Yin (Migration)

[2019] AATA 6294

Yin (Migration) [2019] AATA 6294 (17 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Haoji Yin

CASE NUMBER:  1825979

HOME AFFAIRS REFERENCE(S):     BCC2018/1901352

MEMBERS:Dr Jason Harkess

DATE:17 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 573) visa

Statement made on 17 September 2019 at 3:58pm

CATCHWORDS

MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa –applicant did not comply with condition 8202 – had not been enrolled in a registered course of study – no compelling need to remain in Australia –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 189, 198
Migration Regulations 1994 (Cth), Schedule 8
Education Services for Overseas Students Act 2000 (Cth)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The Applicant is a citizen of China and is 23 years of age. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 3 September 2018 cancelling his Subclass 573 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant’s student visa was granted on 22 March 2016 with an original expiry date of 15 March 2020, providing for almost 4 years during which the Applicant would be permitted to reside in Australia for the purposes of full-time study. The Applicant’s visa was granted on the basis that he was enrolled in and would successfully complete a number of courses. It was the Applicant’s second student visa. His first student visa had been granted in 2013 and permitted him to stay in Australia for the 2014 and 2015 academic years which he completed at Doncaster Secondary College. The second visa, the cancellation of which is now the subject of review by the Tribunal, was granted so that the Applicant could study for a Diploma of Information Technology followed by a Bachelor of Nursing.

3. The delegate cancelled the Applicant’s visa on the basis that he had breached that condition of the visa which required him to continue to be enrolled in a registered course of study

4. The issue in the present case is whether the ground for cancelling the Applicant’s visa is made out, and if so, whether the visa should be cancelled.

HEARING OF APPLICATION

1. The Applicant appeared before the Tribunal on 30 August 2019 to give evidence and present arguments.

2. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Mandarin languages.

3. For the following reasons, the Tribunal has decided to affirm the decision to cancel the visa.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’) as they then were, when the visa was granted. In the present case, the issue is whether the Applicant has breached condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

Did the Applicant Breach Condition 8202?

1. Condition 8202(2)(a) of the Applicant’s visa required that he remain enrolled in a full-time registered course. In the delegate’s decision record, the delegate identified the period from 3 March 2017 to 29 August 2018 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to more than 17 months during which the Applicant was alleged to be in continuous breach of the visa.

2. The delegate’s finding in this respect was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[1] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database allows registered course providers to report changes in relation to a student’s enrolment status and to notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s enrolment in a course for which they had previously been enrolled and the reasons for doing so. The PRISMS report obtained by the delegate indicated that the Applicant had not been enrolled in a registered course of study since 3 March 2017.

   [1] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

3. The Department of Home Affairs (‘the Department’) wrote to the Applicant on 15 August 2018, 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. The Applicant was invited to comment on these allegations before the Department moved to cancel his visa.

4. The Applicant responded to the NOICC by letter dated 27 August 2018 from his registered migration agent (‘the Applicant’s NOICC response’). Having considered the Applicant’s NOICC response, the delegate formed the view that the Applicant did not dispute the allegation that he had not been enrolled in a registered course of study for the period alleged. The delegate was also not satisfied with the explanation given by the Applicant for having breached his visa. Accordingly, the delegate decided to cancel the Applicant’s visa.

5. At the hearing before the Tribunal on 30 August 2019, the Applicant admitted that he had not been enrolled in a registered course of study for the period 3 March 2017 to 29 August 2018.

6. Accordingly, based on the evidence the Tribunal is satisfied that the delegate was correct in finding that the Applicant had breached condition 8202(2)(a) of his student visa for the period of time that was alleged.

Consideration of Discretion to Cancel Visa

1. 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 the Regulations that must be considered in the exercise of this discretion. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (‘PAM3’, ‘General Visa Cancellation Powers’). The matters that ought to be considered are specifically listed in PAM3 as follows:

   ·the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant’s control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);

   ·the purpose of the Applicant’s travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;

   ·the extent of the Applicant’s compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;

   ·the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;

   ·the Applicant’s past and present behaviour towards the Department (eg, whether they have been truthful and co-operative in their dealings with the Department);

   ·whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;

   ·whether there are mandatory legal consequences arising from a decision to cancel the visa;

   ·whether Australia has obligations under any relevant international agreements that would be breached as a result.

Circumstances Giving Rise to Breach of Condition 8202

1. In his oral evidence given at the hearing before the Tribunal, the Applicant referred to having starting his Diploma of Information Technology course in July 2016. He stated that he had always wanted to do nursing and explained that it was his original intention to complete a Bachelor of Nursing following completion of his Diploma of Information Technology.

2. The Tribunal inquired of the Applicant as to the logical connection between a Diploma of Information Technology and a Bachelor of Nursing. The Tribunal suggested that the subject matter of each course appeared to be quite unrelated. The Applicant explained that he was advised to undertake Information Technology before his Bachelor of Nursing as he was more likely to obtain better marks for the purposes of gaining entry into the Bachelor of Nursing.

3. As it turns out, the Applicant found studying the Diploma of Information Technology course very challenging. He stated that, while he did attend classes from July to December 2016 for the 5 units in which he was enrolled, he did not pass any of the units – he failed everything. He explained to the Tribunal that the reason for his failure was that he had absolutely no interest in the course.

