Ma (Migration)

[2018] AATA 2751

Ma (Migration) [2018] AATA 2751 (28 June 2018)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Jie Ma

CASE NUMBER:  1722439

DIBP REFERENCE(S):  BCC2017/2563273

MEMBER:  Tigiilagi Eteuati

DATE AND TIME OF

ORAL DECISION AND REASONS:          28 June 2018 at 1:36 pm (QLD time)

DATE OF WRITTEN RECORD:               13 July 2018

PLACE OF DECISION:  Brisbane

DECISION:  The Tribunal affirms the decision under review.

Statement made on 13 July 2018 at 5:39pm

CATCHWORDS
 Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) – Registered course enrolment – Unsatisfactory course progress – Failure to complete courses – Gap in study – Poor English language skills – Minor medical condition – Did not seek medical attention in Australia –Hardship – Relationship with Australian woman – Family disappointment – Decision under review affirmed 

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 4 Criterion 4013 Schedule 8 Condition 8202, 8516

APPLICATION FOR REVIEW

1. This is an application for a review of a decision dated 12 September 2017 made by a delegate of the Minister to cancel the applicant's subclass 573 visa under section 116(1)(b) the Migration Act 1958 (the Act).

1. At the hearing on 28 June 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. The delegate cancelled the applicant’s student visa on the basis that the applicant breached the condition of his visa to remain involved in a registered course. The issue in the present case is whether that ground of cancellation is made out, and if so, whether the visa should be cancelled. The applicant appeared before the Tribunal on 28 June 2018. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was assisted by his representative during the hearing.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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. If the applicant has breached that condition, under section 116 of the Act the visa may be cancelled.

Did the applicant comply with the condition of 8202?

1. Condition 8202 as it applies in this case requires a student to be enrolled in a registered course.  The Minister's delegate found that the applicant had not been enrolled in a registered course since his enrolment in a Bachelor of Business course was cancelled on 11 November 2016.

1. The applicant admitted that he had not been enrolled in a registered course between that date and 30 August 2017 when, after receiving the notice of intention to consider cancelling his visa from the Department dated 24 August 2017, he enrolled in a Diploma of Accounting with Imagine Education Australia.  The Tribunal accepts that the applicant was not enrolled in a registered course between 11 November 2016 and 30 August 2017. On the evidence before the Tribunal, the applicant was not enrolled in a registered course between those dates, and accordingly, the applicant has not complied with condition 8202.

Consideration of the discretion to cancel the visa

1. Having found that the applicant has not complied with the condition of the visa, the Tribunal must consider whether to exercise its discretion to affirm the decision to cancel the visa. There are no matters specified in the Act and Regulations that are required to be considered in relation to the exercise of this discretion. However, Tribunal has had regard to all the matters raised by the applicant and his representatives, all the information provided by the applicant and his representatives and the information contained in the Department and Tribunal files, and the governmental policy guidelines in the Department's Procedures Advice Manual.

1. When the applicant first arrived in Australia on a subclass 573 visa in January 2013, he was enrolled in an English course to be followed by a Diploma of Hotel Management and then a Bachelor of Business. He told the Tribunal that he completed the English course in around February 2013. He said that he began the Diploma of Hotel Management but that he changed his enrolment in that course to a Diploma in Commerce. He said that he found the

first diploma course to be quite difficult and that his English language skills were not strong at the time.

1. The applicant said that he began the Diploma of Commerce but that his enrolment in that course was cancelled in March 2014, and the Tribunal put to the applicant, in the required way, PRISMS records which indicated that his enrolment in that course was cancelled because he had unsatisfactory course progress. The applicant indicated that at that point he had already decided to enrol in a Diploma of Business and Commerce Studies at TAFE Queensland, Gold Coast, and that is the reason why he abandoned the studies in the Diploma of Commerce.

1. The Tribunal put to the applicant in the required way that information from PRISMS which indicated that the applicant's enrolment in the Diploma of Business and Commerce Studies ceased on 27 March 2014, and that he had enrolled in a further English course between March and May 2014. The applicant admitted this was the case. The applicant then enrolled, or re-enrolled in a Diploma of Business and Commerce Studies in the second half of 2014.

