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Ng (Migration) [2019] AATA  1676  (27 May 2019)

Last Updated: 5 July 2019

Ng (Migration)  [2019] AATA 1676  (27 May 2019)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Sin Fong Ng

CASE NUMBER: 1815315

HOME AFFAIRS REFERENCE(S): BCC2018/151422

MEMBER: E. Tueno

DATE: 27 May 2019

PLACE OF DECISION: Melbourne

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

Statement made on 27 May 2019 at 3:20pm


CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – course at lower level than which visa was granted – consideration of discretion – intention to study at bachelor degree level – responsibility of visa holder – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
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 18 May 2018 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).
  2. The applicant was granted a student visa on 25 October 2016. The applicant is from Malaysia and came to Australia with the intention of studying the following courses:
  3. The delegate’s decision, a copy of which was provided to the Tribunal by the applicant, outlined that the Provider Registration and International Student Management System (PRISM) indicated that on 29 May 2017 the applicant’s enrolment in the Bachelor of Business course was cancelled by the education provider. As noted in the delegate’s decision, the PRISM records also indicated that on 7 July 2017, the applicant enrolled in a Diploma of Leadership and Management course and an Advanced Diploma of Leadership and Management course through the Zarah Institute of Education. Upon completion, these courses would give the applicant a level 5 and 6 qualification respectively whereas the Bachelor of Business course would have given him a level 7 qualification. The delegate found that because the applicant had enrolled in courses lower than Bachelor of Business degree, he had not complied with condition 8202(2)(b), which required the applicant to maintain enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which his visa had been granted.
  4. Accordingly, on 18 May 2018 the delegate cancelled the visa on the basis that they found the applicant had not been enrolled in a registered course of study at the same level as, or higher than, the registered course to which he had been granted a visa since 29 May 2017. 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 on 14 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.
  6. 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

  1. 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?

  1. Condition 8202, as it applies in this case, is set out in the attachment to this decision. In Relevantly, it requires that the applicant:
  2. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
  3. In addition to the evidence given at the hearing, the applicant relied on an undated letter in support of his review application which had been filed with the Tribunal. The Tribunal has had regard to this undated letter as well as the sworn evidence at the hearing, as set out below.
  4. The applicant confirmed in his evidence that his enrolment in the Bachelor of Business course was cancelled by the provider on 29 May 2017 and that he then enrolled in the Diploma and Advanced Diploma of Leadership and Management in June 2017. By his own admission and on the evidence before the Tribunal, the applicant has not complied with a condition of his student visa as he was not enrolled in a registered course at the same level or higher than the Bachelor degree. Therefore, the applicant has not complied with condition 8202(2) for a period of nearly 12 months before the visa was cancelled. Accordingly, the Tribunal finds that there are grounds for cancelling the applicant’s student visa.

Consideration of the discretion to cancel the visa

  1. 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’.

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

  1. The applicant is a 39 year old Malaysian national. He stated that he is married and does not have any children. His wife lives with him in Australia and is an Australian citizen. The applicant did not provide the Tribunal with any further detail regarding his family situation.
  2. In his letter to the Tribunal, the applicant stated that he was granted a student visa on 25 October 2016. He confirmed that he enrolled in the two English courses and the Bachelor of Business degree. He said that Australia was a good place to study with a good environment. He said that a tutor at his college told him he needed to have a better grasp of English before undertaking the Bachelor of Business degree.
  3. He also stated in this letter, “I have been taking study as my top priority as a student and I have made progress on my study that I can’t imagine the way my career and life will go if I have to suspend my study in the middle ... I sincerely beg for a change to let me complete my study in Australia and I will change my visa for lower level of study if my visa is not to be cancelled”.
  4. The Tribunal accepts that the applicant came to Australia for the purpose of studying and has successfully completed the two English language courses prior to commencing the Bachelor of Business. There is no evidence to suggest that the applicant has not made study his top priority. The Tribunal accepts this to be the case and gives some weight to this in favour against cancelling the visa.
  5. He said the reason for studying the Bachelor of Business was because he wanted to learn about business management. However, the applicant did not remain enrolled in the Bachelor of Business course for long before changing to the Diploma and Advanced Diploma of Leadership and Management. The applicant gave no evidence about wanting to return to the Bachelor of Business course in the future. This is relevant to the matter before the Tribunal because it was a requirement of his visa that he study at Bachelor degree level or higher. There is no evidence that the applicant intends to do this.
  6. As to the statement made by the applicant that he has made progress in his study, this is partly evidenced by the completion of the two English courses. However, as to the Bachelor of Business and the Leadership and Management courses, there is no evidence as to the progress made in these courses by the applicant, for example how many units he completed and whether he passed or failed said units. The Tribunal cannot make a finding as to how the applicant has progressed in these courses and accordingly, the Tribunal gives this weight in favour of cancelling the visa.

