Dai (Migration)

[2017] AATA 2720

Dai (Migration) [2017] AATA 2720 (6 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Weizhen Dai

CASE NUMBER:  1618953

DIBP REFERENCE(S):  BCC2016/3188943

MEMBER:Michael Ison

DATE:6 December 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 06 December 2017 at 8:35am

CATCHWORDS
Migration – Cancellation – Student visa – Subclass 573 Higher Education Sector visa – Breach of visa conditions – Not enrolled in a registered course – Became pregnant and had a child in Australia – Claims undue hardship – Difficult pregnancy – Applicant and child suffer from medical conditions

LEGISLATION
Migration Act 1958 ss 48, 116(1), 116(1)(b), 189, 198

Migration Regulations 1994 r 2.43(1)(a) Schedule 4 Criteria 4013 Schedule 8 Conditions 8202, 8202(2)(a), 8202(3)(a)-(b)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision dated 3 November 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2.Ms Dai, the applicant, is 24 years old and arrived in Australia in October 2014 from China.

3.The delegate cancelled Ms Dai’s visa on the basis that that Department of Immigration and Border Protection records indicated that Ms Dai had not been enrolled in a registered course of study from 19 December 2015, contrary to the requirements of condition 8202(2)(a) of Schedule 8 to the Migration Regulations 1994 (the Regulations). The delegate went on to consider that the considerations in favour of cancellation outweighed those against cancellation and cancelled the visa.

4.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.Ms Dai appeared before the Tribunal on 13 November 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6.Ms Dai was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

7.For the following reasons, the Tribunal has concluded that the decision to cancel Ms Dai’s visa should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

8.The issue in the present case is whether Ms Dai, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Regulations. If Ms Dai has breached that condition, under s.116(1) of the Act, her 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)(a)

·has not been certified by her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

·has not been certified by her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

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

11.Ms Dai provided the Tribunal with a copy of the Department’s decision to cancel her visa, made on 3 November 2016. She agreed that the Department’s decision was correct where it stated that she had not been enrolled in a registered course of study since 19 December 2015.

12.The Department’s decision also records that the Department sent Ms Dai a Notice of Intention to Consider Cancellation of her visa (NOICC) on 21 October 2016 and requested a response within five business days.

13.Ms Dai did not respond to the NOICC prior to the Department making its decision. The Tribunal notes that Ms Dai gave birth to her son on 26 October 2016.

14.There is an undated statement from Ms Dai that appears to have been written shortly after the Department made its decision.

15.Ms Dai did explain to the Tribunal that the days from December 2015 to February 2016 were ‘school holidays’ and then afterwards she did study an English course or courses. The Tribunal reminded Ms Dai that it is a requirement of her student visa that she maintain her enrolment and also be enrolled in a registered course of study with an approved education provider.

16.On the evidence before the Tribunal, the Tribunal is satisfied that Ms Dai was not enrolled in a registered course of study with an approved provider from 19 December 2015 until her visa was cancelled on 3 November 2016.

17.Accordingly, Ms Dai has not complied with condition 8202(2) and the ground for cancellation of her student visa is made out.

Consideration of the discretion to cancel the visa

18.Having found that Ms Dai has not complied with a condition of her visa, the Tribunal must consider whether to exercise its discretion to cancel her visa.

19.There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by Ms Dai as to why her visa should not be cancelled and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

The purpose of the visa holder’s travel and stay in Australia and whether the visa holder has a compelling need to travel or remain in Australia

20.The Tribunal accepts as genuine that Ms Dai’s original reason for travelling to and staying in Australia was to study.

21.However, given Ms Dai’s failure to remedy her breach of her visa for an extended period of time, the Tribunal gives this consideration only very limited weight towards the Tribunal not exercising its discretion to cancel Ms Dai’s student visa.

The extent of compliance with visa conditions

22.The Tribunal noted that Ms Dai’s breach of condition 8202(2) appeared to be for a significant period of time – over 10 months when her visa was cancelled by the Department. Ms Dai explained that initially illness and then pregnancy caused the cancellation of her enrolment, as is set out in more detail below.

23.The Tribunal does not have any evidence before it to indicate Ms Dai is in breach of any other condition of her visa.

