Yang (Migration)

[2018] AATA 5190

Yang (Migration) [2018] AATA 5190 (7 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zikun Yang

CASE NUMBER:  1622029

HOME AFFAIRS REFERENCE(S):           BCC2016/3186476

MEMBER:Mr S Norman

DATE:7 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 07 December 2018 at 4:00pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa  – Subclass 573 Higher Education Sector – Cancellation – failed to maintain enrolment in a registered course – parents health issues – grandmother’s death – decision under review affirmed

LEGISLATION
Migration Act 1958, s 116(1)(b)

Migration Regulations 1994, Schedule 2, condition 8202(2)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 December 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa on the basis that the applicant had been found to have breached condition 8202(2) – enrolment. 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 appeared before the Tribunal on 7 December 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. 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

5. 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?

6. 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).

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 17 September 2013. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 14 November 2016, the applicant was advised that information in the Provider Registration and International Student Management System (PRISMS) indicated the applicant had not been enrolled in a registered course of study since 23 October 2015. The applicant was also advised that it therefore appeared he did not meet condition 8202(2)(a); and that his visa may be cancelled under s.116(1)(b) of the Act. The delegate also noted the applicant’s Student visa was due to expire on 30 August 2017.

8. The applicant responded to the NOICC.[1]  However, he did not dispute there were grounds for cancelling his visa. At hearing, the applicant also did not dispute that he had failed to maintain enrolment in a registered course of study, as required by the conditions attached to his Student visa.

   [1] Department – from folio 23.

9. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

   Consideration of the discretion to cancel the visa

10. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

11. There is no evidence before the Tribunal that the applicant’s initial intention for travelling to and residing in Australia was not for the purposes of study. However, and for the reasons set out below, the Tribunal is not satisfied the applicant’s present purpose for remaining in Australia is to study.

12. Regarding the extent of compliance with his visa conditions, the Tribunal notes that condition 8202 attached to the applicant’s Student visa, and it obligated him to remain enrolled in registered course of study. This he had not done between 23 October 2015 and shortly after the date of the NOICC, being 21 November 2016. At hearing, the applicant also conceded that he had completed one English language course (at UTS), some seven or eight months after arriving in Australia (on 8 October 2013), and he had also completed a further English language course in late 2016 (after receiving the NOICC). Evidence of the second English language course was lodged with the Tribunal:

    ·a Certificate of Attendance relating to the Specially Language Centre and Oxford College of English. This claimed the applicant had attended the institution between 21 November 2016 and 16 December 2016; and that his results were satisfactory.

    ·A Certificate of English Proficiency, dated 16 December 2016 from the Specialty Language Centre and Oxford College of English indicating the applicant had attained a satisfactory grade in listening, speaking, reading, and writing.

13. As noted by the delegate, the second English language course was a non-AQF award. At hearing, the applicant said he had started a few courses in Australia (including an Advanced Diploma course), but that he only remained for a few months prior to ceasing to study. He said that was because of problems with his teachers and other students. Therefore, since arriving in Australia (in October 2013), the applicant had only successfully completed the abovementioned two English language courses. After considering all the evidence, the Tribunal is satisfied the applicant’s breach of his visa conditions is significant.

14. Next, and regarding the hardship the applicant or his family may suffer if his visa is cancelled, he claimed that:

    ·     His parents have high expectations for him as “he did not do well [enough] for Chinese university entrance examination”. His parents now wish him to complete his degree in Australia. The applicant said “his parents, especially his mother, is very stressed and depressed for they did not allow him to change his school when he told them what happened at school” (discussed below).

    ·     He said his parents spent AU$200,000 on his study and daily expenses and he “desperately wants to finish his study and acquire certification of college/university graduation”. He said returning to China without this would make his parents disappointed and he would be ashamed of himself as their only son.

    ·     The applicant said his “deepest fear is his parents health situation” and that same would deteriorate if he returned to China. He said (words to the effect) they could not bear his not completing his studies in Australia.

    ·     He said they were not aware it was hard for him to study especially after his grandmother’s illness became apparent (from October 2014).

    ·     He said they “now agree he changed to another school to improve his English and gain more knowledge before he can study in a famous university”

15. At hearing, the applicant said his father worked in the Tax office in China as a public servant, and his mother worked as a teacher. The applicant said he was fully reliant on the financial assistance of his parents for the first three years of his stay in Australia. Though it proved difficult to elicit, the applicant eventually conceded that in the last two years, he had earnt money by assisting a friend who sold used cars (including by being paid a commission to introduce people to his friend who then purchased vehicles – in 2018 he has so far received approximately $300 for each of the 40 vehicle purchasers he had introduced to his friend).  Therefore, and while the applicant was capable of working for the past two years, based on the evidence before the Tribunal, I am not satisfied he made any material effort to continue to study in Australia in that time.

