Wang (Migration)

[2020] AATA 484

Wang (Migration) [2020] AATA 484 (24 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Di Wang

CASE NUMBER:  1933788

HOME AFFAIRS REFERENCE(S):          BCC2019/3262276

MEMBER:Peter Booth

DATE:24 January 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 24 January 2020 at 12:43pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 500 (Student) – not enrolled in registered course at same level or higher than course for which visa granted – English proficiency requirement not met – enrolled in multiple courses – completed English language courses – claimed unaware of requirement to maintain certain study level –– 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 21 November 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 did not comply with condition 8202(2)(b) in that he had not maintained enrolment in a registered course that, once completed, would provide a qualification that was the same level as, or a higher level than, the registered course in relation to which his visa was granted. 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 21 January 2020 to give evidence and present arguments.

4. 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

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 must maintain enrolment in a registered course that, once completed will provide a qualification that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted: 8202(2)(b). In the present case, the applicant’s visa was cancelled on the basis that he was not enrolled in a registered course at the same level or higher for which he was granted his student visa.

7. The delegate’s decision dated 21 November 2019 records the reasons for cancellation of the applicant’s student visa. The applicant’s visa was granted on 24 April 2017 in relation to a bachelor of commerce course, which would provide a level 7 qualification. The Provider Registration and International Student Management System (“PRISM”) indicated that the applicant’s enrolment in this course was cancelled on 17 August 2017. On 18 January 2019 the applicant enrolled in a general English course and a diploma of business course, the latter would provide a level 5 qualification. At the hearing the applicant affirmed the correctness of this conclusion. On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course at the same level as or higher than the registered course in relation to which his visa was granted. Accordingly, the applicant has not complied with condition 8202(2)(b).

   Consideration of the discretion to cancel the visa

8. 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”.

9. The Tribunal turns to consideration of any relevant factors, including matters raised by the applicant and the Departmental guidelines which cover the following matters.

   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

10. The applicant gave evidence that he arrived in Australia in “2017” to which he added “in May”. He said that he was the holder of a “student” visa. He was unable to be more precise, adding “just student visa” when asked again. His intended course of study was “accounting”. He did not elaborate. The Tribunal put to him that he was enrolled in a diploma of accounting commerce and business administration due to commence on 20 October 2018 and to be followed by a bachelor of commerce due to be commenced on 22 July 2019. He said “yes”. The applicant gave no evidence as to whether he had a compelling need to travel to or remain in Australia.

    The extent of compliance with visa conditions

11. The applicant confirmed that his enrolment in the bachelor of commerce course was cancelled on 17 August 2017 and that he has not been enrolled in a bachelor level course or similar AQF level course since that time.

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

12. The applicant gave no evidence regarding any degree of financial, psychological, emotional or any other hardship which may be caused by the cancellation of the visa. However, the Tribunal accepts that cancellation of the applicant’s visa will cause some degree of financial hardship in the form of lost tuition fees, or emotional hardship, in the form of disappointment or embarrassment in not completing the course. The Tribunal gives this factor little weight.

    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

13. The applicant said that he did not complete the diploma course nor the bachelor of commerce course. The Tribunal enquired why his COE was cancelled on 17 August 2017 to which he responded “I was required to sit the test and failed the English language exam”. He did not elaborate. The Tribunal enquired when this occurred to which he said “May, the start of the new semester”. The Tribunal enquired whether this was prior to commencing the diploma course to which he said “yes”. The Tribunal enquired whether he had completed an English language program that was due to commence on 2 June 2017. He responded “yes it was online and easy”. The Tribunal enquired whether he had completed the standard foundation program in which he was enrolled and which was due to commence on 19 February 2018 to which he said “yes, online”. He did not elaborate. The Tribunal enquired whether the applicant could read English when he arrived in Australia to which he said “yes”. The Tribunal enquired whether he could read an English language newspaper when he arrived in Australia to which he said “no”. He did not elaborate. The Tribunal enquired whether he could understand conversational English when he arrived in Australia to which he said “simple, easy one”. He did not elaborate.