24.Ms Dai has committed a significant breach of her visa as set out above. Ms Dai did not make any substantial effort to remedy that breach. As discussed below, the Tribunal does not accept that Ms Dai has reasonable or satisfactory explanations for that breach. The Tribunal therefore gives this consideration considerable weight towards exercising its discretion to cancel Ms Dai’s student visa.

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

25.Ms Dai told the Tribunal that the cancellation of her student visa will cause her and her infant son great hardship.

26.Ms Dai said that during her time in Australia she became pregnant in February 2016, was told she was pregnant in April 2016 and moved from Canberra to Melbourne to be with the father of her child.

27.As noted above, on 26 October 2016 Ms Dai gave birth to her son.

28.Less than a year after moving to Melbourne the father of Ms Dai’s son ended their relationship and left Ms Dai who then had to raise their son on her own.

29.Ms Dai’s parents, after initially advising her not to keep her child, have since offered to come to Australia to support her and to take Ms Dai’s son back to China to care for him so that Ms Dai can concentrate on her studies in Australia.

30.Ms Dai said that she has not told her parents about the cancellation of her student visa. She said that she is very concerned that if her parents find out her visa has been cancelled then because she is an unwed mother and has had her visa cancelled, they will ‘disown’ her and not want to have anything to do with her or her son.

31.However, Ms Dai also gave evidence that her parents have tried to come to Australia to support her but could not get visas because Ms Dai’s visa had been cancelled. This indicates to the Tribunal that Ms Dai’s parents are aware there are significant issues with her visa status, even if they are not aware that it has been or when her visa was cancelled. Ms Dai’s parents’ actions are also a positive demonstration of their support for Ms Dai and her son.

32.If Ms Dai’s parents do disown her, Ms Dai said it will be very difficult to provide for and raise her son. At one point in the hearing Ms Dai said she would have to return to China and get whatever work she could to support her son.

33.At other times during the hearing, Ms Dai indicated that she cannot see a future for her son and herself if they are on their own.

34.Her plan is to allow her parents to take her son back to China so that she can obtain a degree in Australia and then secure a higher paying job when she returns to China. Ms Dai believes this will enable her to provide the greatest opportunities for her son.

35.If her visa remains cancelled Ms Dai said if she had to return to China and did not have her parents’ support she is not sure she could continue to live. This comment was made in the context of Ms Dai reporting that she is very isolated in Melbourne, has been suffering from severe post natal depression, has self-harmed since the birth of her son, her son and she have both suffered extensive incidents of ill health and she has had very limited medical help with her post natal depression.

36.The Tribunal accepts that Ms Dai has recently experienced the trauma of a relationship breakdown and found it very challenging raising her son on her own in Australia. The Tribunal also accepts that if Ms Dai’s student visa remains cancelled this will cause her potentially significant financial, psychological and emotional hardship.

37.The Tribunal further accepts that Ms Dai’s son will also likely face significant financial and emotional hardship given his young age and potential total reliance on his mother for emotional and physical support.

38.In relation to the father of Ms Dai’s son, the only evidence before the Tribunal was that he does not have an active or any role in the raising of their son. The cancellation of Ms Dai’s visa could cause both father and son additional emotional and psychological hardship as it may make it more difficult for them to resume or have a meaningful relationship in the future. The Tribunal gives this possibility only modest weight in supporting the Tribunal not exercising its discretion to cancel Ms Dai’s student visa.

39.The consequences of breaching her student visa, and the risk of its cancellation, should have been readily apparent to Ms Dai when she breached her visa. However, given the potential extent of the hardship for Ms Dai and her young son in their particular circumstances, the Tribunal gives this consideration significant weight towards not exercising its discretion to cancel Ms Dai’s student visa.

Circumstances in which ground of cancellation arose

40.The Tribunal discussed at length with Ms Dai the circumstances which led to the cancellation of her visa.

