Liu (Migration)

[2019] AATA 2976

Liu (Migration) [2019] AATA 2976 (17 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Liantai Liu

CASE NUMBER:  1708046

HOME AFFAIRS REFERENCE(S):          BCC2017/717011

MEMBER:Michael Bradford

DATE:17 May 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 17 May 2019 at 2:25pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – changed from engineering to IT – not released from engineering course – unable to enrol in IT course – father’s health issues – non-compliance – evidence that applicant genuinely wishes to complete studies in Australia – decision under review set aside

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

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

Background-applications, some evidentiary aspects and procedural matters

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection 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 11 April 2017 on the basis that the applicant had not complied with condition 8202 because he had not been enrolled in a registered course of study since 8 October 2016. The issues in the present case are whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. On 16 March 2017 the Department of Immigration and Border Protection sent to the applicant a Notice of Intention to Consider Cancellation of his visa (the NOICC) and inviting him to comment on a possible breach of condition 8202(2)(a) arising from his non-enrolment.

4. The applicant responded to the NOICC on 30 March 2017 by forwarding an email to the Department to which was attached a typed statement, in which he sought to explain why his visa should not be cancelled, together with other documents.

5. The applicant said in the statement that he had completed a Diploma of Engineering at the Sydney Institute of Business and Technology (SIBT) in late 2016 but had found that, as he was not well suited to engineering, he did not want to continue with the Bachelor of Engineering at Macquarie University, in which he had also enrolled, and wanted to change his field of study to Information Technology (IT). He said that he had applied for enrolment in a Bachelor of IT at La Trobe University (Sydney Campus), among other courses. A copy of a signed and completed application form to that University dated 11 November 2016 was attached to the email. In this form the applicant indicated that he wanted to enrol in that course commencing in March 2017.  

6. The applicant also said in his statement that he had been unable to secure enrolment in that and other IT courses because Macquarie University would not release him from the Bachelor of Engineering course. According to his statement that University had not informed him until March 2017 that his enrolment in that course had been cancelled.

7. A copy of an Offer of Admission dated 11 November 2016 from Southern Cross University for a Bachelor of IT to commence in February 2017 was also attached to the email, as was the signed and completed Application Form for that course dated 7 November 2016.

8. The applicant went on to say in his statement that he had also received an offer from the Wentworth Institute to undertake study in a Bachelor of Information Technology Business Analysis course. A copy of that Offer was also attached to the email although it can be seen from this document that it was in fact an offer for enrolment from that Institute in a Diploma course with the same name. This document is dated 28 March 2017 and reveals that the course was due to commence on 10 April 2017 and was to run for a period of 52 weeks with a finishing date of 9 March 2018. The applicant stated that he had made a payment to that Institute for enrolment in that course and that his enrolment would be confirmed shortly.

9. On 11 April 2017 the applicant was notified by the Department that his visa had been cancelled and, on 13 April 2017, he lodged his review application with the Tribunal.

10. On 21 April 2017 the applicant’s authorised legal representative, Mr Kaixin Chen, applied to the Tribunal for access to all of the documents in the Department’s and Tribunal’s files relating to his client’s review application and, on 15 May 2017, a copy of those documents were provided to him. Among these documents was a copy of the Decision Record of the delegate dated 11 April 2017.

11. On 24 April 2019 the applicant was invited by letter to appear before the Tribunal to present his case. In this letter he was also asked to provide all of the documents on which he intended to rely within 7 days.

12. The applicant responded to that invitation on 25 April 2019 by completing the standard hearing response form and his representative provided a written submission and supporting documents on 1 May 2019, and a further copy of the submission on 2 May 2019. These documents, or at least some of them, will be considered later in these reasons.

13. On 9 May 2019 the Tribunal obtained from sources other than the applicant a PRISMS record and Movements Details the content of which will also be considered later in these reasons.

14. On 10 May 2019 the applicant appeared at the hearing together with his representative and a Mandarin interpreter. Although a good deal of his oral evidence was given through the interpreter, some of it was given directly in English.

15. A copy of the PRISMS record and Movement Details were provided to the applicant and his representative at the start of the hearing.

