WANG (Migration)

[2020] AATA 3395

WANG (Migration) [2020] AATA 3395 (17 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rongjia WANG

CASE NUMBER:  1712849

HOME AFFAIRS REFERENCE(S):          BCC2017/912165

MEMBER:Mark O'Loughlin

DATE:17 August 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 17 August 2020 at 12:13pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – enrolment in degree course cancelled for failure to meet English language proficiency requirement – enrolment in another degree course cancelled when visa cancelled – advised by agent not to enrol in diploma course while on bridging visa – family’s financial problems – mental health – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 119
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

CASE
Shrestha v MIBP [2017] FCAFC 69

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 8 June 2017 a delegate of the Minister for Immigration and Border Protection decided to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act). The applicant has asked the Tribunal to review that decision.

2. The delegate decided to cancel the visa on the basis that the applicant had breached a condition of his visa, namely the requirement that he be enrolled in a relevant course, and that the grounds for cancelling the visa outweigh the grounds for not cancelling it. 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 8 August 2019 and 1 July 2020 to give evidence and present arguments.

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

5. 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

6. 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.

7. As a preliminary matter the applicant has, in submissions dated 8 July, contended that the Notice of Intention to Consider Cancellation (“NOICC”) of the applicant’s visa that was sent to the applicant under s.119(1) of the Act was invalid.

8. The provision of such a notice is a mandatory requirement that must be satisfied before a visa can be cancelled in these circumstances.

9. The applicant makes no complaint about the content of the notice.  He complains that the notice was not provided to him.  His complaints are made on 2 bases.

10. The first is that the applicant’s former agent did not provide a copy of the notice to the applicant until the time within which to respond had elapsed.

11. The applicant does not complain that the department sent the notice to the wrong address.  The failure of the applicant’s agent to communicate with the applicant, if that is what happened, is not a matter that was within the control of the department and does not invalidate the NOICC.

12. The second complaint is that the notice was addressed to Roangjia Wang whereas the applicant’s name is Rongjia Wang.  The applicant contends that the misspelling of his name by the addition of the letter “a” was sufficient to render the notice to him ineffective.

13. The applicant concedes in submissions that he knew that the error was a typographical error and that he knew a notice of this type was going to be forwarded to him.

14. In these circumstances the Tribunal does not accept that the applicant was not notified as contemplated by s.119.

    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 registered course, or in limited cases, a full time course of study or training: 8202(2).

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

17. In evidence the applicant agreed that he was not enrolled in a registered course from 22 July 2016 to 1 May 2017, a period of 284 days.

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

    Consideration of the discretion to cancel the visa

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’.

20. In coming to this decision the tribunal relied on some documents that have been provided by the applicant;

    ·a copy of the delegate’s decision dated 8^th of May 2017 (which the applicant agreed had actually been prepared on 8 June 2017);

    ·a report from a psychologist dated 19^th of December 2016;

    ·submissions from the applicant’s representative dated 8 July 2019 and 22 August 2019 and annexures;

21. The tribunal has not relied on any other documents in making this decision.

22. The applicant gave evidence that he came to Australia in December 2015 with an enrolment in an English course and a Bachelor of Civil Engineering.

23. His acceptance to the University of New South Wales for the Bachelor of Civil Engineering was dependent on him successfully completing his four-month English course which was due to finish in about May 2016.

24. He said that although he completed the course, he did not pass it. He did not therefore meet the University of New South Wales prerequisites for the Bachelor of Civil Engineering.

25. The applicant said that because he had not passed the English course he decided to sit the English language test known as the IELTS. He said that he did the test 5 times but was unable to meet the University of New South Wales requirements.

26. The applicant agreed that his enrolment in the Bachelor of Civil Engineering at University of New South Wales was cancelled on 22 July 2016 because he did not meet the English prerequisite.

27. The applicant gave evidence that when he first came to Australia he intended to study engineering then return to work for his uncle’s construction company in China.

28. The applicant gave evidence that although he has been working part-time in Australia, his family is well-placed to support him during his studies.

