Cheng (Migration)

[2019] AATA 2798

Cheng (Migration) [2019] AATA 2798 (4 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Chen Cheng

CASE NUMBER:  1705440

HOME AFFAIRS REFERENCE(S):           BCC2017/807985

MEMBER:Frank Russo

DATE:4 April 2019

PLACE OF DECISION:  Sydney

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 04 April 2019 at 4:04pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – evidence of illness and misleading advice from a migration agent – efforts to obtain a deferral of studies every six months as a result of visa cancellation – evidence of current offer commence these studies in September 2019 – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140, 359AA
Migration Regulations 1994, Schedule 8, condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 March 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 the applicant did not meet the requirements of her Student visa as she was not enrolled in a registered course. 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 26 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Wei Yin, the applicant’s boyfriend, and Mr Yuming Chen, a friend of the applicant. 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.

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 Tribunal has a copy of the Department’s file as well as the Tribunal file. The Tribunal file includes a copy of the Department’s decision, which was provided by the applicant. The Tribunal’s file also includes the following documents provided by the applicant, which the Tribunal has regard to in making its decision:

   ·A submission from 88 Immigration, dated 21 March 2017;

   ·Confirmation of enrolment in the Master of Design at the University of New South Wales (UNSW), dated 9 February 2016;

   ·Confirmation of enrolment in English Language Programs at Ability Education, dated 6 March 2017;

   ·Letters from UNSW to the applicant, dated 18 January 2016 and 23 February 2017, providing a postgraduate conditional offer for the Maters of Design for Semester 2, 2016 and Semester 2, 2017, respectively;

   ·Copy of the applicant’s Chinese passport;

   ·Letter from UNSW Global to the applicant, dated 20 January 2016, providing an offer of admission to the UNSW Institute of Languages;

   ·Copies of booking summaries for IELTS test sessions, for tests booked for 27 August, 29 October, 3 December and 17 December 2016;

   ·IELTS Test Report Forms dated 11 July 2015, 29 October 2016, 3 December 2016 and 17 December 2016.

   ·A letter of support from the applicant’s parents, dated 26 January 2016;

   ·Copies of income certification documents for the applicant’s father’s income; and

   ·Copy and translation of the applicant’s certificate for her undergraduate qualification, issued by Xi’an University of Science and Technology, issued on 2 July 2014.

10. On the day of the hearing the applicant provided the following documents, which the Tribunal has regard to in making its decision:

    ·Copies of screen prints of Wechat messages between the applicant and her mother, in Chinese, together with certified translations into English. The messages are dated 17 September 2016, 23, 24, 25 and 26 November 2016 and 3 December 2016; and

    ·Certified translations of dental records for treatment received in China on 17 and 24 January 2017 and 4 and 19 February 2017.

11. The applicant provided additional submissions on 2 April 2019, as well as the following documents, which the Tribunal has regard to in making its decision:

    ·Letters from UNSW dated 31 July 2018 and 13 February 2019, respectively confirming offers to the applicant to study the Masters of Design in Term 1, 2019 and Term 3, 2019;

    ·An email from UNSW Institute of Languages, dated 22 June 2016; and

    ·A statutory declaration made by the applicant on 27 March 2019.

12. The applicant gave evidence at the hearing that she arrived in Australia at the end of February 2016. Her purpose was to study a Masters of Design at UNSW, which was her preferred course of study. In China she obtained a Bachelors Degree with a major in Design from Xi’an University. This is supported by the documents provided by the applicant, which include a certificate for her undergraduate qualification.

13. After arriving in Australia the applicant first studied the University English Entry Course (UEEC) at UNSW Institute of Languages. She said that she finished this course in June 2016, but due to illness she missed some of the final classes. She gave evidence that she suffered an infection in her tonsils, which rendered her unable to speak at times. She suffered this condition from the end of June 2016 until September 2016. She told the Tribunal that she sat the final examination, but didn’t pass it due missing some of the course content because of her illness. She received a letter from UNSW suggesting that she re-sit the course or sit the IELTS examination. She told the Tribunal that because of her health situation she missed the cut-off for re-enrolling in the UEEC and was unable to attend the course in person in any case because of the ongoing nature of her illness, so she instead decided to sit the IELTS examination. When her health improved she applied to sit the IELTS examination. In making this decision she also consulted a migration agent, who outlined the options contained in the letter from UNSW, but did not point out that she needed to be enrolled again in a course of study.