41.Summarising Ms Dai’s evidence to the Tribunal and her statement to the Department, the circumstances of Ms Dai’s breach of her student visa are:

·Ms Dai arrived in Australia in October 2014;

·She enrolled in a package of courses, leading to a Bachelor of Business Administration;

·Ms Dai first studied English language courses, failing multiple times;

·Ms Dai developed bronchitis and an infection in her teeth, causing pain, swelling and a loss of sleep. Ms Dai saw a doctor who advised her to return to China to see a dentist to fix the infection, as the doctor said her student insurance would not cover the dental work required in Australia;

·Ms Dai finished the 10 week English language course she was studying at the time and then returned to China in mid-2015 for treatment;

·Upon her return to Australia her education provider told Ms Dai that she had not achieved a high enough mark in her English language course to progress to commence study in her packaged course of studies;

·Ms Dai completed an English language course at the University of Canberra on 18 December 2015;

·Ms Dai’s education provider asked her to undertake further English language studies;

·During this time Ms Dai began undertaking her own study in preparation for further International English Language Testing System (IELTS) testing;

·In April 2016, Ms Dai found out she was pregnant, having ‘felt symptoms’ since February 2016;

·Because she felt so unwell, Ms Dai ceased her IELTS studies;

·The father of her child asked Ms Dai to move to Melbourne so that he could take care of Ms Dai and, eventually, their child;

·After being in Melbourne for some time, Ms Dai asked her education agent in Canberra to transfer her studies from Canberra to Melbourne. The agent advised Ms Dai this would take some time and he would contact her when it was done;

·Ms Dai reports she felt exhausted and dizzy most days from being pregnant and went to her doctor regularly, who advised her that her body seemed weak to carry a baby and she should rest as much as she can;

·In May 2016, Ms Dai reports she checked with her agent how the transfer of her enrolment was going and he again advised it takes time and asked Ms Dai to wait;

·From the 20 week scan Ms Dai was told her baby was bigger than normal and that due to her gestational diabetes she needed to be careful not to do too much activity otherwise it could place her baby at risk;

·Because of this condition, Ms Dai could not return to China to receive support from her parents;

·From early August 2016 Ms Dai reports her pregnancy made her very unwell, to the point where she needed complete bed rest;

·On 21 October 2016 Ms Dai was advised to have a caesarean section due to the size and weight of her unborn baby;

·As previously noted, Ms Dai’s son was born on 26 October 2016. They stayed in hospital for some extra days as Ms Dai’s baby had some health conditions that had to be managed;

·When Ms Dai returned home she found out her visa had been cancelled by the Department (on 3 November 2016);

·Ms Dai reports that her son cried a lot and did not sleep much causing a significant lack of sleep for her and the father of her son, which in part led to their relationship breakdown and him leaving their home;

·Ms Dai felt isolated and very anxious at this time about her son’s health and her own career;

·Due to the stress and isolation of her situation, Ms Dai developed respiratory distress syndrome;

·Around this time Ms Dai’s parents contacted her by video call and could see how unwell she was. They offered to support her including by taking her son back to China so that Ms Dai could concentrate on her studies;

·Ms Dai did not tell her parents at this time that her student visa had been cancelled; and

·Ms Dai says she tried to inform her education provider about her pregnancy but her email account was frozen and her email did not get through. When she became unwell she later forgot to try again to notify her education provider.

42.Ms Dai feels the circumstances leading to the cancellation of her student visa were beyond her control. When asked by the Tribunal whether Ms Dai felt there was anything she could reasonably have done to manage those circumstances differently, Ms Dai said if she had not become pregnant the situation would have been a lot better (from a study perspective).

43.The Tribunal does not accept that the circumstances leading to Ms Dai breaching and not remedying the breach of her student visa were beyond her control.

44.Ms Dai handed the Tribunal 47 pages of her and her son’s medical records at the hearing. These medical records, in addition to medical records previously supplied to the Tribunal by Ms Dai, do not support all of the evidence that Ms Dai gave to the Tribunal. What those medical records show is:

·Between 10 January 2016 and 19 October 2017 (21 months) Ms Dai visited her doctor 25 times;

·10 of these visits were prior to the birth of her son and were mainly for blood and other tests to help manage Ms Dai’s gestational diabetes;

·The majority of the visits after the birth of her son were for sore throats, coughs and fevers;

·On 19 October 2017 Ms Dai’s doctor noted she was clinically suffering anxiety and depression and had post natal depression. The doctor referred Ms Dai to a psychiatrist;

·Between 20 December 2016 and 2 October 2017 (nine and a half months) Ms Dai took her infant son to see the doctor 16 times;

·Four of these visits were for immunisation injections;

·The majority of the remaining 12 visits were for eczema, fever and coughs.

45.To summarise Ms Dai’s evidence, her submission is that a difficult pregnancy and post natal depression prevented her from being able to continue and later resume her studies and that these were circumstances reasonably outside her control.

