Xu (Migration)

[2023] AATA 1216

Xu (Migration) [2023] AATA 1216 (4 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hai Xu

REPRESENTATIVE:  Mr Michael Kah (MARN: 9256535)

CASE NUMBER:  2108660

HOME AFFAIRS REFERENCE(S):          BCC2021/496352

MEMBER:Penelope Hunter

DATE:4 May 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 04 May 2023 at 4:25pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – enrolment in a registered course – gap in studies – applicant charged with criminal offences – limited academic progress – academic misconduct – relationship breakdown – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 48, 116, 119, 120, 140, 359
Migration Regulations 1994, Schedule 2 cl 573.111; Schedule 8, Condition 8202; r 2.43

CASES

Alam v MIMIA [2004] FMCA 583
Fang v MIMIA [2004] FCA 1387
Krummrey v MIMIA (2005) 147 FCR 557
MIMA v Hou [2002] FCA 574
Shrestha v Minister for Immigration and Multicultural Affairs [2001] FCA 359
Zubair v MIMIA (2004) 139 FCR 344

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 June 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(fa)(i) of the Act on the basis that the delegate was not satisfied that the applicant was a genuine student. 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. On 23 August 2023 the applicant was initially invited to attend a hearing before the Tribunal to give evidence and present arguments on 15 September 2023.

4. Following receipt of submissions on behalf of the applicant on 14 September 2022, the hearing was rescheduled and the applicant appeared before the Tribunal on 1 November 2022 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, and his representative participated in the hearing.

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

   Non-disclosure certificate

7. The Department issued a certificate of non-disclose pursuant to s 375A of the Act on 8 July 2022, in respect of certain identified folios in the Department file. Under s 375A of the Act, a delegate of the Minister may certify in writing that the disclosure of any matter contained in the document, or of the information contained within, would be contrary to public interest.

8. The operation of s 375A Act is dependent on the existence of a valid certificate. The relevant certificate is signed and dated by the identified officer. It sets out the reasons for the claim of confidentiality, being the disclosure of lawful methods of preventing, detecting and investigating breaches or evasions of law which would be likely to prejudice the effectiveness of those methods. A copy of the certificate was provided to the applicant on 30 August 2022, and submissions were invited as to validity. The applicant was further advised that the Tribunal could reveal that the information generally related to communication provided to the Department by other agencies regarding matters which were disclosed to the applicant. It was further noted that the relevant information was the subject of the notice pursuant to s 120 of the Act dated 8 April 2021 and sent to the applicant for comment and was contained in the decision record of the delegate. The information related to events which occurred on 19 November 2020 where the applicant was arrested by the NSW Police and charged with criminal offences, his period in custody and release on bail. The applicant was further advised that if arising from further evidence presented at the hearing, there is any information which may give rise to an adverse inference, the Tribunal would seek to discuss the matters with the applicant at hearing pursuant to the procedure under the Act.

9. On 8 September 2022, the Tribunal received a response from the representative from the representative of the applicant claiming to be unsure of the context of the information covered by the certificate and therefore were unable to provide comment. A request was further made to release the Provider Registration and International Student Management System (PRISMS) records of the applicant so that he could provide a full response.

10. On 12 September 2022, the Tribunal released to the applicant a copy of the PRISM records contained in the Department file together with a copy of his enrolment records obtained by the Tribunal.

11. No further submissions in relation to the certificate were received by the Tribunal prior to the hearing. At the hearing, on 1 November 2022, the Tribunal invited submissions in relation to the validity of the Certificate and no dispute was advanced by the applicant or his representative.

12. The Tribunal is satisfied that the certificate has been appropriately executed and a valid reason for the issue of a certificate has been demonstrated. The Tribunal finds that the certificate is valid.

    Does the ground for cancellation exist?

13. A visa may be cancelled under s 116(1)(fa)(i) if the Minister is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s 116(1)(fa)(ii) if the student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

14. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in s 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

15. For matters where the notice of proposed cancellation under s 119 was sent on or after 27 March 2010, there are prescribed matters to which the decision-maker may have regard in determining whether the ground for cancellation under s 116(1)(fa) exists: s 116(1A), reg 2.43(1C) and (1D) of the Migration Regulations 1994 (Cth) (the Regulations). The prescribed matters are set out in the attachment to this decision.

16. The applicant is a 23-year-old male citizen of China who was granted a student visa on 22 January 2018 to undertake study in an English language program until August 2018, then a Diploma in Accounting, Commerce and Business Administration until November 2019, and then a Bachelor of Commerce degree at Macquarie University ending on 31 December 2021.

17. The applicant has provided a copy of the decision record of the delegate to the Tribunal, this sets out that on 12 March 2021, the Department sent to the applicant a NOICC of his visa under s 116 of the Act.

18. On 19 March 2021, the applicant responded to the NOICC and provided an explanation letter and a psychological report of Helen Qin Counselling dated 17 March 2021.

19. On 8 April 2021, the applicant was issued with a notice under s 120 of the Act putting additional information to the applicant for comment, which may be relevant to the consideration to cancel the visa.

20. On 22 April 2021, the representative for the applicant provided a response to the notice pursuant to s 120 of the Act, together with an email from the applicant’s education agent showing the 2019 course arrangement, screenshots related to the applicant, details of his travel in February 2022, and a copy of the applicant’s transcript for the Diploma of Accounting, Commerce and Business Administration – Macquarie University Internal Record issued 4 January 2021.

