Xia (Migration)

[2022] AATA 2219

Xia (Migration) [2022] AATA 2219 (28 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dongliang Xia

CASE NUMBER:  2204792

HOME AFFAIRS REFERENCE(S):          BCC2019/3263032

MEMBER:Frank Russo

DATE OF ORAL DECISION:  28 June 2022

DATE OF WRITTEN STATEMENT:         28 June 2022

PLACE OF DECISION:  Sydney

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

Statement made on 28 June 2022 at 4:47pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a higher level course – applicant ceased enrolment – applicant changed to vocational and English courses – several course enrolments cancelled – family bereavement – compelling reasons – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 116, 140, 189, 359
Migration Regulations 1994, Schedule 8, Condition 8202

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 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 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not maintained enrolment in a registered course at the same level as, or higher than, the registered course in relation to which his visa was granted, and therefore no longer met the requirements of sub-clause 8202(2)(b) of Schedule 2 to the Migration Regulations 1994 (the Regulations). 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 is a 25-year-old Chinese national. The Student visa was granted in respect of the applicant’s enrolment in a Master of Commerce at University of New South Wales (UNSW).

4. The Tribunal gave its decision on the review at the conclusion of the hearing held on 28 June 2022. The following are the reasons for that decision.

5. The applicant appeared before the Tribunal by telephone on 28 June 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. 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

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 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.

8. In addition to his application form for review and the reasons for decision of the delegate and a copy of the notice of decision sent by the Department, the applicant provided the Tribunal with a response to the hearing invitation. He did not provide the Tribunal with any other documents in support of his claims.

9. The Tribunal has read and had regard to these documents in making its decision. The Tribunal also notes and has read and had regard to the documents contained in the Department’s file. The Tribunal notes that on 30 March 2022 the Department provided the applicant with notice of the decision to cancel his Student visa, and that this notice superseded previous notices issued, including a notice issued on 29 March 2022.

   Did the applicant comply with Condition 8202?

10. 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 full time registered course: 8202(2)(a)

    ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

    ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

    ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

11. The Tribunal notes that under 8202(3), a Student visa holder is taken to satisfy the requirement set out in paragraph (2)(b) if the visa holder:

    a.Is enrolled in a course at the Australian Qualifications Framework Level 10 (Doctoral Degree); and

    b.Changes their enrolment to a course at the Australian Qualifications Framework Level 9 (Masters Degree).

12. In the present case, the applicant’s visa was cancelled on the basis that the applicant had not maintained enrolment in a registered course of study at the same level as, or higher than, the registered course in relation to which his visa was granted. More particularly, the applicant’s visa was cancelled because the applicant did not maintain enrolment in a Masters degree course (AQF Level 9), for which the Student visa was granted.

13. The applicant was not enrolled in Doctoral Degree (AQF Level 10), and therefore the consideration at clause 8202(3) is not relevant.

14. At the hearing the applicant gave evidence that he arrived in Australia in June 2018 to undertake a Master of Commerce, after which he planned to return to China. The Tribunal noted that the delegate’s decision indicates that the Master of Commerce he was enrolled in was due to commence on 23 July 2018 and scheduled to end on 15 January 2020. The applicant confirmed that this was correct.

15. The Tribunal adopted the procedure in s.359AA of the Act to put to the applicant information from a copy of his enrolment record from the Provider Registration International Student Management System (PRISMS) database, a copy of which is on the Tribunal file. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal put to the applicant that according to the information from his PRISMS enrolment record, he was enrolled in the following courses of study:

    a.He was enrolled in a Master of Commerce from 23 July 2018, but this enrolment was cancelled on 13 August 2018 because of non-commencement of studies;

    b.He was then enrolled in English Language Programs from 25 February 2019 to 19 April 2019, and according to this record he finished this enrolment;

    c.He was enrolled in a Certificate IV in Business from 6 May 2019 to 3 May 2020 and a Diploma of Business from 4 May 2020 to 2 May 2021, but both of these enrolments were cancelled. The information for the Certificate IV in Business does not specify the date and reason why this enrolment was cancelled, however the information regarding the Diploma of Business indicates that this enrolment was cancelled on 3 December 2019 due to non-commencement of studies.