16. When then asked why he had not sought to continue any studies, even after his visa was cancelled, he said his ‘agent told him to wait for the appeal’. He feels that he was misled by his agent (who he now knows was not a ‘formal’ agent). That being said, as noted at hearing, the applicant was notified in the Department advice when he was granted the Student visa, about the conditions attached to the visa.  Further, after considering all his evidence, the Tribunal is not satisfied he has taken any material steps to indicate he wants to continue to study in Australia (in spite of his assertions to the contrary at hearing). Therefore, the Tribunal is not satisfied the disappointment of the applicant’s parents, or any other matter, have motivated him to make any material attempt to engage in studies in Australia, after completing his English language course at UTS (some seven or eight months after arriving in Australia). The Tribunal is not satisfied the claimed disappointment of the applicant’s parents, and the health issues and eventual passing of his grandmother, should prevent the Tribunal from exercising the discretion to cancel the applicant’s visa. However, the Tribunal does accept that if the applicant’s visa is cancelled, he or his family may suffer some limited hardship.

17. Regarding the financial circumstances and the money claimed to be spent by his family, the Tribunal notes that it is a requirement for the grant of a Student visa that an applicant can financially support themselves for their stay in Australia for travel, living costs and tuition fees. No corroborating evidence had been provided of the actual financial costs. At hearing, the applicant said he had receipts for all his education expenses and offered to provide same (though I have decided not to request these). That said, based on the Tribunal’s experience, it appears not plausible the applicant (or his family) would have spent around $200,000 for him to engage in very limited study and to travel to and reside in Australia. However, it is plausible the applicant or his family, would suffer some financial loss if the applicant’s visa is cancelled. 

18. Next, and regarding the circumstances giving rise to the cancellation of his Student visa, in his response to the NOICC, the applicant said he “did not do well when he started his diploma course and he could not attend school because he was worried about his grandmother’s health”; his grandmother “became unwell in October 2014” (heart problems and pulmonary oedema); she had taken care of the applicant until he reached 15 years of age and he was close to his grandmother. The applicant said since his grandmother had received her diagnosis he could not concentrate, he had sleeping problems, and he referred to a “unpleasant and stressed spiritual status”. The applicant also said parents would not let him return to China until December 2015 because they did not wish him to miss his classes; after this his grandmother’s health worsened and she passed away in September 2016. He said he is still grieving her death and in deep sorrow.

19. Regarding the health of this grandmother, the applicant did not provide medical evidence of his own claimed emotional or mental health. Neither did he claim to have approached the Department to seek a deferral or otherwise seek to formally remedy his circumstances.  The Tribunal accepts the applicant may have been subject to some hurt due to the health of his grandmother, however, given all the findings herein, I am not satisfied this prevented him from continuing his studies in Australia.

20. Next, in their decision, the delegate noted that on 23 October 2015 the applicant’s education provider (Insearch Limited), notified the Department the applicant had ceased studies due to unsatisfactory course progress. The applicant said his classmates were not friendly to him and had refused to communicate with him. He believed he was “treated by them less fairly than other people in the school”. He also said he was disappointed at the school and with the teacher. He felt anxious when he attended the school and that this is why he wished to change school. He also said Insearch refused to let him change school when he approached them for help.   

21. Regarding the applicant’s claim he was unable to obtain a release letter from his education provider, there is a requirement under the Education Services for Overseas Students National Code for applicants who do not complete six months of the principal course, to obtain permission from the education provider in order to transfer to another education provider. As noted by the delegate in their decision, and as stated by the Tribunal at hearing, there is no evidence the applicant sought a review of the decision by Insearch.

22. The Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled. Also, when discussed at hearing the applicant said both his parents worked and the Tribunal noted country information that China was one of the world’s largest economies.[2]  The applicant said he did not know what he would do if he returned to China, but he wished to study in Australia. The Tribunal said it may find (and now does find) the applicant could seek work commensurate with his skills in China.

    [2] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA, 21 December 2017, see ‘Economic Overview’ p.7.

23. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to detention under s.189 and removal under s.198 of the Act. However, based on the evidence before the Tribunal I am not satisfied he would be subject to indefinite detention. I also accept the applicant would be able to retain his Bridging visa temporarily, in order to remain in the community to finalise his affairs prior to departing Australia. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 and would have limited options to apply for further visas in Australia. He would also be subject to PIC 4013; meaning he might not be granted a temporary visa for three years from the date of cancellation.

24. After then having considered the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.  

    DECISION

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

    Mr S Norman
    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.