Wong (Migration)

[2019] AATA 5589

Wong (Migration) [2019] AATA 5589 (29 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Michael Junn Yi Wong

CASE NUMBER:  1913870

HOME AFFAIRS REFERENCE(S):         BCC2019/1450839

MEMBER:D. Triaca

DATE:29 November 2019

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 29 November 2019 at 1:24pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – not enrolled in registered course – paid fees – utilised migration agent – unaware of non-enrolment – breach not intentional – poor understanding of English language – compelling reasons – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

CASES

Paduano v Minister for Immigration and Multicultural Affairs (2005) 143 FCR 244

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.The Applicant is a citizen of Malaysia. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 30 May 2019 cancelling his Subclass 500 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

2.The Applicant’s student visa was granted on 4 May 2017 with an original expiry date of 7 May 2020, providing approximately 3 years during which the Applicant would be permitted to reside in Australia for the purposes of full-time study. It was his first student visa.

3.The delegate cancelled the Applicant’s visa on the basis that he had breached that condition of the visa which required him to continue to be enrolled in a registered course of study.

4.The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

HEARING OF APPLICATION

5.The Tribunal convened a hearing to consider the merits of the application on 28 November 2019. The Applicant appeared before the Tribunal in person. He was assisted by a Mandarin interpreter.

6.For the following reasons, the Tribunal has decided to set aside the decision to cancel the Applicant’s visa.

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 Breach Condition 8202?

8.Condition 8202(2)(a) of the Applicant’s visa required that he remain enrolled in a full-time registered course. In the delegate’s decision record, the delegate identified the period from 1 May 2018 and 3 May 2019 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to approximately 12 months during which the Applicant was alleged to be in continuous breach of the visa.

9.The delegate’s finding was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[1] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database allows registered course providers to report changes in relation to a student’s enrolment status and to notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s Confirmation of Enrolment (‘CoE’) in a course for which they had previously been enrolled and the reasons for doing so.

[1] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

10.The PRISMS report obtained by the delegate indicated that the Applicant had not been enrolled in a registered course of study between 1 May 2018 and 3 May 2019. The Applicant’s course provider, Elizabeth Bence Pty Ltd, notified the Department that the visa holder had ceased studies and was no longer enrolled. The PRISMS report indicated that the Applicant had subsequently enrolled in any other registered course until 3 May 2019 when he enrolled in a Diploma of Business and Advanced Diploma of Business at Richmond School of Business.

11.The Department of Immigration and Border Protection wrote to the Applicant on 3 May 2019, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). That notice set out particulars of the alleged breach by the Applicant of Condition 8202. The Applicant was invited to comment on these allegations before the Department moved to cancel his visa.

12.The Applicant responded to NOICC in writing (‘NOICC response’). The Applicant did not dispute that he was in breach of his visa of the period alleged by the delegate. At the hearing before the Tribunal on 28 November 2019, the Applicant also did not dispute that he was in breach of Condition 8202 for the period alleged.

13.Based on the available information and material, the Tribunal is satisfied that the delegate was correct in reaching the conclusion that the Applicant was in breach of condition 8202(2)(a) of his visa.

Consideration of the discretion to cancel the visa

14.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.’

Consideration of the Discretion to Cancel the Visa

15.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. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. The matters that ought to be considered are specifically listed in PAM3 as follows:

·the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant’s control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);

·the purpose of the Applicant’s travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;

·the extent of the Applicant’s compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;

·the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;

·the Applicant’s past and present behaviour towards the Department (eg, whether they have been truthful and co-operative in their dealings with the Department);

·whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;

·whether there are mandatory legal consequences arising from a decision to cancel the visa;

·Whether Australia has obligations under any relevant international agreements that would be breached as a result.

Circumstances Giving Rise to Breach of Condition 8202

The Applicant’s Evidence

16.On the day of the hearing, the applicant provided the Tribunal with further documentation that was not available to the Department as follows:

(a)Course Guide from Bayside International College, Sydney (BIC);

(b)Receipts of a series of Bank Transfers to Fusion Oz, Xibo Shi and Ming Jiang totalling $9,400 made between January 2018 and February 2019;

(c)Unsigned letter in English, that appears to be a copy of the NOICC Response, provided to the Department in or about May 2019.

(d)Payment options and bank account details for Fusion Oz Pty Ltd, a migration agent.

17.This is an unusual case and I consider it is important to set out the applicant’s evidence before the Tribunal in some detail, as follows:

18.The applicant is a 26 year old citizen of China. His English is poor and he required the services of an interpreter throughout the hearing.

19.The applicant arrived in Australia in 2017 and enrolled in a Diploma of Business and Advanced Diploma of Business at Duke College. His provider was Elizabeth Bence Pty Ltd.

20.He says he attended classes but found the study difficult due to his lack of English. The applicant’s agent, whom he referred to as Brother Eyming, suggested that he transfer to an English course at Bayside International College in Sydney (BIC).

