Wei (Migration)

[2019] AATA 3926

Wei (Migration) [2019] AATA 3926 (5 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Shuyun Wei

CASE NUMBER:  1708661

HOME AFFAIRS REFERENCE(S):           BCC2017/696703

MEMBERS:Sean Baker (Presiding)

Lisa Hannon

DATE:5 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 05 June 2019 at 1:28pm

Statement made on 05 June 2019 at 1:16pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – applicant ceased enrolment – no courses completed – registered relationship with an Australian citizen – likely intention to apply for permanent residence – decision under review affirmed     

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 April 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(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not complied with a condition of the 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.

3. The applicant appeared before the Tribunal on 12 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

5. At the conclusion of the hearing, the applicant sought leave to file further materials and submissions.  That leave was granted, and the applicant filed further materials electronically on 23 April 2019.  The Tribunal has had regard to those further materials in reaching its decision.

6. For the following reasons, the Tribunal has concluded that the decision to cancel applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

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

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

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

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

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

10. The applicant first travelled to Australia in March 2013, and was enrolled at RMIT in the course described as “Foundation Studies Art, Design and Architecture Stream (accelerated)/Bachelor of Communication Media”.  The applicant did not complete this course of study.

11. In November 2013, the applicant enrolled at MIBT/DUELI/Deakin University in a course described as “ELICOS/Certificate IV I Tertiary Preparation Program – Mass Communication/Diploma of Media and Communication/Bachelor of Arts (Media Communication)”.  The applicant did not complete this course of study.

12. In April 2015, the applicant enrolled at CIC Higher Education (CIC) in an English language diploma course, together with a Batchelor of Business course, focussing on management.  The applicant did not complete either course of study, and her enrolment was cancelled.

13. Although the applicant enrolled in a further English language course at Academia Australia (AAVE) in June 2016, she did not attend that course at all, and her enrolment was cancelled.

14. The Applicant frankly conceded in her evidence before the Tribunal that she had not been enrolled in a registered course of study since 28 July 2016.

15. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

16. 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 to or remain in Australia

17. The applicant told the Tribunal that her purpose in travelling to and staying in Australia was to study. The applicant had not completed the year 12 equivalent in her home country of China, and sought to advance her education in Australia.  The applicant did not consider studying a year 12 equivalent course in Australia. 

18. However, the applicant acknowledged that she had not completed any registered course of study in nearly 6.5 years in Australia. 

19. In answer to the Tribunal’s questions as to whether the applicant has a compelling need to remain in Australia, she said in her evidence that she would like to finish her studies, and then return to her home country to work.  The applicant filed with the Tribunal on 11 April 2019, the day before the hearing, a copy of a letter of offer dated 11 April 2019 made to her by the International Institute of Planning and Management in Sydney.  The letter of offer concerned a proposed course of study commencing with an English language course commencing on 13 May 2019, and culminating in a Diploma of Business.  If the applicant was to complete that course of study in accordance with the course guidelines, it would require a further 3 years and 10 weeks of study.

20. On the day of the hearing, the applicant also produced to the Tribunal a number of documents to be taken into consideration on her application.  A significant number of those documents concerned the applicant’s relationship with an Australian citizen, who resides in Sydney, a Mr Weitao Rong.  The documents relevantly included:

    (a)a letter from the NSW Registry of Births Deaths and Marriages to the applicant dated 4 April 2019, confirming receipt of an application to register her relationship with Mr Rong in accordance with the Relationships Register Act 2010 (NSW); and

    (b)a copy of a statutory declaration made by Li Jian on 8 April 2019, on Form 888 entitled “Statutory Declaration by a supporting witness in relation to a Partner or prospective Marriage visa application”.  The declaration attests to the genuine nature of the relationship between the applicant and Mr Rong; and

    (c)a copy of a Residential Tenancy Agreement made on 2 October 2018 between a Jie Teng (as landlord) and the applicant and Mr Rong (as tenant), in respect of residential premises in Pitt St, Sydney.

21. The Tribunal asked the applicant a number of questions about this apparent inconsistency between the applicant’s evidence of her intention to complete her studies and return to China to work, and the evidence of her de facto relationship with Mr Rong, and apparent intention to apply for an alternative form of visa consequent upon their ongoing relationship.  The Tribunal has carefully considered the applicant’s evidence on this issue, but found it confusing and inconsistent.

22. The Tribunal accepts that the applicant initially came to Australia for the purposes of studies and gives this some weight in favour of not cancelling her student visa.

23. However, the new materials produced to the Tribunal in connection with the applicant’s de facto relationship and alternative visa path intentions tend to indicate that the applicant‘s purpose in staying in Australia is not to complete a course of studies and return to her home country of China.  Rather, the new materials tend to suggest that the applicant intends to make application to stay permanently in Australia with her de facto partner, Mr Rong. If the applicant does have a compelling need to remain in Australia, that does not appear to the Tribunal to be connected with a temporary course of study, but rather a need to continue her de facto relationship with Mr Rong. The Tribunal gives this significant weight in favour of the cancellation of the visa.