21. The delegate considered the information and submissions however found that the grounds for cancellation existed and found that the applicant was or was likely not to be a genuine student. The decision record of the delegate sets out that they gave consideration to the following:

    i.The applicant’s original English language course was scheduled to take four months, from 27 April 2018 to 26 August 2018. The applicant did not complete the course until 5 July 2019. He took approximately 11 months longer than scheduled to complete the course.

    ii.There was a gap of three months between the applicant completing his English language course on 5 July 2019 and him commencing his diploma on 8 October 2019 for which he had offered no explanation.

    iii.The transcripts provided by the applicant disclosed only part-time enrolment in the first two terms of his diploma course, which was prior to the Covid-19 outbreak. It was not accepted that the applicant genuinely continued to study until January 2020.

    iv.The transcript for the applicant’s diploma indicated that he continued studying part-time in 2020, undertaking only two subjects during the entire year and passing only one subject. The applicant had confirmed that he had undertaken these subjects from March 2020, and did not enrol in any subjects during the second-half of 2020, therefore the delegate concluded that the applicant spent a total of two-and-a-half months studying in 2020.

    v.Although the applicant claimed he had experienced technical difficulties online and this was a reason he sought a deferment of his studies between July and October 2020 he had offered no evidence of the reason he provided to the education provider for the deferment and it was considered by the delegate to be an inadequate justification for a deferment of his already delayed studies.

    vi.The delegate considered the existence of applicant’s criminal charges and the fact that he has spent over three months in custody would be directly relevant to an assessment of his mental health. This was not mentioned by Ms Qin in her report. There was also no reference to the applicant having seen Ms Qin or another health professional prior to March 2021. In the absence of such information it was not accepted that the report was a reliable assessment of his mental health.

    vii.The delegate was not convinced that the full-time enrolment of the applicant in his course since March 2021 supported his claim that his primary purpose in Australia was to study. The enrolment was recent and the applicant had provided no evidence of his attendance or progress in the academic subjects in which he was enrolled. He had also not provided any evidence of what he was doing in Australia during his previous periods of deferment and part-time study and what reasons he had provided to his education provider regarding his circumstances at the time.

    viii.The applicant had not provided any explanation of the circumstances that led him to be charged with the offences by the NSW Police of take/detain person with intent to obtain advantage and take/detain in company with intent to get advantage occasioning actual bodily harm, relating to the violent enforcement of a repayment of a gambling debt owed to him and others. The response of the applicant that he enjoyed playing cards with friends as a social outlet was not accepted. 

22. The Tribunal received an application for review from the applicant on 2 July 2021.

23. On 14 September 2022, the Tribunal received submissions from the representative of the applicant dated 13 September 2022. These included a statement from the applicant, copies of his education packages, a completion letter for English issued by Macquarie University, Course handbook, Macquarie University internal record eStudent dated 12 September 2022, updated CoE for the applicant for a Diploma of Commerce between 24 March 2021 and a Bachelor of Commerce between 19 July 20221 and 30 June 2023. In their submission the applicant’s representative claimed that the grounds for cancellation did not exist because the Department had failed to meet procedural requirements pursuant to s 120 of the Act in the NOICC dated 12 March 2021, and the s 120 Notice dated 8 April 2021. In summary the following objections were raised:

    i.The NOICC contained incorrect information thatt the applicant’s English Language Program CoE ID 98E2B96 at Macquarie was for 35 weeks not four months as set out by the delegate in the NOICC. He did not pass English for the first five months. The applicant’s CoE was extended, for a further five months and he successfully completed English on 27 September 2019. The applicant did not defer his English course, but spent an additional seven months in his study of English, not more than a year than he initially proposed found by the delegate.

    ii.In the NOICC, the delegate did not disclose all the information contained in the applicant’s PRISMS records regarding his English enrolments which was misleading.

    iii.The delegate had particularised an incorrect chronology of events regarding the applicant’s degree course. The applicant was also not enrolled part-time as alleged.

    iv.In the NOICC it was put to the applicant that he had not undertaken any study in Australia since 17 June 2020 notwithstanding that Macquarie University granted him a deferral on 17 June 2020.

    v.To the extent that the delegate’s notice pursuant to s 120 of the Act referred to the applicant’s criminal charges and the time he had spent in criminal custody, it did not relate to the applicant’s conduct as a student and this was not a relevant consideration in relation to the cancellation ground under s 116(1)(fa)(i).

24. On 14 September 2022, the Tribunal issued a summons in respect of the applicant’s study history with Macquarie University. This material was subsequently produced to the Tribunal on 26 September 2022.

25. On 7 October 2022, the Tribunal provided to the applicant a complete copy of the documents produced under summons, a copy of the summons and invited the applicant to comment on particular information identified in the material pursuant to s 359A of the Act. The applicant was invited to comment on the following information which he was informed may support a finding by the Tribunal that he was not or was not likely to be a genuine student pursuant to s 116(1)(fa)(i) of the Act or information that may weigh in favour of the exercise of the discretion not to cancel the visa:

    i.         Item 1

    ·His course attendance percentage for his English Language Course was recorded, as at 3 July 2019, to be 68.53 percent before the percentage was recalculated following a new enrolment.

    ·He was issued a Notice of Intention to report letter from Macquarie University to the Department of Home Affairs on 10 April 2019 and 5 July 2019.

    The applicant was informed that this information was relevant to the review because in his statement to the Department on 19 March 2022 and his statutory declaration to the Tribunal on 12 September 2022, he claimed that progress in English courses was due to his struggle to adapt to different teachers because the school changed teachers every five weeks. The applicant was told that the information was important because if the Tribunal relied upon it, it may find that his failure to progress academically through the General English Course was not due to the teachers changing every five weeks but due to his lack of attendance.

    ii.         Item 2

    ·     On 19 March 2020, the Macquarie University Disciplinary Committee resolved to award him a fail grade for the course WACB100 Academic Communication in Business & Economics as he was found to have engaged in contract cheating and dishonesty, this breach having been detected on 22 November 2019.

