Xiao (Migration)

[2023] AATA 4720

Xiao (Migration) [2023] AATA 4720 (24 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chengbin Xiao

REPRESENTATIVE:  Mrs Grace Shen (MARN: 0321533)

CASE NUMBER:  2214240

HOME AFFAIRS REFERENCE(S):          BCC2022/1861339

MEMBER:Michael Bradford

DATE AND TIME OF

ORAL DECISION AND REASONS:         24 November 2023 at 4:05 pm (NSW time)

DATE OF WRITTEN RECORD:                22 January 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 22 January 2024 at 1:22pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant had not been enrolled in a registered course of study since 24 March 2021– breached condition 8202 – an extensive period of non-enrolment – could not meet his tuition fees – COVID had affected his ability to enrol and study – not satisfied that applicant could not meet his tuition fees from other resources mental health – there was non-compliance by the applicant in the way described in the notice – decision under review affirmed  

LEGISLATION
Migration Act 1958, s 116

APPLICATION FOR REVIEW

1. This is an application to review a decision of a delegate of the Minister for Home Affairs who, on 19 September 2022, cancelled the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the conclusion of the further hearing on 24 November 2023 I made an oral decision to affirm the delegate’s cancellation and indicated to the applicant’s Registered Migration Agent, Ms Grace Shen, that I would deliver written reasons later.

3. On 27 November 2023 the Tribunal served on the applicant’s agent an Outcome document which recorded its decision and notified the Department of Home Affairs by letter of its intention to prepare a written record of its reasons in due course.

4. What follows is the written record of my reasons foreshadowed at the hearing and in the later correspondence.

   STATEMENT OF REASONS

   Background, documentary aspects  

5. The delegate cancelled the visa under Sec 116(1)(b) of the Act for breach of condition 8202(2)(a) given that the applicant had not been enrolled in a registered course of study since 24 March 2021 when his enrolment in a Bachelor of Arts (BA) at the University of NSW was cancelled.

6. The NOICC was served on the applicant on 5 July 2022. On 11 July 2022 his then agent, Ms Cloe Sun from AHL Legal, requested an extension of time to respond to the NOICC, a request which the delegate granted on 12 July 2022. The applicant’s response was provided on 19 July 2022 and consisted of a submission from Ms Sun which sought to explain, mainly by reference to asserted financial constraints and other circumstances, why the applicant had not been enrolled and what he intended to do to resume his studies in the BA if given the chance (the Sun submission).

7. More particularly, the Sun submission was to the effect that the visa should not be cancelled because the cancellation of the applicant’s enrolment in the BA came about when he could not meet his tuition fees in that course for Term 3 of 2020 because of the financial effects of the pandemic, that he had made an innocent mistake in failing to defer his studies at that stage, that he had medical issues during 2021 and 2022 which interfered with his ability to re-engage with his study, and that he had other grief related issues during 2022 arising from the death of his father in China on or about 6 December 2021.

8. In support of that case a good deal of documentary material was provided to the delegate which included portions of Commonwealth Bank Statements for two accounts which he and his de facto partner had operated during the relevant periods (the Bank Statements), correspondence with the University during the period from September 2021 to May 2022 concerning his enrolment status and related matters, records relating to a medical procedure which he had undergone on 9 June 2021, a COVID digital vaccination certificate issued on 13 October 2021, and a transcript of text messages which the applicant had exchanged with his mother in late 2021.

   The hearing

9. At the initial video hearing held on 10 November 2023, the applicant relied on that material and gave oral evidence mostly in English without apparent difficulty over a period of about 2 hours. He was ably assisted at that hearing by Ms Shen who had also provided a short written submission shortly prior to the hearing in which she adopted the whole of the Sun submission, accepted that the applicant had been in breach of the enrolment condition, reiterated that it had resulted from financial constraints beyond his control, and said that his failure to resume his studies in the BA since the visa was cancelled was because of inadequate advice from his former agent and his reluctance to now invest further money to re-enrol in that course until such time as his visa was restored.

