Zhang (Migration)

[2019] AATA 1420

Zhang (Migration) [2019] AATA 1420 (3 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wei Zhang

CASE NUMBER:  1703375

HOME AFFAIRS REFERENCE(S):           BCC2017/221089

MEMBER:Stephen Witts

DATE:3 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 03 January 2019 at 12:23pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – genuine student – lack of academic progress – extensive study gap – changed to Vocational courses – difficulties adjusting to cultural and social differences – family illness – decision under review affirmed         

LEGISLATION

Migration Act 1958, ss 116, 189, 359AA
Migration Regulations 1994, r 2.43

CASES

MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 February 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 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(fa)(i) on the basis that the applicant is not, or is likely not to be, a genuine student. 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 20 December 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(FA)(i).

6. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   s.116(1)(fa) - not a genuine student

7. A visa may be cancelled under s.116(1)(fa)(i) if the Minister is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

8. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

9. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the decision-maker may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision.

10. According to the delegate’s decision record, provided to the Tribunal by the applicant, the applicant first arrived in Australia from China on 15 August 2015 holding a Student (Temporary) (class TU) Higher Education Sector (subclass 573) granted on 21 July 2015.

11. According to the delegate’s decision record the applicant has demonstrated a lack of academic progress, and an extensive study gap of non-studying at the appropriate visa level over a substantial period of time, whilst choosing to remain in Australia on a visa solely existing for his engagement in study. The delegate has contended that this indicates that the applicant is not a genuine student and that it appears that there are grounds for cancellation of the applicant’s visa under section 116(1)(fa) because the applicant is not a genuine student.

12. According to the delegate’s decision record the delegate cancelled the applicant’s visa on 22 February 2017 on the basis that the applicant is likely not to be a genuine student and that his prime intention in Australia is not, or is not likely to be, to undertake study. The delegate contended that since entering Australia in August 2015 the applicant has not successfully completed any of the courses that he has been enrolled in and has never successfully studied at higher education level which was a requirement for the purpose of his TU573 visa. The delegate also contended that since the applicant’s first entry to Australia he has only studied for a total estimated period of one month and 10 days in the one year and five month period since he first came to Australia.

13. According to the applicant’s evidence, and to the applicant’s PRISMS record, reviewed with the applicant in accordance with s359AA, since his arrival here in 2015 the applicant has been enrolled in the following courses:

    a)English for Academic Purposes (ELICOS) cancelled in 2015

    b)a Diploma of Business cancelled in 2016

    c)a Certificate IV in EAL (Further Study) cancelled in 2016

    d)a Graduate Certificate of Business Management cancelled in 2016

    e)a Certificate IV in EAL (Further Study) cancelled in 2017

    f)a Graduate Diploma of Business Management cancelled in 2017

    g)a Graduate Certificate in Business Management cancelled in 2017

    h)a Master of Business Management cancelled in 2017

    i)a Graduate Diploma of Business Management cancelled in 2017

    j)a Diploma of Business cancelled in 2017

    k)a Master of Business Management cancelled in 2018

14. The Tribunal informed the applicant that he could comment on or otherwise respond to this information and also asked the applicant if he would like some additional time to consider this information prior to having a discussion with the Tribunal.

15. The applicant reviewed this material for a period of time and then indicated he was able to discuss this with Tribunal.

16. According to the delegate’s decision record the applicant was notified of the intention to consider cancellation on 31 January 2017 and invited the applicant to respond in writing.

17. The applicant responded in a written statement set out below:

    “I received a notice of intention of consider cancellation of my student Visa from Department of immigration and education on 31 January 2017. I only found out this letter in my email on 4 February 2016, and I contacted with local migration agent in Melbourne Box Hill immediately after realising the importance of the email. My agent helped me applied for five working days period extension to give response to immigration Department, which was approved the next day the request email had been sent. I feel so thankful for immigration Department to provide me a chance to explain everything. It took me a few days to collect all the relevant documents and evidence from my previous agent in Shenyang China. Dear Case Officer, please allow me to explain my situation in details, and please reconsider my case.

    I was graduated from Dalian University of foreign languages by studying four year bachelor of business management at July 2008. After graduating, I worked as sales manager at Shenyang Zhengya Computer Internet and Communication Pty Ltd, at first everything went well and I enjoyed this work. But then I realise my working position and career are ceased to advance, it is difficult to get promoted without a higher education background. After discussion with my parents, I decided to quit my job at the time and commence study abroad in Australia.

