Tian (Migration)

Tian (Migration) [2019] AATA 3976 (14 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Maopeng Tian
CASE NUMBER:  1723722
HOME AFFAIRS REFERENCE(S):           BCC2017/2284009
MEMBER:Joseph Lindsay
DATE:14 June 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 14 June 2019 at 3:11pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in course – parents marital difficulties – English proficiency – reliant on interpreter – did not mitigate enrolment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 25 September 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).
The delegate cancelled the visa on the basis that the applicant failed to remain in a registered course of study and breached condition 8202(2)(a) of his student visa. The issue in the present case is whether that ground for cancellation is made out and, if so, whether the visa should be cancelled.
The applicant provided documentation to the Tribunal on 5 April 2019 including:
a.A written submission dated 31 March 2019.
b.A copy of a Confirmation of Enrolment (COE) dated 17 June 2016 in respect to the applicant’s enrolment in a Bachelor of Business.
c.A copy of a COE dated 17 June 2016 in respect to the applicant’s enrolment in a Diploma of Business.
d.A copy of a COE dated 9 December 2016 in respect to the applicant’s enrolment in an English Language Program.
e.A copy of an International English Language Testing System (IELTS) Test Report Form dated 22 September 2016 in respect to the applicant.
The applicant’s written submission stated:
I am writing this statement to show my strong desire to continue my study journal in Australia and explain my study gap between December 2016 and July 2017 as well as the reason for not communicating with the university timely about this miss enrolment issue.
Summary
I am a genuine student with strong study interest, and I believe studying in Australia can act as a bridge to my future career in China. I always believe that study at University could as a bridge to a better future career in China. During late 2016 I took IELTS test (Please see evidence 1) to satisfy the entry requirement for part 2 of diploma study so that I could complete Bachelor degree earlier (Please see evidence 2). However, I did not pass the entry requirement, even though the result is so close to the threshold. Therefore, I am planning to take IELTs again at the beginning of 2017. I enroll in English Program at Ability English at the end of 2016 (Please see evidence 3). I was also undertaking self-study and study in a private cram school to prepare for the IELTS test at the beginning of 2017. I worked so hard to prepare for the exam because I know it will be the best way to get into part 2 of diploma.
However, when I was about to take the IELTS test again, a severe tragedy took place in my family which nearly changed my entire life. My mother has found that my father is having an affair with another woman. I was shocked when my mother told me about this tragedy. I was at a lost and overwhelmed by panic at the time because I cannot accept that my father did such a terrible thing. In consequence, I did not enroll in the new semester of the part 1 diploma program and did not timely and adequately communicate with Monash University to resolve this problem during my depression period. Worse still, I was not aware of the severe consequences caused by the study gap during this period. I was naive to think that I can catch up on my study once I solve my family issue.
Although now that I have managed to sort out the family issue, I paid a huge price and I put my academic pathway in Australia at risk all because I did not aware of the regulations and obligations. After notification from DIBP, I spend a lot of time to read through my visa obligations and conditions, which I should have understand when I apply my student for the first time. I have learned my lesson and picked myself up to take my responsibility, but I do hope I could be granted the second chance to study in this land because I believe studying in Australia is one of the best decisions I made in my life. I do not want to give up on any hope I can grab to continue my study in Australia.