10. As the applicant’s oral evidence unfolded it became apparent to me and, I think, to Ms Shen that his documentary case on the issue of financial inability to pay tuition fees for the BA without assistance from his mother was deficient in material respects in that, among other things, the Bank Statements which the former agent had provided to the delegate did not fully reveal how, by whom and when these fees were paid to the University. Having discussed these and other aspects with her at length it seemed to me that, if he was given further time, he would likely provide additional documentary evidence to address these and other concerns.

11. I thus adjourned the hearing for that purpose, informed Ms Shen that the applicant could provide any further documentary material on which he wanted to rely within 7 days and indicated to her that arrangements would in due course be made to re-schedule the hearing to a later date when I anticipated being able to give an oral decision and reasons in the case.

12. A fresh Hearing Invitation was sent to him on 10 November which appointed 24 November for a further hearing by telephone. On 15 November a completed Hearing Response form was filed in which it was indicated that Ms Shen would attend the further hearing without the applicant and that he intended to provide further documents.

13. On or about 16 November 2023 Ms Shen filed a further submission in which she broadly adhered to the position previously adopted by her, namely that COVID had affected his ability to enrol and study, that his mother was now able to resume funding for him and that he wanted to complete the BA and return to China to seek a “decent” job in that country. Additional support documents were also provided which consisted of a Table which the applicant had apparently prepared, and which listed in the right-hand column funds received from his mother during the 2020, 2021 and 2022 calendar years and, in the left-hand column, payments made by him to the University for tuition fees in the BA during those years. The Table also identifies the Bank Statements which are said to verify these transactions, and various additional Commonwealth Bank Statements relating to these two accounts were provided.

14. The resumed hearing took place as scheduled when Ms Shen participated on the telephone without the applicant. No other evidence, oral or documentary, was led from any other person, including his mother (Changlong Mi) and his partner (Miao Zhang).  

15. Having discussed at length the additional documentary material with Ms Shen, and the effect which this evidence had on the overall merits of her client’s case, I made an oral decision to affirm the delegate’s decision. Due to time constraints, I was unable to give oral reasons for it at the hearing.

16. In addition to the material in the Tribunal file, I have seen a paper file from the Department which contains a copy of the NOICC, a PRISMS record, the applicant’s response to the NOICC and the decision under review.

17. I have also been provided with an up-dated PRISMS and a Movements Details record for the applicant the information in which was discussed with him at the initial hearing and was not relevantly in dispute.

    An overview of the applicant’s case

18. Given that this is a review of a decision to cancel a visa under Sec 116 of the Act, it will of course be necessary to consider the factors which the legislation mandates if it does not require. Clearly, the delegate considered these factors in his decision and gave to them what he regarded to be an appropriate relative weight on the basis of the evidence available to him.

19. It is perhaps trite to observe that my task is to conduct merits review of that decision and, in so doing, to consider the evidence, oral and documentary, which the applicant has provided to the Tribunal in support of his case whether that evidence was before the delegate or not.

20. As it happens, although I have been provided with additional evidence in this case, having considered it in conjunction with the documentary evidence which the applicant put before the delegate, I remain unconvinced that the applicant has established the ambit claims which he now makes to justify his non-enrolment.

21. More particularly, I am not satisfied that his enrolment in the BA came to an end because he could not afford to meet his tuition fees as from Term 2 of 2020 without assistance from his mother, nor am I satisfied that the other matters to which he refers significantly ameliorate or improve his review case.

22. Even though he has been given ample opportunity to present a comprehensive evidentiary case, serious deficiencies in the evidence remain which undermine his assertion that he could not pay his tuition fees as from Term 2 of 2020 without assistance from his mother. To the contrary, according to his own documentary case, his mother’s accountant (Liu fen Qin), transferred to his account (6832) the sum of $13,985 on 20 October 2020 obviously to meet his fees for Term 3, a sum which for some unexplained reason was not then paid to the University and which remained unpaid until 9 February 2022 when it was met from the Joint Account (5850). According to the evidence by this stage the debt had increased with interest and penalties to $15,079. 

23. As will be seen, whist I am prepared to accept that the pandemic affected his mother’s ability to fund his tuition fees during 2021 in a timely manner, I am not prepared to find that he was unable to meet those fees from other sources. Nor am I prepared to find, as is contended in the Sun submission, that the applicant “had no choice” but to spend the funds he received from her in October 2020 on living expenses.