    Through friends recommendation, I met my previous agent Mr Liu, who ran an agent in my hometown Shenyang, I trusted him a lot any help me applied the package offer from Swinburne University of Technology, which are 50 weeks of English course: Graduate Certificate of Business Management; Graduate Diploma of Business Management and Master of Business Management.

    I came to Australia to commence my study at 2015, at first, I was not getting used to everything, I felt homesick. At the beginning, I could not totally concentrate on my study because of the domestic misfortune. I was brought up by my grandmother, so I care about my grandmother very much. Unfortunately, she was sick and need to treat immediately or it would be really dangerous. During that period, I was very worried about my grandmother. That distract me a lot. Until I met my Chinese classmate in Swinburne University, YoYo. She’s the cutest girl I’ve ever seen, we dated and fell in love quickly. I felt lucky to have her on my side, she’s the one who always encourage me and take care of me, especially, she’s a good cook. I could have imagined to marry her as my wife, but things went wrong after she met one of my friends. My friend Kenneth is an International student as well, but differ from me, he came from a wealthy family, his dad ran big construction business in Beijing. Kenneth started to chase YoYo after meeting her, although he knew that she was my friend at that time. He constantly bought YoYo expensive jewelries and handbags, which I cannot afford. As expected, YoYo left me and took by Kenneth, this made me too sad to focus on my study. I couldn’t sleep well and even I cannot believe this was true. Although we had been together for less than half a year, but she is always the one encouraging me to study. I cannot concentrate on my study after all these happened. I stayed home all the time without seeing anyone, I almost depressed at the time. Luckily I am a strong determined person, I pulled myself up very soon after YoYo’s gone. At March 2016, I received an email from Swinburne University of cancelling my CoE, I was to panic, I did not know what to do, so I contacted with my offshore agent Mr Zhang immediately. He told me to calm down and he said he will assist me with applying for another school. We had a long international phone call that day, though told him about my study pressure as well as the negative emotions after YoYo left me. He suggested be not to give up the study, and he promised me he will help me apply for an easier course for me.

    He contacted me shortly and stated that he had my offer base from a school called Acumen Education. I was so grateful for his help, and transfer the tuition fee as soon as he asked me to. (Please find attached payment receipt, amount of $3500)

    after paying the tuition deposit, I started commenced study in Acumen. I appreciate the educator in this institute, they are very helpful and friendly, I feel more being cared then Swinburne University did. However, a big issue was found out during a conversation with my friend, we had a conversation about CoE topic, and I asked him what is CoE, he explained to me and that was the time I realised the Institute forgot to issue the CoE for me! They thought I was a local student! I was so afraid that my visa could be cancelled, so I called Mr Zhang straightaway, and he contacted Acumen Education in regard to my CoE issue, Acumen education apologised about their mistake and issued my CoE for me (that was almost half a year after I paying the tuition).

    All the reasons above contributed to my current Visa’s problem. My emotional wound has been here with the passing of time, and Acumen Education had already apologised for their mistakes and issued CoE immediately after they found out. Dear officer, I hope you can give me a chance to finish up my current study in Acuman Education, I feel more confident of studying diploma level class rather than Master. Master is too hard for me to complete, I would like to keep studying at Acumen Education until I finish the course. I like this institute not only because of the reasonable price, but also more importantly, because the knowledge level is easier for me to adapt.

    All my friends in China have stable and well-paid works, they can afford taking care of their parents, however, I am not. I hope you can give me another chance, to complete my current study, so that I can go back to China after I graduate, find a better job and take care of my parents. Please consider my situation, and please grant my application.”

18. At the hearing the applicant stated that he had originally enrolled in an English language course but then realised that the course was not suited for him. He stated that he then contacted his migration agent and asked the agent to find a specific course for him. He then indicated that on a number of occasions the university cancelled his enrolments and that the educational providers were at fault in creating a difficult study environment for him.

19. The Tribunal noted to the applicant that in a number of his enrolments it was noted that the enrolments were cancelled due to non-commencement of studies. The applicant did not provide any other specific evidence in this regard other than to assert that he had had problems with his enrolments with some education providers and that he was the “victim”.

20. The Tribunal is concerned by this evidence as the applicant has now been here for several years and has not pursued actively any of his student enrolments.

21. The Tribunal has considered the evidence provided by the applicant in this matter and finds that the applicant is not a genuine student whose primary intention is to undertake study here in Australia for the following reasons.