    The applicant was informed that this information was important because unacceptable academic activity and breaches of the student code of conduct may not be considered the actions of a genuine student. Further he had made statements to the Department and the Tribunal that he had always been a genuine student with knowledge of the matter. The applicant was told this information was because it may be considered that the declarations he had made are misleading, unreliable or false.

    3. Item 3

    ·     In March 2020, information produced by the Macquarie University Disciplinary Committee indicates that he was under investigation due to his academic conduct in the course WACB100 Academic Communication in Business & Economics, this breach having been detected on 22 November 2019.

    The applicant was informed that the information was important because in the psychological report that he relies upon by Helen Qin Counselling dated 17 March 2021, she reported only an incident where it is alleged that his computer froze during an exam in 2020 and that the applicant had found online study challenging as reasons for his symptoms of psychological distress, and no mention is made as to the investigation by the university as to his conduct as a student.

    4. Item 4

    ·     On 6 December 2021, the Macquarie University Disciplinary Committee resolved to award him a fail grade for WACC1000 Accounting in Society in Term 2, 2021 as a consequence of being found to have engaged in contract cheating to complete the Presentation Class Test and Final Examination in WACC1000 Accounting in Society. He was further excluded from enrolment at Macquarie University and all university activity for one term and his re-enrolment restricted until completion of the MUIC Focus on Academic Honesty Module.

    The applicant was informed that this information was important because he had made declarations to the Department and the Tribunal that he had always been a genuine student with knowledge of this matter.

    5. Item 5

    ·     According to records produced by Macquarie University he was  originally awarded an SC (Special Consideration) grade for the subject WACC1000 Accounting in Society in Term 2, 2021, with an actual final mark of 35.5. This was only changed to a fail mark after December 2021, when he was found responsible for a breach of academic integrity.

    The applicant was informed that the above information did not corroborate his claims in his statement to the Department of 19 March 2021 or his statutory declaration to the Tribunal of 12 September 2022, that when he undertook the final exam he had technical connection problems, that caused you to lose exam time and Macquarie University failed him for this reason.

    6. Item 6

    ·     On 3 February 2022, the Macquarie University Disciplinary Committee resolved to award him a fail grade for WACO1003 Academic Communication in Business, undertaken in Term 2 2021, as a consequence of being found to have engaged in contract cheating in WACO1003 Academic Communication in Business. He was further excluded from enrolment at Macquarie University and all university activity for one term and his re-enrolment restricted until completion of the MUIC Focus on Academic Honesty Module.

    The applicant was informed that the above information was important because he had  made declarations to the Department and the Tribunal that he had always been a genuine student with knowledge of the matter.

    7. Item 7

    ·According to records obtained from Macquarie University his attendance in the course WACO1003 Academic Communication in Business undertaken in Term 2 2021, was 42.50%.

    ·According to an internal Macquarie University email dated 10 May 2021, his performance in the subject was assessed in the following terms, ‘the student rarely attended class, and when he did so, he kept of the screen and did not engage in class discussions. When invited to make a comment there was no response, generally followed by a quick disappearance’.

    The applicant was informed that the above information was important because he had  made declarations to the Department and the Tribunal that you have always been a genuine student with knowledge of the matter.

1. On 21 October 2022 the Tribunal received submissions, and a statutory declaration of the applicant. In summary the applicant contended the following:

   i.As the delegate was unclear of the facts, it constituted a failure to meet a jurisdictional prerequisite in exercising the cancellation power under s 116 of the Act.

   ii.None of the information contained in the summons material was raised in the NOICC or the s 120 notice, and the Department documents, which were arguably invalid, had distracted the applicant in March 2021 and caused him to stress and improperly focus on his studies.

   iii.In addressing Item 1 the applicant claimed that for his first course of English between April 2018 and August 2018 his attendance was 95.98, his failure to progress was not due to lack of attendance. He then re-took the English course, during this time he had a change of teachers, experienced a relationship break up, disputes with flat mates and bad mental health affecting his course attendance. Had an unhappy childhood that led to difficulties in communication, his biological parents divorced and re-married and he was adopted by his current parents. He felt isolated and socially withdrawn. It was claimed that his unsatisfactory attendance was due to temporary misadventure and should not be held against him.[1]

   iv.In response to Item 2, the applicant conceded the disciplinary action whereby he was awarded a fail grade for the course WACB 000 on 19 March 2020 because he was found to have engaged in contract cheating and dishonesty to complete the Integrative Summary task and research report on 22 November 2019, resulting in a breach of the student code of conduct. It was claimed that this should be given limited weight as this was his first misbehaviour in his first semester of the Diploma course.

   v.In response to Item 3, the applicant conceded that he made a mistake and received the punishment and accepted a fail grade. He only mentioned to Helen Qin the technical problem during an exam because he experienced technical connection problems and the negative impacts from the COVID-19 pandemic. The applicant contended that this should not be considered against him.

   vi.In response to Item 4, the applicant has conceded that Macquarie University awarded him a fail grade for the course WACC100 on 6 December 2021 because he was found to have engaged in contract cheating to complete the presentation class test and final examination, which resulted in a breach of the student code of conduct. He further conceded that during the investigation he was excluded from enrolment at Macquarie University for one term and his re-enrolment restricted. The applicant however invited the Tribunal to give limited weight to the information as he was distracted due to being the subject of criminal proceedings and his possible student visa cancellation.

   vii.In response to Item 5, the applicant disputed the concern of the AAT that his failure mark was due the problems with connection while completing an exam online were not supported by the evidence. The applicant did not accept that he had provided inconsistent information.

   viii.In response to Item 6, the applicant conceded disciplinary action arising from the finding on 3 February 2022 that he had engaged in contract cheating for the course WACO1003, Essay and Business Reports assessment in Term 2. He invited the Tribunal to give limited weight to the information because he was distracted by being the subject of criminal proceedings and his possible student visa cancellation.

   ix.In response to Item 7, the applicant requested that the Tribunal give limited weight to this information as he was very distracted being the subject of criminal proceedings.

