Xie (Migration)

[2019] AATA 6627

Xie (Migration) [2019] AATA 6627 (19 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yi Xie

CASE NUMBER:  1833519

HOME AFFAIRS REFERENCE(S):          BCC2018/4158348

MEMBER:Amanda Pearson

DATE:19 December 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 19 December 2019 at 3:39pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – circumstances of the breach – non-payment of fees – cost of grandmother’s medical treatment – English language comprehension abilities – decision under review set aside

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 November 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2.    The applicant was granted a student visa on 8 August 2017. The applicant is from China and his visa was cancelled on the basis that the delegate found that he had not been enrolled in a registered course of study since 8 December 2017. In applying for review to the Administrative Appeals Tribunal the applicant also provided a copy of the delegate’s decision. 

3.    The delegate’s decision outlined that the Provider Registration and International Student Management System (PRISM) indicate that the applicant has not been in a registered course of study since 8 December 2017. Furthermore, according to the PRISMS, the visa holder did not have an approved enrolment to date. The delegate cancelled the visa on 7 November 2018.

4.    The applicant appeared before the Tribunal on 19 July 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

6.    For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

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 comply with Condition 8202?

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

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

9.    The applicant submitted the following documentation:

·     A notarial certificate  dated 18 June 2014 translated from Chinese certifying that the applicant was born on 7 June 1993 in Beijing City and his father is Lijun Xie and his mother is Lixin Wu.

·     A certificate from Shisanling Police Station dated 11 January 2019 translated from Chinese certifying that the applicant’s mother, Lijun Xie, mother’s name is Shuzhi Wang and that she was born 8 November 1940.

·     A hospital medical certificate dated 17 July 2019 translated from Chinese certifying that Shuzhi Wang is a 78 year old woman who had been hospitalised several times from December 2017 to October 2018 due to multiple cerebral infarction whereby such conditions repeatedly worsened to the situation where  she had hemiplegia and was unable to walk.

·     A hospital certificate dated 8 January 2019 translated from Chinese certifying that Shuzhi Wang was hospitalised in the cardiology department B (inpatient unit) for treatment for  heart disease, heart failure, acute myocardial infarction, pericardial tamponade, cardiac functional capacity, cerebral infarction, acute cholecystitis, Level III hypertension, Hyperlipidemia, chronic renal insufficiency, anemia, pulmonary infection, urinary system infection and hypoproteinemia.

10.By the applicant’s own admission and on evidence before the Tribunal, the applicant had not complied with a condition of his student visa. His enrolment ceased with the Zarah Institute of Education on 8 December 2017 and as such, he was not enrolled in a registered course. Accordingly, the applicant, as the holder of a student visa, had not complied with condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations) for at least 10 months before the visa was cancelled.

Consideration of the discretion to cancel the visa

11Having 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’.

Background evidence taken at hearing

12The applicant arrived in Australia in 2014. He was born in China on 7 June 1993 and is 26 years old.  He is single and does not have any children.

13In relation to his family background, the applicant informed the Tribunal that his parents, Lijun Xie and Lixin Wu, both live in China. They are part owners of a restaurant with one of his father’s good friends.

14Prior to arriving in Australia, the applicant studied a construction and engineering course at the Beijing Industrial University from 2011 to 2012. He informed the Tribunal that he did not complete this course.

15The Tribunal had a discussion with the applicant regarding his study history here in Australia.

16The applicant explained to the Tribunal that he came to Australia from China to study a general purpose English language course at the Cambridge International College from 8 September 2014 to 8 September 2015.  After completing this course, the applicant enrolled in a Certificate III and IV in commercial cookery at the William Angliss Institute of TAFE. He told the Tribunal that he commenced the Certificate III course but did not complete this course due to his English language proficiency barrier as well as suffering spinal issues which he told the Tribunal prevented him from being able to stand up to cook for very long periods. 

17In late 2016, the applicant also attempted to complete a Diploma of Hospitality at the Gurkhas Institute of Technology as he did not want to give up on his studies. He stated that he was not able to complete this course because his lack of English comprehension prevented him from being able to comprehend the terminology of the course.

18The applicant subsequently then completed a Certificate IV in book keeping at the Zarah Institute of Education from 10 April 2017 to the 25 September 2017.  He found the subject matter easier to understand because it was numerically based as well as he was able to study with a class mate with whom he was able to clarify the course content.  

19The applicant stated that he then commenced an accounting course at the Zarah Institute of Education on 9 October 2017. However, the applicant told the Tribunal that after a month of studying this course, he found the course difficult because he found the accounting course content was more English language focused and not numerically based. He also told the Tribunal that at that time, he also suffered from insomnia from the stress that he experienced from studying the course content.  For these reasons provided to the Tribunal, he stated that he did not complete this course.

20The Applicant confirmed with the Tribunal he has been in Australia for 5 years and has returned China on or around 28 November 2017 to see his sick maternal grandmother as well as receive treatment for his stress and insomnia. He told the Tribunal that his grandmother suffered acute heart and brain disease. His Chinese doctor also recommended that he have regular check- ups and therefore, on his doctor’s advice, travelled to and back from China for his health between November 2017 and August 2018.

21The applicant testified that the last time he saw his grandmother was in August 2018.