22. The Tribunal, although acknowledging that the applicant had been suffering from some form of emotional or psychological hurt after the breakup of his relationship with his girlfriend, finds that the applicant could have deferred his study for a period of time and returned home prior to continuing his study here in Australia. The Tribunal therefore finds that this is not an adequate explanation for his poor study here in Australia.

23. The Tribunal, although acknowledging that the applicant was concerned for a time about the health of his grandmother finds that this is not an adequate explanation for the applicant’s study history here in Australia including his many enrolments and course cancellations. It is noted by the Tribunal that the applicant has not been successful in actually completing any of his enrolments since his arrival here. The Tribunal finds that the applicant cannot adequately explain his study history here through that family situation and hold the issue responsible for his many enrolment cancellations and lack of study progress here in Australia.

24. As above, the applicant stated that he had been poorly served by his education providers here in Australia and that this was a significant reason why the applicant had not been able to study here successfully and maintain his enrolments. The Tribunal has considered the applicant’s evidence in regard to his evidence about the problems he was having with the education providers’ administrative procedures and does not lend significant weight to these assertions made by the applicant as an explanation for his poor study history here in Australia. The Tribunal finds that the explanations provided by the applicant cannot be blamed on advice he may or may not have received from his education provider. The Tribunal finds that the applicant must take some responsibility for his enrolments and for maintaining his enrolments and study here in Australia.

25. The Tribunal is concerned that the applicant has not been successful in studying any registered courses here and has not progressed academically and finds that the applicant is not a genuine student whose primary intention is to undertake study in Australia.

26. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

27. 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’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to remain in Australia  

28. The applicant stated that he arrived in Australia in August 2015 to study here because “I was interested in business courses because it will increase my salary when I return”.

29. The applicant stated that after finishing school he successfully completed a Bachelor of Commerce and Business Management in 2004 and that he didn’t work for some time after that as “my parents are rich.”

30. The applicant stated that his father owns an industrial business back in his home country in China and that he has a mother father and a brother back in his home country.

31. The applicant stated that he has not been back home since his arrival here in 2015 and has not travelled anywhere else.

32. The applicant stated that he was currently working as a plasterer for up to 30 hours per week earning approximately $1500.00AUD per week.

33. The applicant stated that he got married on 27 May 2018 and that his wife, also originally from China, is now a permanent resident here in Australia. He stated that they have a three month old son. He stated that he was living in Point Cook in a house owned by his wife.

34. When asked by the Tribunal to outline whether he has a compelling need to remain in Australia he stated that “I have family in Australia, my wife has suffered depression and I can’t imagine my son not having a father”. He also stated that his son was an Australian citizen and that “if I took my son to China he wouldn’t be able to speak English” and that “I really love Australia I like to be here”. He stated that if he returned to China he would not be able to go back to his old company and that if he couldn’t find a job his parents would support him but that he would have at some point to rely on himself.

35. The applicant’s wife, Ms Lan Wang, stated on the applicant’s behalf that his study record here in Australia was not his fault and that she needs him to look after her and the baby.

36. The Tribunal, although acknowledging that the applicant would suffer some harm if he needed to return home to his home country in China because of his domestic situation here with his recent marriage and the recent birth of his son, is mindful that the applicant could apply for an appropriate visa to return back to Australia at some point or alternatively could return home to his home country of China with his wife and child. It is also noted by the Tribunal that the applicant in his evidence before the Tribunal at the hearing stated that he comes from a reasonably well off family and that his family would provide support to him and his family back in his home country. The applicant has not provided any other evidence other than his personal family circumstances here in Australia to demonstrate that he has a compelling need to remain in Australia.

37. The Tribunal therefore gives no weight to this in favour of the applicant not to cancel visa because the applicant has not provided sufficient evidence from the time the visa was granted to indicate he has any commitment to making a success of his study here in Australia.

38. There is not sufficient evidence before the Tribunal to indicate that the applicant has a compelling need to travel or remain in Australia. There is nothing preventing the applicant from returning back in his home country with his family or alternatively pursuing other visa avenues whilst back in his home country. It is noteworthy that in all his time here on a student visa that the applicant, despite numerous enrolments, has not succeeded in actually bringing any of his enrolments to completion.

1. The Tribunal is not satisfied that the applicant has a compelling need to travel or to remain in Australia.

   The extent of compliance with visa conditions

2. The applicant was granted a Higher Education TU 573 student visa in order to study in Australia. As such his intention must be to study, maintain enrolment, attendance and course progress in the higher education category.

3. The Tribunal finds that the applicant is significantly in breach of his student visa conditions and as such the Tribunal gives some weight to this in cancelling his visa.

   Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

4. As above, the applicant stated that he would be caused some hardship having to return home to his home country now that he has a wife and child here in Australia.

5. The Tribunal acknowledges that the cancellation of the applicant’s visa would be a difficult situation for the applicant and possibly his family and that there may be some emotional consequences. However, the Tribunal is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

6. The Tribunal does not accept that the applicant would not be able to study in some form back in his home country that would allow him to create a future for himself. The Tribunal is concerned that the applicant has now been here for some considerable period of time without being able to effectively study and that effective and successfully completed study may not be possible for the applicant here in Australia as he has not been able to cope adequately with any study demands here up until this point.

7. Overall, looking at the circumstances cumulatively, the Tribunal is not satisfied that in this case there is a degree of hardship that means that the applicant’s visa should not be cancelled.

   Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

8. The Tribunal is mindful of the fact that the applicant did experience a relationship breakdown during the period in which his visa was cancelled. The Tribunal also notes that the applicant contended that an illness experienced by his grandmother during this period made it difficult for him to study adequately. However the Tribunal finds that these explanations were not adequate explanations for the applicant’s clear breach of his visa conditions, specifically his obligation to maintain enrolment, study a registered course and progress academically. The Tribunal finds that the circumstances that the applicant found himself in here in Australia were not beyond his control. The applicant could have returned home to deal with his family situation and returned back to Australia to study successfully.

9. The Tribunal does not find that there is any circumstances in which the ground for cancellation arose beyond the visa holder’s control.

   Past and present behaviour of the visa holder towards the department

10. There is no evidence that the applicant made an adequate effort to contact the Department throughout his period of time here prior to his visa refusal and the Tribunal lends some weight to this in consideration regarding the merits of the applicant’s visa cancellation.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

11. The Tribunal is mindful the cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice pertaining to his immigration status. The Tribunal is mindful that the visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion.

12. However, the Tribunal is not satisfied that there are consequences of the cancellation which mean that the visa should not be cancelled.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

13. The Tribunal is mindful of Australia’s obligation under the UN Convention on the Rights of the Child 1989 to consider the child’s interests in this situation. The UN Convention on the Rights of the Child has been considered in the context of visa cancellation cases in these circumstances.

14. In this case it is noted by the Tribunal that the applicant has a child that lives in Australia and is eligible for Australian citizenship. The applicant also has a wife living in Australia with permanent residency. These are relevance considerations to this factor. The Tribunal has considered whether the family’s separation for a period of time if the applicant’s visa is cancelled is a consideration in this case. However, the Tribunal finds that the issues created by the families temporary separation in this particular case as a result of this student visa cancellation do not constitute a breach of international obligations.

15. There is therefore nothing before the Tribunal to indicate that there are international obligations to consider in this case.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

16. There is nothing to consider in regard to this in this matter

    Any other relevant matters

17. The Tribunal has given consideration to the applicant’s evidence in regard to any reasons why the applicant’s student visa should not have been cancelled. In particular the Tribunal has considered the applicant’s evidence regarding the difficulties associated with returning to China with a wife here in Australia who is a permanent resident and a three month old son who was born in Australia however the Tribunal does not find that this is an adequate set of circumstances that presents as a compelling need for the applicant to remain here in Australia on student visas. As stated above, the applicant once returned home could pursue the appropriate visa application to return to Australia or move back to China with his family.

18. The Tribunal also appreciates that an education from Australia may enhance the applicant’s career, however if he does not achieve this, it would not prevent him from gaining employment in China, and the applicant did not give any other evidence to indicate a detrimental effect if the visa was cancelled. The population of China, and its economy, is significant and there are many people in full-time professional employment without a specific education from Australia. It is also noted by the Tribunal that the applicant has bachelor level qualifications in business and commerce gained back in his home country and has several years work experience working as an assistant to a manager of an electronics company.

19. The Tribunal has considered the applicant’s statements and evidence given at the hearing however the breach is significant. The Tribunal has considered all factors listed above both individually and cumulatively in the context of the breach. The Tribunal finds that the breach is significant. As such, considering the circumstances as outlined by the applicant, the Tribunal concludes that the visa should be cancelled as the applicant is not, or not likely to be, a genuine student.

20. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

21. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Stephen Witts
    Member

    
    

    ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.