Dong (Migration)

[2019] AATA 4311

Dong (Migration) [2019] AATA 4311 (24 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yingman Dong

CASE NUMBER:  1707928

HOME AFFAIRS REFERENCE(S):           BCC2017/730191

MEMBER:Mark O'Loughlin

DATE:24 May 2019

PLACE OF DECISION:  Adelaide

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 24 May 2019 at 12:34pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course ceased – family financial hardship – study rights ceased on bridging visa – three year bar on partner visa application – decision under review set aside       

LEGISLATION

Migration Act 1958, ss 48, 116
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 7 April 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 had breached a condition of her visa and the reasons not to cancel it did not outweigh the reasons to cancel it. 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 15 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from her husband, Runpei Li. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. 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

5. 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?

6. 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).

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

8. The applicant’s evidence to the tribunal was that she was unable to pay her course fees and her enrolment lapsed in November 2016.  The Tribunal accepts this evidence.

9. 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 discretion / conclusions

   Consideration of the discretion to cancel the visa

10. 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’.

11. The applicant had not responded to the notice of intention to cancel her visa and did not provide submissions or a response to the hearing invitation to the Tribunal.  There was little information available to the Tribunal other than what was obtained at the hearing.

12. At the start of the hearing the applicant provided the Tribunal with a copy of her notification of bridging visa and a letter of offer for an  Advanced Diploma of Business at Jabin Hopkins Institute of Technology, due to start on 3 June 2019.

13. The applicant gave evidence that her studies had been supported by her parents in China and that she had not needed to work since she arrived in Australia in February 2013.  The Tribunal accepts this evidence.

14. In 2014 she married Run Pei Lei, her husband who at that time was on a Business Visa.

15. She said that at the end of 2016 she was enrolled in an Advanced Diploma in Marketing but that her parents did not pay her school fees as she expected them to.  They did not give a reason for not paying and the applicant said she was put in a difficult situation.  The Tribunal accepts this evidence.

16. She said, and the Tribunal accepts, that she made enquiries through a friend in China and discovered that her mother had fallen ill with breast cancer and that the limited family money was being dedicated to her mother’s treatment.

17. That sad news combined with money problems that she and her husband were facing and the fact that she had to stop studying were distressing for her and led to her arguing with her husband.

18. She said that these problems were aggravated by some family and personal issues and that the upshot was that, although she attended some classes in the hope that she would be able to pay her fees and refresh her enrolment, she was not able to study.

19. She missed about one semester and her visa was cancelled on 7 April 2017.

20. She asked the Tribunal to note that her bridging visa did not carry study rights,  The Tribunal has regard to the notification of bridging visa of 12 June 2018 and notes that it does not have study rights and accepts the applicant has not had study rights since 7 April 2017.

21. The applicant gave evidence, which the Tribunal accepts, that she came to Australia for the sole purpose of studying and that her family were insistent that she get Bachelor level qualifications.

22. The Tribunal notes the applicant’s oral evidence and finds that she has not had other visa breaches, so the relevant breach is from November 2016 to April 2017 or about 6 months.

23. The applicant said, and the Tribunal accepts, that if she returned to China without a Bachelor degree her family would feel ashamed and it would be very difficult for her.

24. Her husband said, and the Tribunal accepts, that he would be very sad if she had to return to China at this time. 

25. The Tribunal has regard to the circumstances in which the breach arose and finds that her family’s inability to continue to support her was unexpected and outside of the applicant’s control.  It was that circumstance that led to her enrolment being cancelled.

26. There is nothing in the visa holder’s past or present behaviour toward the Department that would suggest that it is appropriate to cancel her visa.

27. The applicant has married and her husband has since obtained permanent residency.  The applicant gave evidence, which the Tribunal accepts, that she has applied for a partner visa but has not had a response from the Department.

28. The Tribunal notes that if her student visa is cancelled she may be prevented from obtaining a partner visa for 3 years under S 48 of the Act.

29. There is no evidence that the cancellation of the applicant’s visa and her removal to China would breach and of Australia’s obligations under any international agreements.

30. No other relevant matters were brought to the Tribunal’s attention.

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

    DECISION

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

    Mark O'Loughlin
    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.