Zhao (Migration)

[2019] AATA 2732

Zhao (Migration) [2019] AATA 2732 (1 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zhixia Zhao

CASE NUMBER:  1719840

HOME AFFAIRS REFERENCE(S):           BCC2017/2444655

MEMBER:Tigiilagi Eteuati

DATE:1 April 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 01 April 2019 at 11:51pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 573 Higher Education Sector – not enrolled in registered course – Bachelor of Engineering course – enrolment cancelled due to unsatisfactory progress – indefinite exclusion from educational institution – unable to re-enrol for one year – enrolment in three identical IELTS preparation courses – enrolment in second university – poor academic progress – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)
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 24 August 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).

2. The delegate cancelled the visa on the basis that the applicant had breached the condition of his visa to remain 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.

3. The applicant appeared before the Tribunal on 3 September 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. The applicant was represented in relation to the review by his registered migration agent.

5. 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

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.

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 found that the applicant had not been enrolled in a registered course between 12 December 2016 and 24 August 2017. This was admitted by the applicant and the Tribunal finds that 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

11. 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’

12. The applicant told the Tribunal that when the applicant arrived in Australia in July 2010 he was enrolled in a Certificate IV in University Preparation to be followed by a Bachelor of Engineering degree at the University of Queensland. The applicant successfully completed the Certificate IV in June 2011 and achieved a grade point average of 4.4. He said that this grade point average was insufficient for him to gain direct entry into a Bachelor of Engineering course at the University of Queensland but that the University offered him to enroll in a science degree. He said that he wished to study engineering and therefore undertook an accelerated foundation course to gain entry in a Bachelor of Engineering at QUT. The applicant completed that course in October or November 2011 attaining a grade point average of 4.8. The applicant had provided the Tribunal with a copy of his academic transcript from QUT.

13. The applicant began his studies at QUT in a Bachelor of Engineering course in the first semester of 2012. He passed three units and failed one. In the second semester 2012 the applicant failed all four units in which he was enrolled. In the first semester 2013 he failed all three units. In the second semester 2013 he failed two units and passed two units. In the first semester 2014 he failed one unit and passed two units. In the second semester 2014 he passed one unit and failed two units. In the first semester 2015 he failed three units and passed one unit. In the second semester 2015 he failed two units and passed one unit and in semester one 2016 he failed all four units.

14. The applicant told the Tribunal that after the first semester of 2016 the applicant’s enrolment in the Bachelor of Engineering course with QUT was cancelled for unsatisfactory course progress. He was excluded from studying at QUT indefinitely and was prevented from applying to enrol at QUT for a period of 12 months. The applicant sought review of this decision and the decision was upheld. The applicant also took the matter to the QUT student ombudsman but the ombudsman found that QUT had acted properly in excluding the applicant from studying at QUT.

15. The applicant said that his very poor academic performance was attributed in large part to his relationship which began in 2011 with a fellow engineering student. He said that she found engineering boring and that in his first year of study in 2012, he either assisted her with assignments or completed them himself. He said that he prioritised his romantic relationship with his girlfriend above his studies and that his studies suffered as a result. He said at the end of 2015 his girlfriend’s mother visited from China and informed him that she and his girlfriend’s father had decided that their daughter should marry another boy and that his relationship with their daughter could not continue. The applicant said that his relationship with his girlfriend ended shortly after this.

16. The applicant indicated that he was very upset with the breakup and that this seriously adversely affected his studies. He said that after his breakup, he stayed at home and didn’t leave the house much as he feared seeing his ex-girlfriend. The applicant admitted that he was not engaged in formal study from the end of the first semester 2016 until August 2017. He said that he spent his time engaged in what he described as self-study. When asked what this involved, the applicant said that he would watch YouTube videos on the Internet to do with engineering.

17. The applicant said that he did not know that it was a condition of his Student visa that he remain enrolled in registered courses. He said that he had planned to wait out the exclusion period at QUT and then to apply for re-enrolment at QUT in 2017. The applicant received a Notice of Intention to Consider Cancellation (NOICC) from the Department on 4 August 2017. The applicant said he took the NOICC to a migration agent who explained to him that he was required to remain enrolled in a registered course as a condition of his visa. The applicant gave evidence that he, through his migration agent, applied to a number of tertiary institutions for enrolment in an Engineering degree.

18. The applicant provided evidence that he was offered enrolment in a Bachelor of Business degree with James Cook University on 16 November 2017. He said that he did not immediately take up this offer as he went online and read negative reviews about James Cook University. Instead, the applicant enrolled in three identical IELTS preparation courses with the Queensland Academy of Technology.