46.The doctor’s notes from the many visits Ms Dai made to the doctor during her pregnancy do not record that she had a particularly difficult pregnancy or that the doctor required her to have complete rest at any stage of her pregnancy.

47.The medical records also do not confirm that Ms Dai had a number of medical conditions she claimed during her evidence. This is not to say that Ms Dai did not suffer those conditions, simply that they are not recorded in the medical records provided, which Ms Dai described as her complete medical records, at least not in the manner Ms Dai described those conditions. For example, there is no record in the medical records of Ms Dai’s teeth infection, or of a bleed behind one of her eyes during her pregnancy, or an earlier referral to a psychologist or psychiatrist by her doctor or of her baby losing one kilogram of weight due to teething related illness at 6 months of age.  

48.Similarly, it is only very recently that Ms Dai has been diagnosed as suffering post natal depression by her doctor and then referred to a psychiatrist for treatment.

49.Ms Dai’s student visa was cancelled on 3 November 2016. There is little in the medical records to indicate that she was medically unfit to continue her studies from her last study on 19 December 2015 until at least late in Ms Dai’s pregnancy.

50.The Tribunal accepts that Ms Dai had gestational diabetes and that this may have prevented her from returning to China to be supported by her parents when she could not continue to study. However, the Tribunal does not accept that her or her son’s health prevented them from being able to return to China after her son had been discharged from hospital. Ms Dai’s doctor noted in his patient notes from seeing Ms Dai and her son on 20 December 2016 that ‘Clinically she is well 6 weeks post delivery of a baby…’ and was ‘Coping well and breastfeeding baby.’[1] During that visit the doctor also noted that her son was ‘Clinically well…’.[2]

[1] Tribunal file, folio 79.

[2] Tribunal file, folio 89.

51.Ms Dai had at least two months since her last study before she became pregnant when she could have done something about the breach of her student visa. In the medical records provided by Ms Dai to the Tribunal there are no records of any visits to her doctor between 25 January 2016 (for a blood test) and 29 March 2016, so it would seem Ms Dai had at least three and a half months to remedy her breach  before her pregnancy began to impact her health.

52.The Tribunal acknowledges that Ms Dai was doing her own preparation for further IELTS testing during at least part of this time, but again Ms Dai acknowledged that she failed to keep her education provider informed of her reasons for not studying.

53.Accordingly the Tribunal gives little weight to Ms Dai’s claims in relation to this consideration, other than her claim that she could not return to China to receive support. Ms Dai’s failure to remedy the breach of her student visa when she had reasonable opportunities to do so leads the Tribunal to give some weight to this consideration supporting the Tribunal exercising its discretion to cancel Ms Dai’s student visa.

Past and present conduct of the visa holder towards the department

54.The Department’s decision letter records that Ms Dai ‘… has been cooperative in her dealings with the Department. Therefore, I give some weight to this consideration in [Ms Dai’s] favour.’[3]

[3] Tribunal file, folio 1.

55.The Tribunal also gives this consideration some, but only modest, weight against it exercising its discretion to cancel Ms Dai’s visa. This limited weighting reflects that Ms Dai’s behaviour toward the Department was not a substantial factor in the circumstances leading to the breach of her student visa or her failure to remedy that breach.

If breach relates to a breach of r.2.43(1)(a) by a Subclass 457 visa holder – mitigating, compassionate and compelling factors

56.      This consideration is not relevant in this review.

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

57.The Department’s decision letter acknowledged there are some potential legal consequences for Ms Dai arising from the breach of her student visa:

If I decide to cancel the visa under these grounds, then [Ms Dai] will become an unlawful non-citizen and liable to detention under s189 and removal under s198 of the Migration Act 1958 if she does not voluntarily depart Australia.

In addition, section 48 of the Act means that [Ms Dai] will have limited options to apply for further visas in Australia, so she would need to depart Australia and apply from overseas if she has to depart Australia.

If I decide to cancel the … visa under these grounds this will come within the identified risk factors to make [Ms Dai] meet Public Interest Criterion 4013, so it will prevent her from being able to apply for a new visa from overseas if she has to depart Australia.[4]

[4] Tribunal file, folio 1.

