Zhang (Migration)

Zhang (Migration) [2024] AATA 3720 (26 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Qihan Zhang
REPRESENTATIVE:  Mrs Minjia Rao (MARN: 1464628)
CASE NUMBER:  2317839
HOME AFFAIRS REFERENCE(S):          BCC2023/5627588
MEMBER:Senior Member D Connolly
DATE:26 September 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 26 September 2024 at 6:55pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased enrolment – multiple health issues – impact of the COVID19 pandemic – multiple course cancellations – unsatisfactory course progress – suspensions from university – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, Schedule 8, Condition 8202; r 2.12
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 30 October 2023 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 (Cth) (the Act).
The applicant is a 26 year old male citizen of China. He was most recently granted a student visa on 6 September 2021 to enable him to continue his study at the University of Sydney. The visa was subject to, among others, condition 8202. The delegate cancelled the visa pursuant to s 116(1)(b) of the Act on the basis that the applicant was found not to have complied with condition 8202.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 25 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by a registered migration agent, who also attended the hearing and made oral submissions.
Procedural matters
The applicant applied to the Tribunal on 4 November 2023 for review of the decision. He was sent a hearing invitation on 28 August 2024. On 17 September 2024 the applicant sought a postponement of hearing on the basis that he had been diagnosed with COVID-19 on 19 August 2024 and the illness had disrupted his daily routine. Also his anxiety was increasing due to concerns about not being prepared for the hearing as a result of the illness. He was deeply concerned about the outcome of the hearing, and its impact on his future in Australia and the direction of his life. He stated that he has now realised he has been avoiding addressing his emotional issues. He recently shared his situation with his parents, who encouraged him to seek professional help. He obtained a referral to a psychiatrist. He is hoping this will provide him with relief from his anxiety. He sought a postponement of hearing until November or later.
The applicant provided a medical certificate indicating he was unfit for work from 5 September to 6 September 2024. He also provided a referral to a psychologist, Dr Michael Cheung, for treatment for his depression, and evidence that he had made an appointment to consult Dr Cheung.
The applicant provided further written submissions and documents on 18 September 2024.
The Tribunal considered the applicant’s request but formed the view it was important for him to have an opportunity to present to the Tribunal why he believes his student visa should not be cancelled. Also, as the hearing was not until 25 September 2024, given the information in the medical certificate, the Tribunal was satisfied the applicant was well enough to engage meaningfully in the hearing process. The Tribunal wrote to the applicant on 19 September 2024 to advise that the hearing would proceed as scheduled on 25 September 2024.
The applicant wrote to the Tribunal after hours on 24 September 2024 providing various documentation, including evidence that he had consulted various medical and health practitioners while in Australia. He provided a letter dated 23 September 2024 from Dr Cheung stating that the applicant had consulted him, self-reporting depression and suicidal ideation. The applicant told Dr Cheung that if he was forced to leave Australia he would lose the will to live. His Depression and Stress Scale (DASS) results indicated severe depression, anxiety and stress.
The Tribunal did not see this material until the morning of the scheduled hearing. It considered the material immediately. It noted there was no indication in Dr Cheung’s material that the applicant’s condition was likely to improve in the foreseeable future. It noted the applicant did not arrange to consult Dr Cheung until he received the hearing invitation. It formed the view the applicant’s condition is relevant to its consideration of his purpose for remaining in Australia as the holder of a student visa, and other factors, and wanted to hear from him about whether he would be able to study given his mental health concerns. At the commencement of the hearing the Tribunal acknowledged the applicant’s stress and anxiety. It discussed with the applicant its preference to proceed, noting the undecided review application may be exacerbating his mental health issues. The applicant indicated he understood why it was preferable to proceed. The Tribunal invited him to ask for breaks during the hearing if he felt distressed. However he did not ask for any breaks. The Tribunal acknowledged that the hearing could be a stressful process for him, and he may be emotional but explained why it was important that it discuss with him his concerns and the factors to be taken into account if it decided that there had been non-compliance with condition 8202. The applicant indicated that he understood and was able to proceed with the hearing and answer the Tribunal’s questions.
Having considered the applicant’s responses during the hearing, the Tribunal is satisfied he was able to engage in a meaningful way and that he had a reasonable opportunity to give his evidence and present his arguments as to why he believes the student visa should not be cancelled. His representative was also given the opportunity to make submissions after hearing the applicant’s oral evidence.
