Fang (Migration)

[2018] AATA 4808

Fang (Migration) [2018] AATA 4808 (27 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Hua Fang

CASE NUMBER:  1703563

DIBP REFERENCE(S):  BCC2017/339585

MEMBER:Christine Kannis

DATE:27 July 2018

PLACE OF DECISION:  Perth

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

Statement made on 27 July 2018 at 6:28am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector visa – Not enrolled in a registered course of study – Failed to comply with condition 8202 – Financial difficulty – Decision affirmed

LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994, Schedule 8

CASES
Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 February 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal on 23 May 2018 to give evidence and present arguments. The Tribunal also received evidence from the applicant’s boyfriend, Brendan Divilly.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevant to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

7. On 16 January 2015 the applicant was granted a visa in Subclass 572 Vocational Education and Training Sector with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

8. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since 15 June 2016. She was enrolled in a Diploma of Applied Fashion Design & Technology and an Advanced Diploma of Applied Fashion Design & Technology and her enrolment in both courses was cancelled on 15 June 2016. The reason for cancellation was stated to be “Student Notifies Cessation of Studies”.

9. Having regard to the information in the PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 15 June 2016. The Tribunal finds that she breached condition8202(2)(a) of her visa.

10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

11. 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 the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

12. On  13 February 2017 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because she had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of her visa. 

13. On 14 February 2017 the applicant responded to the NOICC and provided the following information:

    ·She did not realize how much extra resource fees were involved when she enrolled in her course and she was unable to make ends meet.

    ·The financial pressure caused her enormous stress and this aggravated her eczema to a level which meant she could not go to school or work.

    ·She could not afford to see a doctor and when she did she received only one quarter of the cost by way of rebate.

    ·When she applied to study in her course her parents paid her tuition fees but not her rent, transportation costs, food costs and extra resources expenses.

    ·She started having doubts about her course because it is difficult to get a job and she was thinking of changing to a child care course.

    ·She had been saving up to enrol in a child care course but her father had a heart attack and he could not afford to continue to pay her tuition fees.

    ·Her boyfriend has offered to help pay her tuition.

    ·She wants to stay in Australia and become a permanent resident and have a life with her boyfriend.

    ·She wants to study something that is more than just a passion and is a subject that is on the skills select list and would involve less resource fees.

14. Prior to the hearing the applicant provided the Tribunal with additional documentation which included bank statements for the periods from 10 August 2016 to 7 October 2016 and from 10 December 2016 to 9 February 2017, evidence of medical expenses and a written statement dated 3 July 2017 from the her father.

15. The evidence of medical expenses included Tax Invoices/Receipts which showed the applicant attended her doctor on 1 April 2016 and on 25 November 2016. Copies of four labels of medication (Levothyroxine, Clopidogrel, Atorvastatin and Lostartan Potassium) in the applicant’s name were provided. The dates on the labels were all 21 December 2016 and the total cost of the medications was $62.

16. In the written statement from the applicant’s father he said he and his wife had financially supported the applicant in her fashion design study however from June 2016 they were unable to continue with this support. He said he suffered with heart disease and was unable to work and that his wife’s income from babysitting just covered their living expenses.

17. The applicant told the Tribunal that prior to coming to Australia to study she had to persuade her parents to help her pay for her tuition. They promised to help her with her tuition fees but she was to be responsible for meeting her living expenses including her rent, food and travel costs.

18. The applicant said her course, a Fashion Design course, was a “full on” course and she was required to attend classes four days a week until about 2 pm each afternoon. She said prior to undertaking the course she did not understand how “full on” the course would be because International students mainly study Cookery and Business and no-one had told her about the intensity of the Fashion Design course. She also did not have the resources required and said that an important requirement was a sewing machine but she could not afford to buy one.

19. The applicant said the course hours meant that she could only work two or three nights per week. She worked in a restaurant and earned about $100 per night. Her rent was $150 per week and her travel expenses were at least $20 per week.

20. The applicant told the Tribunal that she was unable to continue with her studies because of a lack of funding and because of her eczema.

21. The Tribunal put to the applicant that student visa applicants are required to show that they have access to pre-existing funding to support themselves for the duration of their study in Australia and she would therefore have provided a financial guarantee to the Department before her visa was granted. The financial guarantee would have included the costs of her study, accommodation, travel and overseas student health cover until 15 March 2018. She said she could not recall what information she provided to the Department but said her parents paid her tuition fees by credit card.

22. When asked about the timing of her financial difficulty the applicant said she could not remember when it commenced but said it was probably in late 2015 and said she continued to experience financial difficulty throughout 2016.