14. The Tribunal enquired what the applicant had done after cancellation of his COE in August 2017 to which he said “I found another school to learn the language, then I just continued in studies at that school, after the CEO at the first school, change to another school, continued study language for one year, then started major, studied fine arts not good enough”. The Tribunal enquired whether the applicant had enrolled in courses after 17 August 2017 to which he said “no”. The Tribunal repeated the question and he responded “I enrolled in a language course, and another major, one unit, but I did not finish the course”. The Tribunal enquired as to the level of these courses to which he said “I don’t know”. The Tribunal asked the applicant whether after the bachelor of commerce enrolment was cancelled, he enrolled in another bachelor level course to which he said “yes”. The Tribunal enquired as to the name of the course to which he said “accounting”. The Tribunal asked the applicant when this had occurred and he said “2018”. The Tribunal invited the applicant to produce a COE to which he said “I received one”. The Tribunal invited the applicant to produce that document by 4 PM on 22 January 2020, he said he would do so.

15. The Tribunal asked the applicant whether he was enrolled in a course of study currently to which he said “now I’m starting a language, still at the same school”. The Tribunal enquired whether he had completed the accounting course to which he referred and he responded “no”. It transpired that the applicant by his representatives had indeed filed some documents with the Tribunal that morning. Relevantly those documents included a COE in a diploma of business course with a start date of 25 November 2019 and a conclusion date of 22 November 2020. This appeared to be the “accounting” to which the applicant had referred. The Tribunal invited the applicant to discuss the enrolment in the diploma of business course, but he was unable or unwilling to do so. The Tribunal asked whether he had started the course to which he said “yes but I did not pass it”. The Tribunal enquired whether he was still studying that course to which he said “not after the cancellation of the visa”. The applicant by way of his representatives produced a copy of a bridging visa E granted on 10 January 2020. Relevantly the visa conditions included “no work” and “no study”. The Tribunal asked the applicant whether he had been able to study prior to 7 January 2020 to which he said “yes”. The Tribunal invited the applicant to add anything further to his application for review but he declined.

16. The Tribunal observed that the decision record dated 21 November 2019 recorded that he was unaware of the relevant condition on his visa requiring him to maintain a certain level of study. The Tribunal invited the applicant to comment upon this point, he having not previously raised it in the Tribunal hearing. The applicant was unresponsive. The Tribunal again invited the applicant to address this point to which he said “I had no idea about the condition of the visa, my agent helped me to do it, I only obtain knowledge of the condition after the visa was cancelled, the lawyer introduced knowledge to me”. He did not elaborate.

17. The applicant’s migration agent was invited to make any submissions. She made submissions along the lines of written submissions which had previously been provided to the Tribunal. Those submissions, which the migration agent confirmed had been prepared by her, are undated, unsigned and not on letterhead. They are in the following terms:

    This is an application for review of a decision dated 22 November 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).

    The delegate cancelled the visa on the basis that the applicant was not compliant with the condition 8202(2)(b) of his visa. In particular, the delegate pointed out that on 17 August 2017 the visa holder’s enrolment in a Bachelor course was cancelled by the education provider. This appears to be an error because the Bachelor of Commerce course was not due to start at the Macquarie University English Language Centre until 22/ 07/ 2019.  The other three registered courses were not AQF level 7 courses.

    In particular:

    COE  Course  Education Provider       Start Date

    8A8C3627           English Language Program    Macquarie University   02/06/2017

    This is a non-AQF level program.

    In fact, the applicant changed promptly to the Salisbury College and has completed several English programs there since 03/07/2017. Therefore, the applicant was not in breach of his visa conditions from 02/06/2017 to 02/02/2018 because his visa was granted for a preparatory English language program during this period of time and he has in fact remained in full time enrolment for a similar level English program.

    COE               Course  Start date              End Date

    8A8C4674    Standard Foundation Program    19/02/2018        07/07/2018

    This is a also non-AQF level program.

    The applicant was scheduled to complete a standard foundation program at the Macquarie University English Language Centre from 19/02/2018 to 07/09/2018. It is submitted that the applicant had not been in breach of his visa conditions during this period of time.

    COE           Course      Start date          End date

    8A8C4C44    Diploma of Accounting   20/10/2018     19/07/2019

    This is an AQF level 5 course.

    The visa granted for this period of time was for the purpose for an AQF Level 5 preparatory course. The applicant is enrolled in an AQF level 5 course at Salisbury College.  It is submitted that the applicant was not therefore in breach of his visa conditions in the period 20/10/2018 to 19/07/2019.

    The AQF 7 level Bachelor of Commerce course was scheduled to start on 22/07/2019. The student visa was cancelled on 22 November 2019. The period of time from the alleged non-compliance to the cancellation is therefore only 4 months. The applicant has not been given any notice to apply for a new visa matching his current level of study.

    It is submitted that the ground for cancellation does not exist. Even it did, we argue that because the breach was for a very short period of time and very minor, the applicant should be given an opportunity to apply for a new student visa and continue his study in Australia.

