He (Migration)

[2024] AATA 3412

He (Migration) [2024] AATA 3412 (18 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Shudan He

REPRESENTATIVE:  Mr Jia (Jack) Li

CASE NUMBER:  2300910

HOME AFFAIRS REFERENCE(S):          BCC2022/3726124

MEMBER:Gabrielle Cullen

DATE:18 July 2024

PLACE OF DECISION:  Sydney

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

Statement made on 18 July 2024 at 11:57am

CATCHWORDS
MIGRATION – cancellation Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-compliance with condition of visa – not enrolled in registered course – unsatisfactory course progress and enrolment cancelled – arrived on working holiday visa before applying for student visa and enrolling in courses – verbal abuse by husband and mother-in-law, increasing after not returning to home country – physical and mental health, COVID and restrictions – continuing part-time work – reconciliation with husband and plans to open a business in home country – new enrolment made after receiving department’s notice of intention – availability of training and employment in home country – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 January 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not comply with condition 8202 which requires the visa holder (hereinafter referred to as the applicant) to be enrolled in a registered course.

3. The applicant attached the Department’s Notification of Cancellation under Section 116 dated 16 January 2023 in the application for review which indicates that on 14 November 2022 the Department invited the applicant to comment on their intention to consider cancellation of her subclass 500 student visa on the basis she had not been enrolled in a course of study since 2 February 2021. The applicant did not provide a response to the Notification of Intention to Consider Cancelling the Visa (NOICC).

4. The applicant appeared before the Tribunal via video on 15 July 2024 to give evidence and present arguments. She was assisted with an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the application for review by her registered migration agent. Her representative attended the hearing.

6. 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

7. 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. The information indicates she was granted a subclass 500 student visa on 24 July 2020 which at that time was valid to 15 March 2023.

   Did the applicant comply with condition 8202?

8. 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).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course: condition 8202(2).

10. The applicant was notified of the intention to consider cancellation (NOICC) of her visa on 14 November 2022. The Tribunal is satisfied that the NOICC was validly issued. The applicant did not respond to the NOICC.

11. The delegate found on 16 January 2023 the applicant had not been enrolled in a registered course of study from 2 February 2021. She noted the applicant had after receiving the NOICC submitted a COE dated 23 November 2022 to study a Certificate IV in Patisserie from 23 January 2023.

12. As raised with the applicant at hearing via s.359AA the applicant’s Provider Registration and International Student Management System (PRISMS) records contain information that the applicant had not been enrolled in a registered course of study from 2 February 2021 when her enrolment in the Diploma of Leadership and Management was cancelled for unsatisfactory course progress until when she enrolled in a course of study on 23 November 2022  to study the Certificate IV in Patisserie to commence on 23 January 2023.

13. The applicant confirmed in oral evidence to the Tribunal that she was not enrolled in a course of study in this period. The applicant did not dispute that she had not complied with condition 8202(2) of his visa.

14. Therefore, on the evidence, the Tribunal finds that the applicant was not enrolled in and did not have a Confirmation of Enrolment (CoE) in a registered course or a full-time course of study or training from  2 February 2021 to 23 November 2022 while the holder of a subclass 500 student visa. Failing to maintain enrolment means that the applicant has not complied with condition 8202(2).

15. The Tribunal is therefore satisfied that the grounds for cancellation in s.116(2)(b) exist.

    Consideration of the discretion to cancel the visa

16. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

17. 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 Procedural Instruction ‘General visa cancellation powers.’

    Background

18. The applicant is a 32-year-old citizen of China. She first arrived in Australia on a subclass 462 Working Holiday visa on 11 April 2018, which was extended to 11 April 2020. She then applied for and was granted on 24 July 2020 a Subclass 500 Student visa.

19. The evidence indicates she was enrolled in a Diploma and Advanced Diploma of Leadership and Management to be studied from 25 July 2020 to 20 November 2022, however enrolment in these courses was cancelled on 2 February 2021 when enrolment in the Diploma of Leadership and Management was cancelled for unsatisfactory course progress. She then enrolled in a  Certificate IV in Patisserie after receiving the NOICC to commence on 23 January 2023 and to finish on  22 December 2024. Enrolment in this course was varied on 11 October 2023 to first study a General English course from 4 September 2023 to 25 August 2024 followed by a Certificate IV in Patisserie from 8 October 2024 to 21 June 2026 and then a Diploma of Hospitality from 13 July 2026 to 20 December 2026.

20. The applicant’s representative  submitted to the Tribunal on 8 July 2024 COEs for the applicant to study the above courses, evidence from the education provider that she is studying and part completed the English course she is currently enrolled in, and        evidence she has paid fees of $6,200 towards the Certificate IV in Patisserie in 2023 and $8,227 in fees for the English course . Also provided was a medical letter noting she underwent a termination of pregnancy on 12 January 2021 when the gestation period was 8 weeks and evidence she holds $40,936.87 in her CBA account as at 8 July 2024.