22After arriving back in Australia on 28^th September 2018, the applicant subsequently enrolled in a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management at the Choice Academic College. The applicant explained to the Tribunal that he hopes to complete these courses as there is a family expectation that when he returns home he will take over and eventually inherit his parent’s restaurant and in order to do that, he needs management skills that would allow him to manage a successful business.

23

Since arriving in Australia, the applicant has completed an English course and a Certificate IV in book keeping.

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

24The applicant explained that he wanted to have a good education which would set him up in China and make his family, especially his deceased grandmother, proud. He told the Tribunal that if his visa was cancelled, that it would be very difficult for him to run the restaurant his parents part own.

25The applicant also expressed a need to complete both the diploma and advanced diploma of leadership and management so as to fulfil his maternal grandmother’s last dying wish.  He told the Tribunal that he did not want to “fail” his grandmother. He also stated also did not want to hurt his parents.  The applicant stated he need an opportunity to complete his studies

26

The applicant has indicated that he does not want the Tribunal to cancel the visa because he wishes to complete the advanced diploma course. The applicant further claimed that if he is prevented from studying in Australia because his visa is cancelled, then his future will be limited. 

27

The Tribunal gives these reasons some weight in favour of the applicant.

The extent of compliance with visa conditions

28

The applicant has stated that he has complied with all other conditions on his visa.  There is nothing before the Tribunal to indicate that this is not the case.  The Tribunal gives this some weight in favour of the applicant and not cancelling the visa, however remains mindful that it is expected that all visa holders adhere to the conditions on their visa.

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

29

The applicant explained that his future will be ruined if he is not able to study in Australia as he will not have the appropriate skills to help run and manage his parent’s family business.

30

The applicant also explained that if his visa is cancelled then such cancellation will hurt his parents as they have spent a lot of money from their limited financial resources and he will not be able to face them in China. 

31

The Tribunal accepts that the cancellation of a visa is disappointing.  It also accepts that a significant amount of money is invested in a person in order to set them up in a country to live independently in order to study.

32

The Tribunal also accepts that the hardship is felt by family members who may also feel let down and disappointed.

33

The Tribunal accepts that a cancellation may contribute to the emotional pressure and stress that the applicant may already be facing. The Tribunal appreciates the hardship the applicant and his family may face regarding a cancelled visa, especially in circumstances where the applicant’s maternal grandmother’s illness was outside the applicant’s family and the applicant’s control.  The Tribunal gives these reasons weight in its consideration.

 

Circumstances in which ground of cancellation arose.

34The applicant told the Tribunal that he was suffering stress and insomnia at the time he ceased studying his accounting course. He informed the Tribunal that he subsequently lost concentration and confidence and could not do anything or be able to focus on his studies.

35He also claimed that his maternal grandmother was extremely sick. He stated to the Tribunal that he was particularly affected by his grandmother’s illness because she had raised him whilst his parents worked.  He viewed his grandmother akin to his mother.  He said he was very close to her. 

36The applicant told the Tribunal that because his family’s limited financial capacity, he felt compelled to utilise the money his family had allocated to his course fees to be utilised towards medical treatment for his seriously ill grandmother. On this basis, he testified that he was unable to pay his course fees and therefore, his visa was cancelled.

37The Tribunal accepts that the applicant’s maternal grandmother was extremely unwell with heart and brain issues and repeatedly worsened between on and around the time the applicant ceased his studies to October 2018 when she died.  The medical evidence supplied by the applicant to the Tribunal supports the applicant’s evidence pertaining to her ill health.

38Individually and cumulatively the issues put forward by the applicant pertaining to the circumstances in which the breach occurred are given sufficient weight to outweigh the reasons for the period of time where the applicant was not enrolled.

Past and present behaviour of the visa holder towards the department

39

There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives this some weight in favour of the applicant.

Whether there would be consequential cancellations under s.140

40

This is not relevant to applicant.

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

41In the event the visa is cancelled, the applicant would need to obtain a bridging visa to ensure he is lawful until he makes arrangements for his departure. The applicant could avail himself of migration advice pertaining to his status.

Australia’s international obligations

42

There is nothing before the Tribunal to suggest that the cancellation of the visa holder’s visa would breach any international obligations.  The Tribunal places no weight on this in favour of the applicant.

Any other relevant matters.

11The Tribunal had a quick discussion with the applicant regarding his English comprehension and his view as to whether it is still an impediment for him to complete his studies. The applicant explained to the Tribunal that he is confident that he is now in a position to complete his studies in Australia because whilst he was spending time with his maternal grandmother in hospital where he read a lot of  English books.  The applicant believes his English language and comprehension has improved a great deal.

12The Tribunal accepts the evidence of the applicant that his English has improved as throughout the course of the hearing, the applicant was able to promptly answer questions asked by the Tribunal.  Furthermore, the Tribunal observed that the applicant was able to answer the questions with minimal involvement from the interpreter as in a lot of cases he answered the Tribunal’s questions without waiting for any translation from the interpreter.  The Tribunal places some weight on this observational and testimonial evidence as it confirms the applicant assertions that he has improved with his English comprehension and language.    

13Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

DECISION

14The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Amanda Pearson
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.