At the end of the hearing the Tribunal explained that it would now proceed to make its decision. It asked the applicant if there was any other evidence he wished to have taken into account. The applicant indicated that he had no further evidence to give. The Tribunal explained it would be making its decision on all the evidence before it any time after the hearing.
The day after the hearing the applicant wrote to the Tribunal and asked that it postpone making its decision for a further seven days to enable him to provide further evidence. The Tribunal considered this request but noted he had not been specific about the further information he wished to provide. It declined to postpone making its decision and wrote to the applicant accordingly.
Later on 26 September 2024, the applicant’s representative provided further written submissions which the Tribunal has taken into account.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 (Cth) (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?
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 full time registered course: 8202(2)(a)
·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
The applicant provided to the Tribunal a copy of the delegate’s decision record which included the following information.
On 10 October 2023, the Department sent to the applicant a Notice of Intention to Consider Cancellation (NOICC) under s 116(1)(b) of the Act, as the applicant was not enrolled in a course of study. The applicant was informed that the Department has access to the Provider Registration and International Student Management System (PRISMS), which provides the Confirmation of Enrolment (CoE) and study records of international students registered to study in Australia. He was informed PRISMS indicated that he had not been enrolled in a registered course since 23 March 2022 and therefore had not complied with the requirements of condition 8202(2)(a). The applicant was informed that this may be a ground for cancellation of his visa and he invited to comment.
The applicant requested an extension of time to comment. The Department granted an extension of time. He then sought a further extension of time which was declined.
The applicant responded on 24 and 26 October 2023, stating that he wanted to finish his degree at the University of Sydney and he considers studying in Australia as his first step to being a grown man and taking responsibility for himself. He claimed that he faced some health issues towards the end of semester 1 in 2022 which caused him to miss the final exam and the first supplementary exam. He further stated his attempts to arrange with the university a second supplementary exam were to no avail. He claimed that he suffered from gout which disrupted his plan to resume studies but acknowledged that the condition had not been diagnosed by any doctor or hospital. He said that he considered applying for another half year suspension due to his career planning and health issues but had not received any response from the university. He claimed he felt hopeless about the lack of response from the university and regretted not treasuring his time in Australia.
The applicant also provided to the Department copies of email enquiries sent to his education providers, copies of his medical records while in Australia, a medical prescription obtained in June 2023, and online requests for medical certificates.
In considering the applicant’s response the delegate had regard to the applicant’s PRISMS records which set out his study history in Australia. The delegate noted the applicant initially arrived in Australia on his first student visa on 4 March 2016. PRISMS records indicate that the applicant was suspended for one year in 2019, with the education provider stating the applicant will have automatic right of readmission in Term 1 2020. However, the applicant’s subsequent enrolment was also cancelled, with the education provider noting “student has failed to enrol for Semester 1 2020 and enrolment has been withdrawn lapsed”. The delegate noted that the applicant resumed study in around March 2021 and was granted his latest student visa, the subject of the cancellation, but PRISMS records the applicant’s enrolment was once again cancelled on 23 March 2022, with the university noting the applicant’s failed to enrol in Semester 1, 2022.
The delegate noted the applicant’s enrolment was cancelled over 19 months prior to the NOICC but the applicant had provided limited information in respect of his purpose for remaining in Australia since then. She found the applicant’s stay in Australia was no longer in line with the purpose of a student visa, and found non-compliance with condition 8202 for that period to be significant. While acknowledging the applicant may experience some emotional and financial hardship if the visa is cancelled, she noted there is no information indicating the applicant is employed and emotional hardship alone is not sufficient reason to not cancel the visa. The delegate noted most of information submitted by the applicant related to his unsatisfactory course progress while holding a previous student visa. While acknowledging the applicant faced some challenges relating to medical conditions, the delegate noted the applicant had not provided information regarding ongoing capacity to study. In respect of the applicant’s attempts to contact his education provider on different occasions, the delegate noted there was no evidence the applicant has applied for a deferral of his study. Overall, the delegate was satisfied the grounds for cancelling the visa outweighed the reasons not to cancel the visa.
The applicant’s visa was cancelled on the basis he was not enrolled in a full time registered course from March 2022 until the delegate’s decision.
At the hearing the applicant agreed that he was not enrolled in a registered course from March 2022 until the delegate’s decision. On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).
Consideration of the discretion to cancel the visa
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 Procedural Instruction ‘General visa cancellation powers’.
