Ye (Migration)

[2019] AATA 3660

Ye (Migration) [2019] AATA 3660 (24 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tiancheng Ye

CASE NUMBER:  1828165

HOME AFFAIRS REFERENCE(S):          BCC2018/3839923

MEMBER:D. Triaca

DATE:24 July 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 24 July 2019 at 2:25pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – circumstances giving rise to non-compliance – health conditions – responsibility to comply with visa conditions – 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 18 September 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant’s visa was granted on 19 October 2016 with an original expiry date of 15 March 2022 providing approximately 5 years 6 months during which the applicant would be permitted to reside in Australia for the purposes of full time study.

3. The visa was subject to conditions, including conditions that the applicant would remain enrolled in, and make satisfactory progress in relation to, one or more registered courses during his stay in Australia.

4. The delegate cancelled the visa on the basis that the applicant had breached that condition of the visa which required him to continue to be enrolled in a registered course of study.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 18 July 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

7. The applicant provided the Tribunal with further documentation on the evening before the Tribunal. This documentation was included a translated written statement, handwritten timeline, Confirmation of Enrolment Certificates; Certification of International Volunteering; Medical Certificate from Ningbo Yinzhou Hospital; Evidence of Enrolment with Upskilled.

8. The applicant, having regard to the late filing of this material, requested an adjournment of the hearing to enable the Tribunal to review the material. However, the Tribunal had sufficient time to review all the material provided by the applicant and in those circumstances the requested adjournment was refused and the Tribunal has read and had regard to the documents provided to the Tribunal notwithstanding their late arrival.

9. 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

10. 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?

11. Condition 8202(2)(a) of the applicant’s visa requires the applicant to remain enrolled in a registered course of study. In the delegate’s decision record, the delegate identified the period from 7 August 2017 to 18 September 2018 as the relevant period in which the applicant was not enrolled in a registered course.

12. On 30 August 2018, the Department of Immigration and Border Protection wrote to the applicant, notifying him of its intention to consider cancelling his student visa (the NOICC). That notice set out particulars of the alleged breach by the applicant of condition 8202 and invited him to commence on these allegations before the Department moved to cancel his visa.

13. The applicant provided a written response to the Department (applicant’s NOICC response). In that response, the applicant appeared to acknowledge the breach of the visa condition by explaining the circumstances surrounding the breach. In his oral evidence before the Tribunal, the applicant confirmed that this was correct and he was not enrolled in any registered course of study between those dates.

14. Accordingly, the Tribunal finds that the applicant was in breach of visa condition 8202(a) between 7 August 2017 and 18 September 2018.

15. 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

16. 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’.

17. The applicant is 21 years old and first arrived in Australia in November 2016. His initial study plan was to commence an English course at RMIT, leading to Foundation Studies: Science Engineering & Health and then a Bachelor of Engineering (Advanced Manufacturing and Mechatronics) (Honours) also at RMIT. The applicant held CoE’s for these courses when he arrived in 2016.

18. The applicant gave oral evidence before the Tribunal. He also provided a written statement that had been translated for him on 17 July 2019.

19. In summary, his evidence is as follows:

20. He commenced English studies in 2016 in accordance with his plans. However, English was more difficult than he had realised and he had not reached a satisfactory level needed to commence foundation in February 2017. Accordingly his Foundation studies were postponed and he undertook a third course in English. He states that by April 2017 he had achieved the necessary English scores to enrol in commence Foundation studies and he left Australia as he could not commence that course until the second semester.

21. He returned to Australia in mid July 2017. He went into RMIT on 2 August 2017 and was told that he had missed the deadline for enrolling in Foundation for Second Semester and it was now too late. He states that he was not told the precise commencement date by RMIT. However, he concedes he did not make enquiries either. He had simply assumed the date for re-enrolment was in August 2017. He also appears to have assumed that RMIT would carry out the necessary paperwork to enable him to commence Foundation in Second Semester having been unable to do so in First Semester as he had originally planned.

22. He remained in Australia for a period until about November 2017. He did not look at other study options during this time. He had an agent in China but this agent but the agent went out of business in 2017 and offered him no assistance. It is unclear how he spent the balance of his time in Australia.

23. RMIT cancelled his CoE on 17 August 2017. He states that he did not receive advice of the cancellation of his CoE at that time. He states that he was not made aware that the CoE had been cancelled until about February 2018 when he attempted to enrol in Foundation Studies.

24. In any event, it is apparent on the evidence that the applicant was resident in Australia for a period between July 2017 and November 2017, on a student visa, and that during this period of time he did not study, defer his studies and was not enrolled in a registered course of study. He did not engage further with RMIT or the Department during this period.

25. He says he returned to China in November 2017. He then volunteered in Nepal for 2 weeks and provided the Tribunal with a certificate confirming he had volunteered with International Volunteer HQ in Nepal in November 2017.

26. He returned home to China in late November 2017. He then became quite ill with what he describes as gastropathy. He believes this was due to the food and water in Nepal. He provided the Tribunal with a Medical Certificate from Ningbo Yinzhou Hospital diagnosing him with chronic appendicitis on 8 January 2018. Although the Hospital appears to recommend surgery, he states he responded to western medicine and surgery was not necessary.

