Zhong (Migration)

[2019] AATA 456

Zhong (Migration) [2019] AATA 456 (8 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Jiazhen Zhong

CASE NUMBER:  1703604

HOME AFFAIRS REFERENCE(S):           BCC2017/49240

MEMBER:Sean Baker

DATE:8 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 08 February 2019 at 3:44pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered Higher Education course – applicant ceased study – remaining in Australia whilst applying for another visa – hardship and disappointment for family – insufficient funds for enrolment – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 116, 140
Migration Regulations 1994, Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 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(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course and therefore breached condition 8202 of her visa, making her visa liable to cancellation. The delegate considered that the factors in favour of cancellation outweighed those against and cancelled the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. The applicant provided a copy of the delegate’s decision to the Tribunal.

3. The applicant appeared before the Tribunal on 5 February 2019 to give evidence and present arguments. The hearing was conducted in English as the applicant indicated she did not require an interpreter (Tf. 25, 28) and displayed a good level of English. She was able to understand questions and respond to them appropriately and was able to give evidence and present arguments relating to the issues under review. The applicant was represented in relation to the review by her registered migration agent.

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. 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?

6. 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)

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

8. The applicant was sent a Notice of Intention to Consider Cancellation (NOICC) on 17 February 2017. The applicant responded to that notice. The decision record states that information on Department systems indicated the applicant had not been enrolled in a registered course of study since 1 June 2016.

9. At hearing the applicant explained that she had completed high school in Tasmania, and had then commenced her Bachelor of Business and Commerce majoring in Finance at Monash University – for the first year she was on a residential scholarship. The applicant failed five subjects and so had to seek a visa extension to complete these subjects. She was granted this visa extension, she said, in May 2016. The applicant conceded that she had not been enrolled from 2 June 2016 until her visa was cancelled on 27 February 2017.

10. The information before the Tribunal supports a conclusion that the applicant was not enrolled in a registered course, from 2 June 2016 until her visa was cancelled on 27 February 2017. On the evidence before the Tribunal therefore, 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 provided a response to the NOICC. In that response she said that she apologised for her stay in Australia after 1 June 2016. She explained that she was in the process of applying for a 188e visa and was trying to secure venture capital or government funding for that visa and was unaware that it was unlawful for her to remain in Australia with the student visa whilst applying for the 188e visa. She explained that she had been applying for visas on her own and had not been through a professional migration agent since high school. She explained that she had just lodged a visitor visa and was awaiting approval but was happy to leave Australia at any time on the request of the Department.

13. At hearing the applicant explained that she had come to Australia to complete Years 10 to 12, which she had done in Hobart. She had then enrolled in the Bachelor of Business and Commerce, majoring in finance at Monash University in 2013, and did so on a residential scholarship in her first year.

14. She failed several subjects, five in total over her second and third years of the degree, and so she had had to seek a visa extension to complete those subjects. She said she sought and was granted a visa extension in May 2016 which was to run until August 2017 so that she could complete her subjects. She had not completed any of the five subjects as she was unable to enrol for the semester starting in August 2016.

    the 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

15. The applicant first travelled to Australia in 2010 to complete her high school. As she described at the hearing, she then went on to study at Monash until June 2016. She said that her purpose in coming to Australia was to study and complete her education.

16. In her response to the Department’s NOICC the applicant said that she was in the process of applying for a 188e visa and was trying to secure venture capital or government funding for that visa and was unaware that it was unlawful for her to remain in Australia with the student visa whilst applying for the 188e visa. This raises a significant concern with whether the applicant’s purpose in remaining in Australia in the period she was not enrolled had a connection with study. It may indicate that in this period she did not intend to study or complete her studies because she was seeking a business/investment visa. In her response to the NOICC the applicant also indicated that she had applied for a visitor visa, which may support a view that she did not intend to study or complete her studies but was remaining in Australia for other purposes unrelated to study during this period.

17. I asked her about this at hearing and the applicant said that she had intended to, but had not, applied for the 188e visa, and she had done so because of what happened in 2016. This is discussed in further detail below when we came to discuss the circumstances surrounding the breach.

18. In the submission received prior to the hearing it states that the applicant is a genuine student who sincerely desires to attain her degree and successful completion will mean a great deal to her and her parents.