21.He says that his agent made all the arrangements for him and in early 2018 he commenced attending classes and studying English at the BIC. He says that the BIC classes appeared to be normal classes, in a school setting, with teachers and other students. He says that his agent was present for at least some of the classes at the BIC.

22.The BIC course guide includes an ACN, ABN and CRICOS Provider Code.

23.Between January 2018 and February 2019, he made a series of payments to accounts he knew as Fusion Oz Pty Ltd, Ming Jiang and XiBo Shi, totalling $9,400. He states these payments were made by him at the direction of his agent and purportedly the payment of fees to BIC for the English Course.

24.The applicant states for the 12 month period, during which he the PRISMS database records he was not enrolled, he understood that he was enrolled in, studying and paying fees in relation to an English course at BIC.

25.He says that when he received the NOICC, he could not read it as it was in English. He provided a copy to his agent and he says that he was subsequently enrolled in business courses at Richmond School of Business. These arrangements in relation to the enrolment at Richmond School of Business were all made by his agent.

26.In relation to the NOICC response, he stated:

(a)He did not see or review that document before it was submitted. It is unsigned;

(b)He believes it was prepared by his agent;

(c)He only became aware of the document later, when he had a copy translated for him;

(d)Many of the matters set out therein are not true or correct. He denies that he was ever “suffering from severe mental pressure and insomnia” or that he had any “symptoms” that “became worse” or that he saw a psychologist for these issues.  

27.On his evidence, it appears he believes that the response to the NOICC was a contrived attempt by the agent to explain the non-compliance. The Tribunal questioned the applicant in relation to whether he had raised this issue with the agent. He reports that he did so, resulting in the agent refusing to speak to him further and blocking him on social media and telephone.

28.The Tribunal considers it is unlikely that the applicant wrote the written response to the NOICC. For one thing, his grasp of the English language appears quite poor and it does not seem possible that he wrote the document, which is entirely in English, himself. Further, the document is unsigned so there is no objective evidence to suggest it is his document. He denied each of the matters that had been put in that correspondence by way of explanation for his non enrolment and I accept his evidence.

29.Having regard to the applicant’s evidence, the Tribunal accepts that the applicant believed he was studying in an approved course during the period of time the delegate found that he was not enrolled. In considering his evidence, I take into account that his English is poor, he was utilising the services of an agent at the relevant time and taking advice, he paid fees (or what he believed were fees) and was able to produce evidence of bank transfers and attended classes during this period. In these circumstances, the Tribunal considers that his breach of the visa requirements was not intentional and accepts that it was not attributable to the applicant’s conscious decision making or within his personal control.

30.The applicant’s intention is, if granted a further visa, to study English courses before enrolling in the business courses he came to Australia to study.

Purpose of Applicant’s Stay in Australia; whether the visa holder has a compelling need to travel or remain in Australia.

31.The purpose of the Applicant’s stay in Australia, as reflected in the essential purpose of a student visa, is to study on a full-time basis. The Tribunal accepts that this was his purpose on arrival. It continued to be his purpose during the period in which he was no properly enrolled. The Tribunal accepts that he holds a current intention to return to study if given the opportunity to do so.

32.Compelling and Need are not defined in the Act or the PAM3 and accordingly ought to be given their ordinary meaning. The term ‘compelling’ was considered in some detail by Crennan J, then sitting in the Federal Court, in Paduano v Minister for Immigration and Multicultural Affairs (2005) 143 FCR 244[2] to mean ‘forceful and therefore convincing’. Need is a relative concept. It plainly means more than ‘want’ but falls well short of ‘cannot survive without’.[3]

[2] See [37] – [45]

[3] See R, on the application of M, v Slough Borough Council [2008] WLR 1808 at [54]; Boettcher v Driscoll (20140 SASC 86 at [41] per David J;

33.I consider that there is some force in the applicant’s argument that his plans to study in Australia have become derailed in circumstances outside his control. In these circumstances, having regard to the ordinary meaning of these words, and these authorities, I consider he has demonstrated a compelling need to remain in Australia.   

Extent of Applicant’s Compliance with Visa Conditions

34.Apart from the Applicant’s non-compliance with Condition 8202, the Tribunal is not aware of any other breaches of his visa conditions.

Hardship

35.The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia and complete his education. The Tribunal accepts that it would be difficult for him were he not allowed to complete successfully an Australian qualification. He has already suffered financially due to the payment of fees for course fees for which he has not received a certificate.

Applicant’s Behaviour towards Department

36.The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. He was responsive to the Department’s NOICC and amended NOICC. He has at all material times been co-operative in assisting the Department towards the resolution of this matter.

Other Visa Holders

37.There do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

Legal Consequences

38.The Tribunal notes that if his visa is cancelled, the Applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met.

39.The Tribunal considers these consequences to be unduly punitive in the circumstances of this case.

International Obligations

40.The Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

Conclusion

41.In all the circumstances, the Tribunal is of view that the preferable outcome in this case is not to cancel the Applicant’s visa.

DECISION

42.The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

D. Triaca
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.