27. He returned to Australia in February 2018 hoping to commence the Foundation Studies at RMIT. He states that he developed conjunctivitis on the flight and this caused him further medical issues. He did not see a Doctor in Australia about his conjunctivitis but was provided with medicine by his landlord.

28. He says when he returned to Australia he suffered further stomach pain due to eating spicy food in Australia. He says that he did not seek further medical attention whilst in Australia, preferring to take medicine from China he had retained in his possession.

29. He says it was not until February 2018 that he realised his CoE had been cancelled by RMIT. He says he then realised the seriousness of his situation. He says that he engaged a local agent, and it was in discussions with the agent that he was first told about the visa conditions.

30. The agent suggested that he explore alternative courses of study. He says he did consider other options and looked at other schools but found no good options and maintains his preference is to study engineering at RMIT. He remained in Australia, and was not enrolled in a registered course when he received the NOICC dated 30 August 2018.

31. The Department cancelled his student visa on 18 September 2018.

32. In his written statement provided to the Tribunal on 17 July 2019, the applicant explained that since the cancellation of his student visa, the applicant has attempted to engage in study in Australia. He enrolled in a Diploma of Business at Queens College. He says that he his agent suggested he sign up for this course when he received the NOICC. He was unable to commence this course due to his visa cancellation. In January 2019, he applied to have “no study” removed from his Bridging Visa conditions. This application was refused. He enrolled in a Certificate IV in Information Technology Networking with Upskilled in about April 2019. He provided a copy of evidence of his enrolment to the Tribunal.

33. He states that if the visa remains cancelled he will suffer hardship as returning to China without a University degree will make finding work difficult for him. He says he has invested money in his Education in Australia that will be lost if he returns to China without a qualification. It will also be difficult for him to return to his family, who appear to be a high achieving family with University qualifications.

34. The Tribunal gives the following matters some weight in favour of the application:

    (a)The Tribunal accepts his purpose in coming to Australia was to study and that he commenced studying in accordance with his plans and attempted to enrol in the Foundation study.

    (b)He appears to have persevered with English studies despite finding this difficult.

    (c)The applicant is likely to experience some hardship in returning to China without a degree as he has invested funds in pursuing study in Australia and will suffer some embarrassment in facing his family.

    (d)The applicant appears to have endeavoured to re-engage with study in Australia since the cancellation of his visa. It is in his favour that he continued to apply for courses and sought to have the Department lift the “no study” condition on his Bridging Visa;

    (e)The Tribunal accepts that he has had a difficult time with his health in late 2017 early 2018 which caused him some distress.

    Circumstances in which ground of cancellation arose & Purpose of visa holder’s travel and stay in Australia.

    The applicant’s evidence in relation to illness.

35. The applicant’s evidence in relation to his illness was inconsistent and unpersuasive.

36. The Tribunal accepts that he suffered some issues in relation to stomach pain following his return from Nepal in late November 2017 and these issues extended into 2018. The Tribunal has regard to the evidence of the medical certificate Ningbo Yinhzhou Hospital dated 8 January 2018 and accepts that the applicant was operating under some difficulty for a period of between about November 2017 and February 2018.

37. However, the context of this illness is that the applicant’s CoE was cancelled in August 2017 so he was in breach of his visa condition well before first reporting any illness. It follows that the Tribunal does not consider that any illness was a causative factor in the applicant’s breach.

38. Further, the Tribunal does not consider that the applicant’s illness is likely to have significantly impacted the applicant’s continuing breach in 2018.

39. The applicant’s evidence on his circumstances when he returned to Australia in February  2018 was vague and difficult to follow. It is clear that he failed to enrol in Foundation at RMIT in February 2018 despite indicating it was his intention to do so.

40. In his written response to the NOICC, he specifically refers to his stomach illness recurring upon his return to Australia stating, “However, within one week after my arrival in Australia, my gastropathy became severe again …I was in a very bad situation for about 3 months. During that time, what I could do was only staying in bed and being treated with medicines. I understand that I didn’t successfully enrol in the foundation program because of the severe gastropathy.”

41. In his written statement, he offered different reasons for failing to enrol on his return to Australia, stating he “returned to Australia for re-enrolling into the Foundation program at RMIT on 5 February 2018. Once again, I fell victim of the unclear explanation from RMIT and was not able to enrol again. I wasn’t sure whether RMIT had never made postponement for my Foundation program or due to any other reason, but the only thing I knew was I couldn’t enrol.”

42. I asked the applicant to explain the role that illness played in his non enrolment upon his return to Australia. He stated that he suffered conjunctivitis on the flight to Australia due to his contact lenses and this was the affliction that caused him issues upon his return. He had not previously referred to conjunctivitis in any document before the Tribunal or Department.

