Xiang (Migration)

[2019] AATA 969

Xiang (Migration) [2019] AATA 969 (7 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wang Xiang

CASE NUMBER:  1621890

HOME AFFAIRS REFERENCE(S):           BCC2016/3186384

MEMBER:Melissa McAdam

DATE:7 January 2019

PLACE OF DECISION:  Sydney

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 07 January 2019 at 1:23pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector visa – breached condition 8202 – not enrolled in a registered course of study – had foot injury – satisfactory current academic record – genuine commitment to and capacity for study – decision under review set aside

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 December 2016 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). The visa was initially valid until 15 March 2017.

2. The applicant was represented in relation to the review by his registered migration agent.

3. On 17 November 2016 the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of his Student visa, inviting him to comment on a possible breach of condition 8202, which required him to be enrolled in a registered course. The delegate wrote that the applicant appeared to have not been enrolled in  a registered course of study since 9 October 2015.

4. The applicant provided a written response to the NOICC by email dated 17 November 2016. The following is a summary of the response:

   a.The applicant stated that he does understand the situation that he is not enrolled in a registered course.

   b.He apologises for not complying with the condition.

   c.The reason for his non-compliance was financial and health problems that occurred in late 2015.  His foot was injured in a small accident and he had to resign from his work. He found it hard to afford his tuition fees so did not enrol in any courses.

   d.He has started an on-line job which has solved his financial problems.  He now has enough funds for the rest of his tuition and plans to re-enrol in his course in the next session.

   Delegate’s Decision

5. The applicant submitted a copy of the Delegate’s decision to the Tribunal.

6. The Delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course.  The delegate found that the applicant has not been enrolled in a registered course of study since 9 October 2015. 

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

   Pre-Hearing Submission

8. On 20 December 2018 the applicant’s Agent provided a written submission to the Tribunal.  The following are relevant excerpts from the Agent’s submissions:

   “Mr Wang Xiang, the review applicant, is a 26 years old overseas student currently undertaking Bachelor of Engineering study in the University of Sydney. He has successfully completed one academic year of 4-year-engineering degree from February 2018 to December 2021.

   The purpose of his stay in Australia is always to complete an Australian Bachelor degree in STEM stream. His first student visa was granted on 20 Oct 2013 and he subsequently arrived in Australia on 01 Nov 2013 to commence his study in English Language Programs in Wollongong College. He has successfully completed the language study, which is the initial stage of the packaged course leading up to the planned Bachelor of Science at University of Wollongong in Feb 2014.

   After that, he commenced his study in Bachelor of Science in University of Wollongong till Oct 2015. In his first semester at UOW, because he was not fully prepared and adapted to Australian university teaching style, Mr. Wang Xiang failed all the subjects. But he did work hard and achieved remarkable results in the second semester.

   However, due to his addiction to online games, he was not able to keep on track with his study at UOW and failed same subjects twice, which led to university exclusion in October 2015. In the same period, he also suffered a serious knee injury. Mr. Wang Xiang dared not to confess the exclusion and his real situation to his parents. So he just stayed at home and became more addicted to online games. The situation lasted until he was notified of his student visa cancellation on 15/12/2016.

   Mr. Xiang Wang realised that he could not let his situation get worse and he needed to seek help and make change. Therefore, Mr. Xiang Wang turned to Australian education consultant to make new study plan and confessed to his parents about his trouble. After serious discussion, his parents still hope he could make up for the lost time and achieve a Bachelor degree from a prestigious university in Australia. Therefore, Mr. Xiang Wang followed his education consultant’s advice to start from Diploma of IT and then progressed back to Bachelor degree with the Diploma qualification.

   In Jan 2017, he enrolled in Diploma of Information Technology in Clarendon Business College and completed the diploma study in Nov 2017.

   With his outstanding academic performance, he subsequently applied and enrolled in Bachelor of Engineering study in The University of Sydney from March 2018. He has successfully completed the first year study in the university and is expected to complete the degree in Jan 2022.

   Mr. Xiang Wang’s non-compliance happened from Oct 2015 to Dec 2016. Besides that, the applicant did comply with all the other conditions of his visa. He has successfully completed the language study and Diploma study and is currently pursuing Bachelor study in the University of Sydney. He has made significant academic progress in the past two years.

