Qiu (Migration)

[2019] AATA 6714

Qiu (Migration) [2019] AATA 6714 (1 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ge Qiu

CASE NUMBER:  1915660

HOME AFFAIRS REFERENCE(S):          BCC2019/19768

MEMBER:David Thompson

DATE:1 October 2019

PLACE OF DECISION:  Perth

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 01 October 2019 at 3:26pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of travel and stay – circumstances giving rise to non-enrolment – failure to enrol for trimester 1 in time – length of non-enrolment – as short as it could be given the reason for non-enrolment – no real choice but to wait for trimester 2 to commence – decision under review set aside

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 7 June 2019 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 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not complied with condition 8202 on his visa because he was not enrolled in a full-time registered course for the purposes of condition 8202(2)(a) from 12 August 2018 until the date of decision, 7 June 2019. 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 4 September 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. 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

5. 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?

6. 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);

   ·must maintain enrolment in a registered course that, once completed, will provide a qualification at the same or higher level of the Australian Qualifications Framework as the course for which the visa was granted (subject to a limited exception not presently relevant): 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(3)(c)(ii).

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. According to the delegate’s decision record, a copy of which the applicant provided to the Tribunal with his application for review, the applicant finished his course on 11 August 2018 and had not been enrolled in any other course from that date until 7 June 2019 (the date of decision). The course in question was a Master of Engineering Management, provided by Curtin University.

8. The applicant’s evidence at hearing may be summarised as follows:

   a.The applicant first came to Australia on March 2017 as the holder of a Student (Temporary) class TU subclass 500 visa, in order to study an English bridging course and the abovementioned Master of Engineering Management at Curtin University.

   b.The applicant completed his English bridging course successfully on 26 July 2017.

   c.The Master of Engineering Management course is offered by Curtin University on a trimester basis, and would normally be completed in three trimesters.

   d.The applicant started his coursework for his Master’s degree in Trimester 3 of 2017. He undertook 4 units in that trimester and passed 3 of them, failing a unit called Economics for Managers.

   e.The applicant continued his studies in trimesters 1 and 2 of 2018, repeating (and passing) Economics for Managers in Trimester 2 of 2018.

   f.Because he had to repeat Economics for Managers he was unable to undertake the final unit for the course, a research project, in Trimester 2 of 2018 as originally planned. Instead, he undertook that project in trimester 3 of 2018.

   g.Although results for trimester 3 of 2018 were (according to the applicant) probably available in January 2019, he did not think to check his results until February 2019. At that point, the applicant learned that he had failed his research project.

   h.It was by then too late to re-enrol in the research project for trimester 1 of 2019.

   i.The applicant therefore re-enrolled for trimester 2 of 2019, and successfully completed his research project (and his degree) then.

9. The applicant has provided the Tribunal with the following documentary evidence:

   a.a copy of his academic record at Curtin University as at 154 June 2019;

   b.a copy of Overseas Student Confirmation of Enrolment (CoE) AA8F1C51 for enrolment in the Curtin University Master of Engineering Management programme between 6 May 2019 and 9 August 2019; and

   c.a letter dated 30 August 2019 from Associate Professor Andrew Whyte, the head of the School of Mechanical and Civil Engineering at Curtin University, and the course coordinator for the Master of Engineering Management programme, confirm that the applicant successfully completed his final unit in trimester 2 of 2019, and has completed the requirements for his master’s degree.

10. These documents support the account given by the applicant and summarised at paragraph 8(a) – (f) and (i) above. The Tribunal accepts the account summarised in those sub-paragraphs and finds accordingly.

11. According to Curtin University’s academic calendar for 2019, which the Tribunal has consulted online:

    a.trimester 1 for 2019 started on 14 January 2019 and ended on 19 April 2019; and

    b.the last dated for enrolment in semester 1 of 2019 was 19 January 2019.

    These calendar entries support the applicant’s evidence as summarised in sub-paragraph 8(h) above, and tends to support sub-paragraph 8(g). To the extent that sub-paragraph 8(g) rests on the applicant’s oral evidence only, the Tribunal has no reason to doubt that evidence and accepts it. Accordingly, the Tribunal also finds in terms of sub-paragraphs 8(g) and (h) above.

12. On the evidence before the Tribunal, therefore, the applicant was not enrolled in a registered course between 14 January 2019 and 19 April 2019. This is a considerably shorter period of non-enrolment than that upon which the delegate based her decision to cancel the applicant’s visa. Nonetheless, during that period the applicant did not comply with condition 8202(2).

    Consideration of the discretion to cancel the visa

13. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers.’

    The purpose of the applicant’s travel and stay in Australia

14. There is no evidence before the Tribunal suggesting in any way that the applicant had any other purpose in travelling to Australia than to undertake the course of studies he has now completed, or that the applicant has stayed in Australia for any purpose other than completing his studies and dealing with this review application. The Tribunal finds that these were and are his purposes in coming to Australia and staying here to date. This factor weighs moderately strongly in the applicant’s favour.

    Does the applicant have a compelling need to travel to or remain in Australia?

15. There is no evidence that the applicant has any compelling need to travel to or remain in Australia in future. The Tribunal gives this factor no weight, either for or against the applicant.