    Consideration of the discretion to cancel the visa

    There are no matters specified in the Act or Regulations that the delegate must cancel the visa because S116(1) states that he Minister “May” cancel a visa if he or she is satisfied that: (b) its holder has not complied with a condition of the visa. As this ground does not require mandatory cancellation under s116(3), we argue that the power to cancel visa should not be exercised.

    The purpose of the visa holder’s travel and stay in Australia; whether the visa holder has a compelling need to travel to remain in Australia

    The applicant gave evidence that he came to Australia to study and his study record held by the PRISMS indicates there was no non-enrolment period in the past two years. The whole purpose of the applicant being in Australia was for full time study. The applicant has a genuine and determined desire to complete his Diploma of Business.

    The applicant’s purpose for travel and stay in Australia was not for doing a bachelor course. The purpose of the student visa is to enable the visa holder to undertake study in Australia. The delegate erred in narrowing the purpose of his student visa to Bachelor degree study only. In fact, the visa was approved for several courses. The proportion and length of time allocated to other courses should be weighed equally with the Bachelor degree. The length of visa allocated for the Bachelor degree is about 2 years and the length of visa allocated for other courses is also about 2 years. The delegate was not justified in concluding that the visa was granted for a Bachelor course only.

    It is submitted that the applicant has fulfilled the purpose of his travel and his stay in Australia because he has been studying and has been enrolled in a few registered courses since 03/07/2017. The applicant has never ceased study since his arrival.

    The delegate stated her reasons for cancellation as below: the visa was granted on the basis of his enrolment in a Bachelor of Commerce course. This reason is not supported by evidence because the visa was granted for four courses and the Bachelor of Commerce course is only one of them. There is no evidence to support the statement that the visa was granted on the basis of his enrolment in a Bachelor of Commerce course.

    The delegate stated in her second reason as the condition 8202 must be imposed. However, s116(1) provides that the it is not a ‘must’ for the visa to be cancelled due to a breach of a condition. It is not a must for the student visa to be cancelled due to a breach of 8202(2)(b).

    The delegate indicated that the Bachelor of Commerce course was cancelled on 17 August 2017, however the Bachelor course was not due to start until 22/07/2019.  The applicant was not obliged to study any Bachelor level course before 22/07/2019. The delegate over stated the visa holder’s study obligation in relation to his visa. Therefore, that consideration by the delegate was not a fair and just consideration.

    The delegate repeatedly stated that the visa holder has not maintained enrolment in the bachelor level of course in relation to which his visa was granted. We argue that the delegate erred in viewing that the visa was granted for a bachelor course only. The visa was not granted for just one course. 

    For these reasons, it is submitted that the applicant has not been given a fair consideration in the delegate’s decision to cancel his visa.

    Relevant consideration and irrelevant consideration

    The delegate has not taken into a relevant consideration or placed a considerable amount of weight of him being a genuine student. The applicant has not committed plagiarism or any other student misconduct.

    The delegate has not considered other factors as relevant including the relative immaturity of the applicant who was born on 22 January 1999, and placed no weight to this consideration.

    The delegate did not give any consideration to the emotional hardship and the negative impact on him academically. It is noted that the applicant is enrolled in a Diploma of Business course at the Salisbury College. The applicant’s parents continue to support the applicant materially, the delegate placed no weight on the financial hardship he might encounter if his visa remained cancelled. The delegate pointed out that the applicant needs to apply for a student vocational education and training sector visa to study the lower level course. However, cancellation of the applicant’s student visa will mean that he will be prevented from being granted some temporary visas, including visitor and student visas, for a period of three years by operation of condition 4013. The applicant will also be prohibited from applying for many permanent visas onshore by virtue of s. 48 of the Act. It is unreasonable to prevent the applicant from applying for a new visa to continue his study.

    The applicant’s course counsellor and migration agent Mr Hunter Hu on 17 Dec 2018 advised him that changing course back to study English won’t affect the status of his student visa. On 17 December 2018 11:07am, Mr hunter Hu and the applicant had communications via WeChat messages to the following effect:

    Hunter Hu:  Good morning, I have helped you to talk to the college.

    Hunter Hu: A few things to tell you: firstly, the assessment incident is finished.

    Hunter Hu: The college won’t take further actions, so you no need to go to school on this Wednesday.

    Hunter Hu: Secondly, the college agreed to change you back to English program. The tuition fee is $1440 for every 12 weeks. (3 months)

    Hunter Hu: The initial payment is $1640 due to admin fees. It will always be $1440 afterwards.