29. The applicant told the Tribunal that he had not studied since May 2017.  At that time he was enrolled at the Academy of Information Technology. 

30. The Tribunal accepts the applicant’s evidence that he was enrolled in and studying a Bachelor of Information Technology at the Academy of Information Technology from 1 May 2017.

31. The applicant gave evidence that, after the cancellation of his visa on 8 June 2017, after he had been studying the Bachelor of Information Technology for about a month, the college cancelled that enrolment on the basis that he needed a current visa to maintain his enrolment.

32. The applicant gave evidence that he does not have any reason for being in Australia other than to study. 

33. He said that he has stayed here for 3 years without being enrolled in any course and said that he does self directed study.  He has worked as a cleaner but does not always do so and the Tribunal accepts his evidence that he has not worked for about the last year.

34. The Tribunal also accepts his evidence that if he does get his visa back he will not seek part-time employment but will rely on his family for financial support.

35. The applicant’s representative’s submissions of 8 July 2019 (expanded on in the submissions of 22 August 2019) refer the Tribunal to the decision in Shrestha v MIBP [2017] FCAFC 69 and suggest that the effect of that decision is that the applicant risked further breach of his visa if, as the beneficiary of streamlined processing attracted by a 573 visa, he enrolled in a lower level course.

36. The representative’s submissions of 22 August 2019, at paragraph 8 on page 1, reads;

    “We note that our client provided evidence of his enrolment being suspended by AIT pending reinstatement of his visa.  We submit that it was not open to our client on the basis of condition 8516 or the interpretation of section 116(1)(a) to enrol in a Diploma level course.”

37. With respect to this submission the Tribunal observes that upon the cancellation of the applicant’s student visa he was no longer bound by the conditions attaching to it.  He was granted a bridging visa with different conditions.  There was no visa condition to prevent the applicant from enrolling in a diploma level course while on the bridging visa.

38. However, the Tribunal accepts that the applicant was advised by his agent not to enrol in a Diploma level course and that this advice would have informed his views.

39. On balance the Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia is for study and that there is no evidence of a compelling need for him to travel to and remain in this country for any other reason.

40. The submissions by the applicant’s representative of 8 July 2019 suggest that the applicant was suffering from difficulties adjusting to the Australian academic framework and from anxiety caused by his failure to meet the entry level English requirements of the University of NSW.

41. The submissions refer to a psychologist’s report dated 16 December 2016 to which the Tribunal has had regard.

42. The applicant had given the psychologist a history of having had trouble adjusting to the Australian education system and of becoming distressed upon learning that his father’s business had “gone broke”.

43. He told the psychologist that since he had learned of the financial crisis, he had been overcome with feelings of depression and difficulty sleeping.  He said that he was also concerned about the status of his visa given his failure to pass his exams.

44. The report expresses the view that the applicant was exhibiting symptoms of an anxiety or depressive disorder.  The psychologist notes that the symptoms appear to have developed as a direct result of distress caused by the family financial crisis exacerbated by his inability to switch to the Australian style of academic examination.

45. The report expresses the psychologist’s opinion that it is “not unexpected that he has found it more challenging and difficult to succeed in exams, particularly after the overwhelming emotional impacts of recent events.”

46. The applicant gave evidence that he saw the expert on one single occasion and that he did not take up the suggestion of counselling.  He did not take medication or consult any other experts.  Although the  report says that the applicant was referred to the psychologist, the applicant denied speaking to any other experts about his anxiety or depression.

47. The applicant said that he eventually recovered in about May of 2017.

48. The applicant was not able to advise the Tribunal when he became aware of his family’s financial trouble in China.  He originally thought that it was in January 2017 but when he was reminded that the expert report was prepared in December 2016 he said that it was before then. He could not be more accurate.

49. His evidence was that his father did not want to compromise his study and so did not tell him much about the financial problems and that he does not know much about the details.

50. He said that he found out about the problems because his family had been transferring money to him but that the transfers became less regular.

