ZHAO (Migration)

[2019] AATA 6530

ZHAO (Migration) [2019] AATA 6530 (21 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr PENGXUAN ZHAO

CASE NUMBER:  1923888

HOME AFFAIRS REFERENCE(S):         BCC2019/2876925

MEMBER:Dominic Triaca

DATE:21 November 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 21 November 2019 at 9:05am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered course ceased – limited academic progress – lengthy wait for enrolment after visa cancellation – retained employment in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8202

CASES

Boettcher v Driscoll (2014) SASC 86
Dimic v Djekovic (2014) NSWSC 1502
Paduano v MIMIA (2005) FCA 211
Project Blue Sky Inc v Australian Broadcasting Austhority (1988) HCA 28
R (on the application of M) v Slough Borough Council (2008) UKHL 52; (2008) 1 WLR 1808        

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.The applicant is a 30 year old citizen of China. This is an application for review of a decision dated 20 August 2019 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) (delegate’s decision).

2.The Applicant’s student visa was granted on 23 March 2018 with an original expiry date of 20 March 2020, providing for 2 years during which the Applicant would be permitted to reside in Australia for the purposes of full-time study.

3.The visa had originally been granted on the basis that the Applicant would remain enrolled in, and make satisfactory progress in relation to, a Bachelor of Accounting course at CQ University. The delegate cancelled the Applicant’s visa on the basis that he had breached that condition of the visa which required him to maintain enrolment in a registered course of study.

4.The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5.The Applicant appeared before the Tribunal at a hearing convened on 20 November 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6.For the following reasons, the Tribunal has decided to affirm the decision under review.

CONSIDERATION OF CLAIMS AND EVIDENCE

7.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 Breach Condition 8202?

8.Condition 8202(2)(a) of the Applicants visa require that the Applicant remain enrolled in a registered course. In the delegate’s decision record, the delegate identified the period from 28 March 2018 to 20 August 2019 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to more than 16 months during which the Applicant was in continuous breach of the visa.

9.The delegate’s finding in this respect was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[1] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s COE in a course for which they had previously enrolled and the reasons for doing so.

[1] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

10.The Applicant said he arrived in Australia in 2015 and commenced studying at Deakin University where he was enrolled in English courses. In March 2017 he transferred to Central Queensland (CQ) University and was enrolled in a Bachelor of Accounting. He says he commenced studying at CQ in 2017 and also studied English courses at that University. In March 2018, his visa was due to expire and he successfully applied for a further student visa to enable him to continue his studies. This visa granted 23 March 2018 is the subject of this application. Five days after the visa was granted, the applicant’s enrolment was cancelled at CQ. From that point, the Applicant remained in continuous breach of his visa by not being enrolled in any registered course of study.

11.The Department wrote to the Applicant on 16 July 2019, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). That notice set out particulars of the alleged breach by the Applicant of condition 8202. The Applicant was invited to comment on these allegations before the Department moved to cancel his visa.

12.The Applicant provided a written response to the Department on 22 July 2019 (‘the Applicant’s NOICC response’). In that response, the Applicant appeared to acknowledge the breach of the visa condition. At the hearing before the Tribunal, the Applicant also admitted in evidence that he was in breach of condition 8202 for the period alleged by the delegate.

13.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

14.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. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

15.The applicant’s evidence in relation to the circumstances leading to the cancellation of his enrolment and the ensuing period of time was vague and difficult to follow. After arriving in Australia he enrolled at Deakin University and he transferred to CQ University and commenced studying there in 2017. He states that he studied English and that he commenced studying the Bachelor of Accounting but provided no evidence to demonstrate any academic progress he may have made. The Tribunal accepts that he made some limited progress in relation to his studies in period of approximately 3 years the applicant was enrolled to study in Australia.

16.After successfully obtaining a further student visa in March 2018, he appears to have completely ceased studying and never re-enrolled in any further registered course of study in Australia. At time of the delegate’s decision, this amounted to a period of approximately 16 months in which he was in continuous breach of his student visa, which is a significant period of time and weighs heavily against the granting of the visa.

17.The applicant’s explanation for the circumstances in relation to the cancellation of his enrolment was unconvincing. He stated that following the cancellation of his COE he attempted to obtain a further CoE from CQ and the University did not respond to his request. He says he has been waiting 18 months for a response. I questioned the applicant as to whether he attempted to enrol at another institution but he said he did not.

18.He stated that during 2018 he worked part time in a gift shop in Box Hill. He attended the CQ campus and undertook some study of English but did not provide any evidence of the extent of this further study of English. He certainly did not undertake any further study in registered courses. In January 2019 he returned to China for a month. During that period of time he was diagnosed with depression at a Hospital in Beijing. There was no medication or follow up treatment prescribed to him. When he returned to Australia he says he went to one counselling session at a clinic but he cannot remember where. He continued to remain in Australia. He says prior to receiving the NOICC, he spent his time reading and trying to get outside as much as possible.

