Liu (Migration)

[2018] AATA 5110

Liu (Migration) [2018] AATA 5110 (16 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Qingqing Liu

CASE NUMBER:  1726660

HOME AFFAIRS REFERENCE(S):           BCC2017/2922289 BCC2018/374706

MEMBER:Adrienne Millbank

DATE:16 August 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 16 August 2018 at 5:30pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector visa – Not enrolled in a registered course of study – Breach of condition 8516 – Large number of enrolment cancellations – weak and unconvincing evidence – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116
Migration Regulations 1994, r 1.40A, cls 573.111, 573.112, 573.223, 573.231

CASES
Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 25 October 2017 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 of the Migration Act 1958 (the Act).

2. The applicant is a 27 year old Chinese national, who has remained in Australia on Student visas, apart from visits home for two or three months duration in 2010-2011, 2013 and 2015, since 2009. He was granted the Subclass 573 visa subject to this review on 20 October 2015. At the time of the visa grant the applicant held confirmation of enrolment (CoE) for a package comprising two courses: Diploma of Information Technology, through Queensland Institute of Business and Technology (QIBT), to commence 2 March 2015 and finish 6 February 2016; and Bachelor of Information Technology through Griffith University to commence 29 February 2016 and finish 17 November 2017.

3. The applicant commenced the Diploma course on 2 March 2015, but did not complete the course on schedule. He obtained a number of extensions. His enrolment in the Bachelor course was cancelled on 24 April 2016 for the reason that he failed to commence. On 29 September 2017 his final extension CoE for the QIBT Diploma course was cancelled, for unsatisfactory course progress.

4. The applicant changed education providers. He obtained a CoE in Diploma of Information Technology at InTech Institute of Technology on 10 April 2017, and studied at the Vocational Education and Training (VET) level.

5. The applicant did not hold enrolment in a Bachelor Degree course after 29 April 2016, and was no longer enrolled in, or subject to a current offer of enrolment in, a principal course of a type specified for Subclass 573 visas. On this basis, the Delegate determined that the applicant had not continued to be a person who would satisfy cl.573.231 or cl.573.223(1A). 

6. The Delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with Condition 8516, attached to his visa. Condition 8516 provides:

   The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

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

8. On 19 June 2018 the Tribunal wrote to the applicant, inviting him to respond, by 3 July 2018,  to information which would, subject to his comments or response, be the reason, or part of the reason, for the Tribunal affirming the decision under review. The particulars of the information were that the applicant’s Provider Registration and International Student Management System (PRISMS) records, attached with the letter, showed he was not enrolled in a course of study specified for his visa, from 28 April 2016 until 23 October 2017.

9. The applicant was advised that the information was relevant to the review because it showed that he did not comply with Condition 8516 during that time frame. The applicant was advised that if the Tribunal relied on this information, it could find that a ground for cancellation existed under s.116(1)(b) of the Migration Act 1958, and this information could be used in affirming the decision.

10. On 29 June 2018 the Tribunal received a request for an extension of time to respond. The Tribunal agreed to the request, and granted an extension until 17 July 2018. Further documents, including written submissions from the applicant and his representative, were provided on 26 July 2018.

11. The applicant appeared before the Tribunal on 8 August 2018 to give evidence and present arguments. The hearing was conducted with the assistance of a Mandarin interpreter.

12. The applicant was represented in relation to the review by his registered migration agent, who did not attend the hearing.

13. 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

14. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

15. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance, Condition 8516, attached to the applicant’s visa, which requires the applicant to continue to be a person who would satisfy the primary criteria for the grant of the visa.

16. Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

17. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant is an eligible higher degree student who satisfies cl.573.223(1A), or, if not, is enrolled in, or the subject of a current offer of enrolment in a principal course of a kind specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application: cl.573.231. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 14/015.

18. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a bachelor’s degree, master’s degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. The relevant instrument specifying eligible education providers for this visa was IMMI 15/096.

19. The Department found that the applicant did not comply with his enrolment requirements for a period of over 17 months. The applicant at hearing and in his written submission to the Tribunal, although he disputed the dates involved because of issues to do with the process of a formal notification of exclusion pursued by Griffith University, did not dispute that he failed to continue to be enrolled in the course type required for his visa. Through his agent, he acknowledged that he ‘did not satisfy the requirements set by c.573.231 between February 2017 to October 2017 for 8 months’.

20. In his response to the Department’s Notice of Intention to Consider Cancellation, on 24 October 2017, the applicant described how his parents sent him to study in Australia with the expectation that he would gain a degree; that he failed his Business and Hotel Management courses because he found them too difficult; that he became distracted from his studies by his parent’s marital discord and his own break-up with his girlfriend; that he worked hard in his IT courses but found them too difficult, and for this reason he decided to transfer ‘to another (VET-level) institution that is more suitable for me’.

21. The applicant claimed in his response to the NOICC that he was unaware of his visa conditions when he transferred to Intech; that he received poor advice from an agent; and that it was unfair to cancel his visa because he is a genuine student.