   [1] Shrestha v Minister for Immigration and Multicultural Affairs [2001] FCA 359.

2. At the hearing, the Tribunal acknowledged that there was some factually incorrect information contained in the NOICC issued by the delegate. Particularly, it was accepted from the applicant’s PRISM records that his initial English enrolment was extended for five months and then a further two months. Further there were incorrect particulars of the start and end dates of some of the applicant’s courses. In addition it was accepted that the applicant studied English from 30 April 2018 to 27 September 2019, and then a Diploma course from October 2019 and June 2020, and that for almost two years since the applicant first entered Australia he was studying.

3. In the first instance the Tribunal is satisfied that the delegate did notify the applicant of the proposed cancellation in accordance with s 119 of the Act, and did put to the applicant some relevant adverse information. The delegate also waited for a response from the applicant. Furthermore, while the Tribunal may not on review make the same findings on the information it is satisfied that it was appropriate for the delegate to afford the applicant procedural fairness in setting out information that it had regarding the applicant’s criminal charges in the invitation to comment pursuant to s 120 of the Act. To the extent that this information was misleading or in error as claimed by the applicant, and any error amounting to a lack of procedural fairness for the applicant, it is noted that procedural defects at the primary level do not necessarily constrain the Tribunal and are curable on review.[2] The Tribunal has at its disposal its own procedural fairness mechanism for example in s 359A, and relevant information was sent to the applicant for comment in writing as set out above. The Tribunal notes the decision in Fang v MIMIA[3] where the court confirmed that the former Migration Review Tribunal (MRT) had jurisdiction to review even where the delegate’s decision may be legally ineffective and that to the extent there may have been a defect in the delegate’s decision, the full merits review in the MRT was able to cure that defect.

   [2] Zubair v MIMIA (2004) 139 FCR 344 at [28], [32]; Krummrey v MIMIA (2005) 147 FCR 557 at [3] and Alam v MIMIA [2004] FMCA 583 at [42] following Zubair.

   [3] Fang v MIMIA [2004] FCA 1387 at [28],[32]

4. Departmental policy, which is not necessarily binding on the Tribunal gives the following examples of circumstances in which s 116(1)(fa) may apply:

   • there is evidence that the visa holder is not attending their course (for example, they are located working in another State/Territory while their course is in session) but they are complying with condition 8202;
   • the visa holder is enrolled but has extensive periods without actual study (for example, if they are enrolled in a future course but have an unreasonable period without actual study);
   • the visa holder is unaware of the details of their course or the location of their education provider;
   • the visa holder has arranged for another person to attend many classes or exams on their behalf;
   • the visa holder admits at interview that the primary purpose of their travel to, or stay in, Australia is to work;
   • there is evidence that the visa holder has been in Australia for a significant period of time but has not completed any course of study and is not demonstrating a pathway to an educational qualification or outcome;
   • there is evidence that a deferral was granted by an education provider for non-genuine reasons; this could include the student claiming that a family member has died and this is proven to be false, or that the student was granted a deferral to leave Australia for personal reasons and never left;
   • the circumstances prescribed in r 2.43(1D)(a) exist – the course of study has been deferred due to the student’s misbehaviour;
   • the circumstances prescribed in r 2.43(1D)(b) exist – this provision could be used if the visa holder has been granted a deferral by their education provider for reasons that are not compassionate or compelling or beyond the student’s control, such as to allow them to work;
   • the circumstances prescribed in r 2.43(1D)(c) exist – could be used if a deferral is granted by an education provider for legitimate reasons such as a personal illness and the student has recovered and is fully able to resume studies but has not done so;
   • the circumstances prescribed in r 2.43(1D)(d) exist – a deferral of study has been granted based on fraudulent or misleading documents or evidence;
   • there is evidence, such as a statement made by the visa holder, that their primary intention for travelling to Australia is for purposes other than study.[4]

   [4] Policy – Visa cancellation instructions > General visa cancellation powers (ss 109, 116, 128, 140) – s 116(1)(fa) – Non-genuine students and conduct not contemplated by the visa – Non-genuine student – s 116(1)(fa)(i).

5. As to the possible ground for cancellation, the Tribunal considered the following and discussed these matters with the applicant at hearing:

   i.       the information in the NOICC that after entering Australia on a student visa on 4 April 2018, he had spent 972 days in Australia and only successfully completed an English language program. 

   ii.       The information contained in the NOICC that on 14 December 2020, the applicant’s education provider cancelled his CoE on the basis of non-commencement of studies, and a new enrolment was not recorded until 10 March 2021.

   iii.       The information in the NOICC that the applicant had not undertaken any study between 17 June 2020, and 26 March 2021, due to deferrals and cancellation of his enrolments.

   iv.       The information in the Tribunal’s s 359A letter that the applicant’s course attendance percentage for his English Language Course was recorded, as at 3 July 2019, to be 68.53 percent before the percentage was recalculated following a new enrolment.

   v.       The information in the Tribunal’s s 359A letter that he was issued a Notice of Intention to report letter from Macquarie University to the Department of Home Affairs on 10 April 2019 and 5 July 2019.

   vi.       The information in the Tribunal’s s 359A letter that on 19 March 2020, the Macquarie University Disciplinary Committee resolved to award him a fail grade for the course WACB100 Academic Communication in Business & Economics as he was found to have engaged in contract cheating and dishonesty, this breach having been detected on 22 November 2019.

6. The applicant claimed that he had to extend his enrolment because he was not familiar with the environment and he was not very used to 100% study in English and he did not pass. At the hearing the applicant told the Tribunal that he had studied English before he arrived in Australia. He said that for his last three years of high school in China he attended a school where the language of instruction was English. He later qualified this by claiming that his textbooks were in English but the teachers would speak in Chinese. He had boarded at the high school for three or four years and it was situated in Beijing. One of his current flatmates in Australia had been a classmate in Beijing.