Circumstances in which ground of cancellation arose
The applicant has provided to the Tribunal extensive written submissions describing his study history in Australia and the background events leading to the ground for cancellation arising. In a statutory declaration which he provided to the Tribunal the eve before the hearing he described the difficulties he has had since arriving in Australia as an international student. He provided a letter from the University of New South Wales (UNSW) where he was enrolled in a Bachelor course in 2017 and 2018, having completed the foundation course in 2016. The letter reports that he attended UNSW’s Psychology and Wellness service three times in 2018 with concerns around adjustment, social isolation, procrastination and low motivation. However, he had two other appointments which he cancelled and one which he did not attend.
The applicant has stated that he was not doing well at high school in China. His father wanted him to study science subjects even though humanities were his “strong suit”. He achieved poor grades and his parents were concerned he would not perform well in the college entrance examination, so he would find it difficult to enter a good university in China. His parents valued foreign education and they had relatives in Australia so they decided he should study here. He received admission to UNSW in an engineering program and secured a student visa. As he was under 18 years, he required guardianship so stayed with homestay families. He faced challenges with host families and the commute to university. He moved accommodation a few times. He completed the foundation course at UNSW and did not encounter difficulties with it but had difficulty integrating in Australian society. His English was not good. He became isolated, ate a poor diet and had hygiene issues. He was teased about his weight. He suffered psychological trauma. As he did not have his parents’ supervision, he became lazy and avoided his difficulties in learning.
The applicant enrolled in the Bachelor of Engineering (Honours) at UNSW in February 2017. He continued studying there until early in 2019 when he was suspended for unsatisfactory academic performance. He has claimed that he tried to seek help from his teachers and tutors but their response left him disappointed. He felt they treated him harshly and he felt unsupported and pressured. He felt his English was a barrier to his studies and he became anxious. He and other students he worked with on group projects slackened off, leading to unsatisfactory results.
The applicant claimed his health issues also impacted his study. He had paronychia (a toenail infection) made worse by his increased weight. The pain affected his ability to move around the university. He felt mocked because he could not wear “nice shoes” and he thought students were suggesting he had “smelly feet”. (He has now seen a podiatrist in Sydney and had the infection treated.) He was overweight from binge eating. He had stomach pain, ultimately associated with helicobacter pylori (this has now been treated). His parents, while initially supportive when he reported his physical ailments, could not provide any substantial help. They nagged him to take care of himself. This made him irritable and led to him questioning himself. He felt psychological pressure because of his academic difficulties. He failed two subjects in his first semester. He could not confide in his parents because of their expectations and his fear of disappointing them. He started to fabricate false grades in response to their enquiries. This increased his anxiety. Due to his conditions, he missed his exams and the first supplementary exam at UNSW. He tried to sit a second supplementary exam but “it failed to submit for some unknown reason. The university did not give enough attention to my special circumstances, and the teachers did not provide me with any extra help or communication, directly determining that I had failed.”
The applicant has stated that he passed two units at UNSW but he failed other units. This resulted in UNSW raising concerns about his failures in his third semester and suspending his enrolment for one year for unsatisfactory course progress. In his statement he stated “in early 2019, I received a notice from the university to suspend my studies for a year. I appealed this decision and explained the special circumstances that prevented me from taking exams in the last semester, but ultimately, I was unsuccessful. At that time, I did not clearly realize that a one-year suspension meant leaving the country…. after the Summer Term of 2019 ended, I decided not to continue studying at UNSW and sought other options.”
The applicant told the Tribunal he then transferred to the University of Sydney (USYD) to study a Bachelor of Engineering (Honours). In his written statement he said that he wrote to his parents and mentioned that he had transferred to another university and that he had failed some courses, but did not give them all the information.
The applicant stated his course at USYD started second semester, 2019. However once again he felt frustrated by the same problems he had at UNSW. The quality of teaching disappointed him and he did not feel supported. His mental condition deteriorated and he failed all six subjects. He returned to China but he did not tell his parents that he had failed. He returned to Australia in early 2020, just in time before the borders closed, and he encountered problems registering for first semester (in 2020). In second semester his “concept of time and dates was very vague” and he missed the registration deadline. He stated that “due to poor communication, things did not go smoothly, resulting in my inability to complete the registration even by the fourth week of classes.” His health conditions resurfaced and he experienced gout symptoms in November 2020. Despite consulting various doctors, he could not get a definitive diagnosis. The pain impacted his studies.