Reasons for missing the enrolment and study gap
During late 2016, I took the IELTS test in order to enter part 2 of the diploma program hence to start second-year study at Monash University earlier. Although I did not pass requirement, I am so close to the threshold. Therefore, I planned to take the test again during beginning of 2017. I thought I will be able to overcome the adversity as long as I work hard enough on my study. I did not enroll in the new semester of the part 1 diploma program because I was confident in my English proficiency and that I will be able to pass IELTS to get into part 2. Besides, I thought there was still time to enroll in the new semester even if I did not pass the IELTS test. Therefore, there is no need to rush for the enrolment of the new semester. However, when I about to take the IELTS test again, a severe conflict suddenly happened between my parents. My mother discovered that my father is having an affair with another woman which triggers our family disputes. The situation was so bad at some stage that my mother almost planned to divorce my father. I was devastated when I know about this because I cannot believe the person that I admired most did something like this. I never thought such a tragedy would happen to me. It took me so long to accept the reality and I was suffered from insomnia because I cannot help myself imaging my father being with another woman during night time. Knowing that I may lose either side of my parents, I could not focus on anything else and my family issue drew all of my energy. Being a young teenager, all that I can do was to spend most of my time convincing myself and my mother to move on and to forgive my father as he promises he will never do that again after countless times of conversations. In consequence, I missed out the enrolment of the new semester and did not actively communicate with the university to solve the matter. Fortunately, my parents always treat me as the apple of their eyes, after realising the pain caused on me, my parents decide to reconciliation at last. However, I have paid a huge price because I almost got my student visa cancelled due to my absent in study. I was young and naive previously, but now I have understood the ponderance of my actions and I am trying my best to make it up for my fault.
Determination to study
All I want to do in Australia is study in the courses that I am interested in. I am still young and being in my golden age of study. I was shocked when I received notification of intention to visa cancellation from DIBP. I was young and this is the first time I left my home country. Therefore, I have no idea that not going to school for a period of time will affect my student visa status. I am not the type of person who will risk himself to accomplish something by breaching the laws and regulation. However, I was completely not aware of the visa obligation that I have to enrolled in a course of study because my previous agent finished all the paper work of my student visa application. In addition to that, I was naive to believe that I will be able to get into Monash University as long as I have passed the language test. Although my parents’ conflict had influenced me a lot, I managed to move on and picked myself up since my family issue is solved. I know that study is the most important thing for me at this stage. Even though I am not eligible to study in General English program due to my current visa status, I am undertaking studies in the same private cram school to improve my English proficiency. Being educated is my only intention to remain in Australia and I do not want to miss the opportunity to study because of the same mistake I made. I booked a PTE exam on the 1st of April this year to pass the English entry requirement for the University (Please see evidence 4). In this case, if I passed the exam and granted with the second chance to study in Australia, I will be able to study in Monash University immediately, hence reducing my study period of remaining in Australia. Unfortunately, I did not obtain the marks I desired. But I will not give up and I will continue to take English Tests unit I pass the entry requirement. Study in Australia is one of the best decisions I made in my lifetime and I cannot imagine that my mistake will ruin my opportunity to study in Australia.
Financial Capacity
I mentioned in the last statement that I was worried about my financial capacity because of my parents’ conflict. This is because I was all at sea and I did not know that my parents actually have sufficient amount of fund to support my study in Australia even if they were divorced. This also proves my firm intention to return to China once I complete my studies in Australia. Besides, since my parents have reconciled, I do not need to worry about my financial intention at all. My parents have always agreed to support my finance in Australia because they believe that the study in Australia will allow me to obtain the necessary skills and knowledge that I need to reach my desire career pathway.
Reason to remain onshore before the AAT result
I understand that study in Australia is a cherished opportunity. I blame myself for not following my obligation of student visa. I also blame myself for not communicating with the university actively. If the time would go back, I would definitely enroll in the new semester and attend my class regularly. If there is anything I can do to make up for my conscience, I will do so because I cannot allow my mistake to be my lifelong regret. I understand I am not able to apply for another temporary visa within three years. Therefore, if the judgement result is not what I expected, I will no longer be able to study in Australia. It will be a true disaster for me because if I go back to China without a complete degree, it will be really difficult for me to get a job in my hometown as the employment competition is fierce in China. I believe that if I remain onshore, I will have more chances to strive for my student visa, such as obtaining pieces of evidence of my previous study in Australia. Meanwhile, I can continue self-study and my study in the private cram school. Therefore, I wish to remain onshore before the AAT result.
In the future
My parents have spent a vast fortune to support my study in Australia. Hence, I do not want them to be disappointed. As an adult, I ought to understand my responsibilities. Now that my family issue has been resolved and I have already realised my mistake. I have to admit that it is my fault that I am not aware of my student visa obligation, but I am willing to take my responsibility for my own mistake. I am a genuine student who wants to obtain knowledge in this developed country, and I believe the knowledge I will obtain during my study in Australia will be beneficial for my future development. My action in actively seeking my agent’s help for continuing my study in Australia can prove my desire for being educated and my positive attitude towards study. Now I have understood all of the student visa obligations and I will never in breach of the condition attached to the visa ever again. I hope I could be granted the second chance to study in Australia because I believe studying here is one of the best decisions I made in my life.