43. When asked to comment on his written response to the NOICC, he stated that his agent who prepared the statement must have been confused in relation to his illnesses. He said he did suffer further from gastric illness upon his return to Australia due to eating spicy food but this resolved with medicine he had obtained in China and did not receive any medical treatment in Australia. He says he did not seek any medical treatment for his conjunctivitis. Instead his landlord gave him medicine. Accordingly, there is no evidence beyond the applicant’s assertions to suggest the applicant was under any continuing ill health after his return to Australia in February 2018 and I do not consider that ill health contributed to the applicant’s failure to enrol in Foundation in February 2018 or contribute to his breach of his visa conditions.

    Notification of cancellation of the CoE.

44. The applicant states he did not receive notification of the cancellation of his CoE from RMIT in August 2017. There is no independent evidence that would demonstrate whether or not this is the case. It may be that there was some misunderstanding on the applicant’s part that is explained by the fact that English was his second language. He describes RMIT’s communication with him may have been lacking, stating, “ (RMIT) only sent whatever they should to me as per standard and compliance perspective. My understanding of future studies and situations did not seem to be their concerns but only their compliance of paper work.” There may also be some misunderstanding as to the steps that were the responsibility of the student and those of the institution.

45. In any event, is clear is that the applicant remained in Australia for a considerable period of time on a student visa, without studying or being enrolled to study. Further, on the applicant’s evidence, in February 2018 he was fully aware of the fact that his CoE had been cancelled by RMIT and his visa was subject to conditions[1] including the requirement of maintaining enrolment. Notwithstanding this level of knowledge, he did not take any steps to resolve the situation, which continued until he received the NOICC in August 2018. This weighs heavily against granting the application.

    [1] In his evidence he confirmed that his agent advised him of the existence of the visa conditions in about February 2018

46. The Tribunal accepts that the applicant has faced some difficulties in Australia. However, many student visa holders are forced to contend with such difficulties. Many international students deal with financial and emotional difficulties being away from their families and support networks. They are also burdened by the visa conditions and they are required to abide by those conditions.

47. In such circumstances, registered course providers and the Department of Home Affairs have in place policies that permit the exercise of discretion for compassionate reasons, students may seek to defer their studies until they are in a better position. The cancellation of an enrolment and the subsequent cancellation of a visa is a last resort.

48. The applicant is ultimately responsible for understanding his visa requirements and ensuring that he complies with the visa conditions. Visa holders are expected to be mindful of the requirements of their visa and inform the Department of any changes to their status. This includes being aware of any conditions such as condition 8202. This is not a case of inadvertent error or extenuating circumstances. It was within the applicant’s power to inform himself as to the conditions of his own visa, the date for enrolment in Foundation Studies and whether or not he was enrolled and maintained a CoE. The Tribunal does not accept that the applicant’s failures in this case were somehow caused by RMIT or his agent, his youth, or the fact he was spoiled as a child as was submitted on his behalf by his representative at the hearing. The applicant failed to take positive action to remedy the situation with respect to his continuing study obligations.

49. Simply put, the applicant was in a situation in which he was in Australia on a student visa but not studying and in breach of his visa. If a student holding a student visa finds that for any reason they cannot maintain satisfactory course progress or enrolment, they have a very definite choice. One choice is to advise the Department that he was at risk of breaching condition 8202 and returning home until such time as he was ready to select a course to study and go on to achieve satisfactory course progress. Another choice is to remain in Australia on a student visa and maintain satisfactory academic progress. The applicant spent the better part of a year doing neither of these things. He chose not to study, and in doing so, was not acting in a manner that was consistent with the purpose for which the visa was granted. On the evidence before it concerning the ground for which cancellation arose, the Tribunal weighs this factor in favour of cancelling the visa.

    Hardship.

50. The Tribunal accepts that the applicant will suffer some emotional hardship if he returns to China without completing a degree. He has invested time and money in Australia and cancellation will likely result in some financial hardship as this will be lost. He may very well suffer some embarrassment within his family returning to China in these circumstances. The Tribunal gives the applicant’s hardship some weight against cancellation.

1. The Tribunal has considered the applicant’s express desire to remain in Australia and complete his education and the more recent steps he has taken towards focusing on his studies. The Tribunal accepts it will be difficult for him if he is unable to complete a qualification from Australia. However, his desire to remain in Australia now must be tempered with the extent of his non-compliance with the conditions of the visa. It was a student visa which obliged him to prioritise studying in Australia the entire time he was here. In the Tribunal’s view, he has not provided a satisfactory explanation for not complying with the fundamental condition for an extended period of time.

   Other matters.

2. The Tribunal has given consideration to the applicant’s past and present behaviour towards the Department of Home affairs. There is no adverse evidence before the Tribunal in that regard. There also do not appear to be any consequential cancellations under s 140 that will follow if the applicant’s visa is cancelled.

3. The Tribunal notes that if the visa is cancelled, the applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act. However, he stated that his intention was to return home to China in the event that the decision to cancel the visa was affirmed so there is no indication he would become unlawful. Accordingly, I give this factor no weight.

4. There is no evidence that would suggest any international obligations are engaged by the circumstances of the case and the applicant did not raise any claims that relate to that consideration.

5. In all the circumstances, the Tribunal is satisfied that the applicant’s visa should be cancelled.

   DECISION

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

   D. Triaca
   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.