Xue (Migration)

[2018] AATA 5468

Xue (Migration) [2018] AATA 5468 (19 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hui Xue

CASE NUMBER:  1702251

HOME AFFAIRS REFERENCE(S):           BCC2017/218544

MEMBER:Brendan Darcy

DATE:19 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 19 November 2018 at 10:26am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – failure to attend Tribunal hearing – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – compelling need to complete studies in Australia – extenuating circumstances leading to the grounds for cancellation – credibility issues – not genuine student – decision under review affirmed

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 2 February 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that was not in compliance with s.116(1) of the Act as he had breached condition 8202 imposed on his student visa, and because the delegate was not satisfied the ground for not cancelling the visa outweighed the grounds for cancelling the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant, a citizen of the People’s Republic of China (China), appeared before the Tribunal on 20 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

5. 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

6. 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?

7. 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).

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

9. The delegate’s decision submitted to the Tribunal indicates the applicant had been granted a Class TU Subclass 572 Vocational Education and Training Sector student visa on 11 May 2015 and was due to expire on 20 September 2017.  The applicant was enrolled in a Bachelor of Networking at the Melbourne Institute of Technology and that he was not enrolled since 5 April 2016.

10. During the hearing, it was also discussed that the applicant arrived in Australia in 2008 and has held four student visas over nine years. During which the time of the first visa (subclass 572 for vocational education), the applicant completed a Certificate III in Hospitality but cancelled his enrolled Diploma of Hospitality at Chisholm College in favour of a Diploma of Automotive Management which he completed. During the second student visa (subclass 572) the applying was enrolled in and completed a Certificate IV in Frontline Management.  During the third student visa the applicant was enrolled in an Advanced Diploma of Management and Diploma of Information Technology at the Melbourne Institute of Commerce which he both finished.

11. As discussed at the scheduled hearing, on 18 January 2017, the Tribunal emailed the applicant to confirm his wish to receive correspondence from the Department as it needs to send a letter regarding his current visa.  On 23 January 2017, the applicant emailed the Department to nominate an email account for correspondence. 

12. The decision recorded states a departmental official issued the Notice of Intention to Consider Cancellation (NOICC) on 2 February 2017.

13. However, the applicant did not response to the invitation to comment at all. Neither did he ask for an extension of time to respond. 

14. The Department then proceeded to cancel the visa on 2 February 2017, noting that PRISMS records indicate that the applicant has not enrolled in a registered course of study since 5 April 2016.

15. On 13 February 2017, the applicant applied to the delegate’s cancellation decision reviewed by the Tribunal. The decision record was attached to the review application.

16. On 5 February 2018, the applicant submitted a written document in which he did not challenge the grounds for cancellations exists.

17. At the scheduled hearing, the applicant admitted that the grounds for cancellation existed.

18. On the evidence before the Tribunal, the applicant was not enrolled in a registered course study from 5 April 2016 to the date of cancellation and that he was therefore in breach of 8208(2).  

19. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with s.116(1).

    CONSIDERATION OF THE DISCRETION TO CANCEL THE VISA

20. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

21. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

22. The Tribunal notes that the applicant provided a written statement in which he claimed to have experienced a number of extenuating circumstances which led to the grounds for cancellation.

    Credibility concerns: Reasons for not responding to NOICC.

23. In his written response dated 5 February 2018 and during the scheduled hearing, the applicant claimed he did not respond to the validly issued NOICC on 24 January 2014 because it was the Chinese Spring Festival (or Chinese New Year) and that he forgot to check his email account during this joyous festival that he was celebrating with friends. The applicant apologised for his carelessness.  However, during the hearing, the Tribunal explained that it had credibility concerns about these claimed reasons for his non-responsiveness: first, the applicant responded to email on 23 January 2017; and secondly, Chinese New Year did not begin until 28 January 2017 according to publically available information. In this regard, the applicant was unable to satisfactorily respond. The applicant’s representative argued that it was not his habit to check his email. As explained in the hearing, the Tribunal did not find this satisfactory given the Department emailed the applicant to raise a matter about his current visa.

24. The Tribunal’s credibility concerns regarding this matter are so substantial that finds the applicant knowingly provided a fabricated this specific explanation about his non-responsiveness to the issued NOICC and it has invited the Tribunal to consider that the applicant has exaggerated or fabricated other specific claims as part of this application for review.

    The purpose of the visa holder’s travel to and stay in Australia

25. In the applicant’s written statement to the Tribunal he argued that he had a compelling need to complete a degree in Australia as an essential requirement to enter the workplace and that if he did not, he would miss out of many good job opportunities. He added that he would have no advantage of those who have degrees in China and that it was his parents’ wishes to complete a degree. The applicant also argued that enrolling in Chinese universities required to sit an entry exam and that he would be able to complete his studies by remaining as a full time student in Australia.

