1822275 (Migration)

[2019] AATA 6588

1822275 (Migration) [2019] AATA 6588 (15 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1822275

MEMBER:Margie Bourke

DATE:15 August 2019

PLACE OF DECISION:  Melbourne

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 15 August 2019 at 3:51pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education – not enrolled in registered course for ten months – did not re-enrol after failing subjects – emotional turmoil – car accident – rectified circumstances of non-compliance immediately upon receiving cancellation notice – credible witness – 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 30 July 2018 made by a delegate of the Minister for Home Affairs 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 in a decision record dated 30 July 2018 on the basis that the applicant had not been enrolled in a registered course from 6 September 2017 to 25 July 2018. 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 12 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from a witness [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

5. 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

6. 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?

7. 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).

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

9. The applicant stated that she came to Australia in 2016 aged [a certain age]. She stated she completed [an] English Bridging course, and she had provided the Department with her confirmation of enrolment for this course. The applicant had also provided the Department with her confirmation of enrolment for a bachelor of [Subject 1] degree commencing in July 2016. The applicant stated that she did not commence this degree but transferred to a bachelor of [Subject 2] degree. The applicant stated that she commenced this degree in September 2016 at [Named] University. The applicant gave details of the four subjects that she studied, and advised that after completing the two semesters of the first year of the course in July 2017 she had only passed one subject. The applicant stated she did not re enrol in that course or any other course that year after July 2017. There is no evidence before me that the applicant was enrolled in another registered course of study that year from September 2017. I accept that the applicant’s enrolment in the registered course of study ceased prior to September 2017.

10. Based on the evidence of the applicant, which is consistent with the information contained in the Department’s decision record, a copy of which the applicant provided to the Tribunal, I am satisfied that the applicant was not enrolled in a registered course of study from September 2017 until July 2018.

11. 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

12. 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’.

13. The purpose of the applicant’s travel and stay in Australia: I am satisfied that the applicant came to Australia, with the purpose and intention of completing a tertiary degree. I accept the applicant’s evidence that she enrolled in an [Subject 1] degree on the advice of her school in China, but upon arrival in Australia transferred to a bachelor in [Subject 2]. I accept the applicant’s evidence that she commenced that bachelor degree in September 2016 after completing an English bridging course at [Named] University. I accept that the applicant undertook three subjects as part of the [Subject 2] degree and one subject in Japanese language. The applicant advised that she passed one subject, she thinks was called [Subject 3], after completing the first year of her [Subject 2] degree.

14. The applicant stated that she handed in all her assignments and assessments, during her year of study. She stated that after she did not pass her first year she stopped going to university. The applicant stated that she stayed in her room, did some reading and English tests and hoped to apply to go to another college. The applicant stated that she could not successfully apply to another college to study, because they did not recognise the [Named] English bridging course and there was an issue with her English grade or capability. The applicant had an IELTS assessment [in] August 2014 in which she had an overall band score of six. The applicant stated she was required to set another test but did not attend the test appointment.

15. The applicant provided the Department with a letter of offer from [a different institution] to study a one year Diploma of [Subject 4] commencing July 2018, and a letter of offer from the same Institute to study a two-year Bachelor of [Subject 5] degree commencing November 2019.

16. I am satisfied that purpose of the applicant’s travel and stay in Australia was to study and complete a tertiary degree, and the applicant has provided evidence of her attempts to study and complete a tertiary degree. I give the evidence of the applicant’s purpose of travel and stay in Australia weight in favour of not cancelling the visa.

17. The extent of compliance with these conditions:- the non-compliance with her visa conditions involved the applicant not being enrolled in a registered course of study for a significant period of time, namely 10 months from September 2017 to July 2018. I have noted that prior to the Department’s decision record, and after receiving the notice of intention to consider cancellation of the applicant’s visa, the applicant obtained a letter of offer from another tertiary education institution, and was therefore compliant with her visa conditions after receiving the notice from the Department. I give the evidence of the visa applicant’s non-compliance with the visa conditions a little weight in favour of not cancelling the visa, because of the fact the applicant rectified the circumstances of non-compliance almost immediately upon receiving the notice from the Department.

