Qi (Migration)

[2024] AATA 519

Qi (Migration) [2024] AATA 519 (16 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yongge Qi

REPRESENTATIVE:  Mr Sean Dong (MARN: 1066448)

CASE NUMBER:  2305443

HOME AFFAIRS REFERENCE(S):          BCC2022/1639298

MEMBER:David McCulloch

DATE:16 February 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 16 February 2024 at 2:33pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa –applicant was not enrolled in a full time registered course – a victim of unlawful and exploitative employment arrangements to facilitate unlawful work by foreigners in Australia – extenuating circumstances beyond the applicant’s control explaining his not being enrolled in a registered course – will be affected by PIC 4014 – applicant’s genuine desire to return to China – decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 494

Migration Regulations 1994 (Cth), r 2.55, Schedule 8

CASES
Lyu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1258

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 January 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of China born on 6 November 1994. The visa that has been cancelled was granted on 4 June 2021 for a stay period until 15 March 2024. That visa was subject to condition 8202.

3. On 19 December 2022 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa as he had ceased to be enrolled in a registered course since 23 March 2022. The applicant did not provide a response to the NOICC. On 16 January 2023 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa. The applicant seeks review of the delegate’s decision.

4. The delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Was the applicant properly notified of the delegate’s decision? Is there jurisdiction to review?

5. The applicant was notified of the delegate’s cancellation decision on 16 January 2023 by email. The application for review was received on 16 April 2023.

6. On 3 August 2023 the Tribunal wrote to the applicant indicating that, based on the date and manner of delivery of the delegate’s refusal, the last date for lodging the application for review was 25 January 2023. Given that the request for the review was not made until 16 April 2023, the application appeared to be out of time and there was no valid application for review.

7. Submissions, a statement by the applicant and documents were provided responding to this preliminary view of the Tribunal. The following is extracted from the submission on the applicant’s behalf dated 31 August 2023:

   Mr Qi’s student visa was cancelled on 16 January 2023. Mr Qi has not received any notification of cancellation and decision record from the Department of Home Affairs until 17 April 2023.

   Mr Qi’s student visa was cancelled under s116(1)(b) of the Migration Act 1958 (“the Act”). s119(1) of the Act stated, “If the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the minister must notify the holder that there appear to be grounds for cancelling (the visa)”. Mr Qi has confirmed that he did not receive a Notice of Intention to Consider Cancellation (NOICC) nor the Decision of Cancellation relating to the student visa he held.

   Mr Qi discovered that his student visa was no longer valid whilst he was seeking employment recently. An employer conducted a VEVO search and found the visa invalid, prompting Mr Qi to consult an education agent who imported the application to their immi account. During this process, the agent uncovered an application form requesting voluntary cancellation of Mr Qi's student visa. This form was submitted by registered migration agent Mr Minghuang Yan (MARN: 1572947) of NewStars Education and Migration (Mel) Pty Ltd (‘NewStars’) on 26 April 2022. Mr Qi has stated that he never authorised the representative to submit this form, and he had no contact with Mr Yan or NewStars in the entire time. Mr Qi has made a complaint against the agent’s breach of code of conduct to OMARA. 

   Mr Qi claims he has been exploited by his former employer. Mr Qi has confirmed the following details as true and accurate:

   1.       Mr Yongge Qi was employed by Top Wrap ( from 15 December 2021 until 14 September 2022.

   2.       Mr Qi reported to the business owner, Mr Jian Guo, and his wife, Ms Ying Shen.

   3.       Mr. Jian Guo arranged for Mr. Qi's visa application after interviewing him for the job in Nanjing, China, on 1 February 2020.

   4.       During Mr Qi’s employment, Mr Qi has been forced to work “much more than 40 hours per week”. He worked for 7 days a week. Based on his estimation, he worked for at least 11 hours for three days in a week. He could only rest when there were no jobs pending.

   5.       In total, Mr. Qi received eight payments of the agreed salary via AliPay transfer, totalling CNY 80,000 (approximately AUD $17,400) for nine months of employment.

