PAN (Migration)

[2018] AATA 4552

PAN (Migration) [2018] AATA 4552 (10 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr YONGJIA PAN

CASE NUMBER:  1620821

HOME AFFAIRS REFERENCE(S):           BCC2016/3438780

MEMBER:Mr S Norman

DATE:10 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 10 October 2018 at 11:30am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – course cancelled – unsatisfactory attendance – influence of parents – studies in the vocational education sector – money spent – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B
Migration Regulations 1994 (Cth), Schedule 2 cl 573.231

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 December 2016 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). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa under s.116(1)(b) of the Act. 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. By letter dated 11 September 2018 (dispatched by email to the authorised recipient), the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing at 9.30am on 10 October 2018. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.  Two SMS hearing reminder texts were also sent to the applicant’s nominated mobile phone shortly prior to the hearing.

4. The applicant did not appear before the Tribunal on the day and at the time and place at which his hearing was scheduled. Neither did he otherwise reply to the Tribunal’s hearing invitation letter (as he was requested). In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

5. 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

6. 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) of the Act (and condition 8516). 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?

7. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa. Condition 8516 stated:

   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.

8. Clause 573.231 stated:

   573.231

   If the applicant is not an eligible higher degree student, or does not have a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:
   (a)      the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and
   (b)      the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:

   (i)      made under regulation 1.40A; and
   (ii)      in force at the time the application was made

9. Eligible higher degree student (cl.573.111) was defined as follows:

   eligible higher degree student means an applicant for a Subclass 573 visa in relation to whom the following apply:
   (a)      the applicant is enrolled in a principal course of study for the award of:

   (i)      a bachelor’s degree; or
   (ii)      a masters degree by coursework;

   (b)      the principal course of study is provided by an eligible education provider;
   (c)      if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study:

   (i)      the applicant is also enrolled in that course; and
   (ii)      that course is provided by the eligible education provider or an educational business partner of the eligible education provider.

10. Further, cl.573.223(1A) stated:

    (1A) If the applicant is an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:
    (a)      the applicant gives the Minister evidence that the applicant has:

    (i)      a level of English language proficiency that satisfies the applicant’s eligible education provider; and
    (ii)      educational qualifications required by the eligible education provider; and

    (b)      the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

    (i)      the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
    (ii)      any other relevant matter; and

    (c)      the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

    (i)      the costs and expenses required to support the applicant during the proposed stay in Australia; and
    (ii)      the costs and expenses required to support each member (if any) of the applicant’s family unit.

11. On 15 January 2014, the applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa. By Notice of Intention to Consider Cancellation (NOICC) of that Student visa dated 11 November 2016, the applicant was advised that information on the Provider Registration and International Student Management Systems (PRISMS) indicated his enrolment in a Bachelor of Science in Information Technology degree had been cancelled on 24 June 2014. Therefore, it appeared the applicant was no longer enrolled in a Bachelors degree or Masters degree and he was not enrolled in a course of study that is a principal course of the type specified for subclass 573 visas by the Minister in an instrument made under r.1.40A of the Migration Regulations. Further, that it appeared the applicant had not continued to be a person who would satisfy either cl.573.231 or cl.573.223(1A); as he may have breached condition 8516. The applicant was also advised his visa might be cancelled under s.116(1)(b) of the Act.

12. In his response to the NOICC letter, the applicant said he arrived in Australia on 18 January 2014 and commenced his studies in Academic English at Insearch Limited; and that his pathway program was to study a Diploma of Information Technology and then a Bachelor of Science in Information Technology at UTS. While studying the English language course, he then realised this course was very challenging and he had found it difficult to understand the content. He said despite many hours studying, he failed to achieve the required results and this made him consider the time and money he had wasted on studying the English course. After further consideration and discussion with his parents, he decided to withdraw from Insearch and transferred to another education provider. Amongst other things, in their decision the delegate was not satisfied that corroborating evidence had been provided that the applicant (ie) had approached his education provider/s to try and remedy his problem/s.

13. The applicant had then enrolled in another General English course at the Australian Ideal College and commenced these studies on 11 August 2014. He said he realised he needed to improve his English language skills. However, in their decision the delegate noted this enrolment was cancelled due to unsatisfactory attendance. In their decision, the delegate also noted the (first) Academic English course at Insearch Ltd had been cancelled on 11 July 2014, citing unsatisfactory attendance. As the applicant did not then meet the English-language entry requirement for his program/s, his other enrolments were cancelled.

