Luo (Migration)

[2020] AATA 474

Luo (Migration) [2020] AATA 474 (17 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ruiqi Luo

CASE NUMBER:  1906797

HOME AFFAIRS REFERENCE(S):          BCC2019/44876

MEMBER:Vanessa Plain

DATE:17 February 2020

PLACE OF DECISION:  Melbourne

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 February 2020 at 6:39pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – unsatisfactory course progress – enrolment cancelled – applicant thought enrolment suspended – relationship breakdown – mental health issues – misled regarding status of enrolment – breach did not demonstrate bad faith – decision under review set aside

LEGISLATION

Education Services for Overseas Students Act 2000, s 19

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

CASES

Maan v MIAC (2009) 179 FCR 581

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 March 2019 made by a delegate of the Minister for Home Affairs 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 the basis that the applicant failed to maintain satisfactory course progress. 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. The applicant appeared before the Tribunal on 17 February 2020 to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 (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?

7. 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 registered course, or in limited cases, a full time course of study or training: 8202(2)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

8. In the present case, the applicant’s visa was cancelled on the basis that the education provider for the course being undertaken by the applicant, had certified the applicant as not achieving satisfactory course progress for s.19 of the Education Services for Overseas Students Act 2000 (the ESOS Act), and standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (the National Code).

9. For this requirement, it is the certification by the education provider as to breach of its course progress policies that constitutes the breach of condition, and not the unsatisfactory progress itself: Maan v MIAC (2009) 179 FCR 581 at [44]-[45].

10. An examination of the Delegate’s Decision Record reveals that the applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 13 November 2014 for the purpose of undertaking an approved Higher Education level course of study, including:

    ·English; and

    ·A Bachelor of Science/Bachelor of Economics

11. The University of New South Wales cancelled the applicant’s enrolment on 1 June 2018.

12. A Notice of Intention to Consider Cancellation (NOICC) of the visa was sent to the applicant on 5 March 2019.

13. The visa was cancelled by the Department on 15 March 2019.

14. At the hearing, the applicant candidly admitted that his enrolment was cancelled on 15 March 2018, but due to correspondence he received from the University dated 12 February 2018, he was under the mistaken belief that his enrolment was merely suspended, not cancelled, due to his failure to pass two subjects in late 2017. 

15. The applicant produced the email dated 12 February 2018 at hearing.  That document informs the applicant that his enrolment is suspended and as a result of that suspension, will be cancelled effective from semester one in 2018.  However, the document then states that the applicant’s “Suspension is for a period of one year and you will be eligible to re-enrol in the program from Term 1, 2019.”  The applicant, who speaks English as a second language, understood the word ‘suspension’ to mean that he was not permitted to study until semester 1 in 2019, due to being “suspended.”  The Tribunal finds that the wording of the University’s email is contrary and confusing in its meaning.

16. During late 2017 and early 2018, the applicant contended with various mental health issues as a result of the breakdown of s significant relationship.  Under the impressions that he was suspended from studying, he returned home to China later in 2018. 

17. Consistent with his belief that he was able to commence studying in Semester 1 of 2019, the applicant attended upon his university to enrol in class in early 2019. 

18. The University of New South Wales immediately re-issued a COE for the applicant to recommence his course.   Ms Charlotte Long of the University of New South Wales wrote a detailed letter to the Tribunal dated 21 March 2019, in which she informed the Tribunal that the applicant is enrolled, has passed all subjects since rerolling IN February 2019 and ought to be given another chance to fulfil his potential.    

19. The applicant gave evidence that had he realised his cancellation of his studies was a “cancellation, instead of a suspension” he would have taken steps to appeal the matter.

