MIN (Migration)

[2019] AATA 4816

MIN (Migration) [2019] AATA 4816 (29 April 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Junxi MIN

CASE NUMBER:  1716966

DIBP REFERENCE(S):  BCC2017/1741030

MEMBERS:Donna Petrovich (Presiding)

Stephen Conwell

DATE OF DECISION:  29 April 2019

DATE CORRIGENDUM

SIGNED:17 July 2019

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

• On original Decision record the date states 12 April 2019, this should be 29 April 2019.

Donna Petrovich
Member

Stephen Conwell
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Junxi MIN

CASE NUMBER:  1716966

HOME AFFAIRS REFERENCE(S):           BCC2017/1741030

MEMBERS:Donna Petrovich (Presiding)

Stephen Conwell

DATE:12 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 29 April 2019 at 10:56am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education – Bachelor of Commerce – English for Academic Purposes – steps taken to remedy enrolment – course at capacity – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 August 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(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had breached condition 8202(2) (a) of condition 8202. Based on evidence in the PRISMS record the applicant was not enrolled in a course of study. 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 29 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicants Immigration Agent Mr Yingwei Wang. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

6. CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

1. 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).

2. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

10.The applicant is a citizen of China, he was born in Beijing, China and he is 24 years old. His parents and younger sister continue to live in Beijing.  He has no other family living in Australia.  Whilst in Australia he has been living in shared accommodation. The applicant confirmed his address for the benefit of the hearing.

11.The applicant was granted a visa on 3 December 2014 on a Student (Temporary) (class TU) Higher Education Sector (subclass 573). He had enrolled in these courses as part of a package which included a Diploma of Commerce and a Bachelor of Commerce.  

12.The applicant initially undertook an EAP course at RMIT commencing on 29 December 2014 until 15 May 2015. This required additional study and he completed his EAP course on the 14 October 2016. RMIT School holidays commenced on 15 October 2015 and he returned to China for a holiday and to visit his family.  The applicant found his initial study difficult and stressful and he took this opportunity to have a health check while he was in China. The Applicant was in China from 15 October 2016 until January 2017.

13.The applicant was under the misapprehension that he would still be enrolled in a Diploma of Commerce at RMIT when he returned from China. The applicant submitted he was due to commence a Diploma of Commerce 6 July 2015 and complete 2016. He was due to commence a Bachelor of Commerce, on the 18 July 2016 and due to complete 2018.

14.He was informed when he enquired with RMIT that his offer had expired and that he would need to re-apply.  The applicant made submissions that he then re–applied immediately.  On the 31 of January 2017 he was asked to provide additional information (supporting documents), which he informed the Tribunal that he did through downloading the appropriate documentation. The applicant submits he did not receive a reply.

15.In a document from RMIT that was provided to the Tribunal by the applicant as part of his submission to the AAT; requesting additional information be provided by the applicant, there is also a request for additional information and a personal statement that outlines the reason for the unsatisfactory attendance rate in his previous REW EAP programme that resulted in the previous cancelation of CoEs. RMIT also ask for a certified copy of any supporting documentation relating to extenuating circumstances.

16.The applicant submitted because he did not receive a reply from RMIT he sent a further application on 28June 2017, to discover that this course was already at capacity. He also applied at Holmes College on 4 October 2017.

17.On 6 July 2017 the applicant was sent a notice of intention to consider cancellation of Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa under s.116 of the Migration act 1958. In his response to the NIOCC the applicant conceded that there were grounds for cancelling his visa but stated that it should not be cancelled.

18.The applicant’s enrolment was cancelled on 15 October 2016 and his visa was cancelled on 6 July 2017.

19.Condition 8202(2) (a) states that the visa holder meets the visa requirements if the visa holder is enrolled in a registered course. Based on the evidence available to the Tribunal this information includes PRISMS provided by the applicant as part of the  Delegates Decision record;  the applicant’s submissions dated 20 March 2019; finds that the applicant has not been enrolled in a registered course of study since 15 October 2016, in breach of his visa conditions.  At the hearing the applicant did not dispute there were grounds for cancelation.

20.On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

Consideration of the discretion to cancel the visa

21.Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

22.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’

23.The applicant responded to the Notice of Intention to Consider Cancellation sent to him by the Department on the 12 July 2017. In his response he said that he “Did not dispute the grounds for Cancellation. The Tribunal accepts this and places no weight in favour of the applicant.

24.The applicant also provided the following documents: CoE from RMIT, Academic transcript from RMIT, Print off requesting documents on 31 January 2017, RMIT iApply Print Screen.