14. The applicant told the Tribunal that she sat the IELTS examination several times as she did not at first receive a sufficient score to allow her to commence her university studies in Australia. As a result of not passing the English language test she had to defer her Masters studies at UNSW. The applicant stated that during this time she was undertaking self-study for the purpose of passing the IELTS examination.

15. The applicant told the Tribunal that she has now passed the IELTS examination and has obtained a sufficient score to allow her to commence her studies in the Masters of Design, however, since the delegate made the decision to cancel her visa she has been unable to enrol at UNSW. She has had to apply to UNSW on three occasions to defer her studies. She has missed two of these deferral deadlines. As at the date of the Tribunal hearing she has deferred her studies until September 2019. She stated that if a visa can be granted her plan is to commence the Masters of Design by September 2019. This is substantiated by the letters supplied by the applicant to the Tribunal on 2 April 2019, which contain two letters from UNSW confirming offers to the applicant to study the Masters of Design course. The Tribunal notes that the most recent of these, dated 13 February 2019, provides an offer to the applicant to commence studies in Term 3, 2019, which commences on 16 September 2019.

16. In relation to her illness, the applicant stated that she was treated by a Chinese doctor in Australia, although she did not submit any medical records in relation to this. She was also treated for a related condition in China in January-February 2017. The applicant supplied medical records which show that she was treated for dental problems, including tooth extraction, in China in January and February 2017. This included prescriptions for medication.

17. In the applicant’s statutory declaration dated 27 March 2019, she provided the following additional information:

    At the end of June in 2016, I had inflammation of the tonsils, and could not talk. I had serious cough, which made me headache. In July I took a lot of medicine, but the condition had not turned better. Instead, it went even worse. I started to have fever in August and had dizziness, which made me feel lack of energy and could not even get off my bed, let alone going out. It was very cold in August and September. I lived far from the University. I had to take a train and then a bus to the University. My health condition did not allow me to do so. I could not sleep or eat well, and could not get concentrated in class. The condition turned slightly better in September, and I started to have exams in October. Until the end of December I had periodontitis, which let to bleeding. Then in January, I went back to China and had my tooth pulled out.

18. The Tribunal questioned the applicant about the circumstances which led to her enrolling in an English language course in March 2017. The applicant stated that she visited China over January-February 2017. When she returned to Australia a Customs Officer at the airport asked her about her enrolment status. She showed the Customs Officer her records. She was told that she had to provide a valid confirmation of enrolment within two weeks. The applicant told the Tribunal that the first thing she did was to contact UNSW to enrol, but she was informed that she had just missed the enrolment cut-off. Her agent then advised her to enrol in the English language course. Following this she received the Department’s Notice of intention to cancel her visa and then the letter advising her that her visa had been cancelled. The applicant stated that despite her visa being cancelled she proceeded to complete the English language course, which was a 20-week course. After this she did not possess a valid visa for study within Australia, so no university would accept her enrolment. She stated that her only option was to study online courses, which she did, as well as study with private tutors.

19. Adopting the procedure in s.359AA of the Act, the Tribunal put to the applicant that it had on file a copy of her enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal provided the applicant with a copy of her PRISMS enrolment records. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether she had any comments in relation to his PRISMS enrolment records and advised that she may be granted time to comment on or respond to the information if needed. The applicant confirmed that the PRISMS enrolment record was an accurate reflection of her enrolment history.

20. At the hearing the applicant confirmed that she was not enrolled in a registered course of study from 4 July 2016 to 6 March 2017 and had failed to maintain her enrolment in accordance with condition 8202.

21. 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

22. 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

23. The applicant gave evidence at hearing that the purpose of her travel to Australia was to study the Masters in Design at UNSW, following the completion of her undergraduate studies in Design in China. The applicant told the Tribunal that the Masters of Design at UNSW is her preferred course of study and it is her dream to complete it. She gave evidence that since her visa was cancelled she has had to apply every six months for deferral of the commencement of her course.