16. The Tribunal explained to the applicant that this information was relevant because it indicates that from 13 August 2018 he did not maintain enrolment in a Masters level course, but instead was enrolled in a short ELICOS course and then in courses at the vocational level, below that of the Masters/AQF 9 level. The Tribunal explained that this information may be relevant to assessing whether the applicant breached the conditions of his Student visa by not maintaining enrolment in a course of study at the Masters/AQF 9 level. The Tribunal also explained that the information may also be relevant in considering the discretion to cancel the Student visa, including in considering his purpose for remaining in Australia.

17. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to his PRISMS enrolment records and advised that he may be granted time to comment on or respond to the information if needed.

18. The applicant indicated that he wished to comment on the information from the PRISMS record at the hearing. The applicant confirmed that he had been enrolled in the Master of Commerce but did not commence the course. He stated that he enrolled in English Language Programs because he wants to learn, however when the Tribunal asked him whether he completed the English Language Programs course, the applicant stated that he did not. When asked the reason why he did not complete this course, he stated that it was because he lost his visa.

19. The Tribunal questioned the applicant as to whether he had enrolled in a Certificate IV in Business and a Diploma of Business. The applicant stated that he had not, and that he had only enrolled in the English Language course. When asked to explain how his enrolment record indicates that he was enrolled in the Certificate IV and Diploma courses from May 2019, the applicant stated that he could not remember as it was a long time ago. He again confirmed that he had no memory of being enrolled in the Certificate IV in Business or the Diploma of Business and he has no memory of being enrolled in any other courses.

20. The applicant accepted at the hearing that he was not enrolled in a Masters Degree (AQF Level 9) from 13 August 2018, when his enrolment in the Master of Commerce was cancelled, until the date of the delegate’s decision on 21 November 2019. He accepted that he had breached a condition of his Student visa and that there were grounds for cancellation of the visa.

21. On the evidence before the Tribunal as set out above, the Tribunal is satisfied that the applicant was not enrolled in a full time registered course at the same level, or at a higher level, than the registered course in relation to which the Student visa was granted, from 13 August 2018 until the date of the delegate’s decision on 21 November 2019. Accordingly, the applicant has not complied with condition 8202(2)(b).

    Consideration of the discretion to cancel the visa

22. 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’.

    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

23. When questioned about his purpose for travel and stay in Australia, the applicant stated that he wants to continue to study and that he also wishes to remain in Australia because of COVID-19. The Tribunal asked the applicant to explain how COVID-19 is relevant to his reasons for wishing to stay in Australia, to which the applicant responded that it is for his own personal reasons. The Tribunal again explained the issues which were before it, which it had already explained in a detailed introduction that it gave prior to taking evidence from the applicant. The Tribunal again explained that it was considering the discretion to cancel the visa, and that one of the relevant matters was the applicant’s purpose in travelling to or staying in Australia, and that it needed to consider whether the applicant has compelling reasons for wishing to remain in Australia, and that ‘personal reasons’ was not a sufficient explanation or a compelling reason for wishing to remain in Australia. The applicant then responded that his main purpose is he wants to study further in Australia. He confirmed that he did not have any other compelling reasons.

24. When questioned about his plans if the Student visa were not cancelled, the applicant stated he will continue to study Language because his language skills are not great. When questioned if he is enrolled in a current course of study or has any offers of enrolment, the applicant confirmed that he did not. When asked why, he stated that he couldn’t study because of the visa cancellation.