19. I accept that, at least until June 2016, the applicant’s purpose in remaining in Australia was to study, and she did so successfully, gaining a scholarship to Monash. However, the period of the breach, that is, the period from June 2016 until the visa cancellation, is relevant when considering her purpose, and I am not satisfied from the material she has provided that she has established that her purpose in that period was to study – the information before me indicates that she was not studying and was pursuing other, non-study related visas during this time. Even had the applicant not been aware of the requirement to maintain enrolment, the evidence indicates that she did not study for approximately a 9 month period. The purpose of the student visa is to allow someone to enter and remain in Australia temporarily for the purpose of study. I therefore give her purpose for being in Australia only minimal weight towards the visa not being cancelled.

    the extent of compliance with visa conditions

20. There is no evidence before me of any other non- compliance other than the breach identified.  As I explained to the applicant at the hearing, I considered the period of the breach of condition 8202 on her visa; approximately 9 months, to be significant. She responded that she had not had an agent prior to the cancellation; she had believed that she could handle it. I accept that the applicant did not have a migration agent during this period and when responding to the Department NOICC. However, as pointed out in the delegate’s decision, it is the visa holder’s responsibility to be aware of, and comply with, conditions on their visa, and the period of non-enrolment here was for a significant period. Condition 8202, and the enrolment component, is intended to reinforce the intention of the student visa, that is, that a person be able to enter and remain in Australia for the purpose of study. I therefore give this some weight towards the visa being cancelled.

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

21. In her response to the Department’s NOICC the applicant did not indicate any hardship if the visa were cancelled.

22. In the submission received prior to the hearing it is stated that if the applicant had to return home without qualifications it would be devastating for the applicant and her parents, especially her father who has worked in finance all his life. It states that her father expected her to gain a qualification and then work in finance. If she cannot study, her career prospects and her father’s mental health will be jeopardised.

23. At hearing the applicant said that if the visa remained cancelled this would create significant hardship for her and her family. Their expectation was that she completes her studies. She indicated that her father had been very upset from the share market turbulence. She said that the cancellation would affect her whole family. She noted that the cancellation would also mean she could not return to Australia to study for a few years and she had come here when she was 15 and her whole purpose would be destroyed.

24. I have had regard to the biography of her father and the news report of the Chinese stock market turbulence in 2016.

25. I accept that the cancellation would have a very significant impact on the applicant and her family. I understand the pressure that the applicant must feel from her family and in particular her father. I understand that he may be disappointed if the applicant does not complete her studies. The applicant was clearly upset about the prospect of the visa not being reinstated. Considering the evidence of the impact this would have I consider that the applicant would suffer some degree of hardship if the visa remains cancelled and I give this some weight towards the visa not being 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

26. In her response to the Department NOICC the applicant said that she was not aware that she was not permitted to remain in Australia with the student visa whilst applying for the 118e visa. She said that she had been applying for visas on her own and she had not been using a professional migration agent since high school when she first came to Australia in 2009. She apologised and said that she had lodged a visitor visa online, however was happy to leave Australia at any time.

27. I asked her about this at the hearing. She said that in 2015 and 2016 the stock market was terrible and her father was one of those affected. He still supported her financially. In February 2016 he transferred money to her to get enrolled for first semester 2016, but she knew this money did not come easily to him. Under enormous pressure she studied for exams. She returned to China in May 2016 and saw how poorly he was doing and the financial strain her family were under. There were two major issues – her school fees and the property in Melbourne they had committed to purchase in September 2016. She explained that at the enrolment date for semester 2 she did not have enough money in her bank account to enrol. They had to make the decision to sell the property in Melbourne and the selling process took 6 months and cost them about $35,000. By the time they had sold the house it was already mid-March 2017 and she had missed another opportunity to enrol for the first semester 2017. By that time she had received the notification of the cancellation of her visa. Prior to this a friend had suggested that the 188e visa could allow her to work and study and she had thought she could work to earn enough money and study at the same time. She said this was why she had responded to the Department the way she had, it was not a full explanation of her circumstances.

28. We then discussed her application for the visitor visa. She said that she applied for this immediately after receiving the NOICC and it was not a thought through decision – she again asked her friends and did some research and found that the visitor visa could allow her to stay in Australia temporarily and allow her to study for up to 3 months. She did not know what to do so she just thought she should apply for another visa to stay so she could seek another way to stay.

29. The applicant said that she had travelled to China to visit in June and had returned around September 2016. I noted that on 13 September 2016, according to her bank account, approximately $65, 000 had been deposited in her account, it appeared from her father. I asked why she had not used that money, in September 2016, to enrol in first semester 2017. She said that that money was for the settlement of the house. She went on to say that the property was sold in March and the money had to be reserved and that was to prevent them losing more money for that investment. She conceded that the Melbourne property had been purchased by her only on 21 October 2016. I noted that this caused me some concern because she had earlier claimed she had not enrolled as she did not have access to funds to do so, but it appeared when she had had the funds she had not used them to enrol. The applicant then provided a somewhat confused explanation where she claimed that her plan had been to have the house sold as soon as possible so she could have enough money to enrol herself into school. She said she had had no experience purchasing a house so it did not go according to plan and only sold in mid-March 2017. She said her focus was on her studies, she really didn’t know how much effort would be needed to sell the house. She then said that when she was called over to China she realised the state of the family finances and did not want to use their money anymore and wanted to handle it all on her side – she thought if she did not have the money to enrol in second semester she could enrol in 2017 but then the house did not sell until mid-March. She said the agent had been very confident she could sell the house by February 2017 so she could be enrolled for first semester. I have had regard to the contract of sale and email chain submitted.