24. Nor does it assist the applicant’s case to provide general information provided by the University on the expected costs of living in Australia without going into specific details of what expenses were actually incurred by the applicant and Ms Zhang and demonstrating how these were met by them during the relevant years. To this extent it does seem to me that the applicant’s review case is misconceived.   

25. In these cases, it is not the Tribunal’s statutory function to conduct a roving enquiry with a view to filling in gaps in an applicant’s presented case or to rectify perceived evidentiary or other deficiencies. Particularly is this so in a case such as this one where the applicant was given an opportunity to do just that and where the missing evidence is within his possession or control, or which he might reasonably have been expected to lead from other persons, namely his mother and partner, with whom he is obviously close. Whilst I accept that his mother resides in China, and that this may have occasioned some delay in providing evidence from her, Ms Zhang does not.

26. Given the nature of his review case I would have expected some evidence from them on these matters or, failing that, to have been given some explanation from him as to why they would not be doing this.

27. I remind myself that an unexplained failure to lead such evidence will ordinarily lead to an inference that it would not have assisted his case.

28. I see no reason in this case not to draw that inference.     

    An overview of the delegate’s decision

29. Since I broadly agree with the delegate’s reasoning in this case and given that the applicant is relying on a good deal of additional evidence in the review, there is little to be gained in reiterating in any detail his reasons for cancelling the applicant’s visa.

30. It is, I think, sufficient to note that the applicant had not in his response to the NOICC disputed that a ground existed for the cancellation of his visa based on his failure to maintain enrolment as from 24 March 2021. Rather his case was that the visa should not be cancelled because of the matters he raised, including but not limited to the financial impacts which the pandemic had on his mother’s ability to meet his tuition fees for this course, that his enrolment in the BA was ultimately cancelled in March 2021 because he could not otherwise meet those fees, and that it continued for the next 18 months because of that and other circumstances.

31. Whilst the delegate accepted that the pandemic was beyond the applicant’s control and had presented financial difficulties for him, the delegate observed that he had the option of contacting the Department to explore ways of dealing with these problems, or of deferring his studies in the BA, neither of which he did. This was, he said, a significant period of non-enrolment which could not be explained simply on the basis that he had made a mistake in not taking appropriate steps to defer his studies, at least in circumstances where he had initiated contact with the University to discuss other related issues in September 2021.

32. The delegate also noted that the applicant had according to his evidence been fully vaccinated by October 2021 when the COVID restrictions were lifted. His other medical evidence did not, in his view, establish that the applicant was unable to study. He thus had a significant period in which to rectify his non-enrolment status as the University had informed him in correspondence that he could re-enrol and resume studies in the BA in early 2022 once his outstanding tuition fees for Term 3 of 2020 had been paid.

33. Just pausing here, I have already noted that the documentary evidence which he had provided to the delegate, and on which he relied to support his review case, established beyond question that those fees were in fact paid to a debt recovery agent from the Joint Account (5850) on 9 February 2022 (Annexure 11 to the NOICC response), apparently with funds from another Commonwealth Bank Account (0771) said to have been operated by Ms Zhang but not otherwise put in evidence. Although other evidence (Statement 27 for his Account (6832), which forms part of Annexure 1 to that response) established that his mother had in effect reimbursed him for those fees on 28 February 2022, he did not explain to the delegate, nor did he explain to me, how he was able to pay them earlier without prior assistance from her.

34. Given that the extensive period of non-enrolment in this case as from 24 March 2021 was not adequately explained to the delegate, given there was nothing in his overall circumstances to ameliorate the significance of the breach, or to justify his ongoing failure to re-enrol in the BA prior to the issue of the NOICC in July of that year, and given that the other factors, including the legal consequences flowing from the cancellation, did not attract significant weight in his favour, the delegate concluded that the reasons to cancel the visa outweighed the reasons not to cancel it.

    Approaching the evidence led in the review.

35. Much of the initial hearing was devoted to investigating the financial information as disclosed in the Bank Records and, more particularly, the applicant’s claim that he could not afford to meet the tuition fees for this course without assistance from his mother, that his enrolment was cancelled in March 2021 because of that and that he remained, for that and other reasons, unenrolled at the time the NOICC was issued in July 2022.

