Wang (Migration)

[2019] AATA 6307

Wang (Migration) [2019] AATA 6307 (1 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ziyan Wang

CASE NUMBER:  1710372

HOME AFFAIRS REFERENCE(S):          BCC2017/909147

MEMBER:Lynda Young

DATE:1 November 2019

PLACE OF DECISION:  Sydney

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 01 November 2019 at 12:44pm

CATCHWORDS

MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa – applicant failed to attend tribunal hearing –did not comply with condition 8202 – applicant ceased to be enrolled in a registered course of study –evidence of the updated offer of enrolment– successful completion of the reattempted English units– decision under review  set aside

LEGISLATION

Migration Act 1958, ss 116, 140, 379, 362

Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.    This is an application for review of a decision made on 5 May 2017 (decision) by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (Act).

2.    The applicant’s visa, granted on 11 August 2015, was subject to condition 8202 of Schedule 8 to the Migration Regulations 1994 (Regulations), requiring the applicant to be enrolled in a registered course of study.

3.    On 13 April 2017, the applicant was issued a Notice of Intention to Consider Cancellation of his visa under s.119 of the Act (NOICC), on the basis it appeared he had failed to comply with visa condition 8202(2)(a) as evidence in the Provider Registration and International Student Management System (PRISMS) indicated he had not been enrolled in a registered course of study since 10 September 2016. The applicant responded to the NOICC, providing a Confirmation of Enrolment and covering email to the Department on 21 April 2017 (NOICC response).

4. On 5 May 2017, the delegate cancelled the visa under s.116(1)(b) of the Act on the basis the applicant, in breach of visa condition 8202(2)(a), had not been enrolled in a registered course of study since 10 September 2016, and the grounds in favour of cancellation outweighed the grounds against cancellation.

5.    The applicant applied to the Tribunal for review of the decision on 15 May 2017, attaching supporting documents to his application, including a copy of the Notice of Cancellation and the Decision Record (application). The issues in the present case are whether the ground for cancellation in s.116(1)(b) of the Act is made out, and if so, whether the visa should be cancelled.

6.    By letter emailed to the applicant's registered migration agent (representative) on 28 May 2019, the Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in his case at a telephone hearing on 17 June 2019 at 2:00pm (hearing invitation). The hearing invitation set out the applicant’s telephone number and requested the Tribunal be advised if that number was incorrect or the applicant preferred to be called on a different number.  The hearing invitation also advised the applicant the Tribunal may, if he did not attend the hearing and an adjournment was not granted, make a decision on the case without taking any further action to allow or enable the applicant to appear before it.

1. On 7 June 2019 and again on 14 June 2019, the Tribunal sent the applicant reminders by SMS about the hearing on 17 June 2019.

8.    No response to the hearing invitation was received by the Tribunal, and no return to sender or delivery failure notice was received in response to the Tribunal’s email.  Delivery failure notices were received by the Tribunal for each SMS message.

9.    On 14 June 2019, the applicant's representative telephoned the Tribunal to advise he had made number of efforts to contact the applicant about the scheduled hearing, without success.

1. When the Tribunal telephoned the applicant’s telephone number set out on the hearing invitation at the scheduled start time for the hearing of 2:00pm on 17 June 2019, the applicant's telephone number had been disconnected, and the call could not be connected.

2. When the Tribunal telephoned the representative at or about the scheduled start time for the hearing of 2:00pm on 17 June 2019, the representative advised the Tribunal that he had been unable to track the applicant in over a year, and had telephoned the applicant’s education provider hoping to locate his client, but was told the applicant was no longer attending.

3. Accordingly, the applicant failed to appear before the Tribunal at the scheduled telephone hearing at 2:00pm on 17 June 2019. The only explanation provided to the Tribunal for his non-attendance was provided by his representative on 14 June 2019 and 17 June 2019, referred to and set out above.  No documents including medical certificates, submissions, written responses to the hearing invitation or any requests for postponements were made to the Tribunal, at any time prior to the time of making this decision. The representative has not withdrawn from his representation of the applicant.