7. He claimed that he had gone to school every day when he first arrived in Australia. The Tribunal considered that his overall attendance records for his English language program do not support that he maintained this level of attendance for the 12 months that he took to undertake the course. In the written submissions dated 21 October 2022, it was claimed that the applicant’s unsatisfactory attendance in the latter part of his English studies was due to temporary misadventure. Subsequent attendance records for the study the applicant undertook in 2022, as set out to the applicant pursuant to the provisions of s 359A do not support that this was a temporary phenomenon.

8. The applicant confirmed for the Tribunal that he understood that there were conditions attached to the grant of his student visa, but not the specifics of those conditions. He identified only that he was to attend classes. He claimed that he was not aware that when he deferred a class that his enrolment was not maintained. The Tribunal considered that it was incumbent upon the applicant to ensure that he was aware and abided by the conditions of his visa. He has not disputed this period of non-enrolment.

9. Further the applicant did not dispute that on 19 March 2020, the Macquarie University Disciplinary Committee resolved to award him a fail grade for the course WACB100 Academic Communication in Business & Economics as he was found to have engaged in contract cheating and dishonesty to complete the Integrative Summary task and research report. This breach having been detected on 22 November 2019. At the hearing he told the Tribunal that at this time it was the first time he had done a proper subject like the one he was enrolled. He said that he did not know how to write essays so he had asked his classmate for advice and they recommended that he find someone else to help him so he got someone else to help him. According to the Macquarie University internal record eStudent, dated 12 September 2022, submitted by the applicant, it was not the first subject that he had done in his diploma course. Further, it was not a one off incident but two separate incidents. 

10. On the material before it, the Tribunal is satisfied that, as at the date of the delegate’s decision, the applicant had been in Australia for 972 days and only successfully completed an English language program which had been extended on two occasions. The applicant was also issued in respect of his English studies a Notice of Intention to report letter from Macquarie University to the Department of Home Affairs on 10 April 2019 and 5 July 2019 and at times had an unsatisfactory attendance rate. The Tribunal is also satisfied that the applicant was granted a deferral of his studies in the Diploma of Accounting on 17 June 2020, did not immediately re-enrol in the diploma and then had his enrolment in the Bachelor of Commerce cancelled on 14 December 2020. The applicant was also not enrolled in any course of study between 14 December 2020 and 10 March 2021.  Also on the evidence while the applicant there was an unreasonable period during which the applicant did not engage in any study, although he maintain some enrolment he did not engage in any study 17 June 2020 and 24 March 2021. The Tribunal is further satisfied that the applicant engaged in contract cheating and dishonesty in two assessments he undertook in the subject WACB100 Academic Communication in Business & Economics of  as part of his diploma course by arranging for another to complete the assessments on his behalf. 

11. The Tribunal finds that this behaviour is evidence of an unsatisfactory study record, and not mere transient misadventure. Further, such an unsatisfactory study record demonstrates that the applicant may not have been committed to his studies, or in Australia for the primary purpose of study. The Tribunal is satisfied that this overall pattern of conduct is sufficient to support a finding that the applicant is not, or is not likely to be, a genuine student.

12. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(fa)(i) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    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

13. The purpose of the visa was to allow the applicant to lawfully remain in Australia while studying fulltime registered courses including an English language program, a Diploma of Accounting and a Bachelor of Commerce. He was granted a visa until 15 March 2022 to allow him sufficient time to complete his package of study.

14. The applicant told the Tribunal at the hearing that he would like to continue his studies in Australia as he believed he would have better employment prospects and that he would satisfy the expectations of his family with overseas qualifications.

15. The Tribunal has considered that the applicant’s initial student visa has expired. In the period in which he studied prior to the cancellation decision the applicant completed only an English language course and four subjects of eight attempted towards his Diploma of Accounting. The Tribunal is not satisfied that he is halfway through his Diploma. Due to his previous findings of academic misconduct, the applicant also has any future enrolment restricted until he completes the MUIC Focus on Academic Honesty Module.

16. Although it is accepted that the applicant would prefer to obtain his qualification in Australia. Yet, the Tribunal is not satisfied that the applicant is unable to study relevant courses in his home country. The applicant claimed that this would cost him additional money and time. On the information before the Tribunal the applicant has experienced difficulties progressing through his courses in Australia, and any further study is likely to also cost him considerable money and time. While studying in Australia the applicant has claimed problems arising from the quality of his teachers, disputes with flatmates, a relationship breakdown, method of course delivery and homesickness. His education provider has also documented problems with attendance, participation and compliance with academic standards. Many of these problems may not arise for the applicant were he to study in his home country.

17. The applicant has submitted that he intends in the future to work in his family business. While his parents may have high expectations for him, there is no evidence that an Australian qualification is a requirement for this career. His brothers are studying in China. The applicant detailed in his statutory declaration of 12 September 2022 that his parents have financial resources and they have considered in the past an option for him to study in the United Kingdom. The Tribunal is of the view that there are other study options available to the applicant. It has considered the applicant’s evidence on this factor, however, on the material before it, the Tribunal is not satisfied that the applicant has a compelling need to travel and remain in Australia.

18. The Tribunal gives this discretionary factor little weight in favour of the applicant.

    The extent of compliance with visa conditions

19. The NOICC and the delegate’s decision record set out that on 14 December 2020 his last CoE was cancelled by his education provider and it was not until 10 March 2021 that Macquarie University recorded a new CoE. The applicant’s visa was subject to condition 8202. Condition 8202(2)(a) requires that the applicant must be enrolled full-time in a registered course.