19.He reports having difficulties with CQ. He is clearly disappointed that CQ did not respond to him and is disappointed he has paid fees but not obtained any formal qualification. He claimed he did not understand that his enrolment was cancelled and he ought to have been given a warning by CQ. This statement is difficult to accept given that the delegate’s decision states he previously told the Department that the University advised him that he ‘missed the enrolment time’ and he attempted to apply for a new CoE. This indicates awareness that the CoE was cancelled and he needed a new one.

20.In any event, on the applicant’s evidence he was aware he was in Australia on a student visa, it was a requirement of that visa that he enrol and study in a registered course and that during 2018 and 2019 he was not studying in any registered course. Accordingly, I consider the applicant was well aware that he was in breach of his student visa for an extended period of time irrespective of whether he received any formal notification from the University.

21.The Tribunal accepts that the applicant attempted to re-enrol at CQ in 2018. However, it does not consider a ‘mere attempt’ as described by the applicant is sufficient in the context that the applicant was 28 years of age at the time, the breach extended over a period of at least 16 months and the applicant was aware or ought to have been aware that maintaining enrolment in a registered course was a critical requirement of his visa. The evidence falls well short of demonstrating the applicant too meaningful steps to rectify his breach.

22.The Tribunal acknowledges that the applicant’s statements in relation to his mental health. It also notes that he says that he is currently not suffering any diagnosable mental health condition and any issues he has have resolved. On the applicant’s evidence, by the time he was first diagnosed with depression, he had been in breach of the student visa for approximately 9 months. Once diagnosed, there is only very limited evidence that he engaged in treatment other than attending one counselling session. In these circumstances, the evidence falls well short of establishing that he was prevented from studying due to mental health issues and those issues have now fully resolved to the extent that he is now ready to return to study.

23.The Tribunal asked the Applicant what steps he then took to try and enrol in another course. He says he did not attempt to do so. The Applicant admitted that he was working during this time. He was entitled to work 20 hours per week. However, it was clear from his evidence that he chose not to prioritise his studies. He was unable to provide any satisfactory explanation as to why he remained in continuous breach of his visa for at least 16 months.

24.In the end, the applicant has made no satisfactory explanation as to the extended breach of his visa conditions. It seems to have been a deliberate decision on his part not to resolve the situation. The evidence of the applicant’s mental health issues does not sufficiently explain his breach over such a significant period of time.

Degree of Hardship that may be caused.

25.The Tribunal has taken into account that the applicant may suffer some hardship, if his visa is cancelled. His hopes of obtaining an Australian qualification will not be met. He will be disappointed, his family will be disappointed, and he will suffer some degree of financial loss and inconvenience for having to return to China without a Bachelor’s degree. However, this concern must be tempered with the breach of the most fundamental condition of his visa that continued for a relatively lengthy period and the fact that the applicant has provided very limited evidence of any academic progress to suggest that he would is likely to return to study if given the opportunity to do so.

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

26.The Tribunal accepts the purpose of the applicant’s travel to Australia was to study. This is evidenced by his enrolment at Deakin and later CQ University. However, in relation to this particular visa, his enrolment was cancelled some 5 days after the visa was granted and in this circumstance it is apparent that his purpose of being in Australia was not studying for a considerable period of time. The Tribunal considers the that the

27.The term “compelling need” is not defined in the Act or the PAM3. Accordingly I take it to have its ordinary meaning, having regard to both the context and purpose of the PAM3 and s 116 of the Act.[2]

[2] Project Blue Sky Inc v Australian Broadcasting Austhority (1988) HCA 28

28.The term compelling was the subject of detailed consideration by Crennan J in Paduano v MIMIA[3] to mean ‘forceful,’ and forceful whether it be physical, legal or moral necessity or may, by reason of their forcefulness be convincing.

[3] (2005) FCA 211 at [37], [41]

29.Need is a relative concept. Need and want are not interchangeable.[4] It is more than “want” but falls short of “cannot survive without”.

[4] Dimic v Djekovic (2014) NSWSC 1502 per Hallen J at [111]’ de Angelis (2003) VSC 432 per Dodds Streeton J at [45]; Boettcher v Driscoll (2014) SASC 86 at [41] per David J; R (on the application of M) v Slough Borough Council (2008) UKHL 52; (2008) 1 WLR 1808 at [54].

30.In the circumstances of the case, the Tribunal does not consider the applicant has demonstrated any compelling need to travel to or remain in Australia.

Extent of compliance with the visa conditions.

31.For the reasons set out above, the Tribunal considers the applicant’s breach of the visa conditions is significant and this weighs against the application.

32.The Tribunal notes that if the visa is cancelled, the Applicant may become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. It reflects the seriousness of the breach of visa conditions.

33.The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. There is no adverse evidence before the Tribunal in that regard. There also do not appear to be any consequential cancellations that would occur by the operation of s 140 of the Act if the Applicant’s visa is cancelled.

34.The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements for him to depart Australia. He is a citizen of India and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia.

35.Lastly, the Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

36.In all the circumstances, the Tribunal is satisfied that the Applicant’s visa ought to be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

   Dominic Triaca
   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.