Zhang (Migration)

Zhang (Migration) [2020] AATA 3278 (25 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Yixin Zhang
CASE NUMBER:  2001009
HOME AFFAIRS REFERENCE(S):          BCC2019/3523396
MEMBER:Vanessa Plain
DATE:25 June 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 25 June 2020 at 5:03pm
CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – breached condition 8202(2)(b) – applicant has not maintained enrolment in a registered course at the same level – compelling reasons for the breach – decision under review set aside
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), Schedule 8
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 14 January 2020 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).
The delegate cancelled the visa on the basis that the applicant failed to maintain enrolment in a registered course that once completed, would provide a qualification from the Australia Qualifications Framework (AQF) 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 on the basis that she was not enrolled in a registered course.
The applicant appeared before the Tribunal on 17 June 2020 to give evidence and present arguments.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant, as the holder of a student visa, has breached conditions 8202(2)(a) and 8202(2)(b) of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached either or both of those conditions, under s.116(1) of the Act, the visa may be cancelled.
Did the applicant comply with Condition 8202?
Condition 8202 provides as follows:
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
[...]
(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.
Paragraph (2)(b) states the visa holder must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework (AQF) that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted. Paragraph (2)(a) provides that the applicant must be enrolled in a full time course.
The applicant’s visa was granted on 11 April 2017 for the purpose of studying a Master of Professional Accounting at RMIT University which is an AQF level 9 course.
Information available to the Department in the Provider Registration and International Student Management System (PRISMS) indicated that the applicant failed to maintain enrollment in a registered course from 7 October 2019 onwards.
PRISMS further indicated that the applicant ceased to be enrolled in Masters of Professional Accounting on 28 September 2017 when she advised her education provider she was ceasing her studies. The Masters degree is an AQF level 9 course. On 3 October 2017, she obtained an enrolment in a Diploma of Leadership and Management which she completed on 7 October 2018, she also completed an Advanced Diploma of Translating on 7 October 2018, which she was studying concurrently with the Diploma of Leadership and Management. Theses courses are AQF levels 5 and 6 respectively. Further, on the applicant obtained an enrolment in a Diploma of Hospitality Management on 9 October 2018 and information available to the Delegate indicated that this course concluded on 6 October 2019 and the applicant was not enrolled thereafter.
As the applicant was not enrolled in a course at the AQF Level 9 (Masters Degree) or Level 10 (Doctoral Degree), the circumstances of clause 8202(3) do not apply to them.
On 5 December 2019, a Notice of Intention to Consider Cancellation of Visa (NOICC) was sent to the applicant.
By written response dated 12 December 2019, the applicant responded to the NOICC and agreed that there are grounds for cancellation for breach of condition 8202(2)(b), but not under condition 8202(2)(a).
The applicant provided reasons to the Department in response to the allegation she’d breached her visa conditions, as follows:
·She acknowledged she’d breached condition 8202(2)(b); and
·She denied she had not been enrolled and maintained she had always complied with condition 8202(2)(a). She contended that her courses had different commencement and completion dates to those that were alleged by the Delegate and on that basis, she had maintained enrolment.
At the hearing on 17 June 2020, the applicant admitted she breached visa condition 8202(2)(b) but maintained that she had not breached condition 8202(2)(a). The applicant produced recent academic documents to the Tribunal which clearly demonstrate that the applicant was studying at the time the Delegate formed the view, based on the PRISMS information, that she was not enrolled. The Tribunal is satisfied that there is no breach of condition 8202(2)(a) in the circumstances.
However, based on the above, the Tribunal finds that the applicant has not complied with subclause (2)(b) of condition 8202 as she has not maintained enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which her visa was granted.
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’.
In her response to the NOICC, the applicant provided reasons as to why she believed her visa ought not be cancelled, as set out in detail in the Delegate’s decision, as follows:
·‘She has a compelling need to remain in Australia, as although the course has ended, it has not been completed by her as the assessment of assignment [sic] has not finished. In order to complete the assignment, she needs to be able to communicate with her assessor face to face. If she is required to leave now, despite her past study, she will not receive the qualification certificate.’
·‘The course offered is ‘diriment’ to those in China – she will have advantage to get employment by completing the course [sic]. Her reason for remaining in Australia is closely aligned to the purpose of her visa, which is for study. If the visa was to be cancelled, she will lose the advantages that study will afford her.’
·‘She has complied with the other conditions on her visas, including not working more than 40 hours a fortnight whilst her course of study was in session and has maintained her health insurance. The non-compliance with condition 8202 was inadvertent.’
·‘There are extenuating circumstances in which the grounds for cancellation arose. When she came to Australia she could not adjust to busy and crowded city life in Sydney and decided to move to Hobart.’