20. The submissions received mainly address whether or not the applicant had enrolled part-time. However, those provided on 12 September 2022 do canvass that due to the lack of enrolment a ground for cancellation of the applicant’s visa pursuant to s 116(1)(b) of the Act may have been appropriate. When the Tribunal asked the applicant at the hearing as to whether he was aware that his visa contained conditions, he said he was but not the specifics just that he had to attend classes.

21. As to the circumstances in which the failure to comply with the condition arose, the applicant has submitted to the Tribunal that he deferred his enrolment in the diploma until 17 June 2020 because he was unable to adapt to online learning. He claims that it was his intention to resume study in 2021 when face to face classes resume. However he did not obtain a further enrolment in the diploma until March 2022. When asked at the hearing what he thought a deferral would mean in relation to his status of being enrolled, the applicant claimed that he did not think about that scenario as he was traumatised by online classes. It appears that the applicant took no active steps to ensure he maintained enrolment.

22. It is also noted that the applicant was in criminal custody for much of the period that he was without enrolment. This was not the cause of his absence of enrolment. The applicant also told the Tribunal that he entered a guilty plea to a charge arising from this event. The Tribunal is therefore not satisfied that this was an incident outside his control. He was fortunate that his enrolment in the bachelor degree was not cancelled when he deferred his enrolment in the diploma in June 2020, and the period of non-enrolment was not greater. Having not completed the diploma the applicant would not have been eligible to proceed with the bachelor course in any event.

1. The Tribunal finds that the applicant did not comply with condition 8202(2) and was not enrolled in a registered course of study from 14 December 2020 until he obtained another enrolment on 10 March 2021. This is also one of the factors that the Tribunal has considered as giving rise to the ground for cancellation and would of itself give rise to a ground for cancellation of the visa. The Tribunal is mindful that it is expected that all visa holders adhere to the conditions of their visa.

2. It is noted that there is no other evidence of non-compliance, the Tribunal gives this discretionary factor no weight in favour of the applicant.

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

3. The applicant claimed that it would cause him hardship if he was not permitted to remain in Australia. He claimed that the high school he had attended in China was one that specialised in preparing students for overseas study. He argued that if he had to go back to China he would need to re-start his studies and this would cost him and his family time and money.

4. With the completion of his English studies the applicant has arguably improved his language skills. He has not wasted his family’s money and gained the benefit of these studies. While the applicant has paid course fees for his diploma studies, he has at least half the course to complete plus additional units in ethics. He is under academic restrictions and probation due to his past conduct. His academic record to date is not impressive and the applicant has expressed considerable difficulties with the style of instruction, the challenging nature of course material and issues with teachers, all of which he claims have caused obstacles to his successful study. It is considered that the applicant is not without future study options in his home country or elsewhere. The further studies he claims to desire in Australia will involve considerable further time and further expense to his family in any event. The applicant has not demonstrated any financial hardship that will arise if the visa is cancelled.

5. While it is acknowledged that the applicant feels that he may disappoint his family by not completing his studies in Australia, it appears that they have continued to support him throughout his difficulties. They have also supported him through his criminal charges, and he told the Tribunal that they would support him if he returned to China. It also appears that they would still continue to support him through any future studies. The applicant has set out in his statutory declaration of 12 September 2022, that he intends a future at senior management level in the family business. It is not demonstrated that he could not achieve this goal through studies in his own country or another country of his choosing.

6. The Tribunal gives this consideration low weight in favour of the applicant.

   Circumstances in which ground of cancellation arose.

7. The Tribunal has considered the academic performance of the applicant in only completing an English language program after 972  days in Australia, and the information from Macquarie University regarding his course attendance, and the fact that he was on 10 April 2019 and 5 July 2019 issued with a notice of intention to report as a factor demonstrating that he was not likely to be a genuine student.

8. The applicant has submitted that he had applied himself to his English studies and he struggled to adjust to the new environment, and that he his difficulties were compounded by different teachers which changed every five weeks. Upon the Tribunal sending him information summonsed from Macquarie University to comment, the applicant provided a statement to the effect that he had applied himself to the study of his English course every day. He has also submitted a report from Helen Qin Counsellor dated 15 September 2019. 

9. The Tribunal has carefully considered the evidence and submissions of the applicant. It is accepted that learning a new language can be challenging. In this regard the Tribunal is mindful that the applicant had undertaken several years of educational instruction in English before he arrived in Australia. While he may have applied himself initially to his course, his attendance records and fact that he was on two occasions issued with notices to report do not demonstrate that he applied himself daily to his studies. The Tribunal is not satisfied that the applicant’s difficulties arose mainly due to teacher changes. The Tribunal also asked the applicant about factors he reported to Ms Qin in September 2019 that he claimed were causing him psychological distress and impacting his studies. When asked about his relationship breakdown the applicant had difficulty recalling the name of his partner, and ultimately, after some delay, only able to provide to the Tribunal her first name. As to his problems with his flatmates, one of these individuals was a friend of the applicant with whom he used to board at school in China. He claimed the issue was that domestic chores fell upon him. However, he told the Tribunal that he did not raise the matter with his flatmates, and therefore did not take any reasonable action to address this issue. As to his other stressors arising from the new environment in Australia and his residual problems from his difficult childhood due to his parent’s divorce, Ms Qin recommended that the applicant access ongoing psychological support for treatment. The applicant told the Tribunal at the hearing that he did not follow up on any treatment. The applicant did not act on the recommendation of the treating professional he consulted. He told the Tribunal that he was not aware of Ms Qin’s recommendation that he have ongoing treatment. The Tribunal finds it difficult to accept that the applicant did not know the content of a report that he seeks to rely upon. The applicant sought and obtained advice as to how to improve his mental health during his studies. The fact that he did not act upon this advice is not considered by the Tribunal to be a circumstance beyond his control, and demonstrates that he either did not consider his mental health was affecting his study or he was not willing to undertake steps to assist his studies. All of which indicate the lack of bona fides of the applicant as a student.