1. In the meantime, his enrolment in the Bachelor of Business course which he had originally been enrolled in was cancelled on 24 March 2014 as the applicant had failed to commence his studies. The Tribunal notes that the applicant appears to have been in breach of condition 8516 from that time.

1. The Tribunal put to the applicant information in the PRISMS records which indicated that his enrolment in the Diploma of Business and Commerce was cancelled on 14 November 2014 for unsatisfactory attendance. The applicant had no comment in relation to this information. The applicant indicated that he enrolled in a Certificate IV in Business on 21 July 2015.

1. The Tribunal put to the applicant in the required way information from the PRISMS records which indicated the applicant was not enrolled in any course between November 2014 and July 2015. The applicant admitted that this was the case but said that his migration agent did not inform him that he was required to be enrolled in a course in order to meet the conditions of his visa. The applicant also admitted that he again failed to complete the Certificate IV in Business. The applicant had also been enrolled in a Diploma of Business but he did not commence that course as he had failed the Certificate IV in Business.

1. The applicant then applied for a Diploma of Accounting for which he was enrolled in February 2016, and he enrolled in a Bachelor of Business at James Cook University in April 2016.

1. The applicant said that he failed again to complete the Diploma of Accounting which was set to be completed by September 2016. He said that he asked his migration agent to defer his studies in the Bachelor of Business course at James Cook as he had yet to complete the Diploma of Accounting which he said was a prerequisite for his entry into the Bachelor of Business course.  It appears that that request was made and that the applicant's enrolment in the Bachelor of Business course was cancelled on 11 November 2016. The applicant explained that from mid-2016 he had been experiencing severe headaches, and that this affected his ability to successfully complete his studies.

1. He said that he did not seek medical attention for his condition in Australia from July 2016 when he first started experiencing headaches until he left Australia for China in October 2016. Indeed, the applicant's evidence is that he has never sought medical attention in Australia. The applicant gave various reasons as to why he did not seek medical attention in Australia. He said that he believed that it would be too expensive for him to see a doctor in

Australia. This was despite evidence that he gave that he had never made any enquiries as to the cost of a visit to a doctor in Australia.

1. When it was pointed out that the applicant had medical insurance, he said that he believed that it would take too long for him to be reimbursed by the insurance company for a visit to a doctor. He also said that a friend in Australia, who was a practitioner of traditional Chinese medicine, indicated that he should take some painkillers. Instead of seeing a doctor in Australia, the applicant said it was cheaper and more convenient to fly to China in October 2016 to seek medical attention. He said that he wished to seek the attention of a traditional Chinese medical practitioner. This was despite telling the Tribunal that he had a friend in Australia who was a Chinese traditional medicine practitioner. Despite this, when he went to China, he said that he sought the attention of a Western medical practitioner, before eventually seeking traditional Chinese medicine remedies in China.  The applicant provided a translation of a certificate of diagnosis from a doctor in China.  That certificate indicates that the applicant told the doctor that he had suffered a headache which lasted for between one and three days, and that the doctor suggested that he take painkillers and live a healthy lifestyle.

1. The applicant returned to Australia and, as mentioned previously, asked his migration agent to defer his studies at James Cook University. Much was made by the applicant and his representatives of what they claim to be negligence by his migration agent. The applicant's representatives submitted that while his migration agent had applied for deferment of his studies at James Cook, they negligently failed to enroll the applicant in a Diploma of Accounting course so that he could meet the pre-requisites to begin the Bachelor of Business course.

1. The applicant failed to re-enroll in any course until after he received a notice of intention to consider cancellation from the Department. After he received COEs in a Diploma of Accounting and a Bachelor of Business, he has failed to begin his studies in either of those courses, despite there being no evidence that there was any condition which prevented him from studying while he held a bridging visa.

1. The applicant said that he failed to begin studies because he was unsure of the outcome of the proceedings before the Tribunal and therefore did not wish to begin any course of study.

1. The Tribunal asked the applicant whether he or any of his family members would suffer hardship if his visa remained cancelled. He said that both of his parents were employed by tertiary education providers in China, were both well-educated, and that they had high expectations for the applicant to succeed in his studies in Australia, suggesting that they would be very upset and disappointed if he was unable to complete his studies in Australia.