14. The applicant then said his parents had been partly responsible for him choosing Information Technology as his major course as they believed it would provide him better job opportunities in his home country. He said that he read many articles about IT and had subsequently realised he was no longer interested in this work. He then decided to study business and management. However, in their decision the delegate noted the applicant had not provided any corroborating evidence as to any influence his parents may have had on his decision to study IT; though the delegate (and now the Tribunal) conceded that parents may have an influence on such decisions.

15. The applicant had applied for a Diploma of Business at the Wentworth Institute and he had completed that course on 18 September 2015. This course had been part of a package with an Advanced Diploma of Management (which was changed to an Advanced Diploma of Leadership and Management). This was leading to a Bachelor of Business (to commence 6 March 2017). The applicant said he had decided to study the Diploma of Management and Advanced Diploma of Leadership and Management in preparation for starting the Bachelors degree in 2017. He also said he was not aware there would be any adverse consequences for him not enrolling in a higher education sector level course. Though as discussed below, the delegate (and now the Tribunal) does not accept this is plausible.

16. The delegate noted that as the applicant’s enrolment in a Higher Education Sector course was cancelled on 11 July 2014, from that time he was no longer an eligible higher degree student. He also did not hold enrolment in the course of study that was a principal course of the type specified for subclass 573 visas by the Minister in an instrument made under r.1.40A of the Migration Regulations. The delegate also said that by cancelling enrolment in his higher education sector level course and by enrolling in study at the vocational education sector level, it would appear the applicant’s intention is not to study a higher educational level course in Australia as required by his current Student visa.

17. The delegate noted the applicant claimed he intended to return to a higher education sector level course, but that he had not provided evidence that he had obtained or attempted to obtain enrolment in such a course. Though a Student visa holder may significantly change education pathways, in this case the delegate was not satisfied the applicant intended to study at a higher degree level course in Australia.

18. Based on the information before the Tribunal, I am satisfied the ground for cancellation in s.116(1)(b) of the Act, 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

19. 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’.

20. The applicant had stated his intention in travelling to and residing in Australia was for the purposes of study at the higher education level. As stated above, by the cancelling of the enrolment in his higher education sector level course and by enrolling in study at the vocational education sector level, the Tribunal is satisfied the applicant’s present intention is not to study a higher educational level course in Australia as required by his current Student visa.

21. Next, the applicant said that if his visa was cancelled he would lose the opportunity to work in one of the companies in his home country who had already agreed to offer him a managerial position after he successfully completed a Bachelor of Business degree in Australia. He also said that if he was unable to complete a Bachelors degree in Australia, this would adversely impact the health of his parents. He said he would never again violate the conditions attached to his visa. He claimed he had already studied a Management course for one and a half years and “spent a lot of money for his tuition”.

22. The applicant’s lodged a number of documents with the Department. This included a Certificate in General English Level I (Insearch); a General English Transcript (Insearch); a General English Offer (AIC); a Wentworth Diploma Completion letter; a ADLM CoE Wentworth Institute; a Wentworth Diploma Transcript; a ADM CoE Wentworth; a Bachelor Offer Wentworth; a Job offer; and a statement. However, in their decision the delegate said the applicant would be made aware he needed to continue to comply with the conditions attached to his Student visa, and it would be his responsibility to ensure same. Based on the Tribunal’s experience, I accept this is correct. Further the delegate, and now the Tribunal, notes the applicant had not been enrolled in a higher education sector level course since 24 June 2014 at the time of the delegate’s decision. The Tribunal accepts the applicant (or his family) may have ‘spent money’ and that his parents may be adversely impacted if his visa is cancelled. However, based on the evidence presently before the Tribunal, I am satisfied that even if the applicant’s visa is cancelled, the harm to him or his family, would be limited.

23. The Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. Based on the evidence before it, the Tribunal is not satisfied that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

24. Next, if the applicant’s visa is cancelled he would become unlawful in Australia and he may be detained under s.189 and removed under s.198 of the Act. However, based on the information before the Tribunal, I am not satisfied the applicant would be subject to indefinite detention. The Tribunal is also satisfied he could temporarily retain his Bridging visa and therefore be allowed to remain in the community to finalise his affairs prior to departing Australia.

25. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 and would have limited options to apply for further visas in Australia.  He would also be subject to PIC 4013, meaning he could not be granted a temporary visa for three years from the date of cancellation. 

26. After having considered the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Mr S Norman
    Member