16. Assistance from the applicant’s representative was sought by the Tribunal and given when required. Although advised by the Tribunal that he could also seek the assistance of his representative as and when required, the applicant (to his credit) did not avail himself of this opportunity.

17. Two additional documents were provided to the Tribunal at the hearing. These consist of a bundle of mainly untranslated medical records apparently from the Changji Hui People’s Hospital in China relating to the admission and treatment of the applicant’s father, Qun Liu, for a serious coronary condition during January 2017. The other document is a letter of 30 April 2019 from the Wentworth Institute relating to two Diploma of Information Technology courses in which the applicant was, and is currently, enrolled. Both the bundle and this letter bear the Tribunal’s received date stamp of 10 May 2019.  

18. For the reasons which follow, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

    The Department’s decision

19. The delegate’s finding that the applicant had not been enrolled in a registered course of study since 8 October 2016 was supported by the data in a PRISMS record and was not relevantly in dispute. According to the delegate, there was nothing in the applicant’s statement which disputed that fact and, consequently, the delegate was satisfied that the applicant had breached condition 8202(2)(a) as from 8 October 2016 and that a ground for cancellation of his visa was made out..

20. As to whether the visa should be cancelled, after setting out the substance of the applicant’s statement and referring to the documents in support, the delegate noted that the applicant did not have a confirmed enrolment in any registered course of study. The delegate further noted that the letter of offer from the Wentworth Institute relating to the Diploma of IT Business Analysis course did not come about until after the Department’s NOICC was issued on 16 March 2017, from which the delegate inferred that the applicant was motivated to procure that offer solely because he wanted to remain in Australia for reasons other than study.

21. As to the applicant’s assertion that his non-enrolment came about because Macquarie University would not release him from the Bachelor of Engineering course, the delegate said that, as the PRISMS record revealed that his enrolment in that course had been cancelled on 18 March 2016, the University could not have prevented him from obtaining an enrolment in another course from a different provider towards the end of that year and, in any event, the applicant had not provided any evidence to support the claim that he had been prevented from doing so.

22. On that basis, and after taking into consideration other factors which were regarded to be of no or little weight, the delegate considered that the applicant had not provided any reason as to why his visa should not be cancelled.

23. Consequently, the delegate was satisfied that the grounds for cancelling the visa outweighed the grounds for not cancelling it.

    The issues on the review application and the Tribunal’s approach to them

24. The Visa Grant Notice in the Department’s file indicates that the subject visa is a Student (Temporary) (class TU) (subclass 573) which was granted to the applicant on 24 March 2015 for a period of 4 years. According to this Notice, one of the conditions on which this visa was granted was condition 8202.

25. At the hearing of his review application before the Tribunal, the applicant did not dispute that at the time of the delegate’s decision he had not been enrolled in a registered course of study as from 8 October 2016 although he sought to explain this on the same basis put to the delegate, namely that Macquarie University had prevented him from enrolling in another course at that time.

26. That being so, it will be necessary for the Tribunal to consider two issues in this review; firstly, whether the applicant has not relevantly complied with condition 8202 and, secondly, if the applicant has breached that condition, whether his visa should be cancelled under Sec 116(1)(b) of the Act.

27. Of course, the Tribunal must conduct this review afresh having regard to the evidence before it some of which, it must be said, was not before the delegate.    

    Evidence and findings

    Is the power to cancel the visa enlivened-has the applicant breached condition 8202?

28. In the applicant’s submission to the Tribunal, he concedes that he did not study in any registered courses between October 2016 and March 2017. This concession would appear to be well made for the evidence clearly reveals that the applicant was not in fact enrolled in a registered course of study from 8 October 2016, this being the date on which he completed the Diploma of Engineering, to the date on which he accepted the offer from the Wentworth Institute for enrolment in the Diploma of IT Business Analysis course. The exact date on which he accepted that offer is unclear to the Tribunal but it must have been towards the end of March 2017 as the offer for enrolment in that course is dated 28 March 2017 and the applicant had informed the delegate in his statement that he had accepted it and was waiting for the COE to issue.  