36. Time was also spent at the hearings in seeking to ascertain, by reference to the documentary material, including the Bank Records, what fees were owed to the University as of February 2022 and for what term those fees related to.

37. Although the applicant gave somewhat confusing, and to an extent mistaken, evidence in relation to some of those aspects at the initial hearing, I did not get the impression that he was deliberately seeking to distort the financial picture or to prevaricate on important detail. Had the applicant given me the impression that he was obfuscating I would not have given him the opportunity to provide additional material.

38. Although the applicant asserted in his oral evidence that he used his mother’s funds to meet tuition fees for Term 2 of 2020 and for Terms 1 and 2 of 2021 other documentary evidence establishes clearly enough that he did not in fact pay any fees to the University for tuition in those Terms because his enrolments in the course had been cancelled, firstly in July 2020 and again in March 2021, and that the second cancellation remained on foot for the rest of 2021 thereby relieving him of the need to pay tuition fees during that year.

39. Obviously, given the nature of the factual issues and the obvious difficulties he was having in accurately recollecting financial details, I approach his oral evidence about them and certain other aspects with caution and prefer the independent records where they are inconsistent with it.

40. Insofar as his other evidence relating to his personal and work history is concerned, I am prepared to accept it at face value. Much of it is either uncontroversial or does not really assist his case.

    Evidence and findings on the review

41. The applicant was born in China in September 1994. He travelled to Australia to study at the Senior Secondary level (Years 11 and 12) under a TU-571 visa granted to him in late 2011. In July 2014 he was granted another TU-571 visa to complete Year 12 but the evidence, in the form of the PRISMS record, is unclear as to whether he managed to complete these studies.

42. He enrolled in and completed a CIII in Guiding in March 2015 and was then granted a TU-572 visa to study an IT package but his enrolment in the Diploma was cancelled for unsatisfactory progress in December 2015. He went on to enrol in a package of Business courses, for which he was granted a TU-500 visa in July 2017, but these also led to nothing when his enrolment in the Diploma of Commerce was cancelled towards the end of that year.

43. In April 2018 he enrolled in a Diploma of Human Resources Management, but this too was not completed. He then began studies in an English course and completed it in early 2019, at or about the time when he first enrolled in the BA.

44. Although the applicant led no documentary evidence regarding his actual progress in the BA during 2019, he gave oral evidence to the effect that he passed 5 units and failed 3. I accept his evidence on this aspect and accept his evidence that he was not happy with his performance in this course during that year.

45. I am also satisfied that his BA tuition fees for 2019 were paid to the University on time by him with funds provided from China by his mother’s accountant by way of bank transfers to one or other of his accounts. I also accept that his fees for Term 1 of 2020 were paid to the University by those means in or about March of that year despite the absence of any record confirming the payment of these fees by him to the University. He certainly received the necessary funds from his mother on 13 March 2020 (Statement 23, Appendix 2 to the 16.11.23 submission) and I can see on the evidence no reason why he would not have used them to meet his fee obligation for that Term.

46. As earlier indicated, the applicant ultimately provided what I consider to be a deficient documentary case in relation to the issue of whether he was unable to meet tuition fees for this relatively expensive Higher Education course during and after 2020. This problem was to some extent exacerbated by obvious errors in his Table (Appendix 1 to the 16.11.23 submission), a document which in some respects is not supported by the independent records referred to.

1. At the hearing the applicant did not dispute, and in fact agreed, that his enrolment in the BA was first cancelled by the University on 10 July 2020 when he failed to commence studies in Term 2 and did not inform it of his intentions. PRISMS confirms these things, as does his other evidence to the effect that he did not like on-line studies, no doubt the method of teaching then being adopted by the University for this course given the effects of the pandemic on the education sector.

2. He has led no evidence of having studied the BA during Term 2 of 2020 and, in any event, he would not have been entitled to do so given that his enrolment was cancelled in July of that year and not reinstated until in or about October of that year, when he apparently applied to the Department for the subject TU-500 visa. I do not know what if any evidence he provided at that time to support the VA, or subsequently, to demonstrate he was currently enrolled in the BA. I note that his Movements Details record confirms, and the applicant agreed, that he was granted the subject visa on 12 November 2020 to enable him to continue with his studies in this course.