The applicant stated that during the pandemic, he was isolated and found it difficult to connect with others in online classes. He stated he played video games and became obsessed with and addicted to the card game Magic: The Gathering. He was spending large amounts of money on the game. In early 2022, he was suspended from USYD due to poor academic performance. During the suspension, he did not return to China due to the pandemic and he was reluctant to tell his parents about the suspension. The applicant thought that once the suspension period was over, he could continue studying at USYD. He therefore “began to wait aimlessly, holding onto a faint hope in my heart.”

At the hearing, when asked about the circumstances in which the ground for cancellation arose, the applicant stated that he thought he could wait for the two year suspension to pass and then he could return to university. He claimed he did not realise he should have left Australia while he was not enrolled in a course. He referred to his various health issues but apologised about not having basic knowledge about his visa conditions.
The applicant provided a letter of support, said to be from his mother, Wang Jianping, in which she describes the applicant as having “a strong sense of right and wrong… In both his life and studies, he enjoys making like-minded friends and is always willing to help others. He strives for a better life and works hard towards achieving it.” The Tribunal finds this to be somewhat inconsistent with his own oral evidence that he has been dishonest with his parents, as he has told them that he has finished the Bachelor course and has an Australian degree.
The applicant also provided a statement said to be from his father, claiming that the applicant is “someone who takes his studies and work seriously, always striving for satisfactory results. However, he does have some clear weaknesses, such as occasionally displaying laziness. The current visa issue is a result of his failure to take the initiative to fully understand the relevant policies.” However at the hearing the applicant indicated that his father did not know all the details of his study history and the visa cancellation.
The applicant provided a letter of support from his friend Zhouyang Wang, a self-employed professional in the finance industry, who met the applicant in 2018 while participating in a game tournament at Good Games. He opined about the applicant’s circumstances “I think his poor academic performance is related to his study habits and lifestyle. I feel he has a severe procrastination problem, often postponing tasks till the last minutes. I frequently see him getting up at midnight to eat, staying up late, and sleeping during the day. I'm not sure if he has any commitments, but he must have missed many of his university classes. After the pandemic turned university courses into online classes, the situation worsened.” Mr Wang goes on to say that when he heard about the applicant’s visa cancellation he was “indignant because such serious issues are largely the result of communication breakdown between Qihan and his university...Qihan’s mental state was terrible at the time…(he) was suffering from a severe case of gout, to the point where he was unable to walk unaided ….(he) often required painkillers just to sleep. Due to his condition, it was impossible for him to visit the school in person to explain his situation.” It is apparent from this statement that the applicant had motivation issues before the pandemic. The Tribunal notes Mr Wang has stated the applicant had a severe case of gout, however the applicant has stated he did not have a definite diagnosis and he has since been treated for a toenail infection.
The applicant provided a letter of support from Mr Chun Cui who stated he has known the applicant for seven years having shared an interest in board games. He stated the applicant is facing personal challenges.
The applicant provided a letter of support from Mr Wang Runfeng who stated he met the applicant at a card game shop in January 2021 and they typically communicate once or twice a week. He described the applicant as a “meticulous, responsible, and thoughtful person who always plans thoroughly for anything he takes on… he takes responsibility and follows through until the issue is resolved….(he) is a very friendly person, meticulous and patient in his work, and well organized in his personal life. This also applies to his studies…. he can become so focused on achieving perfection in the outcome that he delays completing tasks.” Mr Wang stated that the prolonged impact of the COVID-19 pandemic from 2020 to 2023 affected the applicant deeply, and he lived in fear and anxiety. He stated that the applicant reported that isolation and limited social interaction and family pressure led to mental health issues.
Mr Wang, also an international student, surmised why he thinks the ground for cancellation arose, that the applicant did not understand the requirements of his student visa and that he did not receive sufficient professional support or guidance. The Tribunal gives Mr Wang’s thoughts on this limited weight. It notes his description of the applicant and his commitment to his studies is at odds with the applicant’s own oral evidence about the circumstances in which the ground for cancellation arose. It is not satisfied Mr Wang’s own experience as an international student gives him the expertise to hypothesise as to why the applicant did not comply with his visa condition.