   As regards the circumstances which have given rise to the visa cancellation, a number of matters have contributed to the applicant’s non-compliance. The applicant has grown up in a middle class family in China and has been well taken care of. However, after leaving his parents, he has to manage his study and daily life all by himself. His addition to online games, his foot injury in late 2015 and his exclusion from UOW all have a significant impact on him, both physically and mentally. On one hand, he was feeling physically unwell. On the other hand, he was mentally stressed about his illness and was anxious about his exclusion from UOW and his lies to parents. Because he was at a very young age, Mr. Xiang Wang did not know how to solve the problems and tried to avoid the reality by addiction to online games until his student visa was cancelled. However, after realizing the seriousness of his non-compliance, he has genuinely been taking efforts to change the situation and resume the enrolment since Jan 2017 and tried his best to improve his academic performance and successfully get admission into the University of Sydney.

   The applicant is the only child in the family and is financially supported by his parents. His parents are both currently employed and will continue to support him financially to cover all tuition fees, living and traveling expenses during his proposed stay in Australia.

   If the cancellation decision were affirmed, he would have to leave Australia and be subject to a three years exclusion period. We contend that the cancellation decision would cause significant hardship to the applicant because:

   a. Firstly, his current enrolment at the University of Sydney would be terminated even though he progressed quite well;

   b. Secondly, he would return China empty-handed without a Bachelor degree after 5 years study in Australia, which would materialise his loss and would be irreversible;
   c. Thirdly, it would be almost impossible for him to enrol into a Chinese university as prestigious as the University of Sydney and his previous study in Australia might not be recognised for exemptions;
   d. Fourthly, it would be almost impossible for him to find a decent job in China without a Bachelor degree, especially considering his mature age;

   e. Fifthly, he and his parents had spent 5 years and at least AUD200,000, which would be a total loss and write-off;

   Therefore, the cancellation decision would cause significant hardship, tremendous loss and very dim future to the applicant and to his family as well.”

9. The Agent attached the following documents to the submission:

   i.Current Sydney University Confirmation of Enrolment;

   ii.The applicant’s Academic Transcript for year one of a Bachelor of Engineering at Sydney University for 2018.

   iii.Tuition Fees and Payment Receipt for the applicant’s enrolment in a Bachelor of Engineering at Sydney University for 2018.

   iv.A University of Wollongong English Course completion certificate.

   v.The applicant’s University of Wollongong Academic Transcript.

   vi.Confirmation of Enrolment, Diploma completion letter and Academic Transcript from Clarendon Business College for a Diploma of Information Technology course completed by the applicant on 24 November 2017.

   vii.Financial support declaration by the applicant’s mother; the applicant’s mother’s Bank Deposit Statement; the applicant’s Bank Statement showing money transfer records from his mother.

   Tribunal Hearing

10. The applicant appeared before the Tribunal on 7 January 2019 to give evidence and present arguments. The following is a summary of the information he provided at the hearing:

    a.The applicant confirmed he was not enrolled in a course of study, or studying, from mid 2015 til the end of 2016.

    b.He stopped studying because he injured his foot and could not attend university. He stayed home and became obsessed with Internet games.  He also failed a subject in his first semester and had to re-enrol in it but failed again.

    c.He injured his foot riding a bicycle in his third semester at university, in around June 2015. His foot become stuck in a wheel and he tore his toenail and gashed his shin.  He did not see a doctor at the time because he was unfamiliar with the medical system here. His injuries became worse and he attended Wollongong hospital about one year later. At the hospital a doctor cut away some skin, re-bandaged the wound, and prescribed him some painkillers and other medication.  He has no record of this visit or the treatment he received. He has a BUPA insurance reimbursement for a hospital visit with no details of the medical service provided.

    d.The injury to his foot was not that serious and he mostly stopped studying because he became obsessed with Internet games.

    e.He decided to change his behaviour when his visa was cancelled in December 2016.  His told his parents about his situation and convinced them he still wanted to study and needed them to continue to financially support his studies here. His parents were shocked but believed he would study again because he had been a very good student in China.

    f.In the beginning of 2017 he applied for an IT Diploma and in 2018 he obtained enrolment in an Engineering degree at Sydney University.

    g.Prior to his visa cancellation he spent part of the money his parents provided for his tuition fees on Internet games, so could not afford to study anymore.  He now feels very guilty and regretful about this.

    h.His attitude had been bad during 2015-2016 but after his visa was cancelled he got himself together and concentrated on his studies again. He does not play Internet games very often anymore because he knows they badly affect his studies.

    i.During the university holidays he is completing some small projects for his Engineering degree ‘Engagement Program’ subject. Otherwise he is mostly reading books and documents at home.  He also plays soccer with friends.

    j.He has been successful in his studies since re-enrolling in courses because when he spends time studying, he studies well. He is obtaining high distinctions and distinctions in his Engineering degree.  He is enjoying the course and looking forward to resuming his studies if his visa is not cancelled.  His favourite subjects are maths and physics.

    k.His parents are both high school teachers and his father is the school principal.  They have sufficient salary to continue to pay for the applicant’s studies in Australia. In March 2018 his mother deposited 1,000,000 yuan to be used for the applicant’s studies here. This is equivalent to about $200,000.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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?