22. In further written submissions and at the Tribunal hearing the applicant also gave as reasons for not complying with Condition 8516 that he struggled to pass his coursework at QIBT, and did not realise that he would be contravening his visa requirements by changing providers and studying at Intech Institute, at VET level.  He argued that it was always his intention, while studying at Intech Institute, to return to Griffith University and study for his Bachelor degree. He provided evidence that he completed his coursework and was awarded a Diploma in Information Technology on 23 October 2017. He advised that he applied, following his exclusion from Griffith, to enrol in different bachelor degree-level courses because he couldn’t gain acceptance into another IT degree-level course, and finally obtained a CoE for a Bachelor Degree in Business at Holmes.

23. When asked about his study goals and history more generally, and his large number of enrolment cancellations as shown in copies of his PRISMS records, the applicant stated that his original intention, following his parents’ wishes, was to study Business and Hotel Management, but that he found the coursework difficult and so switched to Information Technology. He advised that he also toyed with the notion of studying Film Production, but decided to stay with Information Technology. He stated further that he struggled to focus on his coursework for the reasons that he was young; his relationship with his girlfriend was troubled; his parents were going through a period of marital discord, and he was distracted during 2014 and 2015 by his involvement, on a volunteer basis, with a singing group.

24. When asked about the circumstances of his visa cancellation more particularly, the applicant stated, in response to questions, that he had not sought advice and assistance from student advisers or counsellors at Griffith regarding the conditions of his packaged CoE, nor had he sought advice and assistance from the Department about his Student (Subclass 573) visa. He claimed that he had never looked at his Student visa, which was in English and sent to his agent, and therefore had never seen or registered advice regarding the visa conditions and the importance of complying with the conditions.

25. The Tribunal finds, based on the applicant’s PRISMS records, that the applicant failed to continue to be enrolled in a course of study specified for his visa from 28 April 2016 until 23 October 2017.

26. For this reason, 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 the visa should be cancelled.

    Consideration of discretion

27. 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; and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ relevant to the applicant’s circumstances.

28. The Tribunal found the applicant’s explanations for his non-compliance with his visa Condition 8516, namely that he wasn’t aware of the condition or his obligations to comply with it because he never looked at his visa which was in English and sent to his agent; and that he followed the advice of migration agents and never thought to contact the Department, weak and unconvincing, and does not accept that the applicant was in breach of condition 8516 because of circumstances beyond his control. The Tribunal notes that the Department makes it clear in its communication with visa applicants and holders that it is the responsibility of the visa holder to be aware of the conditions of his or her visa, and, if the applicant was unsure of his visa conditions and the requirements attached to the visa, he could have sought advice from the Department or from his education provider, Griffith University. 

29. The applicant stated at hearing that he needs to remain in Australia for the purpose of obtaining a bachelor degree, because he would face limited career options in China without one. He stated that he is not qualified to attend a university in China, and his Diploma of Information Technology from InTech is insufficient for him to obtain employment. He further advised that his parents, who are senior public servants in Hainan Province, have spent around $400,000 on his studies and stay in Australia, and that it would be shameful for him to return without a degree. He claimed that it will be up to him, as the only son, to financially support his parents, in the future when they retire on a limited income.

30. The Tribunal accepts that the applicant does not wish to return to China without a degree and disappoint his parents, but does not find his argument that he needs further time to study, after nearly seven years of post-school study in this country during which he did not commence a Bachelor level course, to be compelling. The Tribunal accepts the advice of the applicant that some of his course failures were by a small margin, but notes, as acknowledged by the applicant, that he nevertheless failed to attend or satisfactorily complete many of his courses; that most of the Diploma-level courses he enrolled in were cancelled; and that he contravened condition 8516. To this extent the Tribunal finds that the applicant has not complied with his visa conditions. The Tribunal has considered the applicant’s explanation as to why he did not contact the Department regarding his study and visa issues, namely, that he wasn’t aware that he should do this and he acted on the advice of agents, to indicate that he was motivated to remain in Australia rather than remain in compliance with the conditions of his Subclass 573 visa.

31. The applicant has no dependents and no family members in Australia; there would be no consequential cancellations under s.140. The applicant confirmed at hearing that he has no reason to fear returning to China beyond disappointing his parents, therefore Australia’s non-refoulement obligations would not be breached should the visa be cancelled.

32. The applicant confirmed at hearing that the only financial hardship he, and his parents in their post-retirement lives, would suffer through the cancellation of his visa, would be through the lowering of his long-term earning potential, should he return without a degree. As discussed above, he stated that he and his parents would mainly suffer shame and disappointment. The Tribunal does not find this degree of hardship to warrant not cancelling the visa.

33. There is nothing before the Tribunal to indicate that the applicant would not be eligible to apply for a Bridging E visa to allow him to remain lawfully in Australia pending his departure. Therefore, the cancellation of the visa would not result in the visa holder being detained, unless he failed to depart the country before the expiry of a bridging visa. The applicant would be subject to s.48 of the Act, meaning he would have limited options if applying for further visas, but the Tribunal does not find this, in the circumstances of the applicant, to warrant not cancelling the visa.

34. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

35. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Adrienne Millbank
    Member