The representative, in written submissions provided after the hearing, drew attention to the number of claims the applicant made for medical consultations. She also noted he felt bullied and discriminated against. She noted the pandemic forced him into lockdown and taking online courses contributed to the deterioration of his mental health. The Tribunal has taken these submissions into account but notes the applicant’s oral evidence that he was able to continue to engage in social interaction with his friends and to play games during this period. It notes he met one of his current friends at a game shop in 2021. The applicant has also claimed that his computer skills and engagement from playing games has prepared him for the current course in which he has enrolled. The Tribunal is not persuaded that the lockdown in 2020 to 2021 and online study contributed in any significant way to the applicant not being enrolled in a registered course from March 2022.
Having considered all the evidence regarding the circumstances in which the ground for cancellation arose, the Tribunal accepts the applicant struggled to focus and study in Australia. He believed he was not adequately supported by the universities and that he was discriminated against. The Tribunal notes however that the letter from UNSW psychology and Wellness service records that while he attended three sessions, he “cancelled on two other occasions and failed to show up on one further occasion.” The Tribunal is not persuaded the ground for cancellation arose because the applicant was not adequately supported by the universities. The Tribunal accepts the applicant’s progress may have been affected by the pandemic in 2020 and 2021 but it notes his own evidence that he became addicted to a card game and he played video games while he was supposed to be studying. He gave oral evidence that he played games and ate out with his friends. The Tribunal is of the view the applicant was distracted by these activities and this contributed to his unsatisfactory progress at university. While it accepts this led to the applicant becoming anxious, because he had not been honest with his parents about the extent and serious consequences of his unsatisfactory progress, it is of the view the anxiety was in the main about facing his parents and disclosing the truth, particularly given they had invested so much money, on his estimate about $500,000, on his study in Australia.
The Tribunal accepts the applicant had some medical issues, stomach problems and foot and toenail pain, but it is not satisfied the evidence demonstrates those conditions were so severe that they were the cause of his unsatisfactory course progress. The Tribunal asked the applicant if he was mature enough to face the challenges of being an international student as his evidence suggests he needed the close supervision of his parents to remain focused on his studies. He told the Tribunal that he was not focused in China and his parents were concerned that he would not pass the Chinese college entrance exam so they arranged for him to study in Australia. It appears to the Tribunal that one of the circumstances leading to the ground for cancellation was the applicant’s ill-preparedness to focus on his studies, an issue he already had in China before he came to Australia.
The Tribunal also notes that much of the applicant’s evidence relates to his suspension by UNSW in 2019. This demonstrates he already had difficulties focusing on his studies before the pandemic. However his non-compliance with condition 8202(2)(a) was from the period March 2022. While he has claimed social isolation contributed to his non-compliance it notes his evidence that he met his friend, Mr Zhouyang Wang, in 2018. He has known Mr Chun Cui for seven years and he met his friend, Mr Runfeng Wang, in 2021. While the applicant may not have disclosed to those friends his unsatisfactory course progress, the Tribunal is not satisfied social isolation was a significant circumstance leading to the ground for cancellation arising. It is of the view his games and addiction to the card game were more significant. He admitted to the Tribunal however that he has not disclosed to his parents his addiction and this has been the cause of some stress for him.
The applicant told the Tribunal that he failed to enrol in March 2022 because USYD told him he was suspended so he did not know he should have left Australia as he was not enrolled in a registered course. He acknowledged that this was his own fault as he did not have awareness about his obligations arising from his visa conditions. As raised with him at the hearing, the Tribunal is of the view the onus was on the applicant to be aware of his visa conditions and what he needed to do to comply with those visa conditions. It notes he had been in Australia for six years at the time of his non-compliance. He acknowledged this was his oversight.
Overall the Tribunal gives this factor some weight in favour of exercising its discretion to cancel the visa.
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The applicant has provided documentary evidence that he has attempted to enrol in various courses since the delegate’s decision. He provided evidence that in April 2024 he tried to enrol in a Bachelor of Electrical Engineering at the University of Technology but was unsuccessful. Also in December 2023 he tried unsuccessfully to enrol at Western Sydney University in a Bachelor of Early Childhood Studies but that university found he would not satisfy the Genuine Temporary Entrant criteria, as the holder of a bridging visa E. He also provided evidence that he was unsuccessful in an attempt to return to UNSW to complete a Bachelor of Electrical Engineering (Honours).
The applicant provided CoE evidence that he has now enrolled in a Bachelor of Business at the Canterbury Institute of Management (CIM), commencing 30 September 2024. He mentioned at the hearing that he plans to attend summer school and can take three semesters each year, which means he could potentially complete his studies within two years. The Tribunal has concerns given his study history that this is very ambitious and he may not be able to undertake this study.
