WANG (Migration)

WANG (Migration) [2019] AATA 6653 (11 December 2019)
Corrigendum
DIVISION:Migration & Refugee Division
APPLICANT:  Ms XIAOMENG WANG
CASE NUMBER:  1925717
DIBP REFERENCE(S):  BCC2019/2543828
MEMBER:Michael Biviano
DATE OF DECISION:  11 December 2019
DATE CORRIGENDUM
SIGNED:19 March 2020
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:
Decision date corrected from 11 December 2012 to correct decision date of 11 December 2019

Statement made on 19 March 2020 at 12:46pm
Michael Biviano
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms XIAOMENG WANG
CASE NUMBER:  1925717
HOME AFFAIRS REFERENCE(S):          BCC2019/2543828
MEMBER:Michael Biviano
DATE:11 December 2012
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 11 December 2019 at 9:44am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of stay – language entry requirements – length of non-compliance – reasons for non-enrolment – responsibility to comply with visa conditions – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 6 September 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 had not been enrolled in a registered course of study from 16 July 2018 and she was not compliant with condition 8202 of her 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 appeared before the Tribunal on 6 December 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mengyang Tan, the applicant’s partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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
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:
·must be enrolled in a full-time registered course: 8202(2)(a),
·must maintain enrolment in a registered course that once completed will provide a qualification 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: 8202(2)(b),
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
The decision record of the delegate of the Department of Home Affairs dated 6 September 2019, which was provided to the Tribunal by the applicant, confirms that the Department cancelled the applicant’s Student (Temporary) (Class TU) (Subclass 500) visa which was granted on 16 February 2018 and the reasons for the cancellation of the visa (Decision Record).
Prior to coming to Australia on 7 March 2018, the applicant had completed a Bachelor of Architecture in China in June 2017 and worked as an intern in an architect’s office while studying. After obtaining the degree, she worked for that architect’s office for a period of six months.
On 16 February 2018, the applicant obtained a student (Class TU) (Subclass 500) visa to study English and a Master’s degree in Construction Project Management at the University of New South Wales. The applicant had intended to commence the Master’s Course of 18 months duration after completing her English course.
The applicant confirmed that the pre-requisite to be able to enrol in the Master’s course was that she obtain a satisfactory outcome in relation to her English studies. Prior to 2019, the applicant was required to obtain an overall IELTS score of 6.5. In 2019, the score was increased to 7.0.
The applicant gave evidence that she completed the English course but despite sitting the IELTS exam on a number of occasions she obtained results of 5.5 on 2 June 2018, 6.0 on 17 October 2018, 6.0 on 1 December 2018, 5.5 on 13 December 2018, 6.0 on 5 January 2019 and 6.0 on 12 January 2019, which was not sufficient to complete enrolment in the Master’s course.
The applicant gave evidence that in 2019, she changed strategy and sought to study PTE online to pass the language requirement between March and July 2019 and she sat the examination in August 2019, and whilst she passed the exam she did not achieve sufficient marks to enrol in the Master’s course which required a minimum mark of 65 on the PTE.
The applicant gave evidence that at the time she was not aware that condition 8202 was required her to be enrolled in a registered course of study. Under questioning the applicant gave evidence she had not read her visa and thought she was entitled to remain in Australia until the visa end date provided that she was studying. The applicant conceded that she now understands that she was in breach of her visa condition by not being enrolled and she accepts her ignorance was not a reason for not being enrolled and she apologised to the Tribunal.
The Decision Record confirms that the applicant was not enrolled in a registered course of study from 16 July 2018 to 6 September 2019.
The applicant gave evidence that she was not able to enrol in the Master’s course at the University of New South Wales due to her failure to achieve sufficient marks in her English courses.
Based on the applicant’s evidence, the Tribunal finds that the primary cause of the applicant’s inability to enrol in the Master’s course was her inability to achieve sufficient test results on her English academic tests, which was her responsibility.
The applicant received the Notice of Intention to Consider Cancellation (NOICC) of the visa dated 1 August 2019 from the Department because she had not been enrolled since 16 July 2018, being a period of more than 12 months and the applicant sent a response to the NOICC by email to the Department dated 8 August 2019 (Response).
The Response stated (omitting formalities):-
First of all, I want to apologize in advance because after completely read the terms of the student visa (subclass 500). I might not have complied with subclause (2)(a) of condition 8202. But please believe that I did not mean to do this. I did not know much about the condition 8202 of the student visa before.
I got the student visa (subclass 500) granted by UNSW on 16 February 2018. And I attended a 15-week language course (UEEC) for meeting the entry requirements. Unfortunately, I did not play well in the final exam, therefore, I failed to enter the UNSW in July 2018. I defer my conditional-offer of UNSW successfully. The new conditional-offer have already attached to the email.
After receiving the new conditional-offer, I choose to take the IELTS exam to meet the entry requirements of UNSW. I devoted all myself into the preparation of the IELTS exam and I took at least 6 IELTS exams in 2018. The transcript has already attached to the email. My IELTS grades were getting better and better, I thought I will soon reach the entry requirement. However, the UNSW raise the English entry requirement in 2019 and I failed to meet that standard again. Forced to help, I can only defer my conditional-offer for the second time. The new conditional-offer have already attached to the email.
Due to the disappointment of IELTS’s scoring standard, I chose to transfer to PTE instead. Because I am a beginner of the PTE exam, I took a series of online courses between March 2019 to July 2019. I have already signed up and participated in the PTE exam on 6 August. I have already attached the sign-up information of PTE to the email. The score has not yet come out but I am very confident to reach the admission standard of UNSW in August. I thought I could smoothly enter the long-awaited university campus in September, however, I received the email that my visa is about to be canceled. I am very shocked and wronged.
The only purpose I coming to Australia is entering a high-level University to conduct academic research. The desire for learning and the love of my profession made me stick to the English exam this year. My family and I are under tremendous pressure because I have already spent quite a lot of time and money studying in Australia. The reason why I have not registered a course since August 2018 is that the study and life cost of Australia is high. I want to save some money to use after I formally enrolled in
UNSW. I did not think that the time of the gap time between the course was too long to violate the relevant provisions of the student visa. I feel so sorry for considering to cancel my visa.
Moreover, my partner is the master student of UNSW as well. We came to Australia together and our dream is getting a master’s degree together. He has been encouraging me to stick to the exam and help a lot with my study this year. Because the remaining time of his course is less than one year, I can not be the sub-applicant of his student visa. If my student visa is canceled, our relationship will encounter great difficulties. Because of the time limitation, I just provide his basic information. If you need, I can provide evidence to prove our relationship.
In the end, I want to apologize again. Since I don’t know enough about the visa regulations and may not have complied some of them, I apologize and hope to get an opportunity to realize my dream of finishing the master’s degree in Australia. Thank you so much for reading my statement during your busy schedule!
