Zhao (Migration)

[2019] AATA 3596

Zhao (Migration) [2019] AATA 3596 (15 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Linfeng Zhao

CASE NUMBER:  1827969

HOME AFFAIRS REFERENCE(S):           BCC2018/1715685

MEMBER:Dominic Triaca

DATE:15 July 2019

PLACE OF DECISION:  Melbourne

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 15 July 2019 at 3:19pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa –not enrolled in a registered course of study – applicant failed to compile with condition 8202– applicant  continued to study whilst enrolment was cancelled – applicant will suffer some hardship – decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994, Schedule 8

Overseas Students Act 2000 (Cth)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 September 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(1)(b) of the Migration Act 1958 (the Act).

2. The applicant’s visa was granted on 24 February 2016 and was granted on the basis that the applicant would remain enrolled in, and make satisfactory progress in relation to, one or more registered courses of study for the duration of his stay in Australia.

3. The Delegate cancelled the applicant’s visa on the basis that the applicant had breached that condition of the Visa which required the applicant to be enrolled in a registered course. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 15 July 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

6. 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

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 comply with Condition 8202?

8. 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).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

10. The delegate’s decision identifies the period from 27 July 2017 and 3 September 2018 as being the relevant period in which the applicant was not enrolled in a registered course. This amounted to a time of approximately 13 months when the applicant was in continuous breach of his visa.

11. The delegate’s finding in this respect was based on a report which the delegate obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’) database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’). It provides a means for education providers in Australia to comply with legislative requirements relating to international students in Australia.

12. In his oral evidence before the Tribunal, the applicant conceded that this enrolment in a registered course of study had ceased and that he did not enrol in any further course of study by the time the delegate had come to decide to cancel his visa on 3 September 2018.

13. Accordingly, the Tribunal is satisfied that the delegate was correct in reaching the conclusion that the applicant was in beach of condition 8202(2) of the visa for approximately 13 months between 2017 and 2018.

14. 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

15. 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’.

16. The applicant is a 20 year old citizen of China. He arrived in Australia in 2016 on a student visa. He initially enrolled in and completed an English course at RMIT. He subsequently enrolled in and completed Foundation Studies Art, Design and Architecture Steam at RMIT in 2016 and 2017. He was due to commence an Advanced Diploma of Building Design (Architectural) at RMIT on 1 July 2017.

17. In his evidence before the Tribunal, he stated that prior to the commencement date; he attended RMIT and discussed his enrolment with a teacher named Stan. He understood that during the course of this meeting with the teacher, the applicant was assisted in confirming his enrolment in the Advanced Diploma course. He says the meeting concluded with the applicant being told he had enrolled in the course and he was provided with a timetable for the semester.

18. He says that he commenced the semester and carried out his studies on this understanding. He attended classes and submitted assignments and received feedback from the teacher.

19. In September 2017, he was advised by his agent that his confirmation of enrolment (CoE) had been cancelled. He states that by this time he considered that he was not suited to the Advanced Diploma course and resolved to try to transfer to course in Graphic Design at RMIT. He reports that at this time, his agent advised him that as he was not enrolled in a registered course, he would need to return home to China, which he did in September 2017.

20. Whilst he was in China, he attempted to enrol in a Diploma of Graphic Design at RMIT.

21. In February 2018 he was advised by his agent that he could return to Australia in order to commence the February semester at RMIT. However, on his return he was advised that his application to RMIT was unsuccessful. He then lodged an application to Monash University to study a Diploma of Art and Design. During this stay in Australia he attended English Language Courses and prepared his portfolio for further applications. He then returned home in May 2018.

22. He returned to Australia in July 2018 having had no confirmation of his applications to either RMIT or Monash. He then applied to study a Diploma of Design at Deakin College. He was successful in his application for a place at Deakin College and received a letter of offer. He paid $12,500 towards this enrolment. The letter of offer was provided to the Tribunal and states that upon successful completion of the Diploma he would attain enrolment in the Bachelor of Design (Visual Communication) at Deakin University. However, he was unable to take up his place at Deakin because his non enrolment came to the attention of the Department and his student visa was cancelled in September 2018. His fees were subsequently refunded.

23. In October 2018, the applicant attempted to have the terms of his Bridging Visa varied to enable him to commence the course at Deakin. His Bridging visa had no study rights. His application was refused on the basis that the length of time the course was likely to take.  In February 2019 he made a further application, this time to study English at Southern Cross Education Institute. His visa conditions were varied to enable him to study and he completed the ELICOS course on 31 May 2019.

24. The Tribunal takes the breach of condition 8202 seriously and it is a fundamental condition of the temporary student visa in Australia. In this case, the Tribunal considers that the applicant has attempted to ameliorate the breach and appears to have demonstrated a genuinely held desire to continue to study in accordance with the purpose for which the visa had been granted.

25. The Tribunal has regard to the following matters in favour of the applicant, including:

    (a)It is apparent that RMIT contributed to the applicant’s failure to enrol. The Tribunal accepts the applicant’s evidence that he attended classes for a period in 2017 when he was under the impression he was enrolled at RMIT. It is not important whether this impression was gleaned by a teacher advising him that he had successfully been enrolled, him being provided with a timetable for study, him attending classes without any issues or him submitting homework and receiving feedback. These matters in combination appear to have created a scenario where the applicant’s initial enrolment lapsed;

    (b)It is in the applicant’s favour that upon being advised that his CoE had been cancelled he left Australia and returned home for a considerable period of time. Further, he appears to have followed the advice of his agent to return home and then, only returned to Australia upon receiving further advice that indicated he was able to. The Tribunal considers his willingness to return home to China when his enrolment was cancelled is indicative of an intention to be in Australia for the purpose of study.

    (c)It is in the applicant’s favour that whilst his enrolment was cancelled he continued to apply for alternative courses and ultimately accepted into further study at Deakin College. Further, the applicant’s attempts to continue his studies whilst on the Bridging Visa are in his favour. The Tribunal considers his attempts to engage in further study are indicative of an intention to study and are the actions of a genuine student.

    (d)Paying fees of $12,500 AUD is also indicative of a genuine intention to study.

26. In these circumstances, the Tribunal considers the applicant has demonstrated a satisfactory explanation for the breach of the condition and this weighs in his favour.

27. The Tribunal notes the applicant will suffer some hardship if his visa is cancelled given that he invested time in Australia and has not achieved his academic qualifications he hoped for at this stage. He states, and it was further submitted on his behalf, that if he were to return to China he would be unable to study at University level without first undertaking further study as he did not complete a University entrance exam in China prior. To return now and attempt to enrol in University would require a significant level of further study in China before he could undertake that exam and the Tribunal has regard these matters and puts some weight in his favour.

28. If his visa is cancelled, the applicant’s evidence was that he would return to China. He did not give any reasons as to why he could not return to China. Accordingly there is no indication that he would become unlawful or be subject to detention. Accordingly, I have given considerations of mandatory legal consequences of a cancellation no weight.

29. The circumstances of this case are not such as to engage Australia’s international obligations.

30. In terms of past and present behaviour of the Applicant towards the Department, the Tribunal has no adverse information before it. There is also no information suggesting that, if the applicant’s visa is cancelled, other persons’ visas will be cancelled under s 140 of the Act.

31. There appear to been other relevant matters of significance in relation to the present application for review.

32. Having regard to all the circumstances set out above, and all the evidence before the Tribunal, on balance the Tribunal is satisfied that the applicant’s visa should not be cancelled.

    DECISION

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

    D. 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.