   6.       Additionally, the employer paid Mr Qi a total of AUD $23,000 in cash as a "bonus", which is significantly less than agreed.

   7.       Mr Qi initially resided at the employer's home for a few months before relocating to the warehouse in April 2022.

   8.       As Mr Qi was not allowed to buy food, the employer usually fed him with leftover food, which caused diarrhoea on many occasions.

   9.       In late April 2022, Mr. Qi informed his employer that he felt exploited and wished to resign.

   10.      On 26 April 2022, soon after Mr Qi expressed his intention to quit, the employer demanded Mr Qi's passport. Initially, Mr Qi refused, but Ms Ying Shen threatened to report him to the police for theft. At that time, Mr Qi had approximately AUD $12,000 in cash as a bonus. He ultimately agreed to surrender his passport, and the employer gave him a passport keeping record.

   11.      Prior to 26 April 2022, Mr Qi’s employer did not allow him to leave the house unaccompanied. After Mr Qi lost his passport, he was allowed to leave the house by himself but was warned not to go too far.

   12.      On 26 April 2022, Ying Shen submitted a request to voluntarily cancel Qi’s student visa via the agent. She provided her email address [email protected] as Mr Qi’s contact. This is in fact her email address and Mr Qi does not have access to it.

   13.      In September 2022, Mr Qi has requested for his passport to be returned from his former employer. Then Mr Qi left the formal employer and has lost contact with Mr Jian Guo and Ms Ying Shen.

   We believe the employer had "trafficked" Mr Qi for the purpose of employment. It appears that when Mr Qi expressed his intention to leave, the employer confiscated his passport and instructed the agent to submit a form for voluntary cancellation of the student visa, despite Mr Qi being onshore. The objective seems to have been to exert control over Mr Qi and compel him to remain in the employment. Mr Qi’s encounter has reported on the news by the Sydney Morning Herald/The Age and he appeared in an interview on ’60 Minutes’ by Channel 9 Network. Mr Qi has also made a formal complaint to the AFP who is currently investigating the matter.

8. The submission contends that in accordance with the Act, the delegate’s decision was not sent to the last residential or business address provided to the Minister by the applicant nor to the last fax number, email address or other electronic address provided to the Minister by the applicant. The person who purportedly provided contact details to the Department for the applicant was not authorised to do this. The construction of the word ‘known’ in the legislation it is submitted must exclude any fraud activities. The applicant was trafficked to Australia by the employer to work for them. The applicant did not provide the contact details to the Department at any time. It was the employer who controlled the information. The relevantly provided email address does not satisfy regulations due to its fraudulent nature.

9. The Tribunal constituted this matter to a different Member to determine if there was or was not jurisdiction to consider the review; that is, whether the notification of the delegate’s decision had been properly sent to an address nominated by the applicant. It was determined that there has not been such a notification. A file note by that Member provided reasoning as follows:

   I have carefully considered this matter and for the following reasons I am of the view that the decision notification of 16 January 2023 is defective and therefore the Tribunal have jurisdiction in this matter:

   During the visa cancellation process, former migration agent did not provide form 956. (conceded by the Department)

   The Federal Court of Australia in Lyu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1258, has clarified each matter requires properly authorisation under s.494D. The previous authorisation under s.494D of the Act has effectively ended when the student visa was granted.

   For this reason, it appears that the former agent, Mr Yan, was not authorised to provide an updated contact details for the applicant. It appears from the document held on the Department and the Tribunal files that neither the email address nor the physical address was provided by the recipient. In fact, it appears that [email protected] address belongs to the applicant’s former employer Ms Ying Shen.

   Section 494B(4)(ii) prescribes inter alia that document must be dispatched to the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents.

   Similarly, s.494B(5)(d) prescribes that document can be send by email .. to the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents.

   The last residential or business address and email address must have been provided to the Minister by the recipient. The ‘recipient’ refers to the person that the relevant notice is sent to. In this case, the recipient of NOICC is Mr Qi.