18. The degree of hardship that may be caused:- I have considered that in the applicant’s representative submission dated 13 July 2018, the applicant instructed that she wished to convince her parents that she stay with them in China but her parents insisted that she come back to Australia to study and she felt she had no choice. I have considered that the applicant stated that she would be embarrassed if she had to return to China without completing a tertiary degree, and her parents would be angry that she had wasted three years in Australia and obtained no qualifications. I have considered that the applicant’s parents paid for the cost of her study in 2016 to mid 2017, but the applicant did complete her bridging English course, and did attend the classes for which her parents had paid for in 2016 to mid 2017. After considering the evidence before me, including that the applicant had wished to stay in China in early 2018, but that conversely she would feel embarrassment if she had to return to China now, I find there is some limited evidence that the applicant would experience some emotional hardship if her visa is cancelled and she was required to return to China. For these reasons I give this factor weight in favour of not cancelling the visa.

19. Circumstances in which ground of cancellation arose:- the evidence before me is that the cancellation arose because the applicant did not re enrol after not passing three of her four subjects in the first year of her bachelor of [Subject 2] degree at [Named] University. The applicant stated she stopped going to school, stayed in her room and did some study and preparation with the intention to apply to study in another college.

20. In her response to the Department’s notice of intention to consider cancelling the visa of the applicant through a written submission from her representative, the applicant submitted there were circumstances that were relevant to the grounds in which the cancellation arose. The applicant provided documents and translations confirming that [in] November 2017 her father was driving a vehicle which was involved in an accident in which a pedestrian was injured, and the pedestrian died [a number of] days later. The documents confirm that the applicant’s father then made arrangements to pay financial compensation to the deceased’s family to cover medical treatment, funeral expenses and death compensation. I accept the applicant’s father was involved in the motor vehicle accident in the circumstances as set out in these documents.

21. In the submission from the representative dated 13 July 2018, the applicant claims that she was not present at the accident and was not told about the accident until December 2017.  In a submission provided to the Tribunal by the applicant which included a letter from her landlord [Mr A], Mr [A] states that the applicant was in the car accident herself, the other person was critically injured and the applicant was informed two months later that the other person had died. Mr [A] further states that the onset of the applicant’s depression regarding the accident began because it was the applicant felt responsibility or guilt for the accident because her parents were returning from picking her up her at the airport when the accident happened. The applicant herself provided a statutory declaration prior to the hearing saying that she was sleeping in the car when the accident happened and she did not know how serious the accident was but she was shocked by the accident and saw the lady lying in the pool of red with her body still twitching. The applicant stated in the hearing that they were not driving back from the airport but rather they were driving back from visiting her grandmother. The applicant stated that she had not seen a dead body before, however clarified that she meant she had not seen an injured or bleeding person before. The applicant stated it was two months before she found out the person had died.

22. I discussed with the applicant at the conclusion of hearing the oral evidence, I had some concerns about the different versions of her involvement in the motor vehicle accident, or the effect of the motor vehicle accident upon her, that had been provided to the Tribunal. I discussed that I had some concerns that the applicant was trying to use the information about her father’s accident to manipulate a compassionate response in relation to exercising my discretion to not cancel the visa. I discussed with the applicant that she had provided a different version of her involvement in the motor vehicle accident through the evidence she had provided, which included her submission through the representative dated 13 July 2018, through the written statement from the witness Mr [A], and through her oral and written evidence provided to the Tribunal. I discussed with the applicant that I had concerns about whether she was being truthful about the motor vehicle accident and its effects on her. I discussed with the applicant about whether her evidence was reliable.

23. The applicant stated that when she spoke to her agent in July 2018 she did not have much time to provide her instructions and her agent might have misunderstood what she was saying to her. The applicant stated that she had been in China two days before the accident happened so her father definitely was not driving from the airport. The applicant stated Mr [A] must have misunderstood that. The applicant stated she definitely saw the woman lying in a pool of blood and she was certain it was two months before she found out the woman had died.