24. The Tribunal finds the applicant’s evidence as a whole convincing. There is consistency in her claims, which are also supported by the documentary evidence provided and the evidence of the witnesses who appeared before the Tribunal. The Tribunal finds that the purpose of the applicant’s travel and stay in Australia is for the purpose of completing the Masters of Design at UNSW. The Tribunal notes the applicant’s efforts to obtain a deferral of these studies every six months as a result of her visa being cancelled, including evidence that she has a current offer to commence these studies in September 2019. These demonstrate the applicant’s continued commitment towards undertaking these studies. The applicant also advanced compelling reasons for her need to remain in Australia to complete these studies. She believes that with a Masters in Design at UNSW she will be able to teach at a university in China. She gave evidence that her subject interest is Western Arts and Design, which is not available in China, and stated that USW was her ‘desired school’.

25. The Tribunal finds that the applicant has a compelling reason for remaining in Australia, namely undertaking the studies which she initially came to Australia to complete. The Tribunal gives this some weight against cancelling the visa.

    The extent of compliance with visa conditions

26. As noted above, the applicant did not comply with condition 8202(2) for a considerable period of time. However, she provided evidence of illness and misleading advice from a migration agent. This is covered further in the Tribunal’s reasons in relation to the circumstances in which the ground for cancellation arose. There is no evidence before the Tribunal of other breaches by the applicant of her visa conditions. The applicant gave evidence that she has not been employed in Australia since her arrival. She relies on support from her parents. There is therefore no question of whether she has complied with the employment conditions attached to her visa. I give this some weight against cancelling the visa.

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

27. When asked about the degree of hardship that may be caused as a result of the cancellation of her visa, the applicant stated that the purpose of her travel to Australia is to study her preferred course at UNSW. As a result of her visa being cancelled in March 2017 she has been unable to commence her studies and has instead been undertaking online courses and been tutored privately. The applicant gave evidence that she majored in the Arts as part of her Bachelors Degree from Xi’an University and the Masters in Design from UNSW is part of her career plans. If she returns to China to study a Master Degree, first she will have to sit the annual examination, the cut-off for which she has missed for 2019. In addition, a Masters Degree in China will take her three years to complete and she will not be able to major in Western Design, which is not offered in China. Without a Masters qualification she would be unable to obtain her desired job, which is teaching Design.

28. The applicant also stated that her boyfriend is currently studying in Australia. If she is unable to study in Australia, a further hardship will be that they will have to carry on their relationship long-distance.

29. I find that the applicant has endured a period of hardship as a result of the cancellation of her visa, with her being unable to enrol in her chosen course at UNSW for a period of approximately two years, with consequential setback to her career plans. The continuation of the cancellation will compound this hardship, as well as result in further setback for the applicant’s career, which would require her to make alternate study and career plans. I give this some weight against cancelling the visa.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

30. As noted above, the applicant gave evidence of the ongoing illness she experienced from June to September 2016, which resulted in her not passing her UEEC examination. As a result of this she was unable to enrol in the Masters degree. She instead undertook a period of self-study in English in order to pass the IELTS examination. This is supported by the documentary evidence supplied by the applicant, including her bookings to sit the IELTS examination. The applicant also provided evidence at hearing and documentary evidence supporting her claims of health problems that continued into early 2017.

31. At the hearing the applicant gave evidence that a further extenuating circumstance was the poor advice she received from her previous migration agent prior to the cancellation of her visa. When she failed to meet the English language requirements to commence her studies at UNSW, she made enquiries with a migration agent. She had missed the cut-off for re-enrolment in the UECC course. The applicant stated that she was advised by the agent that she could meet the English language requirements by enrolling in another course or through studying for the IELTS examination on her own, and that it was totally her choice. She was not told about the potential consequences if she was not enrolled in a course of study or that she would need proof of enrolment in a course of study. She was also not told of the potential timeframes which passing the IELTS examination through self-study would involve. She told the Tribunal that now she is aware that the agent should have advised her that she needed a valid enrolment for her studies towards passing the IELTS examination.