·‘She struggled with learning the English course to meet the language requirement for graduate and Master study, and decided that based on her ability, she was not ready to study courses at the level of AQF 8 and above. She decided that she would have a better outcome if she began with a Diploma course.’
·‘With limited language and knowledge, she didn’t know about the registered course level requirements. With no knowledge of 8202(2)(b) she decided to enrol in a course that was more suitable to her at the time.’
·‘She has had limited contact with the Department, however her behaviour has been truthful and cooperative in her dealings.’
·‘There are only three months left on her visa and she will return to China immediately once she graduates.’
In support of her application before the Tribunal, the applicant provided a CoE in a Graduate Diploma of Management, which is an AQF Level 8 course and a written submission from her migration agent.
In her oral evidence at hearing, the applicant provided detailed, concise and articulate responses to the Tribunal’s questions and did not embellish her evidence, nor deflect from answering difficult questions. Her evidence was consistent with contemporaneous documents produced to demonstrate that he had maintained enrolment and reasonable concessions were made by her in circumstances where she had breached condition 8202(2)(b). On that basis, the Tribunal places weight on the credibility of the applicant’s evidence in the circumstances.
The applicant gave evidence as follows:
·She struggled immensely with English when she first arrived in Australia, that is why she withdrew from her Masters in Accounting and decided to take a course that would not be as challenging from a language perspective and to further enhance her language skills, with a view to recommencing a course at a higher academic level.
·She was acutely aware that she had to maintain enrolment in a course to ensure she was in compliance with visa conditions.
·She consulted a migration agent before taking the Leadership and Management course and the Diploma in Translating. The Diploma in Translating assisted her confidence in English and on that basis, she wanted to progress on a pathway to higher studies again.
·She consulted an education agent with a view to enrolling in a hospitality and management course, as she had enrolled in Accounting on the recommendation of her parents.
·The education agent informed the applicant that she could enrol in a diploma of hospitality management, leading to a Graduate Diploma. She the English language components of those courses were not too difficult, and the applicant passed those courses, she’d be eligible to undertake another Master degree level course.
·On the basis of the above advice, the applicant successfully undertook the Diploma of Leadership and Management, Diploma of Translating and was in the final subject of her Diploma of Hospitality Management, before her visa was cancelled in January 2020.
·Based on the advice she received, she held the belief that if she kept progressing in her study level, that was the appropriate thing to do, rather than not be enrolled in a course at all. She took steps in accordance with that belief and upon the advice she received.
·The applicant candidly admitted that there was a delay between the near end of her diploma of hospitality management and the enrolment in the Graduate Diploma, on the basis that the applicant was aware that she did not have study rights when her visa was cancelled and she was concerned to ensure she was not acting in breach of the bridging visa conditions.
·The reason for her change in study pathway from Accounting/Management to hospitality was due to the work experience she obtained in Tasmania while working at a restaurant there. She formed the view that restaurant management would provide a good career opportunity, but in order to achieve that, she would need graduate qualifications. She discussed her career path with her then employer who encouraged her to obtain graduate level management qualifications suitable for the hospitality business.
·It will cause the applicant embarrassment and difficulty with her family to return to China without higher level academic qualifications, which she is now in a position to achieve, demonstrated by her successful study history to date.
·She is embarrassed at having breached a visa condition and hopes to have the opportunity to finish her graduate diploma, so as to not waste the financial investment she has made in her education to date.
Purpose of applicant’s travel to and stay in Australia
The applicant’s visa was granted to her on 11 April 2017 for the purpose of studying towards and obtaining a Master degree qualification. According to PRISMS, the applicant ceased her studies at this level on 28 September 2017, when she advised her education provider she was ceasing her study. On 03 October 2017, she subsequently obtained an enrolment in a Diploma of Leadership and Management and she also undertook a Diploma of Translating at the same time. These courses are at AQF Level 5 and 6 respectively. On 09 October 2018, she obtained a further enrolment in a Diploma of Hospitality Management, which is a course at AQF Level 5 and despite the suggestion that the applicant completed this course in late 2019, she has a placement to complete before being issued her Certificate of completion.
She is currently enrolled in a Graduate Diploma of Management which is scheduled to commence on 6 July 2020. This course is an AQF level 8 course.
The applicant does not therefore hold a current enrolment in a course of study that is at the same level as, or higher than the registered course in relation to which the visa was granted. Since being granted her visa, she has dropped four levels in the AQF qualification scale. She has not maintained enrolment at the level for which the visa was granted since 28 September 2017, and although the Tribunal considers this period of more than two years to be a substantial period in which to be in noncompliance with one of the core conditions of her visa, the Tribunal places significant weight on the applicant’s evidence above and the fact that she has achieved complete success in her courses to date, as being evidence of the fact the applicant’s clear purpose for being in Australia is for the purpose of study.