29. Although that COE has not been made available to the Tribunal, having heard from the applicant at the hearing and having considered his oral evidence against the background of the available objective documentary material, the Tribunal is prepared to accept that the applicant had in fact done that by the time he sent his statement to the delegate on 30 March 2017.

30. Thus, it would appear from that evidence that the applicant was not enrolled in a registered course of study for a closed period of almost 6 months.

31. In his submissions the applicant stated that he had enrolled in the Diploma of Engineering at SIBT and the Bachelor of Engineering at Macquarie as a package course. According to the data in the PRISMS record obtained by the Tribunal, the Diploma course was due to commence on 16 February 2015 and finish on 5 February 2016 and the Bachelor course was due to commence shortly afterwards on 15 February 2016.

32. At the hearing the applicant explained that he was having difficulty with the content in the Diploma and that he was unable to finish that course on the due date and, indeed, that he did not finish it until 8 October 2016. The Tribunal accepts his evidence that this was the reason why he could not complete the course requirements for the Diploma in a timely fashion. Obviously, in these circumstances, he could not commence study in the Bachelor course on the due date and he confirmed this in his oral evidence.

33. The PRISMS record also confirms that the applicant’s enrolment in the Bachelor course was cancelled by Macquarie on 18 March 2016 for non-commencement of studies in that course.

34. In these circumstances, it is hard for the Tribunal to see how any act or omission on the part of Macquarie could possibly have contributed to the applicant’s non-enrolment in a registered course during the period from 8 October 2016 to the end of March 2017. There was, in the Tribunal’s view, nothing to release the applicant from after the date on which his enrolment in the Bachelor course was cancelled. Moreover, the Tribunal is unable to accept the applicant’s oral evidence that Macquarie did not inform him until March 2017 that his enrolment in that course had been cancelled but, in any event, that is in the Tribunal’s view quite irrelevant to his non enrolment as from 8 October 2016.

35. This being so, the breach by the applicant of condition 8202(2)(a) is clearly established and the power to cancel his visa under Sec 116 (1)(b) is enlivened.

    Should the visa be cancelled?

36. Having found that the applicant has not complied with a condition of his visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or the Regulations which must be considered in the exercise of this discretionary power by the Tribunal. Obviously, the Tribunal must have regard to the individual circumstances of each case, including in this case the matters raised by the applicant together with other matters referred to in the Department’s Procedures Advice Manual (PAM3) under the heading “General Visa Cancellation Powers”. These matters will be specifically addressed later in these reasons.

37. Before coming to the relevant detail of the applicant’s oral evidence in relation to this issue the Tribunal notes that the applicant gave his evidence in a careful and considered fashion, appearing to be doing his best to accurately recollect important detail, to inform the Tribunal of the circumstances in which the breach occurred and to provide other important information in relation to the issue of whether his visa should be cancelled.

38. The Tribunal does not regard his attempt to blame Macquarie University for his failure to secure enrolment during the period from 8 October 2016 to late March 2017 to be a matter reflecting adversely on his credit, or on the reliability of his other evidence or on the general merits of his case. Rather this is, in the Tribunal’s assessment, more the result of a mistaken recollection of detail and perhaps reliance on misconceived advice than anything else.

39. Overall, much of the applicant’s oral evidence is corroborated in important respects by the contemporaneous and other objective documentary material which he has provided and which has otherwise been obtained by the Tribunal.

40. The Tribunal is also prepared to accept his oral evidence whether or not it is independently corroborated provided it is not inconsistent with the documentary record or with the inherent probabilities of the case. Apart from his attempt to explain away his non-enrolment, his evidence is broadly consistent with the objective features.

41. The applicant arrived here in October 2011 and completed his secondary education in late 2014, obtaining his Higher School Certificate while a student at Ashfield Boys High School. Although he obtained various awards and commendations during his senior secondary years, his eventual results in the HSC do not suggest that he is a particularly gifted student. If anything, his HSC results were a fairly good indication that he was going to find tertiary education to be something of a challenge and his later academic performance confirms this to have been the case.