32. The Tribunal also notes the email from UNSW Institute of Languages, dated 22 June 2016, which was provided to the Tribunal on 2 April 2019. This email is a follow-up communication from the Institute to the applicant about her failure to pass the English language examination in June 2016. This letter offers options for the applicant to consider, including doing an ILTS Test preparation course, repeating the UEEC, investigating applying for an English waiver, considering a different university and applying for a review of her examination results. This letter supports the applicant’s evidence about the misleading advice she obtained from her previous migration agent.

1. The Tribunal heard evidence from Mr Yin, the applicant’s boyfriend, who gave evidence that the applicant was unwell in June 2016, which is the reason why she did not perform well in her English language examination held at that time. He said that the applicant had recurring problems with her health over the following months. He described the applicant’s symptoms as being pain in her throat and being unable to talk. At the end of August 2016 it became quite serious. She missed the September date for the IELTS examination due to illness, but after that she still studied on her own. He gave evidence that she kept studying on her own despite being ill and hired private tutors to assist with studying.

2. The Tribunal also heard evidence from Mr Chen, who described himself as a good friend of the applicant as well as a classmate of the applicant in the UEEC. He said that he was part of her study group. He described the applicant as someone who studied hard. He gave evidence that at the second to last class their instructor said that he thought all of the students in the class had progressed sufficiently to pass the final examination, but during the examination period the applicant was suffering from flu-like symptoms, and afterwards he found out that the applicant did not pass the examination. He stated that he picked up her graduation certificate for her from the Institute. When he visited the applicant she could barely talk. He often visited her afterwards. Sometimes her condition was better, sometimes worse. During this time he saw that she was continuing to study English. He would talk to her about language learning techniques.

3. The Tribunal finds that there were circumstances which were beyond the applicant’s control, namely her illness, which resulted in her failing her English studies and consequently being unable to enrol in the Masters degree as planned. The Tribunal accepts, on the evidence provided by the applicant and by the witnesses, that the applicant attempted to remedy this situation through study for the IELTS examination, which she did not expect would take a further six months to pass. The Tribunal also accepts that the applicant was confused and misled by the letter she received from the UNSW Institute of Languages, which outlined short-term alternatives she could take to enrolling in another English language course, and accepts her evidence about receiving similar advice from her former migration agent. The Tribunal accepts that the circumstances concerning the applicant’s illness were beyond her control and she failed to re-enrol as a consequence of these ongoing health issues, in addition to being misled about the viability of alternatives to enrolment in a course. The Tribunal gives this some weight against cancelling the visa.

   Past and present behaviour of the visa holder towards the department

4. The Delegate noted in the Department’s decision that the applicant has been cooperative with the Department and provided information when requested. In this regard the Tribunal notes the statement the applicant provided to the Department prior to her visa being cancelled. The Tribunal gives this some weight against cancelling the visa.

   Whether there would be consequential cancellations under s.140

5. The applicant confirmed at hearing that there are no persons in Australia whose visas would, or may, be cancelled under s.140. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.

   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

6. If the applicant’s Student visa is cancelled she would potentially face becoming an unlawful non-citizen and liable for detention and removal under the Act. However, the Tribunal also notes that the applicant could apply for a Bridging visa in order to remain within the community to finalise his affairs before departing Australia.

7. If the visa is cancelled the applicant would be excluded from making applications for certain types of visa in Australia, and would be unable to commence her studies for the Masters in Design. As noted above, the applicant stated that the purpose of her coming to Australia was to complete her studies at UNSW, which has been her dream and which is critical to her career plans. She has been unable to commence these studies for the past two years due to the cancellation of her visa. She has obtained permission to defer her studies on several occasions by UNSW and has a current offer which will allow her to commence her studies in September 2019. Given the circumstances as set out above, the Tribunal finds that it would be unfair for the applicant to be precluded for three years from applying for a further Student visa to undertake her desired studies. The Tribunal gives this some weight against cancelling the visa.

   Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

8. Not applicable.

   Any other relevant matters

9. The applicant told the Tribunal that if she is able to undertake her studies in Australia it will have a big impact on her life and future career. The Tribunal has also already taken this into considering the degree of hardship which may be caused if the visa is cancelled, and need not consider it again here. The Tribunal finds that there are no other relevant matters and weighs this consideration neither in favour nor against cancelling the visa.

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

    DECISION

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

    Frank Russo
    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.