Zhou (Migration)

[2019] AATA 1623

Zhou (Migration) [2019] AATA 1623 (21 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zhexin Zhou

CASE NUMBER:  1724328

HOME AFFAIRS REFERENCE(S):           BCC2017/2920215

MEMBER:Stephen Conwell

DATE:21 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 21 May 2019 at 6:10pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – continue to be a person who would satisfy the primary criteria for grant of visa – ceased to be enrolled in a Higher Education Sector course – consideration of discretion – purpose of visa not fulfilled – no extenuating or compassionate circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 2, cls, 573.223, 573.231; Schedule 8, Condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 October 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 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the delegate found the applicant had breached condition 8516 which was attached to the applicant's 573 Higher education sector visa 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.

3. The applicant appeared before the Tribunal on 21 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. 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. On 12 October 2015 the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8516 attached. Condition 8516 requires that the visa holder 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 the present case the applicant was required to meet, among other criteria, subclause 573.231 or 573.223(1A) of Schedule 2 to the Migration Regulations 1994. The delegate’s decision stated the applicant met cl. 573.231 or cl.573.223(1A) on 12 October 2015.

7. Essentially, subclause 573.231 provides that, unless a person is an eligible higher degree student as set out in 573.223(1A), that person must be enrolled or the subject of a current offer of enrolment in a principal course of a kind 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: cl.573.231. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI14/015.

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 degree, Master’s 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.

9. As noted in the decision record, information from the Provider Registration and International Student Management System (PRISMS) shows the applicant’s enrolment in a Bachelor of Commerce was cancelled on 7 March 2017 and that he has not held enrolment in a course of study specified for Student Higher Education Sector (subclass 573) visas since that date.  The delegate found the applicant breached condition 8516 of the visa because he no longer satisfied the primary criteria as he ceased to be enrolled in a higher education course, that is, a course of study that was the principal course of a type specified for a Subclass 573 visa by the Minister in an instrument made under r.1.40A.

10. On 18 September 2017 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) on the basis that he had failed to comply with condition 8516. A response was received on 22 September 2017. The applicant did not dispute the ground for cancellation existed but requested his visa not be cancelled due to extenuating circumstances. 

11. At the time of responding to the NOICC the applicant also provided the following documents in support of his claims:

    • Confirmation of Enrolment (COE) # 91DD0218 for Diploma of Accounting.
    • Leave Completion Report from Monash College dated 04 Feb 2016
    • Medical Certificate from Dr Jilin Luo dated 27 February 2017
    • Medical Certificate from Dr Jilin Luo dated 03 May 2017
    • Medical Certificate from Dr Jilin Luo dated 15 August 2017

12. Condition 8516 contains a temporal requirement in the words ‘continue to be’.  Although there has been no judicial consideration of condition 8516 and the meaning of this wording, in the context of a visa condition which applied at all times while the visa is held, the Tribunal is of the view that this condition must be met at all times. The use of the term ‘would satisfy’ the criteria, suggests that it applied as if the criteria were being assessed as the time compliance with the condition is required, that is, at any time during the period of the visa.  Therefore, if the applicant ceases to be enrolled in a principal course of a kind specified for the particular subclass, in this case, a Higher Education Sector course, the applicant breaches condition 8516 of the visa. 

13. On the basis of the information before it, the Tribunal is satisfied that when the applicant’s enrolment in a Bachelor of Commerce was cancelled on 7 March 2017 he did not continue to satisfy cl.573.231 or cl.573.223(1A) and therefore did not continue to be a person who would satisfy the primary criteria for the grant of the visa. There was no evidence before the Tribunal to indicate that the applicant satisfied the secondary criteria for the grant of the visa. The Tribunal finds therefore that he breached condition 8516 of his Student visa.

14. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

15. 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. In his response to the NOICC the applicant provided the following information:

    ·There were extenuating circumstances beyond his control which led to his non-enrolment. The only reason for not complying with visa condition 8516 was the onset of back pain in January 2017 and the developing medical condition of depression and anxiety which followed thereafter.

    ·He consulted a doctor (general practitioner) in February 2017 but declined the doctor’s suggestion that he undergo further examinations. As a result his back pain worsened. Due to pack pain, he could not focus in class and he grew homesick. He lost his motivation to study.

    ·He tried to contact his education agent and sought assistance to transfer his studies to a different college, however due to delays in their correspondence, he missed his enrolment day for first semester of 2017.

    ·He began feeling depressed and anxious and withdrew from his study and social activities. Consequently he also missed out the enrolment date for Semester 2, 2017.

    ·He believes that his back has improved and with his parents’ encouragement he decided to enrol in diploma course. Should he be allowed to complete his diploma studies, he intends to enrol once again in his Bachelor course.

    ·He requested to have another chance to continue studying in Australia.