26. During the scheduled hearing, the applicant argued his offer of enrolment to study a Bachelor of Business at Academies Australasia Polytechnic to begin in November 2018. The offer of enrolment is on the AAT’s file.[1] He argued that his passion in information technology has now changed towards building on his completed diploma coursework relating to management. The applicant relatedly elaborated that he wanted to work in a large corporation in China and that he would gain career satisfaction by being successful. He claimed that although he enrolled in information technology he was more interested in business management. He further elaborated that he would like to import clothes from Australian retailers such as Country Road and Guess. However, as the applicant’s enrolment offer was proffered after the visa cancellation date, it places no weight on his enrolment of indicative as the applicant’s actual academic or career interests.

    [1] AAT Folio 51-56.

27. The Tribunal also notes the applicant has completed vocational certificates and diplomas during the period of time he has held four student visas since 2008 while in Australia. As discussed, the applicant has completed a Diploma in automotive management, a diploma and an advanced diploma of management, a diploma of information technology. However the applicant had also enrolled but did not complete a diploma in hospitality management. The applicant explained that while there was some coursework which related to the  enrolments of other coursework, he was unsure of interests and passions but was certain at the time of the hearing his academic and career options were definitely lie with business management and not with unrelated disciplines of hospitality, automotive or information technology.  The applicant’s enrolment and visa history indicates a pattern whereby the applicant has been using student visas for vocational qualification for migration purposes and not because he is trying advance a particular career. While it is plausible the applicant has not consolidated his view about a specific career, the Tribunal notes the applicant has been in Australia since 2008 and is thirty-two years of age. Had he genuinely wanted to develop a career whose prospects in the Chinese or any other labour market would be strong, then it would be reasonable to expect the applicant to have advanced to a bachelor’s degree when had the earlier opportunity to do so or to have earlier settled on a career trajectory. 

28. The applicant further claimed that he did not finish his Bachelor in Networking because of extenuating circumstances. As outlined below, the Tribunal does not accept these circumstances were so extenuating as to lead to the circumstances of his non-compliance.  Accordingly it places a considerable amount of weight on the applicant’s lack of enrolment in a degree while holding a subclass 572 visa over a long period of time (between April 2016 and February 2017) to indicate that the applicant is not genuinely interested in completing his enrolled studies or that he is a genuine student for the purposes of this visa under review.

29. In the context of the Tribunal’s earlier adverse credibility finding, the Tribunal finds that the applicant arguments about a compelling need to complete his studies in Australia to be weak. The review applicant’s academic and visa history since 2008 has also invited the Tribunal to find that he has been serially applying for student visas for migration purposes other than any purpose relating to full time studies.  Overall the Tribunal gives the applicant’s claimed reasons for wanting to undertake to further studies considerable in favour of the visa remaining cancelled as the Tribunal is not satisfied the applicant is a genuine student who wants to remain in Australia for the purpose of full time study.

    The extent of compliance with visa conditions

30. There is no evidence before me to indicate the applicant did not comply with other conditions. The delegate decision does not record any information about further non-compliance. The applicant was not enrolled in a registered course for a substantial period of time - between April 2016 and February 2017. The Tribunal considers this significant to the question whether his visa should be reinstated. The Tribunal gives the significant extent of non-compliance with condition 8202 some weight towards the visa being cancelled.

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

31. In the applicant’s written response to the NOICC, he explained to the Department that he will face hardship if he returns to China without a Bachelor’s degree and that although he had completed an advanced diploma, it will be hard to his ideal job with a good salary and therefore difficult to support his family. He further described it as a bad record that will influence his future travel. 

32. At the hearing, the applicant further explained that he has not disclosed to his father about his visa being cancelled although he has confided in his mother. While the applicant claimed his father will be very disappointed, he also claimed his mother said things would be fine if he returns but without a Bachelor’s degree finding work will be difficult. The applicant added that completing a Bachelor’s degree in China would be like restarting his academic career and that it might take as much as five years to complete such a degree in China.

33. The delegate’s decision accepted that there may be some financial and other hardships as a result of the cancellation. The Tribunal also accepts that the applicant may encounter some difficulties in finding well-paid work and in explaining to his father that he spent nine years in Australia without completing a Bachelor’s degree and in being able to return to Australia.  Nevertheless, the applicant has a number of vocational qualifications which will assist him in finding suitable work if he were to return to China. However the Tribunal is not satisfied these hardships are severe or significant, both individually and cumulatively considered. Overall it finds on the evidence that he has not demonstrated any significant hardships to the Tribunal and it gives these hardship factor little weight towards the visa not being cancelled.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

    In his written statement submitted to the Tribunal, the applicant claimed that there were a number of extenuating circumstances beyond the applicant’s control that led to the grounds for breaching condition 8202 which in turn led to this visa being cancelling. Firstly, the applicant explained that, although his parents had not been harmonious for a long time, there was deterioration between in late 2015 and that that they finally separated in February 2016. The applicant claimed that he was shocked by this and the he was extremely scared of living in a broken family. This led the applicant to feeling depressed for several months.  Although the applicant did not provide any documentary evidence or third party statements to substantiate this claim, the Tribunal accepts the applicant’s parents separated as claimed.