   He claims (supported by his statutory declaration) that he had not seen the email address of [email protected] nor the physical address of 386 Burwood Highway, Burwood until the notices was received under the FOI.

   Instead, this information was provided by the employer Ms Ying Shen via the migration agent in the process of requesting to cancel his visa validly.

   I accept the applicant’s submissions that the email address (the NOICC was sent to) was not validly provided (or ‘known’) to the Minister as the contact details of the applicant pursuant to ss.494B, 494D and r.2.55 due to its fraudulent and malicious nature.

10. Based on this assessment, the Tribunal determines that this is a valid review and there is jurisdiction to consider the substantive matter.

    Hearing

11. To consider the substantive application for review, the applicant appeared before the Tribunal on 16 January 2024 at 9.30 am. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

12. The applicant was represented in relation to the review. The representative attended the hearing.

13. 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

14. It having been determined that the notification to the applicant of the cancellation decision was defective and that there is jurisdiction to consider the review, 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 (Cth) (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?

15. 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 full time registered course: 8202(2)(a);

    ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b);

    ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i); and

    ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

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

17. The delegate’s decision record on the Department file indicates that the applicant has not been enrolled in a registered course of study since 23 March 2022. The applicant acknowledged this in the hearing.

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

    Consideration of the discretion to cancel the visa

19. 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. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedural Instruction ‘General visa cancellation powers’. These matters include: the purpose of the visa holder’s travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s 140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations); provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen (and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non-refoulement obligations; and any other relevant matters.

20. In the hearing, the Tribunal explored with applicant in detail his life, study and work history in China. After leaving school in 2012, the applicant worked in a business involved in tinting car windows. The applicant indicated that at around the end of 2019, through a friend he knew in China, he saw an advertisement on WeChat for work in Australia for car window tinters. The applicant indicates that at this point in time he communicated with Mr Jian Guo in Australia who was to be visiting China in early 2020. The applicant indicated that in February 2020 he met with Mr Guo in China who sought a demonstration of his window tinting abilities which he was satisfied with. There was then discussion about the applicant coming to Australia to work. The applicant indicated that arrangements to facilitate this were delayed, with the applicant not coming to Australia until December 2021.

21. The applicant was originally to be entering Australia on a visitor visa, but this became impossible due to changed immigration requirements due to COVID-19. There was then an indication that he would enter Australia on a student visa. The applicant indicated that all arrangements for this were facilitated by an agent in Australia who he never had contact with. The applicant indicated that at all times he was being assured by the employer that there was no issue or illegality regarding the manner of his entry into Australia.

22. The Tribunal put to the applicant that surely in the context of him not entering Australia to study he would have known that the visa arrangements to enter Australia were not lawful. The applicant maintained he did not have a sense until he came to Australia of the illegality of the arrangements and he was being constantly reassured by both his friend in China that had facilitated contact with Mr Guo and Mr Guo himself and his wife Ms Ying Shen that the arrangements were quite normal.

23. The Tribunal put to the applicant that he would have needed to have been informed as to his intended study in Australia in the event that he was asked about study intentions on entry by immigration officers. In response, the applicant indicated that before his departure for Australia he was sent a Confirmation of Enrolment in relation to his purported study in Australia. However, this did not cause the applicant to seriously focus on the legality of what was happening.

24. As put to the applicant, the Tribunal has some plausibility concerns that the applicant would not through simple common sense have known that his intended entry into Australia on a student visa when he had no intention to study was not an arrangement that complied with Australian law. Although the Tribunal starts from this position, the Tribunal is persuaded, given the totality of the applicant’s evidence in the hearing, that he did not seriously turn his mind to the arrangement being unlawful under Australian law. The Tribunal is persuaded that he was significantly reassured by the employers and his friend in China who facilitated the introduction to the employers that there was no major problem with the use of a student visa to enter Australia.