Substantial ties with China
If I have the chance to continue my study in Australia, I will go back to China once I finish my studies because of my substantial ties with my hometown. I grow up in China, all of my friends and relatives are residing in China. I love my parents. It is my wish that I can stay by their side and take good care of them because they are the most important people in my life. In addition, most of my friends and connections are in China. We share the same culture and language, being together makes us stronger in facing the difficulties that we will encounter for the rest of our lives. Moreover, I am still single, and I am looking forward to building my own family which shares the same cultural and tradition. Therefore, these substantial ties make me want to go back to my hometown after I finish my study in Australia.
Thank you for your precious time and effort in reviewing my case. I hope you can understand my situation and my intention to continue my study in Australia. Your favourable decision would be deeply appreciated.
The applicant attended the hearing before the Tribunal on 15 April 2019. The applicant does have a migration agent but the migration agent did not attend the hearing. The applicant was assisted by an interpreter.
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
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?
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
In respect to his student enrolment history, the applicant indicated that an agent helped him with his enrolments. He indicated that he did his IELTS test and that if he achieved a certain score he could enrol in a diploma. He indicated he had enrolled in courses at Monash University including a diploma and a bachelor course in business. He indicated he had also enrolled in another diploma at another school before his visa was cancelled but he was not sure of the address of where he had enrolled. He indicated that at the time his previous agent had helped him enrol in the additional diploma but he did not start the course because he had his visa cancelled.
The Tribunal has considered the applicant’s student enrolment history in his Provider Registration and International Student Management System (PRISMS) record and finds that the applicant’s account of his student enrolment history is accurately reflected in his PRISMS record.
In the hearing, the Tribunal referred to information in the applicant’s decision record from the Department dated 25 September 2017 indicating that he had not been enrolled in a registered course of study from 16 December 2016 to 25 July 2017. In his response to the Tribunal, the applicant agreed that he had not been enrolled in a registered course of study from 16 December 2016 to 25 July 2017.
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)(a). The Tribunal finds that the ground for cancellation of the applicant’s student visa is established in respect to s.116(1)(b) of the Act.
Consideration of the discretion to cancel the visa
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.’
Level of English
At the commencement of the hearing, the Tribunal asked the applicant what his level of English was like. In response he indicated that he understood that to be enrolled he needed to achieve a certain level of English. The applicant referred to his IELTS test results. He indicated that his level of English was at the “medium” level and that he was confident in his spoken English.
The Tribunal put to the applicant that it had no problem with him using the interpreter but that the Tribunal would also consider what the applicant’s level of English actually was during the hearing. Ultimately, the applicant indicated he would speak to the Tribunal in English but that if he had any problem he would use the interpreter.
However, for most of the hearing applicant did not speak English and it became apparent to the Tribunal that the applicant was heavily reliant on the interpreter in order to communicate with the Tribunal.
The Tribunal put to the applicant that he had been in Australia since 2016 and that a significant part of the discussion during the hearing had been about the applicant’s ability to pass his IELTS test. The Tribunal put to the applicant that passing the IELTS test was the very beginning of doing his study and that he had submitted that his issue was that he had to improve his English language skills so he could pass his IELTS test to then proceed on to further study. The Tribunal put its concern to the applicant that given that his apparent deficiency in his English language skills has been a key reason for him not progressing with his studies and that his English language skills do not appear to have sufficiently improved despite his continued presence in Australia over the last three years, the Tribunal was going to consider whether there was a realistic chance of him being able to successfully undertake and complete a course given this apparent ongoing issue with his English language skills.
In response, the applicant indicated in English that he had needed to use the interpreter during the hearing because he had been excited but that he would try to communicate in English.