34. The applicant further wrote that his grandfather passed away in April 2017. The applicant further wrote that he was his only grandson and he had been very close. During the scheduled hearing the applicant qualified his written claim by stating his grandfather passed away in April 2015. The applicant elaborated that his grief was compounded by the news about his parents’ separation. This applicant was living with sadness in hearing and would often woke at night due to nightmares. Although the applicant was unable to provide a death certificate, the Tribunal accepts the passing of grandfather in April 2015 to be the case.

35. The applicant further wrote that in the middle of 2016, his relationship with his girlfriend ended, leaving him further in despair and heart broken. During the hearing, the applicant elaborated that the relationship was not an engagement but it was two year old. While there is no documentary or photographic evidence for this, the Tribunal accepts the applicant was in a romantic relationship that ended in the middle of 2016, as claimed.

36. However, in the context of the Tribunal’s earlier adverse credibility finding, the Tribunal does not accept the applicant was as emotionally and psychologically impacted by these events as he claimed. He did not claim to have sought any medical or psychological attention from a medical or psychological professional, so provided no evidence of that his mental health symptoms were as significant or severe as to lead the applicant not being in compliance of 8202. Had the applicant been experiencing depression or disturbed sleep or any other mental health problems that prevented the applicant from being enrolled, it would reasonable to expect the applicant to do so. The Tribunal acknowledges the applicant tried to advance that he confided in a friend who was studying psychology; however in the context of the Tribunal’s earlier adverse credibility finding, it does not accept this to be credible. Furthermore the applicant acknowledged his parent’s marriage was not harmonious but inconsistently claimed it to be unexpected. The Tribunal does not find this explanation to be mutually supportive. The Tribunal further notes the applicant’s representative argued that in his culture seeking out medical support for grief and other mental health problems; however the applicant has been a long term holder of student visas and would be aware that requests for deferment or suspensions of studies can be granted if supported with evidence; however the applicant did not claim ever to made such formal requests or seek out the support of student services. The applicant claimed he was not aware of these options, despite holding many student visas in the past. The Tribunal does not accept this to be plausible or credible. 

37. When cumulatively considering the breakdown of the applicant’s parents’ marriage in February 2016, the passing of his grandfather’s life in April 2016 to whom the applicant was close and a relationship crisis in the middle of 2016, the Tribunal accepts the circumstances were beyond the applicant’s control. However it does not accept the combined adverse effect on the applicant satisfactorily amounted to being extenuating or exceptional circumstances in which the applicant was not enrolled for such a long period of time. The Tribunal does not accept the applicant was so broken hearted, stressed and full of grief, that he could not continue his enrolment of studies and remain in compliance with condition 8202 through deferment or the suspicion of studies through the available student services with his education provider at the time of non-compliance.

38. Nevertheless, while the Tribunal finds the applicant has provided unreliable embellishments regarding extenuating or exceptional circumstances as the reasons he was not in compliance with condition 8202, the Tribunal gives some weight to the applicant’s claims in experiencing some emotional and mental stress at the time of non-compliance.

    Past and present conduct of the visa holder towards the Department

1. According to the decision record, the applicant did not provide any response to the Department after the issuing of the NOICC.  This was despite being given some warning that Department wanted to raise matters with regard to his migration status.  The Tribunal notes that the applicant’s claimed reasons for this lack of responsiveness lacked credibility. Although there is no more evidence of non-cooperation on the part of the applicant towards the Department, the Tribunal finds this lack of responsiveness indicative a lack of diligence in the applicant cooperating with the Department in the future. The Tribunal gives this some little weight in in favour of the visa remaining cancelled.

   If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

2. Not relevant.

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

3. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or even be detained if they were to become unlawful. The applicant may also be barred from returning to Australia for up to three years.  The applicant has presented no specific evidence in relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

   Whether there would be consequential cancellations under s.140

4. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

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

5. The applicant claimed he was merely worried about spending nine years in Australia without completing a degree and that he is afraid would no longer support him if he returned to the People’s Republic of China. However he said he is not a refugee. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

   Other relevant matter

6. During the hearing, the applicant claimed that he has been immature about his studies. However, as mentioned above, the applicant is aged in his early thirties. He has ample opportunity to both mature and to advance his academic achievements given, as he stated, a Bachelor’s degree from Australia was so valued in China. The Tribunal places no weight on this factor in favour the visa not being cancelled.   

   Conclusion

7. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

8. The fact remains that the applicant was not enrolled for a substantial amount of time and was in breach of condition 8202. Despite being in Australia for as much as eight years while holding four student visas, the applicant was unable to satisfactorily demonstrate that the purpose of his travel to Australia was full time study.  The applicant did not have any compelling or credible reasons for his non-compliance or that the applicant is a genuine student who will uphold the conditions imposed on any further student visa. While the Tribunal acknowledge some factors in favour of the applicant, they were cumulatively carried little weight.

9. In considering all the available evidence provided in this decision, the Tribunal has placed more weight on those factors in favour of the visa remaining cancelled over those countervailing factors in favour of not being cancelling the visa.

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

    DECISION

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

    Brendan Darcy
    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.