Yao (Migration)

[2018] AATA 4807

Yao (Migration) [2018] AATA 4807 (14 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jinjie Yao

CASE NUMBER:  1700532

DIBP REFERENCE(S):  BCC2016/3709255

MEMBER:Kate Millar

DATE AND TIME OF

ORAL DECISION AND REASONS:          14 June 2018 at 11:15 am (SA time)

DATE OF WRITTEN RECORD:                26 July 2018

PLACE OF DECISION:  Adelaide

Statement made on 26 July 2018 at 3:05pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector visa – Not enrolled in a registered course of study – Breach of condition 8202 – Strong motivation to complete study – Decision set aside and substitute a decision not to cancel the visa

LEGISLATION
Migration Act 1958, s 116

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 January 2017 to cancel the applicant’s Subclass 573 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 14 June 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is reasons for decision, oral decision delivered in Adelaide at 11.15 am.  This is a matter of Mr Jinjie Yao.  The case number is 1700532.

4. You came to Australia to study courses leading to a Bachelor of Computer Science in May 2014.  You successfully completed an English course in the second half of 2014 and you commenced a degree transfer course.  With the degree transfer course you failed two subjects in 2015 and had to repeat those subjects.

5. As a result, you said you were advised by Bradford College that you had to either do an English program or re-sit your IELTS test before you could enrol at the University of Adelaide.  You sat the IELTS test on one occasion and then returned to China at which point you broke your foot or your little toe.  On returning to Australia you decided to continue studying for IELTS.  As a result you were not enrolled in a registered course as required from 5 April 2016.

6. A delegate of the Minister for Immigration cancelled your visa on the basis that you had not complied with a condition of your visa under section 116(1)(b) of the Migration Act 1958. The issue before me is first of all whether there is a ground to cancel your visa under s.116 of the Act, and if so whether or not your visa should be cancelled.

7. In this case, Condition 8202, attached to your sub-class 573 Higher Education Sector Visa, as it applies in this case, that condition requires that you are enrolled in a registered course. In this case, I find that you are not enrolled in a registered course from 5 April 2016 and that means that a ground to cancel your visa in section 116(1)(b) exists.

8. Having found you have not complied with a condition of your visa, I have to consider whether or not your visa should be cancelled.  There are no matters specified in the Act or Regulations that must be considered, but I have had regard to all the circumstances of the case and what you have told me here today, and as well as the Department's Procedures Advice Manual.

9. In talking to you today, you have told me more about what has happened.  You have said that after you finished at Bradford College you were advised that you could not enter Adelaide University because you had failed some subjects, and you had to provide a new IELTS or do the pre-English academic program.  You were told that you could do that, or sit the IELTS at least, either in Australia or in the People's Republic of China.

10. When you went back to China I accept that you broke your toe and that caused you some difficulty.  You have provided X-rays and various other information to show that you have had treatment for your foot.  I do not accept that that stopped you from studying.  I do accept that you were told the course was full for the first semester, but I do not accept that that would have caused you such difficulty that you would not have been able to complete or attempt that course in the second semester.

11. I also would remark that it is your responsibility to know the conditions of your visa and comply with those conditions, and it isn't the responsibility of the university nor of Bradford College.  Although it might be helpful if they tell you, it is not their responsibility to tell you.  That is your responsibility.

12. I note you sat the IELTS test on four occasions really in the first semester, 9 January 2016, 7 May, 4 June and 25 June, and at that time you say you were financially supported by your parents and you continue to be supported by your parents, and that would have been sufficient to cancel your visa if it were not for your efforts since then.

13. I am satisfied, although it did take the cancellation of your visa and a notice of intention to cancel your visa, for you to enrol in the English course in 2017.  You have passed that.  I have got your academic record in front of me saying that you have passed three of the four subjects in the second semester 2017, and the university has allowed you to enrol in those subjects for 2018.  You say you have been doing well this semester and you are due to sit your exams in two weeks.

14. So in looking at some of the factors that is the Department's Policy Manual, the purpose of your travel was to study, and you did study for a period of time but there has been a period of time that you have not, and that is not the purpose for which you are here and for which the visa was granted.

15. However, you have progressed in your studies since that point.  You now have a strong motivation to complete your study.  You have provided me with a conditional job offer back in China that says you have to complete your degree.

16. In regard to the extent of your compliance with your visa conditions, you did do the right thing.  You approached Immigration and advised them of your study plans and had conditions on your visa that allowed you to study, so you have studied really with the consent of Immigration, and you have otherwise complied with the term of your visa, and you have taken active steps to comply with those terms.

17. I appreciate there has been a considerable financial commitment from your parents for you to study in Australia, and that you did respond to the notice of intention to cancel.  You have actively approached the Department since your visa was cancelled.

18. If your visa is cancelled and you wanted to complete your degree, you would be subject to public interest criterion 4013 that would prevent you being granted such a visa within three years, excepting compelling and compassionate circumstances, and given that you are passing the majority of your subjects now, I think that would be an unnecessary interruption to your study.

19. So overall I have decided that your visa should not be cancelled. That means that your application is successful today.  In effect, this gives you another opportunity to successfully study.  It does not mean that the Department cannot, if a further student visa is granted - and I note you said that it was expired in September 2017 which means that you will need to take urgent action to seek another visa - if granted it does not mean that that visa could not be cancelled again by the Department if you cease to be enrolled or if your academic progress is not satisfactory.  This is another opportunity to apply for a visa and to complete your course, and I encourage you to use that wisely.

20. My formal decision today is to set aside the decision under review and to substitute a decision not to cancel your sub-clause 573 Higher Education Sector Visa.   

    Kate Millar
    Member