19. When asked why he enrolled in and completed three identical courses from late 2017 to early 2018, the applicant originally said that he had been advised by a migration agent that he simply needed to be enrolled in courses to meet his visa conditions and he wanted to give the appearance that he was studying. Later during the hearing the applicant said that he wished to attain and IELTS score of seven or eight as this would assist him in obtaining permanent residence in Australia. When it was put to the applicant that an intention to remain permanently in Australia may weigh against the exercise of discretion in his favour, the applicant said that he had no intention of remaining permanently in Australia.

20. The applicant enrolled with James Cook University in a Bachelor of Business degree in March 2018. However, the applicant said that he had not passed any of the three units he was enrolled in during the first semester as he injured his ankle on 18 June 2018. He said that he provided medical evidence to James Cook University indicating that he was unfit to undertake examinations, that he deferred two examinations and failed one unit.

21. The applicant provided evidence to the Tribunal that he would have suffered hardship if his visa remained cancelled. He said that his parents were both working in the engineering sector and that they would be very ashamed at the applicant’s failure. The applicant indicated that his parents had spent a great deal of money on him and that that would be wasted if he was unable to complete a qualification in Australia. The applicant’s representative had submitted that the applicant will not be able to attend university in China without passing the relevant university entrance examinations there. He said that without a tertiary qualification the applicant would struggle to find well-paying employment in China. The applicant submitted that he would suffer from emotional hardship if his visa remained cancelled.

22. The Tribunal raised with the applicant its concern that given his extremely poor academic performance in the past that he may not have the ability to successfully undertake an education course in Australia.

23. The Tribunal raised with the applicant its concern that as the applicant failed to be enrolled in any course from December 2016 to August 2017 after he received a NOICC, because he enrolled in three identical IELTS preparation courses and because he did not attend his examinations at James Cook University that the applicant may not have the will or desire to successfully undertake an education course in Australia. The applicant said that he did wish to complete a degree in Australia and that if given a chance he would do so.

24. At the conclusion of the hearing the Tribunal gave the applicant the opportunity to put on written submissions in relation to the concerns raised by the Tribunal and also to put on evidence and submissions in relation to his medical problems that he claims prevented him from undertaking examinations in 2018 and any correspondence with James Cook University in relation to deferral of his examinations.

25. The Tribunal also gave the applicant the opportunity to put on further evidence and submissions in relation to information put to the applicant by the Tribunal in the required way which indicated that the applicant’s enrolment in the Bachelor of Business course at James Cook University was cancelled on 7 August 2018 as he had failed to re-enrol within the required time and was un-contactable by the University.

26. On 9 September 2018, the applicant provided further submissions and supporting evidence.

27. The evidence provided by the applicant included a medical certificate dated 14 May 2018 which indicated that the applicant had a medical condition and was unfit to attend university from 16 May 2018 to 18 May 2018. The applicant also provided a medical certificate dated 21 August 2018 indicating that the applicant injured his ankle while playing basketball in June 2018 and that he had ongoing pain and swelling since that time. The applicant also provided evidence that he attended hospital on 17 June 2018 but that he left the hospital against medical advice. The applicant’s representative indicated that the applicant injured his ankle during a basketball game on 17 June 2018 and attended hospital as a result. The applicant provided a document which indicated that the applicant had an x-ray taken of his ankle on 27 August 2018.

28. The applicant provided the Tribunal with a copy of the prescription issued on 13 June 2018 for Klacid tablets. Klacid is a medicine used to treat bacterial infections of skin and respiratory systems. The applicant also provided the receipt from a pharmacy indicating that he had bought cough medicine on 14 May 2018. The applicant provided a handwritten note indicating he had also used Zyrtec and Vics vapour rub at the time. These medications indicate that the applicant was treating a cough and perhaps an allergy in mid-May 2018.

29. The applicant provided evidence that he was granted a deferred exam for two units in mid-2018. On 18 June 2018 the University sent emails to the applicant granting the deferred exams the applicant had requested. That email indicated that the deferred exams would be held on 12 and 13 July 2018 and indicated that the applicant would be sent the exam timetable on 5 July 2018. The University sent emails to the applicant on 5 July 2018 indicating again that supplementary exams would be held on 12 and 13 July 2018 and providing a link to the deferred exam timetable. The applicant claimed that, as he was suffering from an injured ankle from June 2017, he did not receive any of these emails, and subsequently did not attend the deferred exams and failed those units.

30. The Tribunal notes that the exams which the applicant sought to have deferred were originally scheduled to be held on 3 June 2018 and 12 June 2018. The Tribunal has received no medical certificate from the applicant indicating that he was unfit to attend exams on those days. The only medical certificate that he provided for the period prior to those dates was a medical certificate from 14 May 2018 indicating that the applicant suffered from a medical condition and was unfit to attend university from 16 May 2018 until

    
    

    18 May 2018. The applicant purchased cough medicine on 14 May 2018.

31. The only indication that the applicant had any medical condition in the first half of June 2018, prior to 17 June 2018, was that he had been prescribed Klacid tablets on 13 June 2018.

32. Despite the applicant’s claim that he was unfit to sit examinations on 3 June 2018 and

    
    

    12 June 2018, it appears that he was well enough to take part in a basketball game a few days later on 17 June 2018, where he injured his ankle. The Tribunal accepts that the applicant injured his ankle on 17 June 2018 and that he attended hospital but left against medical advice. The Tribunal also accepts that the applicant had x-rays of his ankle taken on 27 August 2018.

33. However, the Tribunal does not accept that the applicant’s injured ankle prevented him from sitting the deferred exams almost a month later on 12 and 13 July 2018. There is no medical certificate which indicates that the applicant was unfit to sit the deferred exams. Further, the Tribunal does not accept that the applicant’s ankle injury prevented him from accessing his emails until sometime in August 2018, thereby rendering him unaware of the invitation to sit the deferred exams.

34. The Tribunal finds that the applicant was well aware of the dates for his deferred exams. He had requested deferred exams and must have known that the University would contact him in relation to his request for deferred exams. The Tribunal finds that the applicant’s failure to sit the exams originally scheduled for 3 June 2018 and 12 June 2018 was not because he had a medical condition which rendered him unfit to sit those exams.

35. Similarly, the Tribunal does not accept that the applicant was prevented by any medical condition from sitting his deferred exams. The Tribunal also does not accept the applicant’s assertion that his ankle injury prevented him from accessing’s email for some two months. The Tribunal considers that the applicant’s failure to sit has exams in mid-2018 evidences a lack of will on the applicant’s part to successfully undertake an education course in Australia.

36. In addition to the material mentioned above, the Tribunal had regard to all of the material provided by the applicant and his representatives before and after the hearing including various statements by the applicant and letters of support from friends and family.

37. On 7 August 2018 the University cancelled the applicant’s enrolment as he had failed to re-enrol within the required time and was un-contactable by the University. The next day, on

    
    

    8 August 2018, the applicant sent an email to the University indicating that he wished to re-enrol.

38. The Tribunal considers the applicant’s failure to re-enrol in the second semester of 2018 in the required time and the fact that he was un-contactable by the University, and only contacted the University in relation to re-enrolment once his enrolment was cancelled supports the conclusion that the applicant does not have the desire to successfully undertake an education course in Australia.

39. The Tribunal finds that, given his extremely poor academic performance in the past, the applicant does not have the ability to successfully undertake an education course in Australia. The Tribunal accepts the applicant’s claims that when he originally arrived in Australia he had problems adjusting to life in Australia and the informal way in which the English language is used in this country. The Tribunal also accepts that the applicant had a rocky relationship with his girlfriend between 2011 and 2015. The Tribunal accepts that the applicant was upset when their relationship ended in late 2015 or early 2016. However the Tribunal does not accept that the applicant’s initial problems with adjusting to life in Australia or his relationship problems detract from the finding that the applicant does not have the ability to successfully undertake education courses in Australia. He has performed poorly over a period of years, including most recently failing a unit in the first half of 2018.

40. The Tribunal finds that as the applicant failed to be enrolled in any course from December 2016 to August 2017 after he received a NOICC, because he enrolled in three identical IELTS preparation courses and because he did not attend his examinations at James Cook University and had his enrolment cancelled for failing to re-enrol, that the applicant does not have the will or desire to successfully undertake an education course in Australia.

41. The Tribunal is willing to accept that the applicant and his family members will be upset and disappointed if the applicant’s visa remains cancelled and is unable to complete an education course in Australia. The Tribunal has also considered that if the decision is affirmed the applicant will be unlikely to be granted another visa for a period of three years after his departure. However, as the Tribunal has found that the applicant has neither the will nor the ability to successfully complete an education course in Australia, the Tribunal finds that setting aside the cancellation decision would simply delay the inevitable conclusion that the applicant will continue to fail and will never successfully complete an education course in Australia. That would mean that the applicant would expend more of his parent’s money and delay his return to China without any qualification. The Tribunal accepts that if the applicant were to return to China it may be some time before he was able to pass the tertiary entrance exams there. It may be a win for the applicant to attend university in a country other than China or Australia. However, the Tribunal accepts that, given his poor academic performance in Australia he may never be able to enter university in China or elsewhere. University isn’t for everyone, perhaps it is not for the applicant.

1. The applicant told the Tribunal that when he arrived in Australia in 2010 he was supposed to begin his bachelor’s degree in 2011 and complete that degree by mid-2015. It is now 2019, and the applicant was granted a second visa to complete his degree in 2016. The applicant still has not completed a bachelor’s degree and his enrolment at two different universities has been cancelled, first for poor performance and secondly for failure to re-enrol. The Tribunal finds that the applicant’s lack of will and ability to successfully undertake an education course in Australia outweighs all other considerations which may weigh in the applicant’s favour.

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

   DECISION

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

   Tigiilagi Eteuati
   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.