    The circumstances in which the ground of cancellation arose

16. The cause of the applicant’s breach of condition was his failure to check his results for trimester 3 of 2018 in time to enrol for trimester 1 of 2019, should it prove necessary to do so. There is no evidence that this was a result of anything more than inattention on the applicant’s part, or that his inattention was reckless or culpable (as, for instance, it might be if it resulted from or was concomitant upon some positively blameworthy activity). The Tribunal gives this circumstance some weight in the applicant’s favour.

    Extent of compliance with visa conditions

17. The Tribunal has found that the applicant was not in compliance with condition 8202 from 14 January 2019 to 19 April 2019. That is a period of non-compliance very much shorter than that upon which the delegate based her decision, but is not so short that it could be considered negligible or trivial. The Tribunal would give this factor taken on its own some weight as a reason to cancel the applicant’s visa.

18. However, the period of non-compliance was as short as it could be given the reason for which it arose – in the circumstances of the case, the applicant had no choice but to enrol for trimester 2 of 2019 if he was to finish his course, and no real choice but to wait for trimester 2 to commence. The Tribunal finds that this ameliorates significantly the weight to be given to the extent of the applicant’s non-compliance so that, in all, the extent of the applicant’s non-compliance with condition 8202 is to be given only a little weight against the applicant.

19. On the evidence before the Tribunal, and except to the extent noted in paragraph 18 above, the applicant has complied with his condition 8202 on his visa, and there is no evidence of non-compliance with any other visa condition. The Tribunal gives this circumstance some weight in the applicant’s favour.

    Degree of hardship that may be caused by cancellation

20. The applicant has stated that he is considering pursuing doctoral studies in engineering, and that he might wish to undertake those studies a country other than his home country. Having a cancelled student visa on his record could compromise his ability to obtain the necessary visas to pursue that project. The Tribunal considers that this constitutes a potential hardship.

21. At hearing, the applicant sought further time to determine whether cancellation of his visa would have any adverse effect on the award of his degree from Curtin University. The Tribunal allowed him some time in which to do so. It appears from the applicant’s post-hearing correspondence that cancellation would have no such effect, although it might make it difficult for him to attend his graduation ceremony. In further post-hearing correspondence, dated 11 September 2019, the applicant raised the possibility that cancelation of his visa might have adverse consequences for him on his return to his home country. The nature of those consequences was not entirely clear from the applicant’s correspondence. As best the Tribunal can understand that correspondence, the applicant was concerned that a visa cancellation might be held against him if he sought recognition of his Australian degree in China, or if he sought to undertake further studies in that country. The applicant stated that he was having the relevant regulations translated and would provide them to the Tribunal within a few days, but has not done so. In the absence of such material, the applicant’s concern can only be considered as a mere possibility of hardship. However, the Tribunal has reached a decision in favour of the applicant without that material, and the material in question could not change that decision adversely to the applicant. The Tribunal has, therefore, decided to proceed to a determination of this case without that additional material.

22. There is no evidence that cancellation of the applicant’s visa will cause him any other form of hardship, except perhaps hardship created by the mandatory legal consequences of cancellation, which will be discussed below.

23. The Tribunal gives the hardship the applicant has identified some weight in his favour.

    The applicant’s past and present behaviour towards the department

24. There is no evidence before the Tribunal suggesting that the applicant has been in any way uncooperative in his dealings with the department, or that he has acted dishonestly or in bad faith in those dealings. The Tribunal gives this factor some weight in favour of the applicant.

    Whether there would be consequential cancellations under s.140

25. There is no evidence before the Tribunal that any other person’s visa would be cancelled if the applicant’s visa were cancelled. The Tribunal gives this factor no weight, either for or against the applicant.

    Whether cancellation has mandatory legal consequences for the applicant

26. The Tribunal has obtained a copy of the applicant’s movement record, showing the applicant’s movements into and out of Australia and his visa status. That record contains no indication that the applicant has been granted a bridging visa. Further, the applicant’s visa the subject of this review expired on 30 August 2019. The applicant will therefore be liable to detained pursuant to s.189 of the Act, and may become liable to being removed from Australia pursuant to s. 198 of the Act, whether or not his visa is cancelled. The Tribunal therefore gives no weight to this factor, either for or against the applicant.

27. Affirmation of the delegate’s decision would, however, place a limitation under s48 of the Act on the Australian visas which the applicant could be granted. The applicant may also be ineligible for a grant of a further temporary visa for a period of time by reason of Public Interest Criterion 4013. This is likely to prevent the applicant from undertaking doctoral studies in Australia, if he decides to do so. The Tribunal gives this factor some weight in favour of the applicant.

    Whether any international obligations would be breached as a result of the cancellation

28. There is no evidence before the Tribunal suggesting that the cancellation of the applicant’s visa would breach any international obligation to which Australia is a party. The Tribunal gives this factor no weight, either for or against the applicant.

    Any other relevant matters

29. Neither the evidence before the Tribunal nor the applicant’s submissions at hearing raise any other relevant matter for the Tribunal’s consideration.

    Conclusion

30. Considering the circumstances as a whole, the Tribunal concludes that the applicant’s visa should not be cancelled.

    DECISION

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

    David Thompson
    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.