3. In addition to that evidence, the bank record referred to earlier (Statement 25 for 6832; Appendix 2,16.11.23 submission) confirms that his mother caused $13,985 to be transferred to that account on 20 October 2020 apparently to enable him to meet his fee obligations for Term 3 of that year.

4. It is an admitted fact in this case that the applicant did not pay those fees to the University. His Table (Appendix 1,16.11.23 submission) indicates as much, there is no bank record evidencing such a payment, and PRISMS confirms that the fees which he owed when his enrolment was cancelled for the second time in March 2021 amounted to $13,982.65, a sum broadly equivalent to what his mother had made available to him in October 2020 for Term 3 tuition fees.

5. I thus do not accept the Sun submission that the applicant ceased attending classes in September 2020. On my findings he is likely to have done this when he failed to re-commence studies at the start of Term 2, a fact which PRISMS also confirms (see the PRISMS record in the Department file).

6. In addition, the correspondence which the applicant exchanged with the University during the period from 17 September 2021 to 31 January 2022 makes clear that what he owed to it at that stage were the tuition fees for Term 3 of 2020, together with an amount for interest and penalties (Annexures 8 and 12 to the Sun submission).

7. It may be, as Ms Shen submits, that his mother was having financial issues in mid-2020 which meant that she was unable to pay his tuition fees for Term 2 of that year and this led to the cancellation of his enrolment in July of that year when he did not re-commence his studies in the course. But a finding to this effect does not require a conclusion that he was unable to meet those fees by other means. As will shortly be seen, the documentary evidence led suggests to me that he had other significant cash resources by which to meet his fee obligations during 2020 and 2021. Certainly, he has not negatived this possibility on the evidence led.

8. In the Sun submission, sent in response to the NOICC, a submission which Ms Shen has explicitly adopted in the review, it is said that the applicant used his mother’s funds to meet living expenses in late 2020 (para 6). Given the evidence led this submission must be interpreted as referring to the October 2020 funds transfer, a transfer which the submission acknowledges was in fact made. But it is also submitted that these expenses, including his share of the rent, were met by his partner, Ms Zhang (para 9). It also overlooks the fact that, as of 4 August 2020, there was on the documentary evidence led not less than $70,000 in the Joint Account (5850) (Statement 24, Appendix 2, 16.11.23 submission), funds which were apparently available to the applicant for that and other purposes during 2020 and 2021, including his tuition. Although the balance in this account as of 31 December 2021 was only $19,531 (Annexure 11 to the Sun submission), there is no evidence to establish how the money in that account was dealt with during that year.

9. Certainly, there is no evidence from Ms Zhang to suggest that these other funds belonged exclusively to her despite them being held in a Joint Account which they operated together, the funds in which were available to each of them.

10. In any event, her financial position during the pandemic must have, in these circumstances, a direct bearing on his claim that he could not afford to study this course during that period. Indeed, given their apparent financial inter-dependence, to the extent to which it is disclosed in their various bank accounts, her financial position is no less important than his.

11. Absent any evidence from her to throw light on these aspects, I am not prepared to find that the applicant had no other means from which to meet his fee obligations to the University as from in or about Term 2 of 2020. 

12. I am thus not satisfied that the applicant was unable for financial reasons to maintain his enrolment in the BA during the 2020, 2021 and 2022 calendar years. Although I accept that the pandemic probably impacted on his mother’s financial ability to meet his tuition fees for this course during these years, or some of them, I am not satisfied that he could not meet his tuition fees from other resources during this period.

13. I do think that the more likely explanation for his failure to re-engage with his studies in the BA as from Term 2 of 2020 was that he did not like on-line learning and simply ceased studies in the course without taking any steps to defer them. This was, on any view, irresponsible and, for an international student who had been in Australia on various Student visas for a period of almost 10 years prior to July of 2020, the applicant could and should have reacted very differently to the situation which then confronted him.

14. The correspondence which he exchanged with the University also contains reasonably clear admissions and other evidence to this broad effect.