42. As has already been noted, in early 2015 he enrolled in the Diploma of Engineering at SIBT and in the Bachelor of Engineering at Macquarie.

43. On 16 February 2015, he commenced studies in the Diploma ultimately finishing that course in October 2016, about 9 months after it should have been completed. PRISMS confirms as much.

44. The Tribunal accepts the applicant’s explanation in his statement to the delegate, as confirmed in his oral evidence, as to why he could not complete the Diploma in a timely fashion and why he decided to abandon the idea of going onto higher level education in the field of engineering. The Tribunal accepts that he had difficulty with the Diploma course content, that he genuinely felt that he would be better suited to IT study and that, with that in mind, he began to explore the IT academic options, among other possibilities, in or about late 2016 and early 2017.  

45. The other letter of 30 April 2019 from the Wentworth Institute, that is to say the one which relates to the Diploma of IT Business Analysis course, reveals that he commenced studies in that course on 10 April 2017 and ceased studies on 2 June 2017. The applicant did not dispute at the hearing that he did not in fact complete the educational requirements for that course within that time or at all and that the letter was not to be interpreted as meaning that he had but was rather indicating only that he had attended classes in that course during that period. Other documentary material confirms as much, including the interim academic statement relating to that course dated 29 April 2019.

46. PRISMS data indicates that the applicant commenced studies in the Diploma of Information Technology at the Wentworth Institute on 4 September 2017 and is due to finish this course on 5 July of this year.

47. The applicant provided to the Tribunal a COE for this course from the Wentworth Institute. The Tribunal accepts that, although the course identified in this document bears a different CRICOS code to the course which he commenced to study in early September 2017, it is in substance the same course. The applicant said as much in his oral evidence. The Tribunal accepts his evidence to the effect that he anticipates completing that course in early July of this year. This is well beyond the specified completion date for that course of 17 August 2018. The interim academic statement relating to this course dated 29 April 2019, which the applicant has also obtained, appears to confirm as much.

48. The applicant gave oral evidence that he enrolled in the Diploma of Information Technology at about the time when he ceased to attend classes in the IT Business Analysis course, that is to say in about early June 2017 but was unable to begin study for the Diploma of IT until September of that year. Given that the applicant was aware by this stage that his visa had already been cancelled, it seems to the Tribunal unlikely that he would have been dilatory in enrolling in that Diploma and, consequently, the Tribunal is prepared to accept his evidence that he did so in or about early June 2017.

49. As to the circumstances in which the ground for cancellation arose, the Tribunal has already rejected the applicant’s explanation that Macquarie University was somehow to blame.

50. The applicant also gave oral evidence to the effect that his father became very ill at about that stage and that he went back to China to see him shortly before he was discharged from hospital. The documents, namely the Discharge Summary which is included in the bundle of documents referred to previously, and the Movements record, confirm as much. Certainly, the applicant was in China for a period of about 3 weeks from 15 January 2017 to 6 February 2017 to see his father, he said, and the Tribunal is prepared to accept this evidence.

1. The Tribunal finds that the applicant was in fact distracted by his father’s medical issues and infers that this was likely affecting him for a period considerably longer than just the period of time he spent in China.

2. The applicant gave oral evidence that he is close to his father and that he has been in regular telephone and other contact with him whilst he has been in Australia, both before and after his illness. The Tribunal accepts this evidence.  

3. Although, in his submissions, the applicant also sought to partly explain his non-enrolment on the basis that the Christmas and New Year holiday period intervened, the Tribunal cannot regard this to be a significant factor given the length of the period of non-enrolment and the other personal factors which were operating on him at the time.

4. On balance, the Tribunal regards the applicant’s family situation in late 2016 and early 2017 to be a strong mitigating factor when it comes to considering the circumstances in which the breach occurred and the weight to be accorded to them.

5. As to the purpose of the applicant’s travel to and stay in Australia, the applicant has provided information that he came to Australia to study and that the evidence plainly reveals that he has spent the vast bulk of his time here doing so. True it is that he has taken considerably longer to complete his Diploma courses than what he should have done and that he has changed his educational direction perhaps more than once but allowances can and should be made for these things in an appropriate case.