12. 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 her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

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

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

14. The applicant has admitted he was not enrolled in a registered course of study from October 2015 until January 2017. His evidence is confirmed by the Department’s PRISMS records.

15. On the evidence before the Tribunal the applicant was not enrolled in a registered course during this time period. Accordingly, the Tribunal finds that 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 remain in Australia

17. The applicant has travelled to and resided in Australia for the purpose of study. The Tribunal notes that apart from mid 2015 til end 2016, the applicant has been studying while in Australia since 2014.  The Tribunal notes he is currently studying.  He has commenced a four year Bachelor of Engineering degree and requires a further three years’ full-time study to complete the course. The Tribunal considers the applicant’s need to remain in Australia to complete his study, the purpose for which he came to Australia, is reasonably compelling.

18. The Tribunal gives this matter significant weight in the applicant’s favour.

    The extent of compliance with visa conditions

19. There is nothing before the Tribunal to indicate that the applicant has breached other conditions on his visa.

20. The Tribunal notes that the applicant’s breach entails one and a half years when he failed to enrol in a registered course of study or to study. While this is a significant amount of time it is counterbalanced by the lengthier amount of time that the applicant has complied with his visa conditions and continues to do so.

21. As such the Tribunal gives some weight in the applicant’s favour to the fact that he has generally complied with his visa conditions in most of the five years he has been in Australia.

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

22. The applicant has provided evidence of the financial hardship that will be caused if his visa remains cancelled. His parents have spent a substantial amount of money for his education and their expenditure will be wasted if he returns to China without a degree.  The Tribunal considers it likely that the applicant will be a greater burden upon his parents in China without a suitable qualification to be able to find employment there.

23. The Tribunal gives some weight in the applicant’s favour to this matter.

    The circumstances in which the ground of cancellation arose.

24. The applicant has explained that in 2015-2016 he injured his foot, was away from his family, was not coping with the unfamiliar study environment in Australia, and became addicted to playing Internet games.  He stated at hearing that the foot injury was not so serious, and that it was more his game addiction, poor attitude, and money spent on games that affected his studies.

25. The Tribunal notes the applicant’s acknowledgements of his failings at the time.  However as a man of 23 years of age, dealing with matters well within his control, the Tribunal considers that applicant’s lack of emotionally maturity then is not a reasonable justification for the serious breach of his visa conditions.

26. The Tribunal gives this matter no weight in the applicant’s favour.

    Past and present conduct of the visa holder towards the Department

27. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings with both bodies.  He has responded to the Department and the Tribunal in a timely manner and has not conducted himself in any obstructive manner.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

28. It is unlikely that the visa applicant would be detained but rather provided with a time limited period in which he can leave the country.

29. The applicant will be temporarily barred from being granted a further visa to Australia. 

    Whether any international obligations would be breached as a result of the cancellation

30. There is nothing before the Tribunal to indicate there are international obligations to consider.

    Any other relevant matters

31. The Tribunal notes that the applicant’s Student visa was due to cease in March 2017 and this date has well passed. If his Student visa cancellation is set aside he would have to apply for a further visa in order to lawfully stay in Australia. For him to continue his studies he will have to apply for and meet the criteria for the grant of the new Subclass 500 Student visa. He will then be required to demonstrate that he is willing to study, and has appropriate enrolments.  The applicant has a current enrolment at Sydney University, and on the basis of his academic record over the past two years he could arguably demonstrate a willingness to study.

32. The applicant impressed the Tribunal with his ability to acknowledge his past mistakes and his eventual effort to take responsibility for his studies in Australia.  His current academic record is impressive and his new course of studies seems well suited to his aptitude and interests.

33. Having considered the evidence before it, the Tribunal accepts that the applicant was and is again a genuine student in Australia.  From mid-2015 to the end of 2016 he lacked the basic resilience to engage with and apply himself to his studies.  However for the majority of his time in Australia, and in particular for the past two years, he has shown a genuine commitment to and capacity for study.

1. The Tribunal accepts that the applicant’s parents have dedicated funds to enable the applicant to complete his degree in Australia.

2. Given the circumstances before it, including the need for the applicant to apply again for a Student visa and to demonstrate he can meet visa conditions, the Tribunal considers that the applicant should be provided with the opportunity to study further in Australia.

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

   DECISION

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

   Melissa McAdam
   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.