10. As to the circumstance where the applicant had not undertaken any study between 17 June 2020, and the 23 March 2021, due to deferrals and cancellation of his enrolments, the applicant claimed that he had struggled with the online learning environment. He claimed that he wished to defer his studies until face to face learning resumed. There is no evidence in the material summonsed from Macquarie University that the applicant sought assistance to cope with the online environment at any time. The applicant did not provide any information to the Tribunal seeking assistance or support. There is no evidence that a deferral was granted for this extended period. While it is accepted that the online learning environment can be challenging, the Tribunal is not satisfied that the material available from his education provider corroborates his claims or that the applicant is a reliable witness on this matter. The significant gap in his studies were circumstances in the control of the applicant, they are not on the information before the Tribunal of a transient misadventure.

11. In addition, the applicant claimed that he was also traumatised in term two of 2020 by an event during an exam where his computer froze and he submitted late and subsequently failed the course. The Tribunal has had regard to the fact that there is no evidence to corroborate his claims of his computer freezing and his exam being submitted later in the documents produced on summons by Macquarie University. At the hearing the applicant claimed that he had emailed his course supervisor and told them that he was unable to submit his final exam on time. He also claims he received a response. The applicant further indicated he would probably be able to find the records for the Tribunal. As was discussed with the applicant at the hearing, it was considered that if such material existed he had ample opportunity to produce any further records corroborating his claim to either the Department or the Tribunal and the fact that he had not done indicates that his claims lacked credibility. Particularly as the Tribunal had put its concerns in writing to him on this issue prior to the hearing. It is also noted that the applicant was not initially awarded a fail grade in this subject but an SC (special consideration).[5] He was subsequently awarded a fail grade upon re-attempting this subject and a finding of academic misconduct, as discussed below. There has also been no further evidence submitted by the applicant post hearing to corroborate his claims at hearing that he contacted his course provider. The Tribunal is not satisfied on the material before it that the claims of a computer malfunction during an exam are reliable.

    [5] Macquarie University Internal Record for student Hai Xu dated 19 September 2022.

12. However, there is evidence that in the semester he undertook prior to this on 22 November 2019, a breach was detected and the applicant, in the course WACB100 Academic Communication in Business & Economics, and he was found to have engaged in contract cheating and dishonesty in the Integrative Summary task and research report. The applicant does not dispute this finding. He told the Tribunal at the hearing that there was no exam in the subject and he was told by a friend that he should just get someone else to write the essay. He also claimed that he didn’t really know how to write essays and again attributed his actions to his classmate’s advice. In submissions from his representative it is claimed that the applicant did not understand the seriousness and that it was a mere first misbehaviour in his first diploma course. The Tribunal considered that the applicant should recognise the difference between obtaining assistance with the course, for example from a tutor, and having someone else do the work for him. It does not accept that the applicant would fail to comprehend this was a serious matter and it is not considered this was a reasonable excuse for engaging in the behaviour. The Tribunal also does not accept that it should be disregarded as a mere first misbehaviour during his first diploma course. The applicant’s enrolment records reflect that he was enrolled in this course during his second semester in 2019, therefore it was not his first subject in the diploma. Further, the finding related to two incidents, the integrative summary and the research report.[6] The Tribunal is also not satisfied that any difficulties that the applicant claims he experienced with the course material, his social isolation and his lack of friends did could excuse this conduct. It is something within the control of the applicant and not an innocent mishap.

    [6] Minutes of the Meeting of Macquarie University, University Disciplinary Committee held on 19 March 2020.

13. Furthermore, this incident was not the only time the applicant engaged in this conduct. While on probation[7] for the above further incidents of unsatisfactory academic conduct were detected when he resumed study in 2021 in both of the subjects he undertook. When he retook the subject of WACC1000 Accounting in Society, the applicant was found to have engaged in contract cheating to complete the presentation, class test and final examination.[8] Also in the subject of Academic Communication in Business, WAC01003, the applicant was found to have engaged in contract cheating to complete the assessments of Reflection 2, the Integrative Essay and the Business Report.[9] These are multiple examples of unsatisfactory conduct as a student. The applicant has not provided a reasonable excuse for this action. He had already been disciplined for this conduct by his education provider. He had no excuse for not understanding the seriousness of the breaches. He blamed the matter on stress arising from his criminal charges and concern over the potential cancellation of his student visa. Yet the stress of his criminal charges was not considered a matter impacting upon his studies when he consulting Ms Qin in March 2021. The Tribunal does not accept this as a credible or reasonable excuse for further dishonest behaviour. It demonstrates that the incidences in 2019, on which part of the finding that the applicant was not likely to be a genuine student were based were not a transient misadventure or temporary event.

    [7] As above

    [8] Minutes of the Meeting of Macquarie University, University Disciplinary Committee held on 6 December 2021.

    [9] Minutes of the Meeting of Macquarie University, University Disciplinary Committee held on 3 February 2022

14. As to the applicant’s period of non-enrolment, this came about because the applicant deferred his study and did not attend to obtaining a further enrolment. It is incumbent upon the applicant to understand the conditions of his visa. It is not accepted that he could reasonably think that he could defer his studies for one semester, not re-engage the following semester and that he would remain enrolled. He would further have been aware that he was not in a position to commence his bachelor degree having not completed the relevant units of study in his degree. To the extend that the applicant’s incarceration in relation to charges arising from an alleged violent enforcement of a gambling debt prevented him from studying, the Tribunal is also not satisfied that this was a circumstance beyond the control of the applicant. 