23. The Tribunal referred the applicant to the bank statements provided and in particular to the various debit transactions which included several purchases at various clothing shops and Netflix payments. The Tribunal put to the applicant that her bank statements showed regular expenditure which could not be considered to be for necessary living expenses. The applicant said just because she did not have a lot of income it did mean she could not shop. She said she was entitled to enjoy the money she earned.

24. The Tribunal referred to the two Tax Invoices/Receipts and four medication labels provided and informed the applicant that this evidence did not provide information about the nature of her illness/condition or explain how her illness/condition impacted on her ability to undertake her studies. She said her eczema worsened because of the stress she was under due to the lack of her parents continuing to fund her tuition.

25. The applicant told the Tribunal that her parents provided her with the funds to make the current application for review.

26. The Tribunal noted that the delegate referred to the applicant’s education provider in cancelling COE 6C2A3592 noting that she withdrew from her course and that she was not attending classes. The applicant said she told her education provider that she was experiencing financial difficulty but the education provider was unable to assist her and did mention the possibility of deferring her studies. She said her education provider only discussed her tardiness.

27. The Tribunal noted the PRISMS indicates that the applicant was previously enrolled in a Certificate IV in Business on three occasions in 2014.  The applicant said she had applied for a student visa at that time because she wanted to stay in Australia with a previous boyfriend. She said she had no intention of undertaking Business studies and said the education provider was a fake school. She said there are many fake schools in Australia.

28. The Tribunal put to the applicant that she would have known she was in breach of a condition of her visa following cancellation of her enrolment. She conceded that she was aware of the breach but said she did not contact the Department because she thought her education provider would do so.

29. The Tribunal referred the applicant to her response to the NOICC and asked her about her intention regarding future study. She said she had been thinking of changing to another course which would have better job prospects. She had not made any enquiries about the child care course she referred to in her response to the NOICC because the agent she had been using had stopped working.

30. Regarding the potential hardship which would result from the cancellation of her visa the applicant said she does not want to leave Australia because she wants to have the opportunity to study another course and to see if she has a future with Mr Divilly.

31. Mr Divilly told the Tribunal that the applicant had found it difficult to study her course and that if she had the time again she may have made more of an effort.

    Conclusion

32. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of the breach and reasons for the breach as set out in the response to the NOICC and in the applicant’s oral evidence.

33. The applicant told the Tribunal that the cancellation of her enrolment was due to financial difficulty arising from her parents being unable to continue paying for her tuition and because of her living expenses in Australia. She said the Fashion Design course limited her earning capacity. The applicant said her eczema also caused her cessation of studies.

34. There was no evidence of any financial counselling or statement of financial affairs or evidence of a similar kind that can be considered in the applicant’s favour. Furthermore, the Tribunal considers a student in this circumstance would seek assistance at the time in which the financial hardship was and is occurring, and that a deferment of studies would be sought in respect of mitigating the subsequent impact on her academic progression. There is no evidence of the applicant having sought assistance and the documentary evidence provided does not demonstrate that she was experiencing financial difficulty in 2016. The Tribunal acknowledges the letter from the applicant’s father but notes that her evidence was that her parents paid the fee for the current application for review. Accordingly the Tribunal placed limited weight on the letter.

35. The medical evidence does not demonstrate that the applicant suffered an illness/condition which impacted on her ability to undertake her study.

36. The purpose of the student visa is to enable the visa holder to undertake study in Australia. The applicant has not been enrolled in a registered course since 15 June 2016 and more than eight months elapsed from that date until the NOICC was issued.

37. Based on the evidence, the Tribunal finds the applicant’s breach of condition 8202 of her visa to be significant because she was not engaging in study for which her visa was granted and was not fulfilling the purpose of her travel to and stay in Australia. The Tribunal placed weight on the applicant’s evidence that when her enrolment was cancelled she was aware that she was in breach of a condition of her visa. Despite this the applicant did not seek to re-enrol in another course at any time prior to the issuing of the NOICC.

38. There was no evidence to indicate that the ground for cancellation arose due to extenuating circumstances beyond the applicant’s control.   

39. The Tribunal acknowledges that the cancellation of the applicant’s visa will be disappointing to the applicant because she wishes to remain in Australia with Mr Divilly.  However, the Tribunal is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled. The nature of the applicant’s relationship with Mr Divily may be relevant to other visa subclasses and she indicated to the Tribunal that she was aware of other visa application options open to her.

40. The Tribunal noted the applicant’s evidence that she previously applied for and was granted a student visa on the basis that she was undertaking Business studies and that she had no intention of undertaking such study. The Tribunal decided that the applicant has previously been untruthful with the Department and it has taken this into account.

41. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice pertaining to her immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion.

42. There are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

43. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

44. The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Christine Kannis
    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.