1730220 (Migration)

[2020] AATA 680

1730220 (Migration) [2020] AATA 680 (18 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1730220

MEMBER:Noelle Hossen

DATE:18 February 2020

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 18 February 2020 at 12:31pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – claim of fault of education provider – unsatisfactory course progress – health issues – non-commencement of studies – financial hardship – 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 section 378 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 23 November 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 she did not comply with a condition of the visa as her enrolment in a registered course was cancelled. 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 the 10 October 2019 to give evidence and present arguments.

4. The applicant had provided the Tribunal with a copy of the Department’s decision.

5. The applicant was represented in relation to the review by her registered migration agent.

6. The Tribunal allowed the applicant to file further material after the hearing, by a further 14 days to the 28 October 2019.The applicant filed a few documents on the 29 October 2019 being her academic transcript, COE’s, certificate of completion of her English course, Discharge letter from hospital and a  Doctor’s certificate    

7. 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

8. 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?

9. 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).

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

11. The applicant arrived in Australia on the 10 November 2015.She was born on [date] and was only [age] years of age when she arrived in Australia. She ceased to be enrolled in a registered course on the 24 April 2017.

12. She was sent a Notice of Intention to cancel her Visa on the 31 November 2017 by the Department of Immigration and Border Protection. In her response as stated in the decision of the Department she stated that the cause of the cancellation was financial hardship and the fault of the education provider. She had been without enrolment for 6 months. She did not lodge a dispute or grievance during the period of non-enrolment. She did not seek advice from the Department. She did not provide evidence of financial counselling. Her enrolment was cancelled due to her non commencement of studies and unsatisfactory course progress. She responded to the Notice on the 3 November 2017 and did not dispute the grounds for cancellation.

13. On the evidence before the Tribunal, 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

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 Procedural Instruction ‘General visa cancellation powers’.

15. The applicant confirmed that she arrived in Australia when she was only [age] years of age. She was single and did not have any children.

16. She did not have any travel history as she left her parent’s home in [Country 1] to travel to Australia to study English and then to study nursing at [a university] after she had completed an English Course. The whole purpose of the applicant’s travel to Australia was to study. Her father borrowed money to pay for her initial deposit for her course which she said was about [amount].

17. The Tribunal gives some weight to the fact that the applicant commenced her studies upon arrival in Australia.

18. She experienced difficulties in her personal life from the end of 2016, when she became involved with a man from [Country 1] that she met at her employment. They were in a serious relationship and he became abusive. She started to self-harm and was on one occasion admitted to hospital as she tried to [self-harm]. She also had [a medical procedure]. She gave evidence and provided proof to the Tribunal of her difficulties. She did not have anybody to confide in and she could not tell her family

19. She provided evidence to the Tribunal of her personal circumstances such as the discharge letter from the hospital after she had tried to [self-harm] by taking an overdose on [date].She had filed submissions on the 10 October 2019 such as a letter confirming the [medical procedure], photographs of bruising, Medical Certificate for [a injury] dated the [date].

20. She obtained casual employment at [a business]. She provided a copy of her payslips to the Tribunal. She said that she could not return to [Country 1] without the qualification.

21. The Tribunal empathises with the applicant as it would seem that her personal life was in turmoil and she had nobody to confide in as she did not wish to disappoint her family in [Country 1] particularly as they had borrowed money for her to travel to Australia.

22. She told the Tribunal that she began to confide in her younger sister when she eventually arrived in Australia to study [a course] .She was living with her sister when the matter was heard by the Tribunal.

23. The applicant felt that she had failed her family as she was the eldest child and was supposed to lead by example.

24. She said that her sister was studying [a course] and it was anticipated that she would complete her course at the end of the year. She said that she was under the impression that her sister was progressing satisfactorily in her studies.

25. The Tribunal accepts that when students come from overseas this may cause stress and anxiety. The applicant was quite young when she arrived in Australia and was obviously not resilient enough to deal with the stressors of an abusive relationship.

26. The applicant provided a referral from her general practitioner as she will be attending counselling. She is hoping to be in a good position to study and stated that she has left the abusive relationship approximately [number] months ago.

27. The applicant was only [age] years of age at the time of the hearing and perhaps with hindsight and the assistance of her sister she can now concentrate on completing her course as it would seem that she had a traumatic time as one failure led to another and she must have felt that she had no way out.

28. The Tribunal accepts that the cancellation of a visa is disappointing .It also accepts that a significant amount of money is invested in a person in order to set them up in a country to live independently and to study.

29. The Tribunal accepts that there will be hardship felt by the family members if the visa is cancelled who may feel down and disappointed.

30. The Tribunal accepts that the applicant had suffered a mental health issue arising out of a relationship that included family violence. A cancellation may affect her whole life in view of her age. She should be given another chance to see if she can apply herself due to her young age. The Tribunal considers that the hardship that the applicant and her family may face does outweigh the breach and the Tribunal gives this factor considerable weight.

31. There is no evidence before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives some weight in favour of the applicant.

32. The applicant has remained in Australia on a bridging visa. If the visa is cancelled the applicant will only be able to apply for a limited range of visas. Given her evidence The Tribunal does not accept that she will become unlawful and liable to detention. The Tribunal give this factor little weight in favour of the visa being cancelled.

33. The applicant said that she had arrived in Australia to study and her family had taken out a loan. I accept that there may be some financial hardship to the applicant and her family if the visa is cancelled. The applicant did not indicate any other reason or fear of return to [Country 1] .I find that there is no information that any international obligations would be breached and give this factor no weight.

34. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Noelle Hossen
    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.