25. The Tribunal is satisfied from the consistent and detailed responses by the applicant in the hearing that the circumstances of his employment in Australia, and the applicant eventually leaving his employer in September 2022, is as is outlined in the submission above. In the hearing, the applicant added that he mostly received the monthly payments that were agreed upon, but with no payments being made for the first two weeks in which he was in Australia. The applicant indicated that the ‘bonus’ payment as set out in their submission was in fact a 10% commission on work undertaken. The applicant indicated that he was paid $23,000 but this omitted some work which he undertook.

26. The applicant in the hearing reiterated poor living and food arrangements and repression and control by his employers. The applicant reiterated his desire in April 2022 to leave his employers, but the employers took his passport. The applicant indicates that he eventually left them in September 2022 and demanded his passport, which was returned.

27. The applicant indicated that he was able to leave with the assistance of a person that he had met from another car window tinting business who facilitated accommodation for him. The applicant indicated that he worked in a car tinting business related to this person for about two months. Payment for this employment was in cash. The applicant indicated that this employment continued for about two months before ceasing as a result of the applicant becoming cognisant of the need to declare income above a certain level under Australian law.

1. The Tribunal noted to the applicant that his current visa expires on 15 March 2024 and asked what his intentions are both in the event that the visa remains cancelled or is reinstated. The applicant indicated that in both situations he intends to return to China before the visa expires.

2. The Tribunal asked what hardship he faces if the visa remains cancelled. In response, the applicant indicated that he does not want to have the cancellation of the visa on his record.

3. The Tribunal assessed by the end of the hearing that there are extenuating circumstances beyond the applicant’s control explaining his not being enrolled in a registered course. This is as a product of the Tribunal accepting that the applicant has been to at least some degree a victim of unlawful and exploitative employment arrangements to facilitate unlawful work by foreigners in Australia. As indicated above, the Tribunal is broadly satisfied that the applicant had not at the point that he entered Australia on the student visa seriously understood and assessed that he was entering Australia under false pretexts. The Tribunal is satisfied that the applicant was persuaded, notwithstanding he had no intention to study in Australia, that his employers and his friend who helped facilitate the arrangement persuaded him that despite the fact that he was not going to be actually studying, in a practical sense this was not a major problem in terms of non-compliance with Australian immigration law.

4. The Tribunal accepts that the applicant, while he was working for the employers in Australia, became aware of the risk to his visa status, as a result of not actually studying, which was held over the applicant as a bargaining tool to exert obedience and compliance from him.

5. The Tribunal put to the applicant that its inclination in the circumstances was to not exercise its discretion to cancel the visa, but it might wait until evidence has been provided that the applicant has returned to China before doing so.

6. It was indicated by both the applicant and the representative that this is likely to be acceptable, subject to what is indicated below.

7. The representative submitted that one issue that he would examine and provide submissions on is any prejudice that the applicant might suffer if he left Australia on the Bridging visa E. He also indicated that it is possible that the Australian Federal Police (AFP) may have an ongoing desire for the applicant to remain in Australia to assist them in their investigations as to the alleged trafficking that the applicant has been the victim of. It was indicated that the representative would contact the AFP and provide relevant submissions on these issues after the hearing.

8. The Tribunal indicated that if there was any prejudice to the applicant as a result of leaving Australia on his current bridging visa, the Tribunal would consider making a decision not to cancel the visa in advance of the applicant leaving Australia.

9. In response, the representative indicated that if the applicant leaves Australia on the bridging visa or no visa, he will be affected by PIC 4014 and will be barred from being granted most temporary visas for three years.

10. The Tribunal accepts this and thus there is prejudice to the applicant if the Tribunal sets aside the cancellation after the applicant departs Australia.

11. The applicant has provided evidence of an airline ticket to leave Australia on 3 March 2024.

12. In all the circumstances, particularly considering the extenuating circumstances relating to the ground for cancellation being made, and the Tribunal’s acceptance that the applicant’s genuine desire is to return to China, the Tribunal determines not to exercise its discretion to cancel the visa.

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

    DECISION

14. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    David McCulloch
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.