1718561 (Migration)

[2018] AATA 4751

1718561 (Migration) [2018] AATA 4751 (20 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1718561

MEMBER:Michelle East

DATE:20 December 2018

PLACE OF DECISION:  Perth

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 20 December 2018 at 3:41pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education
Sector – enrolment in a registered course – medical certificates – psychological and physical issues –
concerns of returning home – family pressure – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to s378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 August 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that there was a ground for cancellation for breach of condition 8202 of the Act, namely the applicant was not enrolled in a registered course of study from 21 September 2016. 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. A copy of the delegate’s decision was provided by the applicant’s representative to the Tribunal after the application for review was made.

4. The applicant appeared before the Tribunal on 9 November 2018 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 her 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. As outlined in the delegate’s decision, information relied on from the Provider Registration and International Student Management System (PRISMS) indicated the applicant was not enrolled in a registered course of study from 21 September 2016.

11. At the hearing the Tribunal asked the applicant if she agreed she had breached condition 8202.  She said she ‘didn’t agree completely’.  She said her education provider had asked her to explain her non-attendance and said they may review her case if she provided all her documents.  She said she never received a decision from the school.

12. Despite this explanation from the applicant, the Tribunal is satisfied on the basis of the documentary evidence that she was not attending her studies from September 2016.

13. On the evidence before the Tribunal the applicant was not enrolled in a registered course of study.  Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

14. 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’.

15. On 10 July 2017 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because she was not enrolled in a registered course of study and therefore failed to comply with condition 8202(2) of her visa.

16. The applicant responded with a substantial submission on 24 July 2017.

17. In that submission she outlined the reasons for her non engagement in study which were reproduced in the delegate’s decision.

18. Subsequent to the hearing the applicant provided further medical certificates.  She has provided evidence of moderate allergies to milk and wheat and grass and tree pollen in 2013 and 2014.  A further report from her [GP], dated 3 December 2014 was also provided which certifies that he has been managing her severe allergy problems since April 2014 when she presented with chronic itch and urticaria.  A certificate dated January 2015 translated from Chinese indicates she suffered from urticaria and solar dermatitis.

19. A medical certificate dated March 2015 identifies her as suffering from depression.  Various medical certificates for discrete periods of time were provided for 2014, 2015 and early 2016 certifying her as having ‘presented with a medical condition’. 

20. Medical certificates were provided for gastroenteritis, serious flu and a severe allergic reaction for discrete periods of time in July 2016.  A further certificate for an ‘ankle sprain by 2^nd time’ was provided for the period 24-31 August 2016.

21. On 5 September 2016 a medical report refers to the applicant suffering a fractured right ankle while doing ‘gym last night’. That report certifies her as unfit for study and work until 12 October 2016.  A subsequent medical certificate dated 4 November 2016 certifies the applicant as being unfit for two more months.  It also refers to the fractured ankle not improving.  The doctor certified her as being unfit for study and work for two more months and stated if she doesn’t get enough rest before 10 January 2017 she may suffer severe consequences with her right ankle.

22. The applicant provided psychologist reports dated 14 February 2017, 20 April 2017 and 29 June 2017.  The earlier reports refer to the applicant’s severe anxiety however in June 2017 the psychologist reported she is ‘back to normal, able to start studying’.

23. At the hearing the Tribunal questioned the applicant about her dates of travel back to China.  The applicant said she was offshore in China from July 2013 until February 2014.  A review of her movement records indicates she was overseas for three months from November 2013 – February 2014.  The Tribunal was advised pursuant to s.359AA of the Act that her evidence was inconsistent with other information before it, being her movement records.   The applicant was given a further 14 days within which to provide a statutory declaration in which she could address this potentially adverse information.  The applicant provided a statutory declaration dated 30 November 2018 explaining why she couldn’t accurately recall her travel dates.  She said the passage of time made it difficult to remember, she was highly anxious in the hearing and had had difficulties with her studies at the time.  The Tribunal accepts this explanation and places no weight on the applicant’s inconsistent response at the hearing regarding her travel movements in 2013 and 2014.