The Tribunal affords this considerations some minor weight in favour of cancelling the visa.
The extent of compliance with visa conditions
The applicant has not maintained enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which his visa was granted, resulting in non-compliance with subclause (2)(b) of condition 8202.
It is clear that the evidence establishes that the applicant has not breached condition 8202(2)(a).
Although the length of time that has passed since non compliance with condition 8202(2)(b) is significant, the Tribunal is satisfied that there are compelling reasons for the breach, which are that the applicant, based on her evidence above, had an honest and reasonably held belief, based on an education professional’s advice that she received, that she was not doing the wrong thing vis-à-vis her visa, if she remained upon a study path that demonstrated academic progression and increasing AQL levels. The applicant’s study path, set out above, demonstrates that she has completed and is enrolled in courses that commence at AQF level 5 and she is now currently enrolled in a level 8 course. Her conduct is consistent with the advice she asserts she received.
The Tribunal considers the requirement to maintain enrolment at the correct AQF level to be an important condition for the grant of the student visa, however, on account of the matters set out above, the Tribunal gives this consideration little weight in favour of cancelling the visa.
The degree of hardship that may be caused to the visa holder and any family members
In her evidence at hearing, the applicant informed the Tribunal that she wants to complete her graduate studies, because if one doesn’t have a graduate qualifications, it is difficult to obtain a good job. The applicant also expressed concern at the prospect of wasting the money she had paid to date for her studies and the emotional difficulty of explaining the circumstances to her parents She was anxious at the prospect of ‘falling at the last hurdle’ of her study path that she has consciously set out upon.
The Tribunal gives these considerations some weight against cancelling the visa.
The circumstances in which the ground for cancellation arose
The ground for cancellation arose because the applicant did not maintain enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which his visa was granted, resulting in non-compliance with subclause (2)(b) of condition 8202 attached to his visa.
However, based on the applicant’s evidence set out above, The Tribunal is satisfied that there are compelling reasons for the breach, which are that the applicant held an honest and reasonably belief, based on an education professional’s advice that she received, that she was not doing the wrong thing vis-à-vis her visa, if she remained upon a study path that demonstrated academic progression and increased AQL levels.
The applicant’s study path, set out above, demonstrates that she has completed and is enrolled in courses that commence at AQF level 5 and she is now currently enrolled in a level 8 course. Her conduct is consistent with the advice she asserts she received. She has an exemplary academic record of achievement and has demonstrated that she is currently enrolled in a AQF level 8 course.
Based on the matters set out above, it is clear that the applicant has a reasonable excuse for failing to take corrective action to resolve her non-compliance with condition 8202(2)(b) by lodging a Student visa at the correct AQF level, or enrolling at the correct AQF level. The reasonable excuse was her reliance on her education agent, in the form of the advice given to her, rather than advice that was not given to her.
Based on the above, the Tribunal finds that there are compelling reasons for the visa breach not reasonably within the control of the applicant and the Tribunal gives this consideration significant weight in favour of not cancelling the visa.
The visa holder’s past and present behaviour towards the Department
The applicant responded promptly to the NOICC and there is no evidence before the Tribunal to suggest that the applicant has been uncooperative with the Department or departmental staff.
The Tribunal gives this consideration a little weight against cancelling the visa.
Whether there are any persons in Australia whose visas would, or may, be cancelled under s140
The circumstances of this case are not such that any person’s visa would be consequentially cancelled under s140 of the Act. The Tribunal therefore does not give this factor any weight for or against a decision to cancel the visa for this consideration.
Legal consequences of a decision to cancel the visa
If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if she does not voluntarily depart Australia. The applicant would also be affected by section 48 of the Act, which may prevent her from applying for certain visas while in Australia, and Public Interest Criterion 4013, which may exclude her from being granted a visa for a specific period of time in the future.

These are mandatory and intended consequences of the legislation and given that the circumstances giving rise to the breach were not reasonably within the control of the applicant, the Tribunal considers these consequences to be manifestly unfair and the Tribunal therefore gives this consideration some weight against cancelling the visa.
Australia’s international obligations
There is no evidence before the Tribunal to indicate the applicant has children in Australia, nor whether cancelling the visa would lead to a breach of Australia’s non-refoulement obligations. As there is no information before the Tribunal, the Tribunal does not give any weight for or against cancelling the visa for this consideration.
Any other relevant matters
The Tribunal has no further evidence before it of any other relevant matters.
The matters set out above do not reveal any bad faith on the part of the applicant and it is clear based on all the evidence set out above, that the reasons for the breach of the visa condition were not matters that were reasonably within the control of the applicant.
It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa not being cancelled and I so find.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
Vanessa Plain
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.

[2020] AATA 3278

25 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies