said that his agent advised him that he could make such a change to his enrolment and that his visa status would remain the same. The Tribunal had significant doubts as to whether a registered education agent would have given him such advice, given that the change in enrolment that he had proposed would clearly violate Condition 8202(2)(b). However, the Applicant produced in evidence a recorded message left by his agent on WeChat on 12 June 2018. He played the recorded message and the interpreter provided an interpretation of it for the Tribunal. The message corroborated the Applicant’s claims that he had received erroneous advice from his education agent. The agent stated that the Applicant ‘can continue to use this visa – it’s okay – upon completing the diploma you can extend it then – they are in the same category …. The department of immigration would not really care’. The Applicant was clearly misled. Had he not been misled, the Tribunal finds that it is unlikely that he would have cancelled his enrolment in the Bachelor’s course.

1. The Tribunal finds that the bad advice he received from his then education agent amounts to extenuating circumstances that explain his non-compliance with Condition 8202(2)(b) of his visa. This weighs in favour of not cancelling his visa.

Extent of First Applicant’s Compliance with Visa Conditions

1. There is no information before the Tribunal that suggests that previous allegations have been formally made against the Applicant for non-compliance with his visa conditions of this visa or any other visa issued in Australia or elsewhere. Indeed, but for this current breach, it appears that the Applicant has otherwise been a model international student. Despite the Department’s move to cancel his visa, he has continued to progress with his studies towards a career in restaurant management. He has provided evidence of his continued academic progress to date in his VET-level courses. The Tribunal accepts this evidence as demonstrative of the Applicant’s genuine desire to maintain ongoing compliance with the conditions of his visa now and until its expiry. This weighs in favour of not cancelling his visa.

Hardship

1. The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia and complete his education. He has expressed a continuing desire to do further studies in Australia. He has now re-enrolled in and pre-paid $16,887 towards the Bachelor’s course which is to commence early next year. The Tribunal accepts that both the Applicant and his family will suffer some degree of hardship if his visa is cancelled and he is forced to return to China without completing the Bachelor’s course.

Applicant’s Behaviour towards Department

1. 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

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.

1. The Tribunal considers these consequences to be unduly punitive in the circumstances as outlined above.

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 should not be cancelled.

DECISION

1. The Tribunal sets aside the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa and in its place substitutes a decision not to cancel the visa.

Dr Jason Harkess
Member