In consideration of the above, the Tribunal accepts that, due to nervousness, the applicant wished to have the interpreter assist him throughout the hearing. However, the Tribunal is not satisfied that the applicant’s level of English is of a sufficient standard that he would actually be able to successfully undertake a course of higher education in Australia. For the vast majority of the hearing, the applicant was heavily reliant on the interpreter for each exchange of information between the Tribunal and himself. Accordingly, the Tribunal finds that even if the applicant were to have a student visa, the applicant’s English skills appear to be insufficient for him to be able to successfully undertake a course of higher education in Australia.
The circumstances in which the ground for cancellation arose
The Tribunal asked the applicant why he allowed his course enrolment to cease and what was happening in his life in the period leading up to December 2016.
In response, the applicant indicated that in 2016 he undertook his IELTS test but that he didn’t get an ideal score. He indicated that he took another IELTS test at the beginning of 2017 but something happened when he was preparing for the test. He explained that while preparing for the IELTS test he received a phone call from his mother who told him his father was having an affair. He indicated he couldn’t believe his father did this. He indicated that he felt that he lived in a very happy family and he couldn’t accept the fact that his father was having an affair. He indicated that during this time he devoted all of his energy to this issue. He indicated that at the time he was all by himself in Australia and he had not been in Australia for very long. He indicated he felt helpless but that he tried to solve the issue. He indicated he called his parents every day as he wanted to help them to reconcile with each other. He indicated he had a brother who is still very young. He indicated that when he was little, his father did not live in the same city as himself. He indicated his father was busy with his work and lived in another place so he did not grow up with much time with his father. He indicated that at the time his brother was only two years old and he was concerned about him. He felt he did not want his parents to break up the marriage and he concerned himself with what he could do from Australia to help them. He indicated that after some time his parents did reconcile.

The Tribunal asked the applicant what he did to help his parents. In response he said he called his mother almost every day and he tried to persuade her to think about his younger brother. He told her what he experienced when he was a child. He explained that he knew his mother felt guilty about his childhood and that he did not want the same thing to happen to his own brother and he was afraid that if his younger brother lost one of his parents he was concerned about what would happen to him in that situation.
The applicant explained that at the time of the affair his younger brother was not even two years old. The applicant explained that his parents and his younger brother’s parents were the same parents even though the age gap between himself and his brother was substantial of at least some 20 years. The applicant explained that his father (Yi Liang Zhang) was 55 years old and that his mother (Li Juan Liu) was 43 years old.
The applicant explained that he was in Australia by himself. The Tribunal asked the applicant why his mother told him about the circumstances if the applicant was in Australia knowing that he could probably do very little about the circumstances. In response he indicated that a period of time had passed before his mother ended up telling him. He indicated his mother knew he probably would overreact but she couldn’t hide the situation any more. He indicated that his relationship with his father was still close and that he did speak to his father. He indicated that he was closer to his mother. His mother told him she did not want him to pay too much attention to the issue but he ended up devoting all of his energy to the issue and he did not feel like he could do anything else.
The Tribunal asked the applicant why he didn’t go back home to see his mother in China and try and help her from there. In response he indicated he really wanted to study in Australia and needed to get a student visa and at the time he didn’t know what would happen to him if he returned to China. He indicated that he thought if he returned to China his family would not be happy with his decision. He was also concerned about what might happen to his student visa.
The Tribunal asked the applicant why he was afraid of what would happen to his student visa. In response he said he was afraid if he went back to China for a while this would negatively impact upon his student visa. He indicated he did not know what he could and couldn’t do at the time. He indicated he was quite young at the time but that he became an adult. He indicated he didn’t know the details about the implications.
The Tribunal put to the applicant that he had indicated he had a migration agent assist him. The applicant responded that his family did not want anybody else to know about the issue but he did not expect his visa would be cancelled.