The applicant has provided evidence that he undertook further English study in December 2023 to February 2024 and he has achieved the required score in an EILTS test to meet the English language requirement. In his written statement the applicant submitted that, with his skills developed through playing video games, he now wishes to study Business Information Systems. He has enrolled in the Bachelor of Business, with a major in Information Systems at CIM, and intends to participate in internships or part-time jobs. He plans to find a full-time job in the field of information technology or business management after graduation. However he told the Tribunal he has never worked, in China or Australia. The applicant asked for a second chance to complete his undergraduate course, as his parents will feel very sad if he returns home as a deportee, given they have invested so much money, time and energy in his Australian studies. He said he will stop playing computer games, ensure his attendance rate is above 80%, and develop a study plan. He also considers his friend, Mr Zhuoyang Wang, who is studying this course, his role model. He intends to treat his mental illness and submits that he will regularly consult with doctors and psychologists for counselling and treatment. He has gone through a surgery which has improved his ingrown toenail. He is under immense anxiety and pressure and now wishes to repay his parents’ hard work by completing his studies in Australia.
The Tribunal raised with the applicant its concern that his study history in Australia might cast doubt on his ambition that he will now complete a Bachelor degree. The applicant asserted that he looks forward to his study now. He is proud of himself for making a decision about his future path and developing a plan. He has had his toe condition treated and he will continue to consult Dr Cheung for psychological support. Dr Cheung has explained to him that there might be a connection between his stomach issues and his mental health concerns.
The applicant indicated he is highly motivated to finish the Bachelor of Business because he has told his parents that he has already been awarded a Bachelor degree in Australia. He admitted he has lied to them. They think he is now looking for employment in Australia and undertaking a Masters. He claimed this is how his tuition fees at CIM will be covered, because his parents think he is doing a Masters. The Tribunal raised its concern about the applicant’s continued dishonesty, as this might raise concerns as to whether it can rely on his assertions that he intends to complete this Bachelor degree. It is also concerned that the duplicitousness will be a continued source of stress and anxiety. The applicant indicated he is regretful but has been lying to his parents for years. He does not want to disappoint them.
The representative in post hearing submissions asked the Tribunal to consider the applicant’s financial capacity to cover the cost of study. She submitted that his father works as a senior supervisor at People’s Education Press and receives a substantial income. His father has provided a certificate of deposit equivalent to over $200,000 to cover the applicant's studies in Australia. The Tribunal accepts the applicant has the financial means to support his education while in Australia so long as his parents are not aware of his dishonesty.
When asked about whether he will be able to focus, given his past addiction issues and obsession with video and card games, the applicant referred to his evidence that he has closed his Steam account, which gives him access to certain games. He submitted that he has not played games since June 2024 and that he can control himself now. The Tribunal has taken this into account but has concerns that the pressure of study and his continued dishonesty with his parents might cause the applicant to return to gaming, given his evidence about his obsession with it in the past and the social interaction he enjoys from those activities.
The Tribunal remains concerned that the applicant may not be able to focus on his studies in Australia and complete the Bachelor degree given his unsatisfactory study history and his duplicitousness with his parents. It accepts his parents can afford to continue to support him but has concerns that the applicant’s anxiety about not being honest with them will persist. It is concerned that the stress of being duplicitous with his parents will impact on his capacity to remain focused and conscientious. It is also concerned about the applicant’s willingness to continue to lie to achieve his desired outcome. This must have an ongoing impact on his mental health, even if he does continue to consult Dr Cheung.
The Tribunal has considered all the evidence with respect to this factor and whether the applicant has a compelling need to stay in Australia. While it accepts he wishes to remain here to finally pursue study for a Bachelor degree, it notes he has been on that path since 2017 and has been unsuccessful. As it has reservations about whether the applicant will in fact complete the Bachelor degree for which he is currently enrolled, the Tribunal is not satisfied there is a compelling need for the applicant to stay in Australia.
Overall the Tribunal gives this factor some weight in favour of exercising its discretion to cancel the visa.