4. Having regard to the matters set out above, the Tribunal is satisfied the applicant was properly invited to a hearing in accordance with s.379A(5) of the Act. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

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

ISSUES

1. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b).

1. Section 116(1)(b) provides for cancellation of a visa where ‘its holder has not complied with a condition of the visa.’ Visa conditions for each subclass are identified in the relevant part of Schedule 2 to the Regulations, and described in Schedule 8 to the Regulations.

2. In this case, condition 8202 was imposed on the applicant’s student visa.

3. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires the applicant:

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

   b.has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   c.has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

4. If satisfied the ground for cancellation in s.116(1)(b) is made out then, as the ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa, having regard to matters specified in the Act or regulations that are required to be considered and all information relevant to the exercise of the discretion in the circumstances of the case, including matters raised by the applicant and matters of government policy.

5. There are no matters specified in the Act or the Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa.  Matters to which the Tribunal has regard in considering whether to exercise its discretion to cancel the applicant’s visa include matters raised by the applicant and the matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, including:

   a.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;

   b.the extent of compliance with visa conditions;

   c.degree of hardship that may be caused (financial, psychological, emotional or other hardship);

   d.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;

   e.past and present behaviour of the visa holder towards the department;

   f.whether there would be consequential cancellations under s.140;

   g.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;

   h.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;

   i.if it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia;

   j.any other relevant matters.

6. The issues for the Tribunal’s determination in this case are:

   a.does the ground for cancellation in s.116(1)(b) of the Act exist?

   b.if the ground for cancellation in s.116(1)(b) of the Act exists, should the discretion to cancel the visa be exercised?

EVIDENCE ON THE APPLICATION

1. The evidence before the Tribunal on this application comprises:

   a.documents on the Department’s cancellation file, relevantly, the NOICC and NOICC response sent to the Department on 21 April 2017 by email attaching a Confirmation of Enrolment (CoE) 8C51BF27 dated 27 April 2017 for enrolment at University of New England in Bachelor of Business, course start date 20 February 2017, completing 30 October 2018;

   b.the application, and the attached supporting documents provided to the Tribunal by the applicant on 15 May 2017:

   i.Notice of Cancellation and Decision Record;

   ii.letter from the University of New England dated 10 May 2017, signed by Rebecca Sun, International Services Assistant, stating relevantly:

   “This is to certify that Mr Ziyan Wang (DOB 02/01/1994) is a bona fide student of the University of New England, Armidale NSW Australia.

   Mr Wang completed a 40 weeks of English for Academic Purposes course on 9 September 2016.

   Mr Wang commenced a Bachelor of Business on 20 February 2017 and is expected to complete his course on 30 October 2018.”

   iii.CoE 8C51BF27 (provided to Department with the NOICC response);

   iv.statutory declaration made by the Applicant on 15 May 2017, attaching the letter from the University of New England dated 10 May 2017 referred to in subparagraph 22.  b.ii and the CoE referred to in subparagraph 22.  b.iii;

   c.Affidavit of the Applicant sworn 16 June 2017, provided to the Tribunal by the applicant on 16 June 2017, annexing:

   i.Visa Grant Notice dated 11 August 2015, for grant of the visa application made 14 July 2015;

   ii.Applicant’s Passport bio page;

   iii.Email from the applicant to UNE on or about 4 July 2016, requesting a new EAP offer of 10 weeks commencing 4 July 2016 and a new offer for Bachelor of Business commencing Trimester 1, 2017, and UNE’s reply on 5 July 2016;

   iv.Offer of Admission addressed to the Applicant, dated 5 July 2016, for 10 week EAP course commencing 4 July 2016 a completing 9 September 2016, and Bachelor of Business commencing 20 February 2017 and completing 30 October 2018;

   v.Certificate of Completion issued by the English Language Centre certifying the applicant as having successfully completed Level 3 of the English for Academic Purposes Program, on 9  September 2016. Course duration 10 weeks commencing 4 July 2016;

   vi.Applicant’s Course Units Enrolment Details for Trimester 1 of 2017, showing enrolment into four, six-credit-point units, identified by unit codes AFM211, AFM231, AFM340 and FNDN300;

   vii.the NOICC;

   viii.email sent by Rebecca Sun, International Services Assistant at UNE to the applicant on 21 April 2017, subject “Email reply to immigration”, providing to the applicant the content of his email sent in reply to the NOICC;

   ix.the NOICC response;

   x.Notice of Cancellation and Decision Record;

   xi.Applicant’s Bridging Visa Application dated 9 May 2017;

   xii.the application;

   xiii.Visa Grant Notice for the applicant’s bridging visa, dated 30 May 2017.