30. I explained to her that in intending to apply for the 188e visa, and having applied for the tourist visa, she appeared to have chosen to seek visas which were not for the principal purpose of study which might indicate her intention was not to study. She said she had not wanted to get money from her family anymore and she wanted to earn money and study.

31. I asked the applicant if she had spoken with Monash about her financial difficulties and sought a deferral. She said she did not because her family educated her to handle things on her own. I asked if she had contacted the Department of Immigration to discuss her immigration status. She said she had not because at that time she did not know much about immigration law, previously she had just applied and been approved.

32. I did not find the responses of the applicant about this period convincing. Her explanations do not appear to me to be consistent with each other – firstly that she could not enrol because her father had not sent her funds, but then when he did in September 2016 she chose to use these to purchase a property rather than enrol. I do not find her claim that this was an attempt to not use her family’s money anymore but handle it herself convincing – she was unclear about whose money was used and when I asked about the money deposited to her account on 13 September by her father she said that this was needed for the house. Having carefully considered her evidence at the hearing with the statement of account she provided, I find that the evidence before me indicates that in this period the applicant chose not to enrol herself in semester 1 of 2017 when she had the financial capacity to do so in September 2016. I find that this indicates that the applicant’s intention at this time was not to study, but is more likely to have been primarily to seek other visa pathways such as the 188e, as she stated in her response to the NOICC. Further reinforcing this view is the fact that the applicant did not speak with Monash seeking a deferral, nor did she contact the Department of Immigration. I consider her lack in taking these steps significant and consider that this further indicates that her intention at this time was not focused on study. I do not accept that the circumstances in which the breach occurred were beyond her control. Even if it is accepted that she was unable to enrol in second semester of 2016, I find she has not adequately explained why she did not enrol, having been provided with funds which would have allowed her to do so, in September 2016 for 1^st semester 2017.  Having carefully considered her responses and evidence, I find that the most significant reason for her not being enrolled in this period was because her intention at this time was to seek an alternative visa pathway and not to study. I give this significant weight towards the visa being cancelled.

    past and present behaviour of the visa holder towards the department

33. The applicant has cooperated with the cancellation process before the Department and Tribunal. I give this little weight towards the visa not being cancelled.

    whether there would be consequential cancellations under s.140

34. Not relevant.

    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

35. I explained to the applicant the consequences if the visa remained cancelled, including possible detention and removal under the Act, that she would be barred from applying for more than a few specified visas onshore, and would be subjected to an exclusion period on re-entering Australia. She indicated that she understood these consequences. I asked what she would do if the visa remained cancelled and she reiterated that this would be a hardship to her and her family. She said she had not considered what she would do, she would like to finish her studies, she would have to find out how to do that.

1. I note that these are the intended consequences where someone breaches a condition of their visa and the decision is taken to cancel that visa. There is no indication that the applicant would be subjected to indefinite detention in this case. I give this factor no weight towards 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

2. I explained that I understood she did not wish to return to China immediately, but asked if there was any reason she could not return to China. She reiterated that this would be a hardship for her and her parents.

3. There is no information before me to support a conclusion that Australia’s international obligations would be engaged in this case and I give this no weight towards the visa not being cancelled.

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

4. Not relevant.

   any other relevant matters.

5. I noted that the submission provided prior to the hearing claimed the applicant had a genuine intention to complete her Bachelor’s degree and asked if she could provide any information about an intent to study in the future. She said that she had tried to apply for University after her visa was cancelled and went to an agent who specialised in this but the agent told her that there was not a way schools would accept her because of the cancellation. I have also had regard to the submission which mirrors this response. I note the response states that bachelor degrees from private colleges are not recognised in China, and there is the suggestion that the applicant may have been able to gain enrolment in such a college, but that she is in fact a genuine student because she only wishes to enrol in a university of the standard of Monash. Even if this is the case, this leaves us in the situation that there is no information before me that would support a conclusion that the applicant has a genuine intention to complete her Bachelor’s degree and I give this no weight towards the visa not being cancelled.

6. I noted that the hearing response indicated that her partner was to give evidence but in the hearing preliminaries she had indicated he was no longer giving evidence and asked if that was correct. She said that was correct and he was not giving evidence.

7. I have carefully weighed the above factors. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   Sean Baker
   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.