24. After the hearing the Tribunal received a submission from the applicant’s representative that when she took her instructions from the applicant they had limited time to provide the response, the applicant was distressed and that the representative must have misunderstood the applicant’s instructions about her involvement and presence at the accident. The representative also submitted that neither she nor the witness Mr [A] were in China at the time of the accident and asked the tribunal to accept the applicant’s evidence and explanations as per her statutory declaration and oral evidence in relation to her involvement with the motor vehicle accident. The applicant’s movement records confirmed that the applicant was in China two days before the accident. I accept the submission of the applicant’s representative, and accept that she made an error in the submissions presented in haste to the Department in July 2018. I accept that the applicant is truthful in her evidence that she was in the vehicle when it was involved in an accident  November 2017 when her father was driving and a pedestrian was injured who ultimately died.

25. After I discussed these issues with the applicant in the hearing, the witness Mr [A] became angry and wanted to discuss my assessment or interpretation of the evidence that had been presented by the applicant. The representative advised that she would provide post hearing submissions, and she included in the post hearing submission a further statement from the witness Mr [A]. In this statement Mr [A] claimed that the tribunal had conducted the hearing in a way that it was “looking for dishonesty” in the evidence. I have considered the opinions expressed by the witness Mr [A]. I am satisfied that I discussed with the applicant inconsistencies in the evidence she had provided and gave her the opportunity to comment. I am satisfied that I have provided the applicant with procedural fairness in the process of this review. I discussed with the applicant the different evidence that had been presented about the one matter, and whether I assessed her evidence to be honest or reliable. I am satisfied that I have carefully and appropriately assessed the reliability of the oral and written evidence of the applicant.

26. I have considered and given weight to the evidence that the applicant did not re-enrol after studying all year but not passing the first year of her bachelor degree in [Subject 2] at [Named] University. I have considered and given weight to the evidence that a few months later when visiting her parents in China the applicant was in a vehicle driven by her father that was involved in an accident in which a pedestrian was seriously injured, and subsequently died. These are circumstances in which the ground for cancellation arose and that I give them weight in favour of not cancelling the visa.

27. Past and present behaviour of the applicant towards the Department:- there is no evidence that the applicant has been uncooperative with the Department at any time. I note the applicant has provided responses when requested. I give this weight in favour of not cancelling the visa.

28. Consequential cancellations:- there is no evidence that there would be any consequential cancellations of any other person’s visa pursuant to s.140. I give this consideration no weight.

29. Mandatory legal consequences:- if the applicant’s visa was cancelled there would be the standard legal consequences including that s.48  of the Act and PIC 4013 would be engaged, which affect the applicant’s options in relation to these applications in the immediate future. Further upon cancellation of these are the applicant would become unlawful, and subject to detention if she was not granted abridging visa or did not depart as requested. I give the legal consequences weight in favour of not cancelling the visa.

30. International obligations:- there is no evidence that the cancellation of the applicant’s visa would have any bearing on Australia’s international obligations. I give this consideration no weight.

31. Other relevant matters:- the applicant has consistently claimed that she was depressed as a result of not passing her first year of the bachelor degree, and being involved in the motor vehicle accident in China in which the pedestrian was injured and subsequently died. There is no medical evidence before me in relation to the applicant’s medical health or mental health status. I accept that it would be a hard thing to experience not passing first year of university, and to be the passenger in a vehicle that is involved in a serious motor vehicle accident. There was oral evidence at the hearing from the applicant that she felt depressed, and from the witness Mr [A] that the applicant was depressed and did not want to feel anything. In the absence of any medical report confirming any diagnosis, I am unable to conclude that the applicant has a mental health condition. Accordingly I give the applicant’s claimed mental health condition no weight in my assessment of the discretionary factors.

32. I have considered all the evidence before me, and I am satisfied that the factors in favour of not cancelling the visa outweigh the factors in favour of cancelling the visa.

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

    DECISION

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

    Margie Bourke
    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.