24. In August 2017 the applicant advised the Department she was seeking re-enrolment.

25. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of any breach and any reasons for the breach.

    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

26. The purpose of the student visa is to enable the visa holder to undertake study in Australia.

27. The applicant arrived in Australia in October 2012 having been granted her student visa on 24 August 2012.

28. According to the applicant’s PRISMS records, the applicant completed English courses in 2013 and 2016.

29. The Tribunal questioned the applicant whether she had been engaged in any other study since that time and she said she currently wasn’t able to because of the current conditions of her visa.  A review of her PRISMS records indicates her enrolment in Business and Commerce Bachelor and Diploma courses none of which were completed.

30. The Tribunal finds the applicant’s breach of condition 8202 to be significant because she was not engaging in study for which her visa was granted and was not fulfilling the purpose of her travel to and stay in Australia.

31. The Tribunal finds there are no compelling reasons for the applicant to remain in Australia.

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

    The extent of compliance with visa conditions

33. The applicant was granted a Subclass 573 Higher Education Sector visa to undertake specified studies in Australia.  As noted in the delegate’s decision, the applicant was not enrolled in a registered course of study from 21 September 2016.

34. The Tribunal considers the condition of her visa to be important because one of the primary reasons for holding a student visa is to be enrolled and to study and she has not done so for a significant period of time.

35. The Tribunal considers this weighs heavily in favour of cancellation of the visa.

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

36. The Tribunal questioned the applicant what hardship may be caused in the event of cancellation.  The applicant was visibly distressed at the prospect of her visa being cancelled.  She said her mother was over-controlling and put her under enormous pressure to get a bachelor’s degree.

37. The Tribunal accepts that the applicant would suffer significant emotional and psychological hardship if her visa were to be cancelled.

    Circumstances in which the ground of cancellation arose.  Were the circumstances beyond the visa holder’s control

38. The applicant, in her response to the NOICC gave a comprehensive history as to the circumstances surrounding her cessation of studies.  She details suffering allergies when she came to Australia, psychological issues and a fracture in her ankle.

39. The applicant gives further evidence of her mail from the university going directly to her spam folder on her computer.

40. The Tribunal asked the applicant whether she had spoken to the university during this period as to a possible deferral of her studies due to ill health.  She said that she did but the school wouldn’t allow her to defer, instead asking her to withdraw.  She said this was in 2014 or 2015.

41. A review of the applicant’s medical records provided both prior to and subsequent to the hearing demonstrates the applicant has suffered from various health issues since early after her arrival to Australia, both physical and psychological.  The applicant gave credible evidence of being in a cycle of feeling unwell, not being able to complete her studies, this giving rise to anxiety which further affected her studies.  There is also evidence that she suffered depression at various times.  She also suffered a fractured ankle.

42. The Tribunal accepts this may have impacted on her ability to continue studying for a period of time and gives this some weight in her favour.

    Past and present conduct of the visa holder towards the Department

43. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

    Whether there are mandatory legal consequences such as whether cancellation would result in the visa holder being unlawful and subject 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

44. The delegate’s decision indicates that if the applicant’s visa were to be cancelled she would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if she does not voluntarily depart Australia. Further, s.48 of the Act means that she will have limited options to apply for further visas in Australia.

45. 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.

46. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant breached condition 8202 of her 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 her travel to and stay in Australia as she is not undertaking study for which her 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 may be caused by the cancellation, some of the circumstances were beyond her control and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

47. The Tribunal recognises that the cancellation of the visa is a significant matter.  After hearing the applicant’s oral evidence and her explanation of the circumstances giving rise to her breach and her concerns at returning to China, in exercising its discretion the Tribunal concludes that the applicant’s visa should not be cancelled.

    DECISION

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

    Michelle East
    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.