The applicant readily conceded in evidence, that she was not enrolled in a registered course of study from 23 July 2018 until the date of the visa cancellation on 6 September 2019.
On the evidence before the Tribunal the applicant was not enrolled in a registered course between 23 July 2018 and 6 September 2019. Accordingly the applicant has not complied with condition 8202(2) of her visa. As this was a condition which was attached to her visa, the applicant therefore breached a condition of her visa and the visa is liable to cancellation under s.116(1)(b).
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’.
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel or to remain in Australia
The applicant gave evidence that she came to Australia initially in March 2018 to study a Master of Construction and Project Management at the University of New South Wales. The Tribunal accepts the applicant’s evidence that she came to Australia to study.
The applicant submitted letters of offer from the University of New South Wales and gave evidence that she had paid the deposit but she was unable to commence her studies because, as discussed above, she did not obtain sufficient academic results in relation to her English studies.
The period of non-enrolment from 23 July 2018 until the cancellation of the visa on 6 September 2019 is a period of 13 months and nine days which is a long period of time not to be enrolled and studying in Australia. This creates doubts as to whether the applicant is staying in Australia for the purposes of study.
Notwithstanding her evidence at the hearing that she was not enrolled in a registered course from July 2018, the applicant claimed she was continuing her studies in English firstly having completed studies in a registered course in June 2018, then in undertaking IELTS testing, then undertaking online courses and applying for the PLT testing. The Tribunal found that whilst she was not studying in registered course, it accepts that the applicant was continuing to study in the belief that she was complying with her visa obligations.
The applicant has given evidence that if possible she intends to remain in Australia to undertake further English studies at an educational institution and then enrol in and study the Master of Construction and Project Management at the University of New South Wales, which courses she believes will take a further 21 months to complete.
The applicant was questioned about her ability to obtain entry into the Master’s course having regard to her language entry issues. The applicant conceded that she had overestimated her language abilities and was confident she could attain the level of English required to undertake the course if she studied at an education institution.
Having regard to the applicant’s evidence the Tribunal accepts that the applicant travelled to Australia intending to study, that she does intend studying in the future and whilst not enrolled in a registered course, continued to undertake language studies. The Tribunal gives these matters significant weight towards the visa not being cancelled.
The extent of compliance with visa conditions
The applicant gave evidence that she was not enrolled in a course of study from 23 July 2018 until the date of the visa cancellation on 6 September 2019, being a period of 13 months and nine days, which is a long period of time. Therefore the applicant has not complied with condition 8202(2) of her visa for a long period of time. The non-compliance with condition 8202(2) for such a long period of time may weigh towards cancelling the visa unless the Tribunal accepts her reasons for non-enrolment or finds she was not responsible for the reason of non-enrolment.
The applicant in evidence confirmed the reasons as to why she was not enrolled during that period of time of thirteen months, which are set out above. While the Tribunal notes that the applicant was responsible not obtaining sufficient academic results to complete her enrolment in the Master’s course, it accepts that she has undertaken private studies while her enrolment in the course has been cancelled, which provides an explanation for a substantial period of her non-enrolment.
The applicant has made numerous attempts to enrol and obtain the academic results for entry into the course and by sitting numerous exams, but she has narrowly missed out on gaining entry by reason of her results.
The Tribunal finds that the reason for the non-enrolment was the applicant’s inability to meet the English qualifications to enrol in the Master’s course.
The Tribunal is not aware that there have been any other visa condition breaches by the applicant.
Having regard to the substantial period of non-enrolment and the duration of the breach, the Tribunal gives it some weight towards the visa being cancelled.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal asked the applicant if she or other members of her family would suffer hardship if the visa was cancelled.
The applicant gave evidence that she had been in Australia for so long and spent money living and studying here. She is not working and is being supported by her family. She gave evidence that her family would be troubled by her inability to obtain the Master’s degree despite being in Australia for 20 months.
However the applicant accepted that it would not constitute hardship for her family.
The applicant claims that if her visa was cancelled she would be required to return home and seek employment, while her partner would remain in Australia to complete his studies in Australia. This is likely to provide some hardship to the applicant and her partner.
The Tribunal accepts that the applicant’s failure to obtain a Master’s course while being in Australia for the last 20 months would have an impact on her career, as she would be returning to China without a qualification.
The Tribunal finds that these matters may be the consequences of the visa cancellation, but they are not matters which would constitute an overwhelming degree of hardship sufficient to weigh against cancelling the visa.
The Tribunal gives these matters some weight towards the visa not being cancelled.
Circumstances in which ground of cancellation arose
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.
The applicant gave evidence as to the circumstances that led to the cancellation of the visa as set out above.
Ultimately the responsibility regarding enrolment rests with the student and the applicant accepted that she was ultimately responsible for not being enrolled, because she did not obtain sufficient marks in her English tests to enrol in the Master’s course.
The applicant could have enrolled in a lower level course but she refused to do so because she only entered Australia to undertake academic research at a high university level. The Tribunal considers such explanation as being consistent with a genuine intention to study in this country on a temporary basis. Further, she claims in the Response she wanted to save money instead of spending it on a low level course and she did not believe that the gap in her studies would have caused her visa to be cancelled.
While the Tribunal understands the reasons given by the applicant and accepts her evidence as to why she was not enrolled they do not provide an explanation that the cancellation was beyond the applicant’s control.
Further, the Tribunal notes that she should have read and been aware of her visa conditions, and it was incumbent on her to know that by not being enrolled in a registered course of study for a period of time she would have been in breach of condition 8202 and that her visa may be cancelled. The primary purpose of the applicant under the visa is to undertake a registered course at a level appropriate to her visa. The course that the applicant was trying to seek to obtain an enrolment is a high level course at a university which has a high entry threshold.
The Tribunal has considered the applicant’s explanation for why she was not enrolled for 13 months and nine days and therefore in breach of condition 8202(2). The Tribunal does not accept the circumstances were beyond her control. However, the Tribunal accepts that the reasons given for not being enrolled are a reasonable explanation for not being enrolled for a large period of time, but not the entire period of 13 months and 9 days. Accordingly the Tribunal gives this matter some weight towards the visa being cancelled.
Past and present behaviour of the visa holder towards the Department
According to the Decision Record, the applicant had responded to the NOICC as set out above. Further there was no information before the Department indicating any specific matters of relevance regarding the applicant’s behaviour towards the Department. The Tribunal gives this factor some weight towards the visa not being cancelled.
Whether there would be consequential cancellations under s.140