2. The applicant did not attend the hearing, and so did not give evidence to the Tribunal at, the hearing.

The NOICC

1. The Department’s NOICC issued 13 April 2017, notified the applicant it intended considering cancellation of his visa based on PRISMS evidence from which it appeared he had not been enrolled in a registered course of study since 10 September 2016, possibly breaching visa condition 8202(2)(a). The applicant was invited to provide his written response to the NOICC within five working days, addressing the identified ground(s) for cancellation, reasons why his visa should not be cancelled, the matters the delegate would take into account in considering whether to cancel his visa, being those matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, and any other matter she considered relevant.

NOICC Response

1. The applicant’s 21 April 2017 email sent to the Department in response to the NOICC, stated [omitting salutation, sign-off and reference details]:

   “Above is my name and the references for your information. I refer to the intention to consider cancellation of student visa letter dated 13 April 2017.

   I was expected to commence a Bachelor of Business in July 2016. However, due to failure to meet the English requirement, I had to commence the Bachelor of Business in Trimester 1, 2017. My lack of knowledge on applying for a revised offer lead to a result of no CoE issued. I am now aware that I have not complied with visa condition 8202 (2)(a), and attached is my revised CoE for your reference.

   Please accept my sincere apologies and I am very keen to complete my studies here in Australia.

   I look forward to your reply.”

Decision Record

1. The Decision Record includes, relevantly:

   a.the applicant was granted a Student (Temporary) (Class TU) Subclass 573 Higher Education Sector (Subclass 573) visa on 11 August 2015, with a stay period to 15 August 2018;

   b.the Department’s NOICC issued on 13 April 2017 on the basis of PRISMS evidence that the applicant was not enrolled in a registered course of study since 10 September 2016. The applicant’s response on 21 April 2017 to the NOICC did not dispute there were grounds for cancellation. The delegate was satisfied on the basis of the PRISMS evidence, the applicant was not enrolled in a registered course of study since 10 September 2016 and accordingly failed to comply with visa condition 8202(2)(a);

   c.the applicant stated, due to his failure to meet English requirements, he had to re-commence his Bachelor of Business course in Trimester 1 2017. He submitted a CoE dated 21 April 2017 for his Bachelor of Business course (COE 8C51BF27) at UNE, which commenced on 20 February 2017, and was due to complete on 30 October 2018;

   d.[quoted from Decision Record:]

   “PRISMS records show that ZIYAN WANG had not hold a confirmation of enrolment in a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A since 10 September 2016. This indicates ZIYAN WANG had not enrolled and studied for a cumulative period in excess of seven (7) months at time of NOICC. Hence, I am not satisfied that ZIYAN WANG has demonstrated his intention to study, given his COE of Bachelor of Business (COE 8C51 BF27) course were issued after the Department's NOICC issuance on 21 April 2017. There is no information available to me indicating that ZIYAN WANG had commenced his course and regularised his enrolment status since he returned onshore to Australia on 24 February 2017 or before the NOICC's issuance. Although ZIYAN WANG has current COE at time of the decision these were obtained after the NOICC was issued, and this does not mitigate the breach of condition 8202.

   Overall I find that the response from ZIYAN WANG does not mitigate the visa breach that has occurred. I do not consider that his explanation of the circumstances in which the grounds of cancellation arose to provide reason not to cancel his visa. I find that it is ZIYAN WANG's responsibility to be aware of his visa conditions and therefore maintain enrolment at for the entire duration of his Student Visa.