The circumstances in which ground of cancellation arose

  1. In his evidence at the hearing, the applicant agreed that his enrolment in the Bachelor of Business course was cancelled by Stotts College on 29 May 2017 and that in July 2017 he enrolled in a Diploma and Advanced Diploma in Leadership and Management at Zarah Institute of Education. He said he did this because after completing his English studies, he wanted to do an Advanced Diploma of Business but it was too hard. A tutor suggested he enrol in a different course. He stated that prior to studying English at Stotts College, he completed a Diploma of Business at VIT Institute. After completing the English courses, he completed nearly a year of an Advanced Diploma of Business at Stotts College but struggled with the assignments. He then enrolled in the courses Leadership and Management courses at Zarah Institute of Education.
  2. The applicant gave conflicting and confusing evidence about this at the hearing. He was focused on the Diploma and Advanced Diploma of Business when asked about the Bachelor of Business course. It is unclear from his evidence whether he ever, in fact, commenced the Bachelor of Business course before his enrolment was cancelled.
  3. The applicant did, however, blame Stotts College for not telling him about the need to change his visa when he changed courses to the Diploma of Leadership and Management. This evidence at the hearing was also set out in his undated letter referred to above, where he stated:

Unfortunately, I was not advised by neither the previous higher education provider, nor the current vocational school that I need to change my visa for a lower level of course. I am so frustrated and worried that I didn’t comply with the condition 8202 although it is not intentional.

To summarize, I don’t think my visa should be cancelled as the visa conditions are not clearly and detailly [sic] stated in the grant letter which is commonly the only resource the international students will consult for visa information, which leads to the limited understanding, and it is definitely not an intentional breaching of visa conditions. ... After this, I consulted the website of Home Affairs obtaining a comprehensive understanding about all conditions applied to student visa and I can easily now easily [sic] recite all conditions applied to me.

  1. When asked by the Tribunal why he did not obtain advice from a migration agent at the time he was considering changing courses to a VET course, the applicant stated that he did seek advice. However, he then stated that he received assistance from an agent at the time of the delegate’s decision as well as this review application. He then said that he did not remember the exact date but that it was after he completed the English courses. He said the agent’s name was “Gwen”. When asked by the Tribunal why he had not mentioned this to the delegate or in his material sent to the Tribunal, he said that the agent had written the letter but said it would look more honest if the letter was from him. He confirmed that he was not being represented by an agent in the application before the Tribunal.
  2. He said that he communicated with “Gwen” through WeChat. When asked if he still had the messages he said yes. When asked to find the messages, he read out two texts. One dated 30 April 2019 in relation to the hearing listed on 14 May 2019. The second was sent on 4 May 2018 which stated, “if you can use own email address to reply it looks more sincere. You should send the letter yourself”.
  3. Having gone through the messages, the applicant then confirmed that he did not, in fact, speak to a migration agent at the time when he changed courses to the lower Diploma and Advanced Diploma courses from the Bachelor course. He stated that at that time, he did google searches in relation to the visa conditions and spoke to friends. He did not do any research beyond this. He said that after the google research, he understood that he did not have to advise anyone of the change in courses.
  4. The applicant said that if he cannot study in Australia, that it would be a shame. He did not say whether he intended to resume the Bachelor of Business course if his visa was not cancelled, but the evidence suggests that this would not occur but rather he would continue to study at the lower level VET courses.
  5. The Tribunal takes into account the explanation provided by the applicant as to the reasons why he did not comply with the condition that he remain enrolled in a Bachelor degree or higher. The Tribunal also takes into account that the applicant was struggling with the Bachelor degree because of the level of English skills required and this is the reason why he changed to the lower level VET course.
  6. However, the Tribunal gives little weight to the google search done by the applicant and his talking to friends about his visa. The obligation is on the visa holder, not education providers, to ensure they comply with the conditions of their visa. Accordingly, the Tribunal give little weight to the explanation provided by the applicant about the reason he did not comply with the condition 8202 of his visa and finds that this favours the cancelling of the visa