As the cancellation of the visa does not affect the visa of any other person, this matter is not relevant in this application and the Tribunal gives this no weight towards the visa not being cancelled.
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
If the Tribunal decides to affirm the decision to cancel the visa on these grounds, then the applicant will become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act, if she does not voluntarily depart Australia. Further, pursuant to s.48 of the Act, the applicant will have limited options to apply for further visas in Australia, so she would need to depart Australia and apply from overseas for most types of further visas.
Further, if the Tribunal decides to affirm the decision to cancel the TU 500 student visa on these grounds, then the cancellation will come within the identified risk factors to make the applicant meet Public Interest Criterion 4013 of Schedule 4 to the Regulations, so if the applicant decides to apply for a new visa from overseas if she has to depart Australia, then that application may not be approved within the next three years.
However, these consequences are the intended consequences of the legislation when a visa is cancelled under these grounds.
The applicant gave evidence that if the visa remained cancelled she would return to China and therefore there is no indication that she would become unlawful or be subject to detention.
Accordingly the Tribunal gives this factor marginal weight towards the visa not being 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
This matter does not appear relevant in this application as the applicant gave evidence that if the visa remained cancelled she would return to China and she did not give any reasons as to why she could not return to China; she has not made any claims that relate to this consideration. Accordingly the Tribunal gives this factor no weight towards the visa not being cancelled.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
This matter is not relevant in this application as the cancelled visa is a temporary visa and the Tribunal gives this factor no weight towards the visa not being cancelled.
Any other relevant matters
The Tribunal is not aware of any other relevant matter in relation to the decision as to whether the visa ought to be cancelled.
Conclusion
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
Michael Biviano
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.

[2019] AATA 6653

11 December 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Breach

Jurisdiction

Statutory Construction

Remedies