   ZIYAN WANG had failed to maintain enrolment since 10 September 2016, having nonetheless chosen to remain in Australia on a visa which solely exists for engagement in study.”

   e.there was no available information indicating any specific matters of relevance regarding the applicant’s  behaviour towards the Department;

   f.cancellation of the visa would not result in the automatic consequential cancellation of any dependent visa holders;

   g.there was no available information indicating cancellation of the visa would lead to a breach of Australia's international obligations;

   h.the delegate was satisfied the grounds for cancelling the visa outweighed the reasons not to cancel the visa.

Applicant’s statutory declaration made 15 May 2017

1. The applicant declared, relevantly:

   a.he was currently enrolled in a Bachelor of Business degree at UNE, course commencing 20 February 2017;

   b.he was originally enrolled in a pathways course studying English, due for completion in June 2016 after which he would commence his Bachelor of Business Degree in July 2016;

   c.he had to re-attempt his English course from July to September 2016 and did so successfully.  He then enrolled into four Bachelor of Business units in January 2017;

   d.his CoE a was not updated until April 2017, causing “confusion to condition 8202 of my Student Visa “;

   e.he was now enrolled in and expected to complete the Bachelor of Business in late October 2018 and intended to then return home.

Applicant’s Affidavit sworn 16 June 2017

1. The applicant’s affidavit and annexed documents provided the following relevant information:

   a.he arrived in Australia in late 2015, and commenced studying in English for Academic Purposes course in February 2016. He completed 30 of the 40 weeks but was unsuccessful in his final 10 weeks and as a result, re-attempted those units, causing a change in course plan;

   b.his request for an updated offer emailed to the University on 4 July 2016, sought:

   “Could you please provide me with a new EAP offer of 10 weeks commencing 4th July, 2016 and a new offer for Bachelor of Business commencing Trimester 1 2017.”

   c.the university provided an Offer of Admission to the applicant on 5 July 2016. That offer:

   i.comprised an offer for an English language course, specifically English for academic purposes commencing 4 July 2016, duration 10 weeks completing 9 September 2016, and a Bachelor of Business commencing the 20 February 2017 complete duration two years completing 30 October 2018;

   ii.referred to the length of the English course offered as based on the results of a placement test and was subject to reexamination after which the University could require the applicant to study more English than offered, necessitating revision of the offer of admission;

   iii.provided the applicant must successfully complete the English language prior to commencement of the Bachelor of Business course;

   iv.did not provide the applicant with the ability to accept enrolment into either course but not both;

   d.although he was provided with an updated offer of admission he was never provided with an updated confirmation of enrolment;

   e.he successfully completed the last units of the English for Academic Purposes course on 9 September 2016, and was as a result eligible to commence his Bachelor of Business Degree course;

   f.he returned to China in late September 2016, where he remained until around 20 February 2017 when he returned to Australia in February 2017;

   g.in early January 2017 he enrolled into four Bachelor of Business units, and commenced his first trimester of that course around 20 February 2017;

   h.after receiving the NOICC, he contacted the International Office at UNE to advise them about it and was informed they would issue the Department with an updated CoE;

   i.annexed to the affidavit is a copy of email sent by Rebecca Sun, International Services Assistant at UNE to the applicant on 21 April 2017, subject “Email reply to immigration”, providing to the applicant the content of his email sent in reply to the NOICC as set out in paragraph 25.  The only additional text in the body of the email sent by Ms. Sun are the following two lines, proceeding that portion of the email to be sent in reply to the NOICC:

   “Hi Prince,

   Please send the response below to Immigration ASAP”

   j.in the course of a Department interview on 17 May 2019 in relation to his bridging visa status, the applicant was told he was not able to leave Australia whilst he held his Bridging Visa E, but was still able to still study and had limited work rights;

   k.the applicant intended continuing his studies, commencing Trimester 2 of his  course on 26 June 2017, and wished to resolve “this administrative error regarding my Enrolment details and continue with my studies in Australia.”

DOES THE GROUND FOR CANCELLATION IN S.116(1bOF THE ACT EXIST?

Did the applicant comply with Condition 8202?