The extent of compliance with visa conditions
The applicant did not comply with condition 8202(2) as he was not enrolled in a registered course of study from March 2022 until the delegate’s decision in October 2023. It finds the breach of condition 8202(2)(a) is significant as the condition goes to the core purpose of the grant of a student visa, namely to study in Australia The Tribunal takes into consideration that he tried to enrol in courses in 2023 but was unsuccessful. It takes into account that he completed an English course in December 2023 to February 2024 but it considers a period of 19 months of non-enrolment to be of significant concern. It is not satisfied the applicant has adequately explained this by stating he did not know about his visa conditions and his obligations.
Overall, the Tribunal gives this factor some weight in favour of exercising its discretion to cancel the visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal has taken into account the applicant’s evidence that he will suffer significant emotional and psychological hardship if the visa is cancelled. At the hearing he told the Tribunal that he has not told his parents that he failed and that he does not have a Bachelor degree. He stated that he cannot afford the consequences if he has to return to China. His parents are not rich. He has spent eight years in Australia and still does not have a degree. This will cause his parents physical and mental harm. They will be very disappointed. His mother has been so angry with him in the past that she has lost consciousness. His parents have already spent over $500,000 on supporting his study in Australia and it has been for nothing if he cannot stay here and complete the Bachelor degree at CIM. The applicant also stated it will be hard for him to find a job in Australia or China if he cannot stay and complete the Bachelor degree. The Tribunal has taken these concerns into account but for reasons given above it has concerns as to whether the applicant will in fact complete that degree.
The applicant’s representative has submitted post hearing evidence regarding household wealth in Beijing and information about the applicant’s parents’ retirements. However the Tribunal notes she has also submitted the applicant’s parents have sufficient funds to continue to support the applicant’s study in Australia, which the Tribunal has accepted. While it accepts the applicant’s parents have outlaid significant funds in the past to facilitate the applicant’s stay in Australia, it is not persuaded they will be harmed financially if his visa is cancelled because it is not persuaded he will complete the Bachelor degree at CIM.
On the subject of employment prospects, raised by the applicant at the hearing, the Tribunal asked the applicant why he did not work while he was in Australia and not studying. He stated he thought he was a big failure and he could not get a job because he was isolated and had contact with nobody. The Tribunal is not persuaded by this as his evidence indicates he had regular contact with his three friends, with whom he played games.
The applicant’s mother purportedly stated that if the applicant’s visa is cancelled visa “it would severely impact both his education and his future career. He would not be able to complete his current studies, which would affect his professional development. If he is forced to return to China due to the visa cancellation, he will not be able to find the same level of courses there. Without a degree, it would be impossible for him to find a suitable job in China’s competitive job market... Cancelling his visa and ending his studies would also be a significant loss for our family and a severe emotional blow to us. For years, we have made great efforts to support Zhang Qihan’s education in Australia, both emotionally and financially. If his visa is cancelled, all these efforts will be in vain, and this will bring enormous emotional distress and an immeasurable loss to our family.” The Tribunal finds this admission by the applicant’s mother that the applicant does not have a degree from Australia to be somewhat inconsistent with the applicant’s oral evidence to the Tribunal that his parents do not know that he has not been awarded a Bachelor degree in Australia. He told the Tribunal that he has told his parents that he finished the Bachelor degree and he is now studying for a Masters. The Tribunal is not satisfied the applicant’s parents know that he has not completed a Bachelor degree in Australia.

The applicant’s representative in post hearing submissions has submitted that the applicant will lose his will to live if he is forced to leave the country. The applicant also raised fear of deportation at the hearing. As the Tribunal explained to the applicant at the hearing, a visa cancellation does not necessarily result in deportation. While the Tribunal holds concerns regarding the applicant’s claims that he will lose the will to live, it notes the purpose of the student visa is to study in Australia. It notes the applicant is currently consulting a psychologist so he will have support through this process. However it also notes that the applicant did not consult a psychologist until after he received his hearing invitation, yet he has known that the Tribunal is reviewing the decision since November 2023, when he made his review application.
The Tribunal has considered the applicant’s claims about psychological, emotional and financial hardship however it is of the view the applicant’s primary concern is to avoid disclosing to his parents that, while they have been supporting him to remain in Australia since 2016, ostensibly to study, and spent over $500,000 doing so, unbeknownst to them the applicant has still not completed a degree. It takes into account the impact on his future employment prospects in Australia and China but it notes he has not attempted to secure any employment in the past, including while in Australia not studying. The applicant has admitted he is terrified of admitting to his parents that he has not been awarded a degree in Australia, and that he has had addiction issues. It accepts this admission is likely to cause conflict with his parents and they are going to be very disappointed and angry. It notes the applicant’s concern for his mother’s wellbeing. It accepts there will be shame for the applicant and that his parents have expended significant funds that they might not otherwise have spent if they had known he was not pursuing studies. However the Tribunal is of the view the applicant has been, in the main, responsible for these circumstances and he will eventually have to disclose the truth to his parents.