The Tribunal put to the applicant that he had indicated to the Tribunal that his student visa was very important to him. The Tribunal put to the applicant that nevertheless he stopped studying and stopped being enrolled and he stayed that way for months. The Tribunal asked the applicant what he thought would happen to him if he was not studying and he was not enrolled. In response he said he thought he could still enrol in the second semester. The Tribunal put to the applicant that his answer did not make much sense because there had been many months where he had not been enrolled at all. The Tribunal asked the applicant whether he was aware that his course enrolment had completely lapsed in December 2016. In response he said that his agent provided him with a package of courses comprising language, diploma and bachelor courses. He indicated that the agent didn’t explain the conditions very well or that he needed to comply with his student visa conditions. He indicated he assumed his enrolment was cancelled because he was not successful in entering into the diploma course.
The applicant confirmed that he never actually started the diploma course for the reason that he did not do sufficiently well enough in his IELTS test. The Tribunal asked the applicant that if the issue was his IELTS test, why didn’t he simply do the test again? In response the applicant indicated he had planned to take another IELTS test but just when he was preparing the IELTS test this issue (his parents’ marital difficulties) happened and at that time he didn’t know that he was not enrolled in his course. He indicated that after several months things (his parents’ marital difficulties) became a bit better.
The Tribunal asked the applicant if he spoke to his course provider at the time about the issue. He indicated he did not. He indicated he did not realise that the school could do anything to help him and he did know how much he could tell his university about his family issues. He indicated that the only way he believed he could continue his study was to pass the IELTS test. He indicated he did not know that at the time the school might have some solutions to help him.
The applicant also indicated he did not speak to the Department either. He indicated he did not know he could even communicate to the Department. When asked why not he indicated that at the time he was very young and it was the first time he left his family and he was all by himself so he wasn’t so good at dealing with his own issues independently.
The Tribunal put to the applicant that he had indicated to the Tribunal that he had not told his course provider or the Department or anybody else about his parents’ marital difficulties and that he indicated he was under the belief that if he did another IELTS test he could then make a further enrolment. The Tribunal asked the applicant to explain what he was doing between late 2016 and when his enrolment was cancelled in early 2017.
The applicant responded that at that time; that is, early 2017 he was preparing for his IELTS test and he thought he could pass the test and then the issue happened (his parents’ marital difficulties). He indicated that at that time he did not realise if he didn’t take the test immediately he wouldn’t be able to enrol. He claimed he did not know if he wasn’t enrolled that this would impact on his student visa. He claimed that if he had known that his enrolment status would impact on his student visa he would have acted differently at the time.
The Tribunal put to the applicant that as the visa holder he would be reasonably aware that he was required to abide by all of the conditions of the visa that he was subject to. The Tribunal put to the applicant that he had to know the conditions and he had to abide by them and that it was reasonable to do so. The Tribunal asked the applicant if he agreed with what the Tribunal had put to him. In response he said “I agree.”
The Tribunal put to the applicant that he did end up enrolling again but it wasn’t till mid-2017. The Tribunal asked the applicant why he enrolled in the diploma in mid-2017. The applicant responded that he re-enrolled because he wanted to continue with his studies and he didn’t want to give up the opportunity to study in Australia when he got to know that his visa was about to be cancelled. He indicated that he wanted more chances to recover his student visa.
The applicant confirmed that he never undertook another IELTS test in early 2017 because that was when the family issue happened and then he received the decision that his student visa was cancelled.
The Tribunal put to the applicant that he received the decision that his student visa was cancelled many months after his enrolment ceased. The Tribunal put to the applicant that his enrolment ceased in late 2016 and from that time onwards he was no longer enrolled. The Tribunal put to the applicant that the Department was never approached by the applicant and then sometime later the Notice of Intention to Consider Cancellation (NOICC) was sent to him to which he responded. The Tribunal put to the applicant that this process took between 6 and 7 months. The Tribunal put to the applicant that it appreciated the applicant’s family circumstances in China and that it was causing him emotional upset but asked him what he was doing for the entire time in which he was not enrolled until the time he got the NOICC.
In response he indicated that at first he was trying to help his parents reconcile and that when the issue was resolved he wanted to study again and that was why he applied for the course in July (2017). He indicated that his agent at the time told him that since he did not pass his IELTS test he needed to enrol in the diploma and also study for the IELTS test so that in the event he passed his test he could continue his studies in relation to the new diploma.