1. The Tribunal has considered all of the evidence before it on this application, much of which was not available to the delegate. Although the Tribunal was not afforded the opportunity of discussion with the applicant at hearing, the applicant has provided sworn evidence to the Tribunal in affidavit form, with relevant documents annexed, in addition to his statutory declaration.

2. The applicant states clearly, in his NOICC response, he failed to comply with visa condition 8202(2)(a). The factual basis for that admission, itself a legal conclusion, appears to be the applicant’s “lack of knowledge on applying for a revised offer lead[ing] to a result of no CoE issued”.  Both the admission and the basis for it appear inconsistent with the information later provided by the applicant in his statutory declaration and affidavit, specifically his evidence of seeking an updated offer of enrolment, the updated offer of enrolment, his subsequent successful completion of the reattempted English units and the certificate of completion annexed to his affidavit.

3. On the applicant’s evidence of seeking an updated offer of enrolment, the updated offer of enrolment, his subsequent successful completion of the reattempted English units and the certificate of completion annexed to his affidavit:

   a.the applicant sought an was provided on 5 July 2016 an offer of enrolment for a 10 week EAP course commencing for July 2016 and Bachelor of Business commencing Trimester one 2017. The offer was a packaged offer and commencement of but not enrolment into the Bachelor of Business was conditional on successful completion of the EAP course;

   b.although no offer signed by the applicant or any other documents obviously evidencing acceptance of the offer by the applicant were provided, the nature of the offer as an indivisible offer together with the applicant’s successful completion of the EAP course sufficiently inferentially demonstrate the applicant accepted the offer of enrolment and successfully completed the EAP course;

   c.the certificate of completion supports the conclusion the applicant was enrolled into the EAP course in the offer of enrolment;

   d.as the offer of enrolment was a packaged offer, the applicant’s enrolment into the EAP course necessarily leads to the conclusion the applicant must also have been enrolled into the Bachelor of Business course offered, at the time he was enrolled into the EAP course;

   e.having successfully completed the EAP course, the applicant had satisfied the condition precedent to commencement of the Bachelor of Business course, due to start on or around 20 February 2017;

4. The applicant’s evidence in this regard is supported by third party documents annexed to his affidavit. The Tribunal accepts this evidence. The Tribunal does not accept, to the extent it directly contradicts this evidence, the information provided in the NOICC Response, and the decision.

5. The Tribunal accordingly finds the applicant was enrolled between 10 September 2016 and 21 April 2017, and is satisfied the applicant has complied with condition 8202(2)(a).

6. As a matter of necessary inference from the Tribunal’s findings in the preceding two paragraphs, the Tribunal is not satisfied the PRISMS information on which the delegate relied in finding the applicant had not been enrolled from the 10 September 2016, was accurate. The UNE was responsible for updating the applicant’s enrolment records including his CoE in PRISMS. To the extent the information then available to the delegate in PRISMS reflected other than the applicant was enrolled as the Tribunal has found, the responsibility for the content of the information does not lie with the applicant, nor with the delegate.

7. In those circumstances, the applicant’s admitted failure to comply with condition 8202(2)(a) in his NOICC Response is, considering the apparent provenance of the applicant’s NOICC Response as set out in paragraph 28.  i, troubling in the sense that it does not appear to have been in the applicant’s interests to have responded to the NOICC in those terms, and also appears to devolve responsibility for the applicant’s enrolment records and CoE information in PRISMS onto the applicant.

8. The decision refers to the applicant returning onshore to Australia on 24 February 2017, giving rise necessarily to the inference he was prior to that date offshore. Coupled with the applicant’s evidence of having returned to China in mid to late September 2016, which evidence the Tribunal accepts, the Tribunal finds the applicant was, allowing reasonable time for arranging and attending to travel and other arrangements post course completion, was and remained offshore for the period during which he was enrolled but not actively studying between completion of the EAP course and the commencement of Trimester 12017 classes.

9. As the applicant has not failed to comply with visa condition 8202(2)(a), the ground for cancellation in s.116(1)(b) does not arise. It follows that the visa cannot be cancelled..

DECISION

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

Lynda Young
Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

1. (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.