6. This, in the Tribunal’s assessment, is such a case. The applicant went straight from high school into tertiary studies at the vocational level under a Student 573 visa which had been granted by the Minister a period of 4 years to enable him to complete a Diploma of Engineering and a Bachelor of Engineering, courses which together contemplated continuous study for the whole of that period. This was always going to be a challenge of some dimension for this applicant.

7. Be that as it may, the Tribunal regards the applicant’s perseverance with his studies in the Diploma of Engineering and the Diploma of IT to be a factor which reflects favourably on him, if anything, as does the fact that his decision to abandon the idea of pursuing the Bachelor’s degree was a realistic, responsible and well intentioned one.

8. On the basis of the evidence, the Tribunal finds that the applicant has remained in Australia since completing the Diploma of Engineering in order to pursue and complete his IT studies and to achieve an appropriate academic qualification in that field. Bearing in mind the applicant’s current circumstances, in particular the fact that the Diploma of IT will probably be completed in early July of this year, the Tribunal is of the view that he should be given the opportunity to do that unless there are strong countervailing factors.

9. In this case, there are in the Tribunal’s view no such factors and, indeed, most of them reinforce the conclusion that the decision to cancel the visa should be set aside.

10. As to the extent of compliance with visa conditions, the Tribunal has found that the applicant was not enrolled in a registered CRICOS course for a period of about 6 months but with extenuating circumstances. There is nothing before the Tribunal to suggest that he has breached any other visa condition. The Tribunal expects that a visa holder will generally comply with the conditions of his or her visa. Given that the breach in this case cannot be described as a merely technical one, the Tribunal does not place a great deal of importance on the fact that the applicant may have complied with other visa conditions.

11. As to the degree of financial and other hardship that may be caused, the Tribunal can and does take into account the fact that the applicant has been a fee paying tertiary student  since early in 2015, that he has paid the full tuition fees for the partly completed Diploma and that he has made substantial progress towards its completion. The Tribunal takes into account the well documented fact that to compel the applicant to return to China at this stage without a good academic qualification in his chosen field will put him at a considerable disadvantage in the competitive labour market of his home country.

12. In view of the above the Tribunal considers that there would be a level of significant hardship to the applicant if his visa remains cancelled and he is unable to complete the Diploma in Australia. The Tribunal gives this aspect of the matter some weight in his favour.

13. As to the past and present conduct of the applicant towards the Department, there is nothing before the Tribunal to indicate that he has not cooperated with the Department in his dealings with it since receiving the NOICC, and he has fully cooperated with the Tribunal in providing information and responding to the Tribunal’s invitations. The Tribunal gives these matters some weight in his favour.

14. As to whether there are mandatory legal consequences which would attach to a cancellation decision, the Tribunal considers it unlikely that the applicant would be detained if his visa remains cancelled in these circumstances. The Tribunal notes that he would have a limited period of time in which to leave the country and accepts that he would be temporarily barred from obtaining a further visa for entry into Australia. However, this is due to the operation of the migration laws in Australia and is a result of his own actions. The Tribunal gives this consideration minimal weight in his favour.

15. There is nothing before the Tribunal to indicate that there are international obligations to consider.

16. As to whether there are any other relevant matters, the Tribunal notes that the applicant’s visa expired on 15 March of this year and that if his visa cancellation is set aside he would likely have to apply for a further visa to lawfully remain in Australia and complete his studies here. Thus, in this event, he will have to apply for and meet the criteria for the grant of a new Student subclass 500 visa.

17. The Tribunal accepts that the applicant feels confident that he will complete the course in which he is currently enrolled and that it has been selected to suit his needs, academic capabilities and aspirations. Again, these are weighty factors in his favour.

18. Having considered the evidence before it, the Tribunal accepts that the applicant genuinely wishes to complete his studies in Australia and finds that he should be given the opportunity of doing so.

19. Overall, the considerations set out above weigh heavily in favour of the Tribunal exercising its discretion to revoke the cancellation and allow the applicant to complete the course in which he is currently enrolled.

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

    DECISION 

21. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Michael Bradford
    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.