51. The applicant failed the English course in which he was enrolled from 4 January to 20 May 2016.

52. The Tribunal is not satisfied that the applicant became aware of his family’s financial problems while he was studying that course.

53. The Tribunal is not satisfied that the applicant’s health contributed to him failing that course.

54. The applicant was in breach of his visa conditions for 284 days which the Tribunal finds to be a substantial breach. 

55. The applicant’s representative’s submissions of 8 July 2019 suggest that the applicant’s refusal to take up enrolment in a Diploma level course meant that he avoided further breach.  The submissions suggest that significant weight should accrue to the applicant by reason of his refusal to enrol in Diploma level courses.  The Tribunal accepts that the applicant was advised by his representative not to enrol in Diploma level courses and therefore does not accord this consideration the any weight against the application, which it may otherwise have done.

56. In relation to hardship, the submissions of 8 July say that the applicant has expended money on fees which will be thrown away.  The applicant does not quantify those fees and the Tribunal is not satisfied that this will represent a hardship to the applicant or his family.

57. The applicant gave evidence, and his representative made oral submissions, that the applicant does not have the educational qualifications needed to pursue tertiary study in China.  The applicant sought to characterise that as a hardship saying that if he is denied the opportunity to pursue tertiary study in Australia his options will be limited.

58. The Tribunal finds that this may represent a hardship to the applicant. The Tribunal accords this consideration limited weight as the Tribunal is not satisfied that the applicant has demonstrated that he has sufficient English skills to gain entry to his preferred course and there is no evidence supporting the applicant’s oral testimony about the value of the Bachelor degree to which he was admitted.  Further, the applicant’s likely performance in any such study is a matter of speculation.

59. The applicant has implicitly submitted that the circumstances in which the ground of cancellation arose were outside of his control.

60. The applicant was not able to start his Bachelor of Engineering at the University of New South Wales on 25 July 2016.

61. His enrolment in that degree was cancelled, according to the delegate’s decision, on 22 July 2016.

62. The applicant agreed in his evidence that that enrolment was cancelled because the applicant had not passed the English course.

63. The Tribunal is not satisfied that the applicant’s issues with anxiety or depression or the problems with his family’s finances had manifested by that time.

64. The Tribunal is not satisfied that those issues contributed to him failing his English course or to the cancellation of his enrolment.

65. There is no evidence of past or present behaviour of the visa holder towards the department that counts against this application.

66. There is no evidence that cancellation of the applicant’s visa will result in consequential cancellations under s.140 of the Act.

67. If the Student visa is cancelled, the visa holder will become an unlawful non-citizen.

68. He will need to apply for a bridging visa or a permanent visa to remain in Australia. If he is not granted a visa he and does not leave voluntarily he will become liable to detention under section 189 and to removal under section 198.

69. Future visa grants may be compromised by the cancellation of this visa and in particular, the applicant will come within the risk factors defined in Public Interest Criterion 4013.  That will mean he will be ineligible for the grant of another visa to Australia for 3 years after the cancellation of the Student visa.

70. There is no information before the Tribunal that shows that the cancellation would result in breach of Australia’s international obligations.  The applicant has conceded that this consideration is not relevant in the submissions of 8 July 2019.

71. The Tribunal is not aware of any other factors relevant to the exercising of its discretion to cancel the visa.

72. The Tribunal has weighed the considerations set out above together and finds that, although the applicant suggests that the grounds for cancellation arose from matters beyond his control, namely the inability to pass his English course or subsequent IELTS tests due to anxiety and depression, the Tribunal is not satisfied that this is the case.

73. The Tribunal finds that the applicant’s visa was cancelled because he was unable to improve his English sufficiently to maintain his enrolment in a bachelor’s degree.

74. The applicant has since managed to obtain an enrolment in a bachelor’s degree, albeit one which will not enable him to work in the construction industry.

75. The Tribunal accepts that the applicant will not be able to pursue higher level study in China and that, now that he has demonstrated that he is able to commence studying a bachelor’s degree in Australia, the cancellation of his visa would be a real hardship to him.

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

    DECISION

77. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Mark O'Loughlin
    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.