Overall the Tribunal gives this factor some weight against exercising its discretion to cancel the visa.
Past and present behaviour of the visa holder towards the department
There is no evidence that the applicant has not been co-operative in his dealings with the Department in the past.
The Tribunal gives this consideration neutral weight.
Whether there would be consequential cancellations under s 140
The applicant does not have any dependents on his student visa. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa were cancelled.
The Tribunal gives this factor neutral weight.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
There are mandatory consequences if the applicant’s visa is cancelled, including possible detention and removal from Australia, as well as difficulties in obtaining any further visas.
If the visa is cancelled, the applicant may be subject to a restriction under s.48 of the Act and he would have difficulties in obtaining any further visas in Australia, following the expiry of his student visa. Under PIC 4013 he also may not be granted a further visa for three years from the date of cancellation. The cancellation may also restrict the applicant’s ability to make a valid application for any visa other than those prescribed in reg 2.12.
When asked by the Tribunal whether he would leave Australia voluntarily if the visa is cancelled, he said he did not know what he would do. The Tribunal is unable to assess the likelihood of the applicant leaving voluntarily or being detained.
The Tribunal accepts the applicant’s evidence that he wishes to remain in Australia to complete the Bachelor degree at CIM and to get work experience. It accepts that cancellation would have further consequences and these would limit his options to immediately return to Australia or apply for a different kind of visa. However these are the intended and legitimate consequences of a visa cancellation.
The Tribunal gives this consideration neutral weight.
Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation
There are no children who would be affected by a visa cancellation.
When asked if the applicant fears returning to China, he indicated he wants to remain here to study, finish his degree and work in Australia and if he is sent back to China he cannot achieve those goals. When the Tribunal pursued this factor with the applicant, as to whether he feared returning to China, he stated that he will not be able to get a college degree in China, or apply for a proper job. He would also have to tell his parents the truth about his study history and visa cancellation.
The applicant did not specifically claim to fear harm in China. The Tribunal is of the view that if the applicant subsequently claims he cannot return to China, as he fears the relevant harm, this can be fully considered via a protection visa application. The Tribunal is of the view that is the appropriate mechanism for assessing any claims to fear harm in China.
There is no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child (CROC) or that it would be in contravention of the Convention Against Torture.
The Tribunal gives this consideration neutral weight.
Conclusion
The Tribunal has considered the applicant’s circumstances individually and cumulatively. There are several factors for which the Tribunal gives neutral weight. The Tribunal is satisfied that there are factors that favour it exercising its discretion to cancel the visa, being the circumstances in which the ground for cancellation arose, his purpose for remaining in Australia, and the extent of his compliance with visa conditions. It accepts the applicant wishes to remain in Australia but it is not persuaded he has a compelling need to remain here. It has reservations about whether he will complete the course in which he is currently enrolled. It finds a period of 19 months of non-enrolment to be significant and it is not satisfied that he has adequately explained his non-compliance. It finds the breach of condition 8202(2)(a) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study in Australia. The Tribunal accepts the applicant has had medical issues and mental health concerns but it is not satisfied they were the main circumstances leading to the ground for cancellation. The Tribunal has concerns that the applicant lacks the focus and commitment to successfully complete tertiary study in Australia. The Tribunal considers favourably the hardship the applicant and his family will suffer, including his concerns about disclosing to his parents his duplicitous conduct. It accepts this is the cause of significant anxiety and stress for the applicant, however it is not satisfied the hardship concerns he has outweigh the factors in favour of cancellation.
Considering the circumstances overall, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
D Connolly
Senior Member

ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:
(a)a Defence student; or
(b)     a Foreign Affairs student; or
(c)      a secondary exchange student.
(2) A holder not covered by subclause (1):
(a)      must be enrolled in a full time registered course; and
(b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
(c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:
(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a)     is enrolled in a course at the Australian Qualifications Framework level 10; and
(b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.

[2024] AATA 3720

26 September 2024

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Immigration

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Judicial Review

Procedural Fairness

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