WANG (Migration)

[2020] AATA 1425

WANG (Migration) [2020] AATA 1425 (12 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss ZISHAN WANG

CASE NUMBER:  1816047

HOME AFFAIRS REFERENCE(S):          BCC2018/819304

MEMBER:Wendy Banfield

DATE:12 February 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 12 February 2020 at 10:20am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered Higher Education course ceased – applicant’s changed to vocational course – applicant told to wait by college – non-commencement of studies – education provider closed – decision under review affirmed

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 25 May 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector 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 been enrolled to study and had therefore not complied with the conditions of her 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.

   Background

3. The applicant is a citizen of China and is currently 23 years old. She came to Australia on 18 May 2015 as the holder of a Subclass 573 Student visa and has remained onshore since then. At the time of the hearing the applicant had completed a course in university foundation studies and was enrolled in a Diploma of Business.

4. Prior to the hearing the applicant submitted the following evidence:

   ·     Copy of the Department’s decision record dated 25 May 2018;

   ·     Confirmation of Enrolment Certificates (COE) for a Diploma and Bachelor of Business;

   ·     Letter from Adelaide College of Technology dated 20 June 2017;

   ·     Applicant’s passport details;

   ·     Tax invoice from Training Masters dated 21 October 2019;

   ·     Certificate of completion – UTS Foundation Studies dated 6 February 2017.

5. The applicant appeared before the Tribunal on 3 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant was represented in relation to the review.

   The hearing

7. The Tribunal referred the applicant to the Department’s decision that found she was not enrolled to study for approximately 9 months, in breach of visa conditions, from July 2017 to April 2018. The applicant advised that at the relevant time she had transferred to a new education provider. She said she had been enrolled by the principal for the first semester, however, after that she was told by the principal she needed to wait until further notice. According to the applicant, this occurred in February or March 2017 and relates to a Diploma of Accounting.

8. The applicant explained she had arrived in Australia to study a foundation course followed by a Diploma and Bachelor degree. The applicant completed foundation studies but did not progress to the Diploma. During the foundation course the applicant said she felt it was difficult so she was advised by a friend to change to a different course. She was introduced to the head of another college and told she could transfer. When asked the name of the college, the applicant said she did not remember. The applicant provided a COE for a Diploma of Business commencing on 22 May 2017 and ending on 9 September 2018 with Adelaide College of Technology which appears to be the course referred to.

9. When enrolled in the Diploma of Business, the applicant claimed she studied for one semester but the college then advised her she needed to “wait”. When asked what she did during 2018 the applicant said she stayed and home and called the head of the college about making payment. However, she said she was told not to worry and to just wait. The Tribunal put to the applicant that she had been granted her visa to study in the higher education sector but she had not done so which was also a breach of visa conditions.

   359AA invitation to comment or respond to information

10. In accordance with section 359AA of the Migration Act, the Tribunal put to the applicant, particulars of information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. The applicant was advised the information is relevant to the review because, subject to her comment or response, it appeared she did not comply with the terms of her Student visa. The information put to the applicant was that according to the Provider Registration and International Student Management System (PRISMS), she completed her foundation studies and was enrolled in Diploma and Bachelor course but they were cancelled for non-commencement and transfer of studies. The applicant was told that if the Tribunal relies on the information it may lead to the decision under review being affirmed. She was invited to comment on or respond to the information and advised that she may seek additional time, and the Tribunal would consider any request. The applicant was given a copy of the PRISMS record and asked whether it correctly recorded her study history in Australia. The Tribunal advised the applicant that based on the PRISMS record; it did appear there were grounds to cancel her visa. The applicant did not ask for time to respond to the information and did not dispute its accuracy.

11. The applicant advised she decided to study in Australia because her sister has been a student here and her parents wanted her to. She had completed high school in her home country. Regarding any compelling need to remain in Australia, the applicant said she had come to study and if she returns to China without qualifications she will not be able to keep up with other people; also it will be hard for her family. In terms of a future study plan, the applicant said she still wants to do a Diploma, Bachelor and Master’s degrees as she first planned. The applicant stated she would also like to do veterinary science because she likes animal and it is her family who want her to study business. When asked about career plans, the applicant said after studying business, if she can find a job in Australia she may stay otherwise she will go back to China.

12. The applicant reiterated the circumstances that led to her not being enrolled. She said she found a new agent but they did not reply to the Department as she had instructed, and this led to the visa cancellation. She said a new agent had only helped with the Tribunal application and did not submit supporting documents; however she now has another agent.

13. The applicant said she is supported by her father and sister and has not worked in Australia. She believed she had complied with all other visa conditions. Regarding any hardship that may result from cancellation of her visa, the applicant said her family will find it shameful if she returns without completing her studies. She said while waiting for contact from her college principal she had been anxious but was feeling better. She also said there would be gossip and she would find it hard to adjust.