25.Having regard to the applicant’s evidence, the Tribunal heard that the applicant travelled to Australia intending to study; whilst this was his intent he was unable to maintain his enrolment. The Tribunal places little weight in favour toward the visa not being cancelled.

26.The Tribunal put to the applicant that the period of his breach of condition 8202 appeared a significant period of time (9 months).  He pointed to the issues set out above and below. He said he believed he complied with other conditions on his visa. The Tribunal is concerned in regard to the substantial breach of his Visa in relation to 8202 and places significant weight in favour of not exercising discretion in favour of the applicant.

27.Whilst the applicant has taken steps to remedy his enrolment circumstance in a Diploma of Commerce and a Bachelor of Commerce on his return from holidays China (un-successfully). The applicant attempted to enrol on 31 January 2017 and been asked to provide additional information to RMIT. The applicant submits he had no response from them.  He submitted a further application on 28^th June 2017 to find that this course was at capacity.

28.In correspondence submitted by the applicant to the Tribunal from RMIT; there is a request from RMIT of the applicant to provide additional information, and ask that the applicant answer all questions on the SSVF Template and requests that the applicant include his activities since completing his REW English for Academic purposes (EAP) studies in October 2016.

29.The Tribunal considers these submissions to be important, because one of the primary reasons for holding a student visa was to be enrolled and to study, and he had admitted to doing neither for a considerable period of time.  When the Tribunal weighs and views those reasons as set out in detail, against the long period of non-enrolment.  There are real concerns about the long period of breach by the applicant, this leads the Tribunal to give this factor significant weight towards the visa remaining cancelled.

30.The Tribunal asked the applicant if he or others would suffer hardship if the visa were cancelled.  He said that “It had wasted too much time, cost too much money, and that his family would be upset” if he could not complete his studies. He was concerned that his family needed him to complete his studies as he was the only child who would be expected to take over the family business. The Tribunal accepts that there may be some hardships to the applicant and his family if the visa remains cancelled.  However, the Tribunal does not accept these would be significant hardships to him and his family or of any greater significance than others in this circumstance and gives this some weight in favour of the visa being cancelled. 

31.The applicant initially undertook an EAP course at RMIT commencing on 29 December 2014 until 15 May 2015. This required additional study and he completed his EAP course on the 14 October 2016. RMIT School holidays commenced on 15 October 2015 and he returned to China for a holiday and to visit his family.  The applicant found his initial study difficult and stressful and he took this opportunity to have a health check while he was in China.  The applicant was in China from 15 October 2016 until January 2017.

32.The applicant on return from holiday in China contacted RMIT the applicant submitted to the Tribunal that he “was told to wait for a couple of weeks for Administration at the University to resolve his issues”. When this did not occur he endeavoured to enrol in another course which was already full.  He then tried to enrol at Holmes College unsuccessfully.

33.The Tribunal has some sympathy for the applicant who is a young person, who has found this process very difficult. The Tribunal is mindful of the work that he has committed to in passing his EAP course, which he took much longer than initially anticipated. Unfortunately this has made it impossible to undertake the remainder of his package course in the timeframe of term commencement and completion as scheduled by the University. Whilst the applicant has made some effort to resolve his issue of non- enrolment, he was aware he was un-enrolled and was unable to resolve this circumstance. The tribunal accepts the difficulty the applicant has faced and places some small weight in the applicants favour in this regard.

34.According to the decision record, there was no evidence that the applicant had been un-cooperative towards the Department. The Tribunal gives this some little weight in his favour.

35.The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be cancelled under s.140 of the migration act 1958. According to the Departments records there are no persons in Australia whose visa may be cancelled under s.140 of the Act.

36.The Tribunal acknowledges that the cancellation of the visa would have the effect that the Applicant may become an unlawful non-citizen and may therefore be liable to detention and removal under the Act if he decided not to leave Australia voluntarily.  Having made that finding, we also note that the applicant would have available to him the possibility of applying for a bridging visa E, which would allow him to finalise his outstanding matters.

37.We further acknowledge that, if the visa is cancelled, the Applicant will be subject to section 48 of the Act meaning he would have limited options to apply for further visas in Australia.  The Applicant would also be subject to Public Interest Criterion 4013 with the effect that he may not be granted a temporary visa for a period of three years from the date of the cancellation.

38.The Tribunal has considered these matters carefully and weighed them in terms of the hardship they might result in. The Tribunal finds that, while they have weight in favour of the Applicant’s visa not being cancelled, that weight is a lesser consideration than the significance of the non-compliance.

39.The circumstances of this case are such that they would not engage Australia’s international obligations; therefore the Tribunal places no weight on these considerations in making this decision.

Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant matters.

Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Donna Petrovich
Member

Stephen Conwell
Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

1. (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.