Wong (Migration)

Wong (Migration) [2020] AATA 1808 (5 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Leat Fee Wong
CASE NUMBER:  1933626
HOME AFFAIRS REFERENCE(S):          BCC2019/3329057
MEMBER:Vanessa Plain
DATE:5 March 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 05 March 2020 at 10:50pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered higher level course ceased – applicant changed subject to lower level course – family persuasion to study Information Technology – limited academic progress – financial hardship – 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

This is an application for review of a decision dated 25 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 failed to maintain enrolment in a registered course that once completed, would provide a qualification from the Australia Qualifications Framework (AQF) that is at the same level as, or at a higher level than, the registered course in relation to which the 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.
The applicant appeared before the Tribunal on 3 March 2020 to give evidence and present arguments. 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 affirmed.
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(2)(b) 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 provides as follows:
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
[...]
(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.
Paragraph (2)(b) states the visa holder must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework (AQF) that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted.
The applicant’s visa was granted for the purpose of studying a Diploma of Information Technology Networking and a Bachelor of Information Technology and Systems at the Victorian Institute of Technology which is an AQF level 7 course.
Information available to the Department in the Provider Registration and International Student Management System (PRISMS) indicated that on 6 August 2018 the applicant’s enrolment in the Bachelor course was cancelled by the education provider and he has not been enrolled in an AQF level 7 course since this date.
PRISMS indicated that the highest CoE the applicant held thereafter was for an Advanced Diploma of Management (Human Resources) at National Training Centre of Australia Pty Ltd. This enrolment is at AQF Level 6 (Advanced Diploma or Associate Degree). As the applicant was not enrolled in a course at the AQF Level 9 (Masters Degree) or Level 10 (Doctoral Degree), the circumstances of clause 8202(3) do not apply to him.
On 25 October 2019, a Notice of Intention to Consider Cancellation of Visa was sent to the applicant.
By written response dated 29 October 2019, the applicant responded to the NOICC. I his response the applicant said that when his student visa was granted, he was only aware of the condition that he must be enrolled in a full-time course, and not that he must maintain enrolment at the same or higher level than that for which his visa was granted. He admits he made an honest mistake
At the hearing on 3 March 2020, the applicant admitted he breached his visa condition and acknowledged that he was enrolled in an Advanced Diploma of Management (Human Resources) which once completed, would provide an AQF level 6 qualification. The applicant further acknowledged that he was not succeeding in this course and confirmed that the CoE has been cancelled.
Based on the above, the Tribunal finds that the applicant has not complied with subclause (2)(b) of condition 8202 as he has not maintained enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which his visa was granted.
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 Procedural Instruction ‘General visa cancellation powers’.
In his response to the NOICC, the applicant provided various reasons why he believed his visa should not be cancelled, as follows:
·He came to Australia and completed an English course and a Diploma of Business, and was going to study further in the Business field, but his family persuaded him to study Information Technology (IT) due to demand in Malaysia and the good pay.
·He followed their suggestion and enrolled in a Diploma and Bachelor of Information Technology at VIT. He studied hard, but struggled with his study as he did not have an IT background, and subsequently failed subjects.
·As a result, he could not sleep or concentrate on daily life. He saw a doctor he told him he had some level of depression. The doctor advised him to try to relax and not put too much pressure on himself.
·Following advice from his family, he decided to study something that interested him, so he transferred back to the Business field. He enrolled in a Certificate IV in Marketing and Communication and a Diploma of Leadership and Management. He wants to help the family business when he finishes his study.
·When his student visa was granted, he was only aware of the condition that he must be enrolled in a full-time course, and not that he must maintain enrolment at the same or higher level than that for which his visa was granted. He admits he made an honest mistake.
·He requests another chance to complete his current course which is so important to his future.
Purpose of applicant’s travel to and stay in Australia
The applicant initially arrived in Australia on 26 October 2015 as the holder of a Student (TU 572) visa. The applicant completed a General English course and a Diploma of Business on this visa.
The applicant’s current Student visa was granted on 7 February 2018 whilst he was in Australia for the purpose of study in a package of Diploma of Information Technology Networking and a Bachelor of Information Technology and Systems, which once complete, would provide a qualification at AQF Level 7. The applicant’s CoEs in these courses were cancelled on 6 August 2018. The applicant stated that he decided to study IT after discussion with his family based on future job and salary opportunities. He however struggled in this field of study, and failed subjects. He decided to follow his interest and enrol in a Certificate IV in Marketing and Communication, which he has completed according to PRISMS, and a Diploma of Leadership and Management.
PRISMS indicated that he also commenced study in an Advanced Diploma of Management (Human Resources), which would provide a qualification at AQF Level 6. The applicant acknowledged this course was also cancelled. He contends that he wants to return to Malaysia to assist in the family business upon completing his study.
