Wang (Migration)

[2019] AATA 5560

Wang (Migration) [2019] AATA 5560 (28 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Wenqi Wang

CASE NUMBER:  1718969

HOME AFFAIRS REFERENCE(S):          BCC2017/2115378

MEMBER:Mark O'Loughlin

DATE:28 August 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 28 August 2019 at 12:58pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Offer of Admission in a registered higher education course not accepted – applicant’s difficulty passing foundational English subjects – applicant returned to China due to family illness – applicant not seeking to mislead Department – decision under review set aside       

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2 cls 573.223, 573.231; Schedule 8; Condition 8156

CASES

Singh v MIBP [2016] FCA 679           

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 August 2017 made 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 of the Migration Act 1958 (the Act).

2. On 25 July 2016 the applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa.

3. The delegate cancelled the visa under s.116 (1)(b) on the basis that the applicant had breached condition 8156 because she was not enrolled in a bachelor’s degree or a master’s degree course and therefore did not continue to satisfy either subclauses 573.231 or 573.223(1A). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 12 August 2019 to give evidence and present arguments.

5. The applicant was represented in relation to the review by her registered migration agent.

6. 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

7. 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). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   s.116(1)(b) - non-compliance with conditions

8. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa. This condition relevantly requires that the applicant continue to be a person who would satisfy the primary criteria for the grant of the visa.

9. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

10. One criterion for grant of the applicant’s Subclass 573 visa was that the applicant met cl.573.223(1A) by being an eligible higher degree student who has a confirmation of enrolment in each course of study for which she is an eligible higher degree student.

11. If subclause 573.223(1A) does not apply the applicant must satisfy subclause 573.231 which requires the applicant to hold a current offer of enrolment in a course of study that is a principal course as defined in the subclause.

12. The applicant gave evidence that when she arrived in Australia in October 2016 she was planning to attend a course at the South Australian Institute of Business and Technology leading to a Bachelor’s degree at the University of South Australia. 

13. The applicant had a history of having attempted study in Australia previously but her efforts were thwarted by limitations in her English.

14. The SAIBT course was a type of bridging course which would also demonstrate that her English was adequate for University study. She said that she found this course too was difficult and she became concerned that she may not be ready to start at the University of South Australia.

15. The applicant said that she discussed the situation with an agent who suggested that she consider a change of institution as some are easier than others.  The applicant said that she was advised and decided to change her course to a Bachelor of Business majoring in marketing at Flinders University.

16. The applicant was not able to advise when she withdrew from the course that she had been enrolled in at the University of South Australia, but she gave evidence that she did not hold a confirmation of enrolment in that or any other course at the time of the delegate’s decision.

17. Therefore cl.573.223 (1A) does not apply to the applicant.

18. That being the case it is necessary for the Tribunal to consider whether cl.573.231 applied to her.

19. The applicant gave evidence that she had received an offer of enrolment for a Bachelor of Business majoring in marketing at Flinders University which was made to her on 17 March 2017.

20. The applicant provided the Tribunal with a copy of a document entitled “Offer of Admission” from Flinders University.  That document says that the applicant has been offered a position in the Master of Business course to start on 24 July 2017 and finish on 30 June 2019.

21. The terms of the offer were that the applicant complete and return an “Acceptance form” and pay a deposit by 17 April 2017.

22. The applicant gave evidence that she did not accept the offer.  She did not pay any of the fees and did not intend to start the course.

23. She said that at about this time her Grandfather had fallen ill and she intended to return to China to visit him.

24. She said that she believed that the offer was enough to secure her visa and that she was free to return to China without actually enrolling.

25. The Tribunal observes that the course referred to in the offer, being a Masters of Business, is not a Bachelor of Business majoring in marketing as the applicant said in her evidence.  She said that the University had made an error and that she contacted them to try to correct it but before that was done the cancellation overtook matters.

26. On considering all of the above evidence the Tribunal is satisfied that the applicant did not accept the offer by the due date of 17^th of April 2017.

27. On that basis, the Tribunal is not satisfied that the applicant held a current offer of enrolment in any course after the 17^th of April 2017.

28. She had not paid the fees and had not accepted the offer at the time she received the notice of intention to consider cancellation that the Department provided in purported satisfaction of its obligations under S 119 of the Act.

29. The applicant did not suggest that she was enrolled in or had a current offer of enrolment in any other course.  Therefore subclause 573.231 did not apply to the applicant.

30. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1) (b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

31. 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’.

32. There is no evidence that the applicant has any purpose in coming to and staying in Australia other than study nor is there any suggestion of a compelling need to travel to or remain in Australia other than to study.

33. The evidence about the time that the applicant spent without enrolment and without an offer of enrolment is limited and the Tribunal cannot make a finding about the extent of the applicant’s failure to comply with visa conditions.

34. The applicant gave evidence, which the Tribunal accepts, that she will suffer emotional hardship if she is not able to undertake her study as her family and extended family have significant expectations.  The applicant went so far as to suggest that her grandfather’s health might be cast into crisis if she returns without the opportunity to pursue further study although there is no evidence of this other than her own testimony and the Tribunal is not satisfied that it is reliable.

35. The circumstances in which the breach arose are essentially that the applicant had substantial difficulty improving her English to the level that she could undertake study and for that reason she was unable to maintain her enrolment fruitfully. 

36. The applicant gave evidence that some family problems that arose at about the time of the delegate’s decision compromised her ability to deal with the notification of the impending consideration of her visa status. The Tribunal does not find that the ground for cancellation arose from circumstances beyond the visa holder’s control, but accepts that she was upset and confused about where she stood.

37. The Tribunal is satisfied that the applicant’s behaviour does not reflect an effort to mislead the department although it is clear that it has been marked by a surprising lack of attention to the detail of her visa requirements and a disturbing tendency to seek the advice of friends over more reliable sources of information such as the educational institutions with which she has been involved or her representative.

38. There is no evidence that there would be any consequential visa cancellations under s 140 of the Act. 

39. If the Student visa is cancelled the applicant will need to apply for a bridging visa.  She may become liable to detention under section 189 and to removal under section 198 if she does not get a bridging visa or leave voluntarily.

40. Future visa grants may be compromised by the cancellation of this visa and in particular, the applicant will come within the risk factors defined in Public Interest Criterion 4013.  That will mean she will be restricted in lodging an application for another visa to Australia for 3 years after the cancellation of the Student visa.

41. There is no information before the Tribunal that shows that the cancellation would result in breach of Australia’s international obligations.

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

43. The Tribunal has weighed the considerations set out above together and finds that although the applicant has been somewhat inert, she has not acted in such a way that she should be denied the opportunity to again attempt study in Australia.

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

    DECISION

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

    Mark O'Loughlin
    Member