4. At the end of 2016, the Applicant returned to China. While in China, he enrolled in an English course. He then returned to Australia in February 2017. He did not re-enrol in a registered course of study upon his return. Instead, he chose to learn how to drive. He also enrolled in a 3-month Japanese language course. Neither the driving lessons nor the 3-month Japanese course qualified as ‘registered courses of study’ for the purposes of maintaining compliance with Condition 8202. Consequently, the time over which he breached Condition 8202 throughout 2017 quickly began to accrue.

5. The Applicant referred to 2017 being a ‘miserable year’ for him. He did not take any substantial proactive steps to enrol in a registered course of study during that year. Apart from taking driving lessons and learning Japanese, the Applicant said that he was working part-time. He did not use the entire 20 hours per week to which he was entitled under the conditions of his visa. However, he stated that he was working mostly in the second half of 2017 and usually as a waiter in restaurants.

6. At the end of 2017, the Applicant again returned to China. While there, he did not have the courage to explicitly tell his parents that he had not been studying and that his results were otherwise unsatisfactory in the time that he had been studying. However, he gave evidence to the Tribunal that he strongly hinted to his parents that he had not been studying effectively. He said that they were supportive of him despite probably being aware that he had not been a good student for some 17 months.

7. Shortly after the Applicant returned to Australia in 2018, the Applicant’s maternal grandmother passed away. The Applicant stated that he was very close to his grandmother. The news of her death had a devastating impact on him. The Applicant stated that he ‘wasn’t in a good place’ when he received that news.

8. The Applicant stated that after he received the NOICC dated 15 August 2018, he ‘woke up’ and tried to make amends for his continuous visa breach. He sought advice from a lawyer who told him to immediately enrol in a course to demonstrate that he had the right attitude as an international student studying in Australia. The Applicant enrolled in an English course at UIT, which he commenced in September 2019. He then progressed to study a Diploma of Leadership and Management course at the same course provider which started in April 2019. The Applicant produced evidence to the Tribunal that demonstrated he has been making satisfactory practice progress in his studies at UIT since re-engaging as a student in September 2019.

9. The Applicant stated that he also sought assistance from a psychologist following the delegate’s decision to cancel his visa. He said that his mental health was hit hard by the passing of his grandmother and, following the cancellation of his visa, he considered it necessary to speak to a professional psychologist to assist him with his problems. The Applicant stated that he suffered no serious mental health issues in 2017. His mental health only started to decline following the death of his grandmother in January 2018.

10. The Tribunal accepts the Applicant to be a witness of truth. The Tribunal largely accepts all of the Applicant’s evidence as to the events that have unfolded in his life over the last 4 years, as he described them to the Tribunal. However, the difficulty for the Applicant is that he has failed to provide the Tribunal with a satisfactory explanation for his continuous breach of Condition 8202 for some 17 months. In particular, for almost the entire year of 2017, the Applicant was not enrolled in a registered course of study without any semblance of a satisfactory explanation. He appears to have simply made a conscious and voluntary decision to refrain from studying for a very lengthy period of time. There are no extenuating circumstances which the Applicant has pointed to that arose in 2017. It seems reasonably clear that the circumstances of his non-enrolment in 2017 were entirely within his personal control. The Tribunal considers this to be a significant factor weighing in favour of cancelling his visa.

Purpose of Applicant’s Stay in Australia

1. The purpose of the Applicant’s stay in Australia, as reflected in the essential purpose of a student visa, was to study on a full-time basis. That purpose was effectively defeated when the Applicant ceased studying. That purpose was not served for 17 months when the Applicant chose not to take positive steps to find another course provider and enrol in a registered course of study.

2. There is no compelling need for the Applicant to remain in Australia. By their nature, student visas are meant to provide non-Australian citizens with temporary residence only.

3. The Applicant was afforded a significant amount of time to spend in Australia for the purposes of full-time study. The Tribunal has given some weight to the fact that Applicant has attempted to redeem himself by re-engaging with his studies from September 2018. However, in the Tribunal’s view, the continuous breach for 17 months prior to that point in time represents such a significant proportion of the visa grant period that the Tribunal has not been shifted from its ultimate view that the Applicant’s visa ought to be cancelled. In the Tribunal’s view, the purpose of the Applicant’s stay in Australia was fundamentally defeated for a protracted period by the Applicant’s own poor decision-making processes. It is appropriate that the student visa be cancelled.

Extent of Applicant’s Compliance with Visa Conditions

1. Beyond the Applicant’s non-compliance with Condition 8202, being the subject of the present application for review, there is no material before the Tribunal that indicates the Applicant has not complied with his visa conditions on any other occasions. The Tribunal accepts that the Applicant has otherwise been compliant with conditions attaching to visas that he has been issued by the Australian government.

Hardship

1. The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia and complete his education. He has expressed a continuing desire to do further studies in Australia, particularly nursing if he can gain entry into an appropriate course. The Tribunal accepts that it would be difficult for him were he not allowed to complete successfully an Australian qualification. His family will understandably be very disappointed. However, the Applicant also stated in evidence that his parents are likely to be supportive if he is forced to return to China without an Australian qualification.

Applicant’s Behaviour towards Department

1. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department. There is no adverse evidence before the Tribunal in that regard.

Other Visa Holders

1. There do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

Legal Consequences

1. The Tribunal notes that if his 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 if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. They reflect the seriousness of the breach of visa conditions.

2. The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements to depart Australia. He is a citizen of China and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia.

International Obligations

1. The Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

Conclusion

1. In all the circumstances, the Tribunal is satisfied that the Applicant’s visa ought to be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa.

Dr Jason Harkess
Member