15. Ms Shen correctly accepted that the applicant’s undated email to the University, a copy of which is partly reproduced under the 18 May 2022 email from the University to him (Annexure 12 to the Sun submission), was likely sent to the University on 17 September 2021, as is acknowledged in the University’s email to him of that date (Annexure 8 to that submission). In his undated email the applicant outlines his reasons for leaving his studies at the end of Term 1, saying that he was worried about his health because of the pandemic. Other documentary evidence establishes that he was not vaccinated until October 2021 (Annexure 4 to the Sun submission).

16. Importantly, his undated email makes no mention of any financial constraints as being a factor for his cessation of studies. Although his later email, the one sent on 25 January 2022 (Annexure 9 to the Sun submission) does contain an assertion to that effect it was written to obtain a fee waiver for Term 3 of 2020 in circumstances where he apparently provided no other financial evidence to support it, at that or any later stage.

17. In its response email of 31 January 2022 (Annexure 10) the University confirms that he remained liable for unpaid tuition fees Term 3 of 2020, including the penalty for late payment. As previously indicated, these fees amounted to some $15,079 when they were paid from the Joint Account on 9 February 2022.

18. Despite having confirmation from the University that he could re-enrol for Term 1 of 2022 if his fees were brought up to date (see also the 18 May 2022 email mentioned earlier), the applicant took no steps to get his studies back on track until 25 October 2023 when Ms Shen lodged a fresh BVE application to vary the terms of his Bridging visa to include study rights (Appendix 3,16.11.23 submission).

19. Ms Shen also submits that her predecessor should have advised the applicant to do this when the initial BVE was granted to him on 19 October 2022, not long after the delegate had decided to cancel his visa. This may well be so, but I cannot attribute any significance to this given his failure to take any steps to re-enrol after his outstanding fees were paid to the University in February of that year. There is no evidence from him to suggest that his non-enrolment during 2022 had anything to do with his immigration status or the conditions which attached to his initial BVE. Rather, his case on this aspect is that he did not want to invest more money in this course until such time as his cancelled visa was restored.

20. The Sun submission recites other events and circumstances which took place during 2021 including a medical referral on 5 May 2021 which culminated in day surgery on 9 June of that year for a skin complaint, and the death of his father in December of that year. Although I do not doubt that both events occurred neither of them can be said to have any real ongoing significance to his failure to maintain enrolment in the BA as from March of that year. Certainly, he gave no oral evidence about them at the hearing, and I do not see them as having any real significance to his non-enrolment during and after 2021.

21. Evidence, usually in the form of a report, from a suitably qualified medical practitioner is ordinarily required to establish a case based on events of this kind. 

22. As noted earlier, a far more plausible explanation for this extensive breach as from March 2021, if not earlier, was his dislike of on-line studies as from the commencement of Term 2 in 2020, together with his irresponsible and otherwise unexplained failure to take steps to defer them.

23. Lastly, the text messages which the applicant exchanged with his mother in late 2021 (Annexure 7 to the Sun submission) concerned the recent death of his father and throw no light on the financial arrangements which had existed between them at any earlier point in time. They do establish that he had contact with her in late 2021 about that event and, viewed in conjunction with the other evidence, including the funds transfer in February 2022, I am satisfied that he maintained a reasonably close relationship with her during the relevant periods.

24. That said, his unexplained failure to lead evidence from her, and his partner, does not assist his case.  

    Summary and conclusion

25. In my view, having considered the documentary and oral evidence led by the applicant in support of his review case, such as it is, I agree broadly with the delegate’s findings in this case and with the relative weight attributed to the various factors which he, and the Tribunal, are required to address.

26. More particularly, I am not satisfied that the applicant has established that his non-enrolment came about because of financial constraints operating on him during the relevant period. Nor am I satisfied that his continued non-enrolment as from March 2021 can be explained on that basis. The evidence he has led on these issues is anecdotal, in part misconceived and ultimately incomplete in material respects.

27. Despite him having been given ample opportunity to provide a comprehensive case on these issues, he has really done nothing more than to present one which, on close analysis, raises more questions than it answers.

28. Given that the other matters which he apparently puts forward to explain this extensive breach do not assist him, it seemed to me that his review case had very little going for it.

29. I thus formed the view at the conclusion of the hearing that the decision under review should be affirmed.

    DECISION

30. The decision under review is affirmed.  

    Michael Bradford
    Member