The Tribunal asked the applicant how he communicated with his parents. In response, he indicated that he spoke to his parents over video using WeChat. He indicated that in China people don’t usually communicate by email.
The Tribunal asked the applicant how he was going to fix his parents’ problems when he was in Australia and they were in China. The Tribunal asked the applicant what he thought he could do to fix his parents’ relationship when that was something they had to do. He responded that his father was not around much when he was younger and his mother felt guilty about that and that at the time he was quite naïve. He indicated he wanted to show his parents the impact that their situation was having on him and so he gave up on his studies. He indicated that he wanted to send his parents a message that if they could do whatever they wanted that he could also do whatever he wanted as well.
The applicant indicated that when his parents reconciled he picked himself up and he wanted to study again.
The Tribunal asked the applicant whether he had any documentation about his parents’ situation and he indicated he did not have any documentation about his parents’ situation.
In consideration of the above, the Tribunal makes the following findings:
·The Tribunal accepts the applicant’s claims that his parents in China experienced significant personal and marital difficulties and that this circumstance had an adverse impact on the applicant.
·The Tribunal accepts the applicant did not find out about his parents’ marital difficulties until after he ceased to be enrolled in late 2016.
·The Tribunal does not accept that the issue in regards to the applicant’s parents’ marital difficulties played any part in respect to the applicant ceasing his enrolment in late 2016.
·The Tribunal finds that the main reason why the applicant ceased to be enrolled in late 2016 was due to the fact that he had not achieved a sufficiently high enough score on his IELTS test to allow him to proceed with his enrolment in the diploma and then on to his bachelor’s degree.
·The Tribunal accepts that the applicant was endeavouring to improve his English language skills and to improve his IELTS test scores but that he was not successful in this endeavour.
·The Tribunal accepts that the only time the applicant re-enrolled was in mid-2017 and that he re-enrolled in a course with the hope of keeping his student visa – even though by this time he still had not completed another IELTS test.
·The Tribunal accepts that the applicant did not approach either his course provider or the Department or his migration agent to seek their advice and assistance with his situation prior to his course enrolment ceasing. However, the Tribunal finds that the applicant did not approach either his course provider or the Department at any time whether it was before his enrolment was cancelled or afterwards when he knew about his parents’ marital difficulties. The applicant was however sufficiently able to re-enrol after he received the NOICC. Accordingly, the Tribunal does not accept that the applicant’s circumstances regarding his parents’ marital difficulties overly impacted on his decision-making ability in regard to taking reasonable steps to maintain his enrolment and keep his student visa.
Given the Tribunal’s findings above, the Tribunal finds that the applicant failed to take reasonable steps in all the circumstances in regards to managing and maintaining his enrolment in a registered course of study as he was required to do to maintain compliance with the conditions of his student visa.
The Tribunal finds that the circumstances in which the applicant failed to maintain his enrolment in a registered course of study were not beyond his control.
The Tribunal places low weight on the applicant’s information as to why he failed to maintain his course enrolment.
The purpose of the visa holder’s travel and stay in Australia; whether the visa holder has a compelling need to travel to or remain in Australia
The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.
The extent of compliance with visa conditions
The Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal asked the applicant what hardship he would experience if his student visa was cancelled.
In response the applicant indicated that the wishes of his family and parents are on him. He indicated that if he didn’t graduate and return to China he would not know how to face his parents.
The Tribunal asked the applicant whether he could enrol in university in China. He indicated his parents told him that he could get more opportunities in his working life if he came to Australia to study. The applicant indicated that his family thought that the skills that he could acquire in Australia would be really important for him and his future job prospects in China.
The Tribunal asked the applicant what he wanted to do in respect to his career and he responded that he wanted to help his father. He indicated if he could finish his diploma and degree in Australia he would return to China to study petroleum and that he wanted to become a person that his father is proud of and he also wanted to prove himself to others about his abilities.
The Tribunal again asked the applicant what work he wanted to do in China. He again responded that he wanted to help his father and work at his father’s company.
The Tribunal asked the applicant what career he wanted. The applicant responded that his father was getting old and he didn’t have the ability to focus on his work or his younger brother and his father’s hope was totally on him.