20. Based on the two pieces of documentary evidence written by the University, the Tribunal is satisfied that it was not unreasonable for the applicant to form the view that he was merely suspended from studies, as opposed to having had his enrolment cancelled.  Therefore, while the Tribunal is satisfied that the applicant was not enrolled in a registered course from 1 June 2018 onwards due to unsatisfactory course progress, the Tribunal finds that the circumstances surrounding the cancellation were not reasonably within the control of the applicant, because he was led to believe, based on clear documentary evidence, that his enrolment was merely suspended and that he could recommence class in early 2019, which he clearly did. 

21. Accordingly, based on the aforementioned matters, the Tribunal finds that the applicant has not complied with condition 8202(2), but is satisfied that there are compelling reasons for the breach, as set out above.

    Consideration of the discretion to cancel the visa

22. 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 Regulations that must be considered in the exercise of this discretion.

23. 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’

    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 

24. The applicant was granted the student visa for the purpose of undertaking a Bachelor of Economics  / Bachelor Science  on 13 November 2014.  That purpose ended on 15 March 2018 when the enrolment was cancelled.

25. However, as set out above, the applicant re-enrolled in the same course in early 2019 and was labouring under the impression that his ability to study at the university was merely suspended.

26. The University has informed the Tribunal by way of letter dated 21 February 2019, that the applicant’s academic progress subsequent to re-enrolling is entirely satisfactory and that the applicant has fulfilled all tasks required. 

27. On the basis of the above, the Tribunal is satisfied that the applicant has demonstrated that his primary purpose for being in Australia is to study.  I give this factor some weight towards the visa not being cancelled.     

    The extent of compliance with visa conditions

28. The applicant has not complied with condition 8202(2).  However, as set out above, I find that the applicant had a compelling reason for the breach, as set out above, namely, that he was led to believe, in writing by the University, that his enrolment was suspected, not cancelled. 

29. Whilst I find that the applicant did breach the condition, given the circumstances of the breach, I give this no weight towards the visa being cancelled. 

30. Further, there is no evidence of any breach of other visa conditions.

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

31. The applicant gave evidence of emotional and psychological hardship that he would endure if he had to return home in circumstances where he couldn’t complete his studies.    

32. The Tribunal accepts that the cancellation has led to some personal detriment for the applicant.  The Tribunal further accepts that the detriment would be compounded by the continuation of the cancellation, given the circumstances in which the breach arose and the Tribunal therefore gives this some weight towards the visa not being cancelled. 

    Circumstances in which ground of cancellation arose

33. The circumstances that led to the cancellation of the applicant’s visa are set out above.  Namely, he was mislead by the University, in a material sense, about the status of his enrolment.  The material misrepresentations, in writing, set the applicant on a mistaken path that his enrolment was suspended, rather than cancelled.

34. The applicant has acted consistently with his mistaken belief, that is, he immediately re-enrolled in his classes when he genuinely believed he was eligible to do so.

35. The Tribunal therefore gives the above matter weight towards the visa not being cancelled. 

    Past and present behaviour of the visa holder towards the Department

36. The applicant has conducted himself in good faith in his dealings with the Department.  The applicant concedes that he did not respond to the NOICC, however, he said that he rarely checks the email address to which the NOICC was sent, and given that there was only approximately 10 days between the NOICC and the delegate’s decision to cancel the visa, the applicant because aware of the documents at the same time. 

37. The Tribunal gives this good conduct some weight in favour of the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

38. Not applicable.

    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

39. If the visa were to be cancelled, the applicant would be excluded from making applications for certain types of visas and most importantly to the applicant, would not be able to complete his studies. Given the circumstances set out above, this would be manifestly unfair and I give this some weight in favour of the visa not being cancelled. 

    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

40. Not applicable.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

41. Not applicable.

    Any other relevant matters

42. Not applicable. 

43. As above, it is clear that the breach does not reveal any bad faith on the part of the applicant and was occasioned by matters not reasonably within his control.  It is also clear that the considerations I have arrived at, on examining all the evidence before me, lean towards the visa not being cancelled and I so find.

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

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

    DECISION

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

    Vanessa Plain
    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.