    The extent of compliance with visa conditions

24. The applicant told the Tribunal that she was aware of the condition on her visa that required her to maintain enrolment in a registered course.  Notwithstanding that, the applicant was not enrolled in a registered course from 28 July 2016 to 8 April 2017, a period of over eight months.

25. The Tribunal considers this to be a significant period and gives it substantial weight in favour of cancellation of the applicant’s visa.

26. The Tribunal has had regard to the applicant’s evidence that she engaged in a course of self-study (in respect of the English language) after July 2016, but did not find this evidence convincing and gives this no weight in favour of not cancelling her student visa.

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

27. The applicant told the Tribunal that all of her family are hoping that she can complete a degree in Australia and that, once complete, she will be in a position to return to her home country and help out in running the family business.

28. The Tribunal accepts that the applicant’s family will be disappointed if she returns to her home country without having completed her intended course of studies, and that this, in turn, may cause the applicant some emotional or other hardship.  However, the Tribunal gives this only limited weight in favour of not cancelling the applicant’s student visa.

29. The Tribunal has also had regard to the fact that if the applicant returns to China, her further educational opportunities are limited by the fact that she did not complete a year 12 equivalent course of studies, and is now (by virtue of her age) not able to attain that qualification in her home country.  Again, the Tribunal gives this limited weight in the Applicant’s favour.

    The circumstances in which ground of cancellation arose

30. The applicant told the Tribunal about a number of difficult circumstances that have operated on her in the period during which she has sought to study in Australia.

31. In particular, the Tribunal has had regard to the following matters:

    (a)that the applicant’s grandparents suffered adverse health conditions.  In particular, in the period 2013-2014, the applicant’s maternal grandmother had a cerebral haemorrhage, and that condition worsened;

    (b)that towards second half of 2014, the applicant suffered constant pain in her lower stomach, and returned to her home country in December 2014 for surgery;

    (c)that the applicant’s father’s business in China failed in 2015, and her father was not at that time able to support her ongoing expenses in Australia.  In addition to the stress associated with her father’s financial difficulties, the applicant was required to rely on her aunt to support her everyday expenses;

    (d)that in 2015, the applicant had a boyfriend who had family issues (although the evidence of the direct impact of this on the applicant was not entirely clear);

    (e)that when the applicant returned to Australia in 2016, she considered she was not very emotionally stable, under financial constraints, and could not focus on her studies.  In particular, she could not manage to complete her English language studies, which are a pre-requisite for her completion of other vocation-based tertiary studies.

32. The Tribunal is satisfied that the applicant was operating under adverse conditions between 2013 and 2015.  The applicant also contended at the Tribunal that she was ill in 2016, that the course provider was aware of this, and that it cancelled her enrolment regardless.  There is no evidence (other than the Applicant’s testimony) to support this contention, and it does not sit comfortably with the applicant’s further evidence to the effect that she did not learn of the cancellation of her enrolment until she received notice of the cancellation of her student visa.

33. The Tribunal is not satisfied that any of the matters listed above entirely explain the cancellation of the applicant’s COE on 28 July 2016, and gives these matters only limited weight in favour of not cancelling the applicant’s student visa.

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

34. There is no evidence before the Tribunal to indicate that the applicant has been untruthful or uncooperative in her dealings with the department.  The Tribunal gives this some limited weight in the applicant’s favour.

    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

35. The cancellation of the applicant’s visa will result in her being unable to be granted some temporary visas, including visitor and student visas, for a three year period (condition 4013).  The applicant will also be prevented from applying for many permanent visas onshore. 

36. The applicant currently holds a bridging visa that allows her to remain lawfully in Australia.  The applicant told the Tribunal that if her visa was cancelled, she would return to her home country.

37. The Tribunal gives this only limited weight in favour of 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

38. These factors are not relevant in the circumstances of the applicant.

    Any other relevant matters.

39. The applicant produced to the Tribunal a copy of a letter of offer from a company in China that suggested that the applicant might participate in a traineeship program with that company, upon the completion of her studies and return to China.  The letter did not formally offer the applicant a position.

40. The Tribunal gives the conditional offer some limited weight in the applicant’s favour.

41. The applicant also produced to the Tribunal evidence to the effect that her family’s financial circumstances have improved, such that if the cancellation of her visa is set aside, her further study will not be impacted by the adverse financial circumstances that operated on her in 2015.

42. The Tribunal gives this some limited weight in the applicant’s favour.

43. Having regard to the matters set out above, whilst the Tribunal accepts that the applicant came to Australia intending to study, it considers that this factor, together with other factors weighing in her favour, are outweighed by both the significant length of the visa breach, and the evidence connected to the applicant’s de facto relationship with Mr Rong, suggesting that the applicant does not intend to stay in temporarily in Australia for the purposes of completing tertiary studies.

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

    DECISION

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

    Sean Baker
    Member

    
    

    Lisa Hannon
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.