The Tribunal acknowledges that the applicant found his study in IT difficult, and wished to transfer back to his previous business field of study. However, the applicant chose to enrol in study in the vocational education sector at a level for which he has already completed study, and which is below AQF Level 7, the AQF level for which his visa was granted.
The Tribunal therefore finds that the applicant’s purpose is not for study at AQF Level 7, and therefore not in line with the purpose of his visa.
The Tribunal affords this some weight in favour of cancelling the visa.
The extent of compliance with visa conditions
The applicant has not maintained enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which his visa was granted since 6 August 2018, resulting in non-compliance with subclause (2)(b) of condition 8202.
Given the length of time that has passed since non compliance, the Tribunal considers his non-compliance with 8202(2)(b) to be significant.
Further, the applicant acknowledged in his oral evidence that he was not enrolled in a registered course at all, for a brief period between August 2018 and October 2018 respectively and that this is a breach of a visa condition.
There is no further evidence to indicate that he has not complied further conditions attached to the visa. The Tribunal considers the requirement to maintain enrolment at the correct AQF level an important condition for the grant of the Student visa and the Tribunal therefore gives this consideration some weight in favour of cancelling the visa.
The degree of hardship that may be caused to the visa holder and any family members
The applicant states that he wishes to complete his current courses so he can assist in his family’s business in Malaysia.
The Tribunal acknowledges that if his visa is cancelled, he will no longer be able to complete his study in Australia, which may cause him some financial hardship as a result. However, the applicant acknowledged that his current course has already been cancelled.
The Tribunal also takes into account the applicant’s claim to have suffered from some depression when he was struggling with his study in IT. The applicant has not produced medical evidence at the hearing, supporting this claim, or did he contend that any medical condition that he was suffering from, caused or contributed to his changing of his course from AQF 7 to AQF 6.
The Tribunal accepts that the visa cancellation may result in some emotional or psychological hardship being caused to the applicant. However, it is a visa holder’s obligation to be familiar with the conditions that attach to their visa and there is no information before the Tribunal to indicate that the applicant has any immediate family members in Australia who may be impacted by a visa cancellation.
The Tribunal there gives any hardship suffered by the applicant minor weight against cancelling the visa.
The circumstances in which the ground for cancellation arose
The ground for cancellation arose because the applicant did not maintained enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which his visa was granted, resulting in non-compliance with subclause (2)(b) of condition 8202 attached to his visa.
He stated that he found study in IT difficult, and failed subjects as a result. He decided to change his enrolment to a field that interested him, so he enrolled in a Certificate IV in Marketing and Communication and a Diploma of Leadership and Management. Whilst I accept that the visa holder struggled in his IT course as evidenced by PRISMS, I consider that his decision to enrol at a level below AQF Level 7, the level of study for which his Student visa was granted, was a circumstance within his control. Indeed, the applicant admits he made an honest mistake. The applicant could have enrolled in a Bachelor course in the business field aligning with his interest to comply with his visa conditions, or applied for a Student visa in line with the AQF Level of his current enrolment.
The applicant stated that he was only aware of the requirement to maintain enrolment in a registered course, and not that he must maintain enrolment at the AQF Level in association to which his Student visa is granted.
The Tribunal considers that it is the responsibility of all visa holders to be aware of the conditions attached to their visas, and the actions required from them in order to maintain compliance.
Based on the above, the Tribunal gives this consideration some weight in favour of cancelling the visa.
The visa holder’s past and present behaviour towards the Department
The applicant responded promptly to the NOICC and there is no evidence before me to suggest that the applicant has been uncooperative with the Department or departmental staff.
The Tribunal gives this consideration a little weight against cancelling the visa.
Whether there are any persons in Australia whose visas would, or may, be cancelled under s140
The circumstances of this case are not such that any person’s visa would be consequentially cancelled under s140 of the Act. The Tribunal therefore does not give any weight for or against a decision to cancel the visa for this consideration.
Legal consequences of a decision to cancel the visa
If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart Australia. The applicant would also be affected by section 48 of the Act, which may prevent him from applying for certain visas while in Australia, and Public Interest Criterion 4013, which may exclude him from being granted a visa for a specific period of time in the future.
However, these are mandatory and intended consequences of the legislation and given that the circumstances giving rise to the breach were reasonably within the control of the applicant, I do not consider this to be manifestly unfair and the Tribunal there gives this consideration little weight against cancelling the visa.
Australia’s international obligations
There is no evidence before the Tribunal to indicate the applicant has children in Australia, nor whether cancelling the visa would lead to a breach of Australia’s non-refoulement obligations. As there is no information before me, I am unable to give any weight for or against cancelling the visa for this consideration.
Any other relevant matters
The Tribunal has no further evidence before it of any other relevant matters.
Although the matters set out above do not reveal any bad faith on the part of the applicant, it is clear based on all the evidence set out above, that the reasons for the breach of the visa condition were not matters that were outside the control of the applicant.
It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa being cancelled and I so find.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Vanessa Plain
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.

[2020] AATA 1808

5 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice