Zhang (Migration)

[2019] AATA 1005

Zhang (Migration) [2019] AATA 1005 (26 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Congya Zhang

CASE NUMBER:  1701699

HOME AFFAIRS REFERENCE(S):           BCC2017/130822

MEMBER:Mr S Norman

DATE:26 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 26 March 2019 at 1:50pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – youthful age – lack of understanding of visa conditions – successfully enrolled in a Bachelor of Business since 2017 – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 January 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa on the basis that the applicant was found to have breached condition 8202(2)(a) – enrolment. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 26 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  

4. The applicant was represented in relation to the review by her registered migration agent.

5. 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

6. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

   Did the applicant comply with Condition 8202?

7. 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 registered course, or in limited cases, a full time course of study or training: 8202(2)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 13 September 2013 (due to expire on 15 March 2017[1]). By Notice of Intention to Consider Cancellation (NOICC) dated 17 January 2017, the applicant was advised that information available on the Provider Registration and International Student Management System (PRISMS), indicated she had not been enrolled in a registered course of study since 24 September 2016. Therefore, she appeared to be in breach of condition 8202 (2)(a); and her visa may be cancelled under s.116(1)(b) of the Act.

   [1] Tribunal – folio 50.

9. The applicant did not respond to the NOICC. However, with the Tribunal the applicant lodged:

   ·     an Acceptance Form from the University of Technology Sydney (UTS), dated 30 January 2017. That referred to the applicant’s acceptance to commence a Bachelor of Business in the Autumn 2017 intake[2]

   ·     a UTS Insearch, Diploma of Business granted to the applicant 10 October 2016[3]

   [2] Tribunal – folio 17.

   [3] Tribunal – folio 22 (reverse side).

10. In migration agent submissions dated 25 February 2017,[4] amongst other things it was stated the applicant did not intentionally breach the criteria attached to her Student visa; and reference was then made to the collapse of the UTS’s COE after September 2016; and that she has now been issued a valid COE to study a Bachelor of Business at UTS. In migration agent submissions dated 5 March 2017,[5] it was also explained that the now 22-year-old applicant was young, and did not have much knowledge about immigration matters.

    [4] Tribunal – folio 23.

    [5] Tribunal – folio 54.

11. However, based on the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

12. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

13. Regarding the applicant’s travel to and stay in Australia, in migration agent submissions dated 5 March 2019,[6] it was claimed the applicant had arrived in Australia in October 2013; that she enrolled in a package course with Academic English, Foundation study, Diploma of Design and a Bachelor of Design with the UTS. She subsequently “changed her preference from design to business”. It was claimed she had been “studying with UTS “and it’s associated Institute since 2013”. In the same migration agent submissions, it was claimed that the applicant “could not complete her Diploma course according to the original study plan”. Her education provider “Insearch”, deferred her graduate time and she completed her Diploma in September 2016. She received an offer from her “package course in UTS for autumn 2017 intake”, but she did not know that her UTS COE had ceased in September 2016. For reasons that were not explained, her education provider advised her to depart Australia and stay overseas, which she did in September 2016, but she then returned to Australia in November 2016.[7] It was later explained that she returned to China for family matters.[8]

    [6] Tribunal – from folio 55.

    [7] Tribunal – folio 55.

    [8] Tribunal – folio 54.

14. The applicant is presently 22 years of age and had arrived in Australia when she was 17 years of age. The PRISMS records indicate her study history in Australia is not strong; given that until more recently, her enrolment in the majority of courses she proposed to commence in Australia had been cancelled.[9] However, the Tribunal does take into account the applicant’s youth, and her subsequent studying (2017-2019) at the Bachelor level at the University of Technology. On this last point, the Tribunal notes the applicant had successfully been pursuing a Bachelor of Business at UTS. This was in the period 2017, 2018 & 2019; and that she had already commenced studying in the 2019 Autumn Semester.[10] The Tribunal notes the applicant had failed some of her subjects, but she had been awarded a pass or better, in most of the subjects she had undertaken. When discussed at hearing, she believed she should successfully complete her Bachelor’s degree in 2019; and the Tribunal accepts this may be correct. In the circumstances, the Tribunal accepts the applicant’s intention in staying in Australia, is for the purposes of study.

    [9] Tribunal – from folio 60.

    [10] Tribunal – from folio 48.

15. Regarding the extent of compliance with her visa conditions, the Tribunal notes the applicant has, materially, breached condition 8202(2)(a).

16. Regarding the degree of hardship that may be caused to the applicant or her family if her visa is cancelled, at hearing she advised the Tribunal that her father is engaged in property development in China, and that he largely funds her residence and education in Australia. Be that as it may, the Tribunal proposes to accept that if the applicant’s visa is cancelled she or her family may be subject to some limited financial or other hardship. However, there is no evidence that any family members in Australia would be impacted by the cancellation of the applicant’s visa.

17. Regarding the circumstances in which the ground of cancellation arose, in writing it was said that after receiving her NOICC, the applicant had gone to UTS to “deliver a cheque for her tuition fee” and she was advised her COE would be issued soon. The applicant also lodged:

    ·a letter dated 10 October 2016 from UTS Insearch advising that the applicant had commenced a Diploma of Business course on 15 September 2014 and had completed same on 23 September 2016[11]

    ·a COE for a Bachelor of Business commencing 11 March 2019[12]  (though this related to the UTS course she commenced in 2017)

    [11] Tribunal – folio 53, 52. 

    [12] Tribunal – folio 51.

18. In her statutory declaration dated 5 February 2019,[13] and as already stated herein, the applicant said she accepted an offer from UTS to study a Bachelor of Business and she had initially paid tuition fees on 30 January 2017. She was shocked when she received her NOICC. She said she had completed a Diploma in October 2016; but was unable to “commence her main course until March 2017” (see COE for a Bachelor of Business commencing 6 March 2017[14]). The applicant then went into some detail about not knowing which course to study and returning to China, about her brother’s education, and that she had eventually ‘chosen a course’.

    [13] Tribunal – from folio 50.

    [14] Tribunal – folio 46.

19. The applicant’s migration agent had referred to the applicant’s youth and that she did not understand the migration process in Australia. Be that as it may, the Tribunal notes that Student visas are granted to non-citizens to travel to and stay in Australia for the purposes of study. While the Tribunal would consider an applicant’s youth and claimed lack of understanding of their visa conditions, without more this may not prevent a Student visa from being cancelled. However, and as already noted herein, in the present case the applicant had been successfully pursuing a Bachelor of Business at UTS since 2017.

20. The Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. There is no evidence before the Tribunal that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

21. Next, the Tribunal notes that if the applicant’s visa is cancelled, she would become an unlawful non-citizen and liable to be detained under s.189 and removed under s.198 of the Act. However, she had returned to China previously, and the Tribunal is not satisfied she would be subject to indefinite detention. Further, I am satisfied she could temporarily retain her Bridging visa in order to remain in the community to finalise her affairs prior to departing.

22. The Tribunal also notes that if the applicant’s visa is cancelled she would be subject to s.48 and she would have limited options to apply for further visas in Australia.  She would also be subject to PIC 4013; meaning she might not be granted a temporary visa for three years from the date of cancellation.

23. However, after then considering all the circumstances of the case, and in particular that between 2017-2019 the applicant had successfully pursued studies for a Bachelor of Business at the UTS, the Tribunal concludes that the visa should not be cancelled.

    DECISION

24. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Mr S Norman
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.