    Hunter Hu: When the school change you back to the English program, they will report to the Department of Home Affairs that because your English is incompetent and having difficulties of completing assessments, therefore they change you back to English program.

    Hunter Hu: This won’t after your visa in the short term, so your student visa is still ok. Please do not worry about it.

    Hunter Hu: Lastly, I suggest you to attend school more frequently. Although this course is quite relaxed, you are still required to attend school.

    Hunter Hu: I will help you to arrange COE to start the course on 14 January 2019. You will need to pay the tuition fees.

    Di Wang (The applicant): Will I be admitted into the Diploma after English course completion?

    Hunter Hu: Yes. After you finish the language course, you will be admitted into Diploma course. But you might repeat the Certificate IV.

    It is unreasonable to say the applicant failed to take reasonable attempts to find out whether he was complying with his visa conditions. Evidence suggested that he has consulted his course counsellor and immigration agent in relation to his study and student visa compliance. The delegate made comments in the decision letter: “I consider when he never maintained enrolment in a Bachelor Degree Level course, he would have been aware that he became in non-compliance with this condition and realised this would have impacted on his eligibility to continue to hold the student visa.” The delegate gave consideration to this factor; however, the evidence suggests  the opposite. We argue that the short period of 4 months in breach of condition 8202(2)(b) was out of the applicant’s knowledge and control.

1. The first proposition advanced by the migration agent is that the visa was granted in respect of several intended courses, only one of which was an AQF level 7 course. Accordingly, the proposition seems to be that if an applicant maintains an equivalent level of course in the other courses, it cannot be said that the applicant is in breach of condition 8202(2)(b). In the Tribunal’s view this proposition is misconceived. In order to comply with condition 8202(2)(b) the student must maintain enrolment that is at the same level as or at a higher level than the registered course in relation to which the visa was granted. In the case where the visa is granted in respect of several courses, the requirement must be satisfied in respect of each such course, not by any course. The second proposition is that the bachelor of commerce course was scheduled to start on 22 July 2019, the student visa was cancelled on 22 November 2019 and therefore the period of time of non-compliance is “only 4 months”. In the Tribunal’s view this proposition is misconceived. Non-compliance with the visa occurred from the date on which the applicant failed to maintain enrolment in a course that was at the same level as or at the higher level than the registered course in relation to which the visa was granted. From 17 August 2017 the applicant was not enrolled in an AQF level 7 course. Accordingly the applicant was in breach of the condition since that date. The other matters advanced by the migration agent in the submissions are in the nature of legal errors alleged to be contained within the delegate’s decision. These are not relevant to a merits review as is the case here. The migration agent submissions have been taken into account, however, the Tribunal notes that the submissions do not address the reasons why the applicant’s enrolment in the bachelor course was cancelled and secondly why the applicant did not re-enrol in a bachelor’s level course.

2. The applicant said that the reason why his enrolment in the bachelor of commerce course was cancelled was because he did not satisfy the proficiency requirement in English language. In evidence he said that whilst he had completed two online English courses he could not complete another test and examination required of him by the course provider. He said that he could read English when he arrived in Australia but could not read an English-language newspaper and that he would only be able to understand simple conversational English. It is incumbent upon a foreign student to have a working proficiency in the language in which the studies are to be undertaken, in this case English. This is a matter well within the control of the student. The second reason for the applicant’s circumstances was that he was unaware of the relevant visa condition. Notwithstanding that this was not advanced with any vigour by the applicant or advanced at all by his migration agent, the Tribunal considers that it is reasonable to expect a visa holder to be familiar with and comply with the relevant visa conditions. This is a matter well within the control of a visa holder. In all the circumstances the applicant has not convinced the Tribunal that the reasons for his current circumstances were beyond his control.

   Past and present behaviour of the visa holder towards the Department

3. There was no evidence in relation to this factor and the Tribunal gives it no weight.

   Whether there would be consequential cancellations under s.140

4. The Tribunal was provided with no evidence on this point and gives it little weight.

   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

5. The Tribunal accepts that there may be legal consequences as a result of the cancellation. However, these consequences were intended by the Parliament when enacting the relevant legislation. The Tribunal gives them little weight.

   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

6. There was no evidence in relation to this factor and the Tribunal gives it no weight.

   If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

7. There was no evidence in relation to this factor and the Tribunal gives it no weight.

   Any other relevant matters.

8. There was no evidence of any other matters and the Tribunal gives this factor no weight.

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

   DECISION

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

    Peter Booth
    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.