1. He also explained that neither of his parents earned a large amount of money but that they had been supporting him financially during the period of his studies in Australia.  The applicant had also indicated in documents provided by his representative that he has been in a long-term relationship with a lady in Australia, and cancellation of his visa may result in the applicant's separation from his partner, as the applicant would be precluded from applying for a visa to enter Australia for some three years as a result of public criterion 4013.

1. The Tribunal raised with the applicant its concern that, given his extremely poor academic history in Australia, that apart from English courses, he had been unable to complete any course since his arrival in the beginning of 2013, and because of the poor level of his English ability demonstrated at the hearing, that he may not have the ability to successfully undertake a higher education course in Australia. The applicant responded that he currently had a good attitude towards his studies and that his English language ability was much

improved. He implored the Tribunal to give him one chance to continue with his studies in Australia.

1. The Tribunal raised with the applicant his concern that because the applicant has been unable to complete any courses in Australia apart from English courses, that he wasn't enrolled in any courses from November 2016 until after he received the notice of intention to cancel in August 2017, and because he had also been unenrolled between November 2014 and July 2015, and because he had not undertaken any formal study from November 2016, the applicant may not have the will or desire to successfully undertake a higher education course in Australia.

1. The applicant again reiterated that he currently has a good attitude towards studies, that he greatly wished to continue with his studies in Australia, and that his former migration agents had failed to tell him that he was required to remain enrolled in a course in Australia. Indeed, the applicant said that he was completely unaware of the requirement to remain enrolled in studies as the holder of a student visa from his arrival in Australia in the beginning of 2013 until he received the notice of intention to cancel in August 2017.

1. The Tribunal finds that the applicant does not have the ability to successfully undertake a higher education course in Australia. This is evidenced by his extremely poor history of study in Australia. He has failed to pass certificate and various diploma courses, even prior to suffering from headaches in 2016. The Tribunal also remains concerned that the applicant's lack of strong English language skills as demonstrated at the hearing, together with his very poor history of studies in the past would mean that he would not have the ability to successfully undertake a higher education course in Australia. The Tribunal accepts that the applicant had some problems with headaches in 2016 and early 2017, but given his poor history of study even before he had the headaches, does not consider that this provides a full explanation for his inability to complete courses in 2016.

1. The Tribunal also considers that the applicant does not have the will or desire to successfully undertake a higher education course in Australia. This is evidenced by the applicant's extremely poor history of study in Australia and his failure to be enrolled in courses for extended periods of time, and that he has not undertaken any formal study from November 2016 until now. Much has been made in this case of claims that the applicant's former education and migration agents have been negligent, and in particular that the former agent's failure to seek enrolment of the applicant in a Diploma of Accounting course in 2016 meant that he could not commence studies in a Bachelor of Business course and that this accounted for him not being enrolled in 2016 and 2017.

1. There may be some truth to that, but these arguments really only go to an explanation for why the applicant was not enrolled, and the Tribunal notes that the applicant has yet to initiate any proceedings against his former migration agent either in tort or by reporting the former migration agents to the Migration Agents Registration Authority. In any event, it was the applicant's responsibility to know and understand the conditions of his visa and to comply with the conditions of his visa, and the applicant's inability to successfully undertake a higher education course in Australia or his lack of desire to do so are not the responsibility of a migration agent.

1. The Tribunal is willing to find that the applicant and his family members will be disappointed and upset that the applicant was unable to complete any substantive courses in Australia before his visa was cancelled.

1. The Tribunal has also considered that the applicant would probably be prevented from applying for another visa for some three years. The Tribunal has considered that the applicant may have to undertake additional studies in China before being admitted to a

university there, and the Tribunal has also considered that the applicant and his partner may suffer hardship as a result of separation.

1. The Tribunal finds that the applicant's lack of ability and desire to successfully undertake higher education courses in Australia heavily outweighs any hardship that he, his family members or his partner may face because of the cancellation of his visa.

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

DECISION

1. The Tribunal affirms the decision to cancel the applicant's class TU subclass 573 visa.

1. The time is 2.24 and that is my decision and the oral reasons for my decision.

Tigiilagi Eteuati Member