The Tribunal put to the applicant that he still was not telling the Tribunal what career he wanted. He responded that he wanted to help his father. The Tribunal asked the applicant what did he mean by that and he said petroleum chemical industry. The Tribunal again asked the applicant what job he wanted, and put to him that he was not going to be a chemical engineer or a petroleum engineer given his study choices in business courses.
He responded that he needed to study something about petroleum so his father could assign him to some place and he could be an intern. The Tribunal put to the applicant that he had not been studying petroleum. The Tribunal put to the applicant that it was apparent that the applicant was not entirely clear in his own mind as to precisely what work he wanted to do in the future. He responded that his father would make the decision. The Tribunal asked the applicant whether it was his father’s company and whether his father was the boss of the company. He responded that the company (Kesheng Petroleum) was not his father’s own company but that he needed to get a diploma and then his father could help him.
In consideration of the above information, the Tribunal accepts that the cancellation of the applicant’s student visa would indeed cause disappointment to himself and his family and the Tribunal places some weight on the applicant’s evidence in his favour.
However, the applicant’s apparent wishes to study petroleum so he can get a job with his father’s company are at odds with his choice of course studies in business. The Tribunal accepts that the applicant wishes to complete a diploma and bachelor’s degree and then return to China to get employment as an intern in his father’s company. The Tribunal accepts that the applicant’s family think that the skills that he could acquire in Australia would be really important for him and his future job prospects in China.
However, there is no apparent reason why the applicant cannot enrol in a university in China to complete a course to enable him to acquire qualifications in business or petroleum-related courses to enable him to get employment in his father’s company.
The Tribunal has carefully considered and weighed the above matters and the Tribunal gives low overall weight in the applicant’s favour in regard to this factor.
Past and present behaviour of the applicant towards the Department
There is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this some weight in the applicant’s favour.
Whether there would be consequential cancellations under s.140
There is no evidence that there are any dependants attached to the applicant’s student visa. The Tribunal places low weight on this information in the applicant’s favour.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The applicant indicated he was aware of the legal consequences of the cancellation of his student visa and he was aware of the three-year exclusion period as a consequence of his student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.
The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chose not to return to China.
The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.
The Tribunal places low weight on this information in the applicant’s favour.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
In respect to this criterion, the applicant told the Tribunal that if he went back to China empty-handed there would be a negative impact upon his father and grandparents and they would be disappointed. He indicated he did not want his family to experience that effect. He indicated he had not told any bad news to his family regarding his own situation and that was his only fear.
There is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places no weight on this information in the applicant’s favour.
Any other relevant matters
The Tribunal asked the applicant whether there were any further matters he wished to raise.
The applicant indicated that he wanted a second chance to get his visa to study in Australia. The applicant indicated that since he had received his Bridging Visa E he had complied with the conditions on the Bridging Visa E because he wanted to demonstrate that he could comply with those conditions.

The Tribunal put to the applicant that at any time he could have asked the Department if he could study whilst he was on a Bridging Visa E but that he had indicated he had not even approached the Department to make that request for that permission. He indicated that nobody told him that it was even an option for him to make a request of the Department to allow him to study on his Bridging Visa E. The applicant indicated that if he knew he would have made the application for study rights. The Tribunal put to the applicant that he had a migration agent and that it was open to him at any time to approach the Department to apply for study rights.
In respect to the matters raised above, the Tribunal acknowledges the applicant’s claim that he has complied with the conditions of his Bridging Visa E, including that he could not study. However, the Tribunal finds that the applicant had a migration agent and that it was open to him at any time to approach the Department to apply for study rights.
There were no other relevant matters that the applicant put before the Tribunal.
Conclusion
The Tribunal finds that the applicant received his Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 24 June 2016.
The Tribunal finds the applicant has not been enrolled in a registered course of study from 16 December 2016 to 25 July 2017. Accordingly, the applicant has not complied with condition 8202(2)(a).
The Tribunal finds that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are not exceptional circumstances.
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 Subclass 573 Higher Education Sector visa.
Joseph Lindsay
Member
ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(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.

[2019] AATA 3976

14 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction