Zhao (Migration)

[2020] AATA 54

Zhao (Migration) [2020] AATA 54 (2 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Jiaqin Zhao

CASE NUMBER:  1834186

HOME AFFAIRS REFERENCE(S):          BCC2018/4044123

MEMBER:Vanessa Plain

DATE:2 January 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 02 January 2020 at 7:47pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – enrolment cancelled – health issues – enrolled in lower level course – breach within control of applicant – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2 cls 573.223, 573.231

CASES

Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 November 2018 made by a delegate of the Minister for Home Affairs 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)(b) of the Act on the basis that the applicant had breached a condition of her visa, namely, condition 8516. 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. On 11 November 2019, the Tribunal sent to the applicant an invitation to attend a hearing on 26 November 2019 at 9:45am.  In response to that hearing invitation, the applicant informed the Tribunal in writing that she would not take part in the hearing scheduled for 26 November 2019.  Accordingly, the Tribunal will proceed to determine the matter based upon the evidence before it to date. 

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)(b) of the Act. 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?

6. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa. This condition requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

7. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant meet cl.573.223(1A), or cl.573.231 if they were not an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student.

8. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a bachelor’s degree, masters degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112.

9. To satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application. ‘Principal course’ is defined in r.1.40.

10. On 24 February 2014 the visa holder satisfied the primary criteria for a Student (Temporary) (class TU) Student (subclass 573) visa. The criteria for the grant of the Student visa required the visa holder to meet, among other criteria, subclause 573.223(1A) or subclause 573.231, which state:

    573.223(1A)

    If the applicant is, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

    (a)     the applicant gives the Minister evidence that the applicant has:

    (i)a level of English language proficiency that satisfies the applicant’s eligible education provider; and

    (ii)educational qualifications required by the eligible education provider; and

    (b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

    (i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

    (ii)any other relevant matter; and

    (c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

    (i)the costs and expenses required to support the applicant during the proposed stay in Australia; and

    (ii)the costs and expenses required to support each member (if any) of the applicant’s family unit.

    eligible higher degree student means an applicant for a subclass 573 visa in relation to whom the following apply:

    (a)the applicant is enrolled in a principal course of study for the award of an advanced diploma in the vocational education and training sector;

    (b)the principal course of study is provided by an eligible education provider;

    (c)if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study:

    (i)the applicant is also enrolled in that course; and

    (ii)that course is provided by the eligible education provider or an educational business partner of the eligible education provider.

    573.231

    If subclause 573.223(1A) does not apply:

    (a)the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and

    (b)the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:

    (i)    made under regulation 1.40A; and

    (ii)   in force at the time the application was made.

11. The delegate was satisfied the visa holder met the requirements of subclauses 573.223(1A) or 573.231 and granted her the visa on 24 February 2014 with condition 8516 attached.

12. According to the Provider Registration and International Student Management System (PRISMS), it appears that the visa holder did not commence studies in Bachelor of Business course at Federation University Australia and her enrolment was cancelled on 29 November 2016. This indicates the visa holder was no longer enrolled in a bachelor’s degree or master’s degree course and she is not enrolled in a course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under regulation 1.40A

13. Based upon the above, it appears the applicant no longer satisfies either subclauses 573.231 or 573.223(1A) and has not complied with condition 8516 imposed on her Student (subclass 573) visa. If the applicant did not comply with visa condition 8516, her visa is liable to be cancelled under section 116(1)(b) of the Migration Act 1958.

14. The applicant was notified of the intention to consider cancellation (NOICC) on 16 October 2018 and the notice invited her to respond in writing.  On 16 October 2018 the applicant  sent an email in response to the Department’s NOICC. In her response, the visa holder stated the following (in summary):

    “... I hope that my visa will not be cancelled because I have enrolled in a new course in Australia. This course is provided by a Vocational Education and Training provider rather than a higher education provider so you can cancel my 573 visa. However, I have already applied for a new 500 visa and I think I should get my new visa granted. Other matters that I think you should take into account have been stated in the attachment GTE...”

    “I hope that my visa will not be cancelled because I have enrolled in a new course in Australia...”

15. In her submission to the Department, the applicant provided the following documents

    -copy of a Letter Statement for Genuine Temporary Entrant (GTE) signed by Jiaqin ZHAO, to support her Student visa application.

    -copy of a Confirmation of Enrolment (COE), 9EC04A58, dated 17 August 2018

    -copy of a Notification of Bridging visa grant, dated 8 October 2018

16. Based upon the above, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act 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

17. 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’.

18. In coming to the following assessment as set out below, I have taken into account the applicant’s response to the NOICC, the relevant legislation s116(1)(b) of the Migration Act, and the guidelines set out in the various PAM3 General visa cancellation powers (s109, s116, s128, s134B and s140) guidelines on visa cancellation.

    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 

19. According to the decision record, the applicant was granted a Student (subclass 573) visa offshore on 29 October 2014 to study in a Certificate III and IV in EAL (Further Study) course and a Bachelor of Business course.  She first arrived in Australia on 22 December 2014 as the holder of this visa.

20. Records on PRISMS indicate the applicant has not enrolled in a course which is not a principal course of a type specified for her Student (subclass 573) visa for one year and 10 months, since 29 November 2016.

21. In her submission, the visa holder stated that she enrolled in a course at Vocational Education Sector level and has lodged a new Student visa application in order to study this course.  This indicates the visa holder’s intention is no longer to undertake a registered course at the same level as, or higher level than, the registered course in relation to which her Student (573) visa was granted.

22. The Tribunal gives these factors minor weight towards the visa not being cancelled.     

    The extent of compliance with visa conditions

23. The Decision Record sets out various records on PRISMS which demonstrate the following:

    - On 20 February 2015 the visa holder completed her Certificate III in EAL (Further Study);

    - On 22 July 2016 the visa holder enrolled in a Certificate IV in Bookkeeping course and a   Diploma of Accounting course at Zarah Institute of Education Pty Ltd;

    - On 29 November 2016 the visa holder’s enrolment in the Bachelor of Business course was cancelled by Federation University Australia;

    - On 23 January 2017 the visa holder completed her Certificate IV in Bookkeeping course;

    - On 08 December 2017 her enrolment in Diploma of Accounting was cancelled by Zarah Institute of Education Pty Ltd for “non-payment of fees” reason; and

    - On 20 August 2018 the visa holder enrolled in a Diploma of Leadership and Management course with Choice Academic College, commencing on 20 August 2018.

24. Based upon these records, the visa holder has not been enrolled in a course which is not a principal course of a type specified for her Student (subclass 573) visa for one year and 10 months, since 29 November 2016.  This also indicates that the applicant had not been studying for approximately eight months, between 08 December 2017 and 19 August 2018 while residing in Australia mostly during that period.

25. The Tribunal considers that the applicant did not comply with condition 8516 of her Student visa when she failed to maintain enrolment in a course of study that is a principal course of a type specified for her student visa, by the Minister.

26. PRISMS records show that the applicant had not been enrolled in a registered course of study between 08 December 2017 and 19 August 2018. Therefore, it appears that the visa holder has not complied with subclause 8202(2)(a) of condition 8202 for a reasonably lengthy period of time.

27. The Tribunal affords this some weight in favour of cancelling the visa. 

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

29. The applicant has not specifically raised details regarding hardship that may be caused to her and/or her family if the visa was cancelled.  The departmental records show the applicant lodged a Student (subclass 500) visa application on 08 October 2018.

30. The Tribunal acknowledges that some hardship may be caused to the applicant should the visa be cancelled and that she may be required to depart Australia.  However, given that there is no evidence of family members being effected by the cancellation of the visa, the Tribunal gives this only a little weight towards the visa not being cancelled. 

    Circumstances in which ground of cancellation arose

31. In the applicant’s response to the NOICC, she claimed that she lodged a new Student visa application in order to study in a course at Vocational Education Sector level. The applicant requested the Department take into account the matters in her GTE statement letter which was submitted in support of her new visa application

32. The Decision Record sets out in large part the matters contained in the GTE letter, in which the applicant asserts as follows:

    -The visa holder completed her English courses. In May 2015 she got approval from her school and had to return China due to her health issues. During 2015 and 2016, her company faced some problems which she had to deal with because she is the company manager. During that period she had to travel frequently between China and Australia. She was under pressure mentally and physically. This led to her not being able to complete her courses.

    -After the company situation was improved, the visa holder enrolled in a Certificate IV in Bookkeeping course at Zarah Institute of Education, starting on 08 August 2016 and a Diploma of Accounting course, starting on 13 March 2017 as she thought the Bachelor degree course was difficult for her. Due to her agent’s fault, she was not aware of the issues of enrolment in a lower level course while holding a Higher Education Sector (subclass 573) visa.

    -After studying for six months, she found the Accounting course difficult. Her thoughts of not being complete the courses worsened her health conditions. At the same time, she had to deal with the company’s issues. She could not complete her course.

    -When her health conditions got better and the company was stabilised, she came back to Australia. Her boyfriend suggested her study in an easier course in Sydney. She decided to enrol in a Diploma of Leadership and Management course with Choice Academic College which started on 20 August 2018. This course could add value to her future career and her family business.

33. The Tribunal takes into account the applicant’s claims regarding her health issues and personal circumstances. However, the Tribunal cannot place significant weight on these claims given that the applicant has not submitted any medical evidence, or contemporaneous and independent lay evidence to corroborate her claims. 

34. The applicant has also contended that it was her agent’s fault that she was not aware of the issues of enrolment in a lower level course while holding a Higher Education Sector (subclass 573) visa.

35. The Tribunal acknowledges that the applicant might have experienced some challenges adjusting to the level of study expected from registered courses in Australia. The Tribunal notes however that it was open to the applicant to seek out professional advice or assistance to resolve her enrolment issues. While I consider the applicant’s above claims, I do not accept her explanation attributing a failure to comply with visa conditions upon her agent.  It is a visa holder’s responsibility to be familiar with visa conditions. 

36. Based upon the above, the Tribunal finds that there were not extenuating circumstances beyond the applicant’s control which would excuse or justify her failure to maintain enrolment in a Higher Education Sector level principal course of study which was required for the grant of her Student visa.

37. The Tribunal gives this significant weight towards the visa being cancelled. 

    Past and present behaviour of the visa holder towards the Department

38. The applicant responded promptly to the NOICC and there is no evidence that the applicant has conducted herself in a manner that is inconsistent with notions of good faith, in her previous dealings with the Department.  I give this some weight in favour of the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

39. There is no evidence before the Tribunal that cancellation of the applicant’s visa would result in consequential cancellations under section 140 of the Act.  I therefore give this no weight in favour of the visa not being cancelled. 

    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

40. If the visa were to be cancelled, the applicant would be excluded from making applications for certain types of visas and may be liable to detention and/or deportation if she does not depart the country.  However, these are mandatory consequences of the legislation and in view of the fact that I have found that the reason for the breach of the visa was reasonably within the control of the applicant, I give this little weight in favour of the visa not being 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

41. Not applicable.

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

42. Not applicable.

    Any other relevant matters

43. There is no evidence before the Tribunal of any other relevant matters. 

44. Although the matters set out above do not reveal any bad faith on the part of the applicant, it is clear based on the evidence that the reason for the breach of the visa was reasonably within the control of the applicant.

45. It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa being cancelled and I so find.

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

    DECISION

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

    Vanessa Plain
    Member