15. Finally, the Tribunal has also had regard to the second report of Helen Qin dated 17 March 2021. She does not make reference to many of the factors such as a relationship breakdown, disputes with flatmates, homesickness, and social isolation from the divorce of his parents that the applicant claims impacted on his studies in 2019. At the hearing the applicant asserted that these issues were still affecting him in 2021. She also does not make mention of the findings against the applicant of unsatisfactory student conduct. Neither does she mention the stress from the criminal charges a factor which the applicant would have the Tribunal accepted by impacting upon him at the time the report was written. The claim of the applicant’s computer freezing during his exam, as referenced by Ms Qin, the Tribunal is not satisfied is reliable. Overall the Tribunal considers that Ms Qin may not have been informed by the applicant of the totality of his circumstances for the purposes of producing her report. Further, it is noted that Ms Qin lists her qualification as a bilingual counsellor/social worker, the Tribunal is not satisfied that she has the requisite skills to undertake the described testing of the applicant or come to the assessment of his depression, stress and anxiety. In any event these levels are described as mild. The Tribunal places no weight on the report in demonstrating that the circumstances leading to the cancellation were outside the control of the applicant. 

16. The Tribunal gives this factor no weight in favour of the applicant.

    Past and present behaviour of the visa holder towards the Department

17. It is accepted that the applicant has responded promptly to the request for comment from the Department. The Tribunal does note however that when invited to provide relevant information in the NOICC the applicant omitted any reference to his criminal charges. The fact that he was on remand for three months would appear to be relevant to why he had not studied in Australia during that period, as it would be the purpose of remaining in Australia to attend court. The applicant also failed to reveal to the Tribunal or the Department the incidents of contract cheating which arose prior to the decision to cancel his visa.

18. The applicant has submitted that he did not consider his criminal case relevant to his student visa. He conceded at the hearing that there was no reason why he did not disclose the information about his academic misconduct to the Department. The Tribunal has some concerns about the transparency of information that he has sought to provide, although it does not make a finding that he deliberately mislead the Department.  

19. The Tribunal gives this discretionary factor some weight in favour of the applicant.

    Whether there would be consequential cancellations under s 140

20. The applicant claimed to be single with no dependents. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa was cancelled.

21. There is no weight attributed to this factor.

    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

22. There are mandatory legal consequences that may apply in the case of visa cancellation, including a difficulty obtaining a further visa. If the visa is cancelled the applicant may be subject to a restriction under s 48 of the Act and the applicant would have difficulties obtaining any further visas in Australia. Due to the operation of PIC 4013, the applicant would also be unable to be granted further visas offshore for three years from the date of cancellation.

23. The applicant told the Tribunal that if the visa remained cancelled and he had exhausted or ceased all lawful avenues of review, he would abide by any lawful direction to Department and initiate his own return to his home country. The Tribunal is satisfied in these circumstances that the likelihood of the applicant being detained is remote.

24. The Tribunal gives this consideration neutral weight.

    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

25. The applicant is a citizen of China and there is no information that his visa cancellation would impact on Australia’s international obligations. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations. Nor has the applicant applied for refugee status or invoked Australia’s protection obligations. The applicant told the Tribunal that he had no fear of returning to China and intended to do so upon the completion of his Diploma of Business. The applicant has no children whose interests the Tribunal is to consider.

26. There is no weight attributed to this factor.

    Any other relevant matters

27. The applicant has conceded that in December 2020 he was arrested and charged with several offences relating to the alleged violent enforcement of a gambling debt. He also spent several months, between December 2020 and March 2021, in criminal custody awaiting trial in relation to the offences. He claims that the stress caused from this event is relevant in the assessment of the Tribunal of his performance at his studies in 2021, and an explanation for his further unsatisfactory conduct as a student. Yet, in submissions to the Tribunal it is claimed that regard should not be had to this matter in considering whether the applicant breached his visa condition, and his representative’s submissions of 12 September 2022 only refer to the applicant yet having to enter a plea.

28. When questioned at the hearing the applicant told the Tribunal that he had entered a plea of guilty to a charge relating to the offence of intentional harm in December 2021. He told the Tribunal that he found his parole conditions too harsh and if the court case continued it could have gone on for another 18 months. He expressed no remorse for events leading to the conviction. He claimed that he was sentenced to a period of 10 months community service which he has now completed.

1. The Tribunal considers the conviction to be relevant for several reasons. Firstly the applicant is responsible for his conduct and to the extent that it impacted upon his studies as a student it is not an excuse for any breach by the applicant. Secondly, it  involves criminal conduct which is contrary to the purposes for which the visa was granted. Finally, this conviction may also give rise to a reason for the applicant’s removal from Australia on public interest grounds.

2. The applicant has provided no explanation of the circumstances in which the charges arose. With his plea of guilty to a related charge there is an acceptance of culpability for the offence. The Tribunal does not have further details of how the matter progressed through the court or the proceedings. In these circumstances it also regards this factor as having no weight in favour of the applicant.

3. Conclusion

4. The Tribunal has considered all of the evidence and the relevant circumstances of the applicant. The Tribunal is satisfied that there are limited aspects that are favourable to the applicant. The Tribunal has placed a low weight on the evidence before it in relation to the circumstances giving rise to the cancellation. It is not persuaded by the material advanced by the applicant that it should be greater than this. The breach of condition 8202(2) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study in Australia. It is accepted that the applicant wishes to remain in Australia, yet the for the reasons set out above, it is not demonstrated that he has a compelling need for him to do so, nor that there is a degree of hardship that would weigh in favour of the visa grant. The other considerations are generally of low or neutral weight, and the Tribunal is not satisfied that they weigh in favour of the exercise of the discretion not to cancel.

5. Overall, the Tribunal finds, considering the material before it as a whole, the that the visa should be cancelled

   DECISION

6. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

   Penelope Hunter
   Member

   
   

   ATTACHMENT – Extract from reg 2.43 of the Migration Regulations 1994

   …

   (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

   (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

   (a)because of the conduct of the holder; or

   (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

   (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

   (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.