17. At hearing the applicant was unable to provide any further details in respect of the nature or severity of his back pain or of his claimed bouts of depression and anxiety. He did not tender any further documentary evidence regarding his medical consultations for these conditions, other than the evidence that he submitted to the Department in response to the issue of the NOICC.

18. The Tribunal notes the delegate’s findings in respect of the applicant’s medical issues. The delegate observes that medical certificates provided do not relate to back issues but rather they relate to “sprain of soft tissues of the limbs”. Further, it is noted that on each occasion that the applicant went to the doctor, he was declared ‘unfit to attend school’ for three days only. Also, that the doctor made no referral for any further investigation or tests. As such, even though the delegate accepted that the applicant had consulted a doctor as evidenced by the medical certificates, the delegate was unable to give this evidence much weight in favour of the applicant.

19. Given the applicant’s evidence that his back pain, his depression and anxiety were the reasons he was unable to successfully complete the Bachelor of Commerce studies the Tribunal asked him whether he considered seeking a deferral of his study from his education provider at any time in 2017. The applicant advised that he had not advised his college of his medical-related issues and had not sought or was granted a deferral from study.

20. The applicant told the Tribunal that since cancellation of his visa he has been financially supported by his parents. He has been living in share accommodation. He wants to finish his Commerce studies including at the Bachelor level and then return to China, as he is the only child.

21. Regarding any hardship he will suffer if he has to depart Australia without obtaining a Bachelor qualification the applicant said he will become more depressed and feel ashamed about his lack of success in his studies in Australia, as well as for the significant financial cost incurred by his parents in sending him to Australia.

22. As noted by the delegate, the applicant’s parents have applied for a Business Innovation & Investment visa (EB 188) and are awaiting the outcome of their application; the applicant is named as a dependant on the application.  The applicant stated that he hopes that he can remain in Australia whilst awaiting the outcome of the application.

23. The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia, the circumstances in which the ground of cancellation arose and the reason and extent of the breach.

24. The purpose of the Higher Education Sector visa is to enable the student to undertake study at a higher education level.

25. The applicant is not currently enrolled in a higher education level course required by his Subclass 573 visa. He has not held enrolment in a course of study specified for his visa at the Higher Education Sector (subclass 573) since he ceased studying his Bachelor of Commerce  7 March 2017.  He subsequently enrolled in a Certificate course below the Higher Education Sector level – a Diploma of Accounting in the Vocational, Education and Training Sector.

26. The Tribunal noted that six months had elapsed between the cancellation of his enrolment and the issuing of the NOICC. The applicant said he was not aware that he was in breach of condition 8516 during this period. However the Tribunal considers it was the applicant’s responsibility to ensure he understood the conditions attached to his visa and to ensure that he complied with those conditions while studying and living in Australia, including the 8516 condition. The applicant would have been advised of his visa conditions at the time of the visa grant.

27. The Tribunal finds the applicant’s breach of condition 8516 to be significant because he was not engaging in study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.  The Tribunal gives this some weight in favour of cancellation.

28. The Tribunal questioned the applicant as to whether there were any compelling reasons for him to remain in Australia and he said to continue his studies in order to justify the expense and time spent in Australia.

29. The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

30. The Tribunal accepts the applicant would suffer a degree of emotional hardship and that his parents would suffer some financial cost if he were to have his visa cancelled and finds this weighs in favour of the applicant.

31. Nothing adverse is known about the applicant’s past and present conduct towards the Department.  The Tribunal gives this some weight in the applicant’s favour.

32. The Tribunal has considered whether the breach arose due to circumstances beyond the applicant’s control. The Tribunal had regard to the applicant’s evidence concerning the circumstances which culminated in his 573 visa being cancelled. The Tribunal finds that the medical evidence he has tendered is not persuasive. Furthermore, as noted there is no evidence that the applicant sought a deferral or that he communicated with his college at all regarding his claimed medical and personal issues.

33. Accordingly the Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The Tribunal finds there are no extenuating or compassionate circumstances in this case. The Tribunal finds this weighs in favour of visa cancellation.

34. Nothing adverse is known about the applicant’s past and present conduct towards the Department.  The Tribunal gives this some weight in the applicant’s favour.

35. The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled.

36. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant however finds in itself to not be sufficient to weigh in the applicant’s favour. 

37. There is nothing to suggest, and the applicant does not claim, that Australia’s international obligations would be breached as a result of the cancellation.

38. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

39. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant has breached condition 8516 of his visa.  The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant is not fulfilling the purpose of his travel to and stay in Australia as he is not undertaking study at the level for which is visa was granted.  The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa.  It will not be in breach of Australia’s international obligations.  The Tribunal is prepared to accept that some hardship and financial cost may be caused by the cancellation. The Tribunal notes that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

40. The Tribunal recognises that the cancellation of the visa is a significant matter.  However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Stephen Conwell
    Member