14. The applicant advised her sister lives in Australia and had originally come as a student. The Tribunal asked whether her sister and father who are supporting her had given any advice or been concerned when she was not studying. The applicant said her father and sister were busy at the time; she had a fight with her sister and did not disclose her situation to them. The applicant advised no one else holds a visa that would be affected by her visa being cancelled. The Tribunal explained the legal consequences of cancellation and the applicant said she regrets what happened, including putting her trust in others. She said she needs to rely on herself and because her family are traditional, she would not know how to face them. The applicant was not aware of Australia having any international obligations in her case.

15. In conclusion, the applicant said she wants her visa back to continue to a degree. The Tribunal asked the applicant how she spent her time when she was not enrolled and not working. She replied she had been worried and anxious and had not wanted to go out. The applicant submitted she has since re-enrolled to study a Diploma of Business and is attending classes again.

16. The Tribunal asked the applicant about the fact she came to Australia in 2015 and has only completed a foundation course.

17. 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

18. 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?

19. 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).

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

21. According to the Department’s records, the applicant was not enrolled to study from 12 July 2017 to 20 April 2018 when a Notice of Intention to Consider Cancellation (NOICC) was issued. The applicant provided a COE for a Diploma of Business that was scheduled to start on 22 May 2017 and finish on 9 September 2018. The applicant said she completed one semester of the course but PRISMS indicates that on 12 July 2017 the applicant left and transferred to another provider. A subsequent enrolment in a Bachelor of Business was cancelled for non-commencement of studies and the applicant did not re-enrol until 11 November 2019. 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

22. 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’.

    ·     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

23. The applicant travelled to Australia as the holder of a Student visa and began a foundation course which she did complete. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

24. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need she has to remain in Australia. The applicant referred to her original study plans. She said she will face difficulties if she returns to China without completing her studies; it will be hard for her family and she will not be able to compete with others her age. The applicant advised she still wants to do a Diploma, followed by a Bachelor and Master’s degree in Business. However, the applicant submitted it is her family who want her to study business and she would like to study veterinary science afterwards.

25. The Tribunal accepts it may be difficult for the applicant to return to her home country without completing what she came to do but her study plans, as described at the Tribunal hearing, are not realistic given her academic history and are unlikely to be achieved. As such, the applicant has not demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

26. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account. However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a student visa and weighs against the applicant in this case.

    ·     degree of hardship that may be caused (financial, psychological, emotional or other hardship)

27. During the hearing the applicant claimed she would suffer hardship if her visa is cancelled because her family will find it shameful if she returns without completing her studies. In addition the applicant claimed there would be gossip and she would find it hard to adjust. She said while waiting for contact from her college principal she had been stressed and anxious but was feeling better. The Tribunal accepts there will be a degree of hardship caused by visa cancellation and places some weight in the applicant’s favour when considering this criterion.

28. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why the visa should not be cancelled.

    ·     circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

29. The applicant’s visa was cancelled because she remained in Australia as the holder of a Student visa but did not continue her studies for a period of 9 months. The applicant gave reasons for this, according to the applicant; she felt her university foundation course was difficult so on the advice of a friend she transferred to a different education provider. The applicant submitted a COE for a Diploma of Business commencing on 22 May 2017 and ending on 9 September 2018 with Adelaide College of Technology which appears to be the course referred to.

30. The applicant claimed she began the course but was advised by the college principal that she needed to “wait” after the first semester. (It appears the education provider may have been in difficulty because it subsequently closed). During this period the applicant said she stayed at home and called the head of the college several times about making payment because she was worried about her situation. However, according to her evidence she said she was told not to worry and to just wait.  According to her submissions at the hearing, the applicant did not seek advice from her sister, who has also been a student in Australia, her family or the Department about her circumstances. The applicant claimed she had relied on various agents which she now realises was a mistake because they provided minimal assistance. While the Tribunal accepts the applicant may have experienced difficulty with her enrolment, especially if an education provider closes; it is nevertheless the responsibility of visa holders to take steps to ensure they comply with the conditions attached to their visa.

31. The Tribunal found the applicant’s evidence concerning her study history in Australia and the difficulties she encountered to be somewhat vague. The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, the applicant’s failure to study or progress academically for an extended period, in breach of visa conditions. Therefore, the Tribunal places limited weight on the circumstances in which the ground for cancellation occurred.

    ·     past and present behaviour of the visa holder towards the department

32. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.

    ·     whether there would be consequential cancellations under s.140

33. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

34. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit her options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not be cancelled.

    ·     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

35. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

36. The Subclass 573 Student Visa is not a permanent visa.

    ·     any other relevant matters

37. There are no other relevant matters to be considered in the applicant’s case.

    Conclusion

38. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in her favour, on balance, the Tribunal is satisfied that the majority of considerations weigh against the applicant. The Tribunal considers the length of time the applicant has spent in Australia having breached her visa conditions to be significant. The Tribunal is not satisfied the issues encountered by the applicant are sufficient reason for the visa not to be cancelled.

39. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

40. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

    Wendy Banfield
    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.