58.The Tribunal acknowledges that the possible cancellation of Ms Dai’s student visa may have specific legal consequences for her and her infant son. These could include making Ms Dai and her son unlawful non-citizens and liable to detention under section 189, removal under section 198 of the Act and may also prevent her from being granted another temporary visa. That could occur if the criteria for such temporary visa includes Public Interest Criteria 4013 (risk factors) and Ms Dai fails to make out compelling and compassionate circumstances for the grant of such a visa or the Minister refuses to intervene. This could prevent Ms Dai obtaining another temporary visa until at least 4 November 2019.

59.Ms Dai told the Tribunal if her visa remains cancelled then she would return to China and that there is nothing to prevent her returning to China. Ms Dai did express concern about her and her son’s potential futures in China, particularly if her parents disown her. Those issues have been considered above by the Tribunal and are not relevant to this consideration.

60.Therefore, the Tribunal gives these potential consequences some but only modest weight against exercising the Tribunal’s discretion to cancel Ms Dai’s student visa as these consequences would or should have been known to Ms Dai and the Tribunal has found the circumstances of her breach were largely within her control.

Whether there would be consequential cancellations under s.140

61.Ms Dai’s son will be affected by the cancellation of her student visa. If Ms Dai’s visa was to remain cancelled then Ms Dai’s son would return to China with her.

62.As noted above in paragraph 38, if Ms Dai and her son return to China then this may make it more difficult for her son or his father to resume or create a meaningful relationship in future. The Tribunal gives this possibility only modest weight in supporting the Tribunal not exercising its discretion to cancel Ms Dai’s student visa.

63.In the context of her son’s young age and Ms Dai’s evidence about her isolation in Australia, the Tribunal does not expect that her son will have developed a significant or any attachment to Australia, such that their departure from Australia might have an adverse impact on his best interests. The Tribunal gives this possibility only modest weight against the Tribunal exercising its discretion to cancel Ms Dai’s student visa.

Whether any international obligations would be breached as a result of the cancellation

64.      This consideration is not relevant in this review.

Any other relevant matters

65.The Tribunal invited Ms Dai to raise any other matters relevant to the Tribunal’s consideration of whether to exercise the discretion to cancel Ms Dai’s visa.

66.Ms Dai provided additional information about why her medical condition during her pregnancy prevented her from returning to China to obtain care and support from her family, which the Tribunal has referred to above. Ms Dai also explained that her labour had to be induced due to her medical condition and that due to health issues following his birth, her son stayed in hospital for a week after his birth.

Conclusion

67.The Tribunal has carefully considered Ms Dai’s evidence and circumstances as a whole, including the information on the Tribunal’s file and the Department’s file, the NOICC dated 21 October 2016, Ms Dai’s undated response, the Department’s decision dated 3 November 2016 and those matters set out in Ministerial Determination no. 53.

68.The circumstances the Tribunal gave weight to that supported the Tribunal exercising its discretion to cancel Ms Dai’s student visa included:

·her lack of genuine academic progress since arriving in Australia in October 2014, having completed only English language courses to date;

·the length and seriousness of the breach of condition 8202(2)(a) of Ms Dai’s student visa;

·her failure to put in place any plans or take other action to remedy that breach, even when she had the opportunity to do so;

·the Tribunal’s view that the circumstances of her breach were not outside Ms Dai’s control; and

·Ms Dai acknowledging there was no impediment to her and her son returning to China.

69.These circumstances outweighed the weight the Tribunal was able to give to the circumstances that went against the Tribunal exercising its discretion to cancel Ms Dai’s student visa, which included:

·the Tribunal accepting that Ms Dai and her young son will both suffer potentially significant financial, psychological and emotional hardship if her visa remains cancelled;

·the possibility Ms Dai’s son and his father will suffer hardship in the sense of it potentially being harder for them to resume or establish a relationship if Ms Dai’s student visa remains cancelled and she and her son have to return to China;

·the Department recording in its decision letter that Ms Dai had been cooperative with the Department;

·Ms Dai and her son being exposed to potentially significant legal consequences if her visa remains cancelled; and

·the possibility that Ms Dai’s son may have formed a significant attachment to Australia such that returning to China may have an adverse impact on his best interests.

70.Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled as the considerations favouring the exercise of the discretion to cancel Ms Dai’s visa outweigh the considerations against the exercise of the discretion.

DECISION

71.      The Tribunal affirms the decision to cancel the Ms Dai’s Class TU visa.

Michael Ison
Senior 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.