The extent of compliance with visa conditions

  1. Aside from not complying with condition 8202, there is no evidence to suggest that the applicant has not complied with any other condition of his visa. Accordingly some weight is given in favour of not cancelling the visa.
  2. However, in relation to condition 8202, the applicant complied only insofar as he completed the two English courses. He did not comply with the condition that he be enrolled in a Bachelor degree or higher course as he has not been enrolled in a level 7 course, or higher, for nearly two years. Accordingly, the Tribunal gives this some weight in favour of cancelling the visa.

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

  1. When asked what hardship might be caused if his visa were to be cancelled, the applicant said that “it would be a shame” and that he would not be able to continue studying in Australia. He said he would not suffer any financial hardship because he had savings from his business. But he said he would feel bad if he does not achieve anything academically. On this evidence, the Tribunal is not satisfied that the applicant would suffer financial hardship if his visa is cancelled.
  2. There is no evidence that the applicant has any other visa application on foot at present. Accordingly, if his student visa is cancelled he will be required to leave Australia. He said that he and his wife have discussed her returning to Malaysia but have not reached a decision. He gave no evidence about any hardship it might cause him if they were to be separated as a result. It is unclear on the evidence whether he and his wife will suffer hardship if they are separated.
  3. Based on the evidence of the applicant, it is difficult to conclude that he would suffer psychological, emotional or other hardship if his visa is cancelled. As noted above, the Tribunal does not consider he will suffer any financial hardship. Accordingly, the Tribunal has given this weight in favour of cancelling the visa.

Past and present behaviour of the visa holder towards the department

  1. As noted above, aside from not complying with condition 8202 there is no evidence to suggest that the applicant has not complied with any other condition of his visa. Nor is there any evidence to suggest that the applicant has not engaged appropriately with the department. Accordingly the Tribunal gives this some weight against cancelling the visa.

Whether there would be consequential cancellations under s.140

  1. This is not applicable.

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

  1. The applicant gave no evidence about any legal consequences for him, nor did he make any submissions about this.
  2. There are a number of mandatory consequences as a result of the cancellation of the applicant’s visa, including not being permitted (with exceptions) to make an onshore visa application as a result of the cancellation.
  3. If the visa is cancelled, a legal consequence would be that the applicant would not be able to apply for another student visa. Subject to any appeal rights he may exercise, if the applicant chooses to remain in Australia unlawfully, he could be liable for removal and detention. The applicant could also be precluded from making any further visa applications for a period of three years as a result of Public Interest Criterion 4013. The Tribunal is satisfied that those consequences are intended lawful consequences of the legislation and, in the applicant’s case, do not mean that the visa should not be cancelled.
  4. The Tribunal gives no weight in favour of not cancelling the visa under this consideration.

Australia’s international obligations

  1. There is nothing before the Tribunal to suggest that the cancellation of the applicant’s visa would breach any international obligations. There is no evidence that the accused has any children in Australia (or elsewhere). Accordingly, the Tribunal finds this consideration neutral and does not weigh in support or against cancelling the visa.

Any other relevant matters

  1. The applicant did not give evidence about any other matter that would be relevant to the review of the cancelation of his student visa.
  2. Considering the circumstances as a whole, the Tribunal finds that the factors that weigh in favour of cancelling the visa outweigh the factors against cancelling the visa. Accordingly, the Tribunal finds that the visa should be cancelled.

DECISION

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



E. Tueno
Member

ATTACHMENT
Migration Regulations 1994

...

Schedule 8
8202 (1) The holder must be enrolled in a fulltime course of study or training if the holder is:

(a) a Defence student; or

(b) a Foreign Affairs student; or

(c) a secondary exchange student.

(2) A holder not covered by subclause (1):

(a) must be enrolled in a fulltime registered course; and

(b) subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

(c) must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

(ii) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3) A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

(a) is enrolled in a course at the Australian Qualifications Framework level 10; and

(b) changes their enrolment to a course at the Australian Qualifications Framework level 9

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