25. The Tribunal put to the applicant that following the cancellation of the Student visa he could have applied for a Bridging visa which allowed him to continue his studies, and in particular if his interest was in studying ELICOS courses, he could have continued to do so. The Tribunal also noted that on his own evidence, the applicant did not complete the English Language Programs course in which he was enrolled in 2019. The Tribunal put to the applicant that the cancellation of his Student visa was not a valid reason for not finishing the English Language Programs course, as that course was due to end on 19 April 2019, over 7 months before the delegate cancelled the applicant’s visa. The Tribunal put to the applicant that he then enrolled in two vocational courses which he gave evidence that he has no memory of. The Tribunal noted that his enrolment in the Diploma of Business was cancelled on 3 December 2019, for non-commencement of studies, and there is no evidence before the Tribunal of the applicant having enrolled in any further courses in the over two years and six months since then. The Tribunal put to the applicant that this enrolment history may indicate that the applicant does not wish to remain in Australia for the purpose of study and that he does not have a compelling reason to remain in Australia.

26. The applicant responded that he does not remember clearly what happened, but if he is given a chance then he thinks he will continue to study.

27. The Tribunal does not accept the applicant’s stated reasons for wishing to remain in Australia and does not accept that he wishes to remain in Australia for the purpose of study. The applicant gave no reasons as to why he did not commence the Master of Commerce, despite being prompted on at least two occasions. He gave evidence that he did not complete the English Language Programs in 2019 and has provided no documentary evidence to suggest that he completed this short course. I do not accept the applicant’s stated reason for not completing this course, given the decision to cancel his Student visa was made over 7 months after the end date for this course. I also find it of concern that the applicant’s enrolment record indicates he was enrolled in two vocational courses in 2019, but the applicant has no recollection of either course and claims he never commenced either of them. The applicant has not enrolled in any courses of study since the cancellation of his enrolment in the Diploma of Business in December 2019, and he has no current offers of enrolment. I consider that if the applicant were genuinely interested in undertaking further studies in English Language to improve his skills, he has had more than enough opportunities to do so. The applicant has not provided any other compelling reasons why he wishes to remain in Australia and was not able to explain why COVID-19 would be a reason for wishing to remain in Australia, other than stating it was for personal reasons. Accordingly, I give this consideration weight in favour of cancelling the visa.

28. [Details deleted.]

    The extent of compliance with visa conditions

29. The applicant was not enrolled in a Masters Degree or any other course at AQF Level 9 or above from 13 August 2018 until the delegate’s decision on 21 November 2019. This is a period of over 15 months. I consider this to be a significant period of breach. When asked whether he wished to respond or comment on the Tribunal’s concern about the extent of this breach, the applicant stated that he did not understand this was a breach at the time. I do not find this to be an acceptable explanation, given it is the responsibility of visa holders to ensure compliance with the conditions of their visa.

30. Although the applicant was enrolled in an ELICOS-sector course and two vocational courses in 2019, he gave evidence that he did not complete the ELICOS course and did not recall enrolling in the vocational courses. These courses were in any case at most at AQF Level 5 (Diploma), and were not at a sufficient AQF level to meet the condition in 8202(2)(b).

31. When questioned about the other conditions of his Student visa, the applicant gave vague and evasive responses. He stated that he was not sure about the other conditions. When asked whether he had complied with any work conditions attached to his Student visa, the applicant stated that he thinks he should have complied with all of those conditions, but he forgot all of them as it was a long time ago. When asked if he is currently working, he stated that he does some casual work because his parents are not giving him money.

32. Given the significant length of time over which the breach of condition 8202(2)(b) occurred, I give this consideration weight in favour of cancelling the visa.

33. The applicant’s vague responses about the other conditions of the Student visa are of some concern, as is his evidence that he did not commence his studies towards the Certificate IV in Business. However, given the findings I make above, which already give weight to cancellation of the visa, I consider that for the purpose of this factor, I do not need to make any adverse findings about other non-compliance by the applicant with the conditions of his visa.

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

34. When asked about the hardship that may be caused as a result of the cancellation of his Student visa, the applicant stated that his parents will be very disappointed. When prompted further, he stated that he will have regret, but did not provide any further details of hardship.

35. I accept that there would be some hardship on the applicant if the visa were cancelled, including the applicant feeling regret and his parents being disappointed. I also accept that the cancellation may result in some financial, psychological, emotional and other types of hardship on the applicant and members of his family. I do not accept the applicant’s claim that he intends to study further if the visa is not cancelled and consider that he has already had sufficient opportunity to undertake courses in English Language, if that were genuinely his intention. I give this consideration only a little weight against cancelling the visa.

    Circumstances in which the ground for cancellation arose

36. When questioned about the circumstances in which the breach of his visa condition arose, the applicant responded that it was a long time ago and he can’t remember. I do not accept this explanation. I note that the applicant first arrived in Australia to study a Masters Degree approximately four years ago. I do not accept that the applicant would have no recollection of the events which led him to not commence the course for which he arrived in Australia.

37. When questioned whether there were any circumstances beyond his control and which led to the breach, the applicant stated that at a certain point his grandfather passed away, though he was not sure if it occurred at that point in time. When asked when his grandfather passed away, he stated that he forgot. He stated it has been a few years and he cannot remember clearly.

38. The Tribunal put to the applicant that he had not provided any compelling reasons why the breach of the visa condition occurred, and that the absence of any such reasons may be a reason for the Tribunal giving weight to this consideration in favour of cancellation of the visa. The applicant stated that he did not have any comments and that he was just telling the truth. The applicant has provided only very vague evidence about the circumstances in which the ground for cancellation arose. While I am prepared to accept that the applicant’s grandfather may have passed away, the applicant could not tell the Tribunal when this happened. He has not provided any supporting evidence regarding the death of his grandfather, nor explained why this was a reason for not commencing the Master of Commerce or maintaining enrolment in a course of study at the Masters Degree level or higher. I do not accept that the applicant has provided any compelling or convincing evidence regarding the circumstances in which the ground for cancellation arose. I give this consideration weight in favour of cancelling the visa.

    Past and present behaviour of the visa holder towards the Department

1. There is no information to suggest that the applicant has been uncooperative with the Department. The applicant stated that he did not have anything to say about this consideration. The applicant did not respond to the notice of intention to consider cancelling the Student visa. When asked why, he stated that he did not receive it. The Tribunal makes no adverse findings regarding the applicant’s past and present behaviour towards the Department, and gives this consideration no weight in favour nor against the cancellation of the visa.

   Whether there would be consequential cancellations under s.140

2. The applicant confirmed at the hearing that there are no persons in Australia whose visas would, or may, be cancelled under s.140 of the Act. The Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

3. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189 of the Act, however it notes that he could apply for a Bridging visa in order to settle his affairs in Australia. The applicant would need to seek advice regarding his immigration status. The Tribunal is mindful that a visa cancellation could mean the applicant might face difficulties in being granted further visas in Australia, and that he could also be subject to a three-year exclusion period unless he meets relevant Public Interest Criterion.

4. When asked about this consideration, the applicant indicated that even if he can’t ‘accept’ the consequences, he would still have to accept it. The Tribunal does not consider that the applicant has provided any relevant evidence about his circumstances and this condition. The applicant has not been enrolled in a course of study since December 2019 and on his own evidence did not commence any courses of study after April 2019. The applicant is not enrolled in any courses of study which would be disrupted as a result of the cancellation of his visa. The Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.

   Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation 

5. There is no evidence that the applicant has any children. He confirmed at the hearing that he has no family in Australia. The Tribunal weighs this factor neither in favour nor against cancelling the visa.

   Any other relevant matters

6. The applicant stated that there were no other relevant matters for the Tribunal to consider. He confirmed that he had no other comments about the delegate’s decision. The Tribunal weighs this neither in favour nor against cancelling the visa.

7. I have considered the weight I have given to each consideration, and note in particular the weight I have given in favour of cancelling the visa in respect of several of the above considerations.

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

   DECISION

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

   Frank Russo
   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.