21. In the submission the applicant noted that in China she completed a Diploma in Accounting in 2013, was married in 2014 and had her son in 2015. She claims her husband often stayed out without explanation and her mother-in-law was harsh and they looked down on her as she was a full-time  mother. She claims she argued with her husband, felt depressed and wanted to escape the relationship and earn money on her own skills, proving to her family she can raise her son with her own knowledge as an independent mother. She then became a housewife for three years and gave evidence of the breakdown of her marriage and that her mother-in-law was harsh. She said she felt depressed and wanted to escape her family, wanted to be independent and earn money and wanted to show her family that she could raise her son with her own knowledge as an independent mother. She claims when she had the chance to apply for a working holiday visa in Australia she ran away. She submitted that she found it very difficult to obtain professional work experience and realised she needed to study and enrolled in the Diploma and Advanced Diploma of Leadership and Management. She claims because of matters beyond her control she could not focus on her study and could not complete the courses and the visa was cancelled.

22. She provided the following reasons which she submits were beyond her control as to why she could not maintain enrolment in the Diploma of Leadership and Management enrolment to November 2022.

    ·Her husband and mother-in-law were very angry that she had stayed in Australia and did not return to China to take care of the family. She claims every time she tried to contact them and talk to her son they abused and cursed her in front of her son saying that she was useless and unfortunate and blamed her that she only thought about herself. She claims her husband even threatened that he will hit her to death if he meets her again. At this stage, her son was only five years old and he was loudly crying every time they had a video chat and she felt really upset and hopeless during this period and there was no one she could talk to about her family relationship. She claims she was too scared to go home because she was afraid of her husband and that he could attack her physically.

    ·She cried and was depressed worrying about her grandfather, who she claimed was ill, and her son. She was absent-minded all the time and refused to eat and sometimes thought about suicide.

    ·A colleague showed her great support and was constantly reassuring her and he was the only one she could talk to about her depression. She then found in December 2020 she was pregnant and the colleague asked her to have an abortion as he would not take responsibility. He then disappeared and ran away without notifying her. During the time she was pregnant she felt tired and exhausted and sometimes just lay down on the bed without having any energy to do anything. Besides being extremely tired she had recurring leg cramps and she could not sleep well at nights and have a good rest with the impact of the pregnancy she became emotional and sentimental and felt more depressed as another man betrayed her. Because of the pandemic she was also worrying about the baby that he or she would be bought into an unknown world and for the best interest of the child she terminated the pregnancy in January 2021.

    ·After the termination for the following six months her mental condition became worse and she became very worried about her health. For many nights she could not fall asleep as she recalled the termination and that she had killed her own child. She felt guilty and she thought she was a failure as a mother because she could not take care of her children/ she found she was totally lost and unable to concentrate and could not make arrangements to study.

    ·In addition to the above from July 2021 to December 2021, Sydney was again in lockdown and she felt even more depressed because she was alone. She cried at night and she could not attend the clinic to talk about her depression with her doctor because there was lockdown. She said she sometimes thought it was the end of her life she could not do anything but cry.

    ·Even though the government lifted the restrictions relating to Covid she was still cautious about the pandemic and preferred to stay at her home until she got Covid in the middle of 2022. She had a fever and there were so many times she could not breathe she felt like she was going to die. She called her husband and told him she had Covid and she really missed her son. Her husband then showed his care and consideration and they talked about their previous life and he told her he had not fallen in love with the others and he still cared for her. She claims they clarified the misunderstanding between them and she began to talk to her son more frequently by video and gradually their relationship has been repaired. She realises now she wants to stay in that relationship and does not want to give up on her family.

    ·As to her current study, she is studying the English course, achieving most competencies, and enjoying it and her English skills are gradually improving. She wants to open her own bakery shop in China once she has finished her study in Australia and she has sufficient money in her bank which she can use to cover her study fees and support her living in Australia. She lives close to where the college is and she can explore the popular patisseries when attending class. Her teacher is helpful and friendly and the college is well equipped with modern kitchen equipment and her education provider offers a wide range of work placements so she can obtain solid experience before returning to China to open a shop.

    ·As to why she needs to study in Australia, it is because Australia is a  multicultural country that attracts many talented people and offers a wide variety of pastries and baking techniques, which is more authentic than in China. She claims the patisserie courses in China are not as popular or diverse and in her hometown in Fujian province it is challenging to find any education providers offering patisserie courses with an authentic, globally recognised certificate. She notes that Australian certificates are highly valued and respected in her hometown and that studying in Australia will greatly improve her patisserie making skills making her more competitive when she opens her patisserie shop in China which is her future plan after completing the courses.

    ·She will return to China to operate her own patisserie shop in Fujian in her hometown. She refers to the high level of tourism in her home area and that the trend is to prefer the modern desert from all over the world and she is confident that her patisserie shop can stand out from other competitors.

    ·She acknowledges she has made a lot of mistakes with her student visa after she came to Australia but that she is now stronger and more mature in dealing with her personal issues. If she could turn back the clock she would not have stopped studying and acknowledges she did not take responsibility as a mother and a wife.

    ·She definitely will return home so she can have a brighter future with her family. She promises she will work hard and complete her  study.

23. At hearing, the applicant rerepeated much of the evidence  in her submission but added the following.

    ·Her trip to Australia was paid for by her mother who owns a restaurant in the United Kingdom. She came as she was being verbally abused by her husband and mother-in-law and wanted to leave China.

    ·As to why she did not complete the Diploma of Leadership and Management, with enrolment being cancelled for unsatisfactory course progress she said she started the course online but did not like it. When the Tribunal asked why she did not change enrolment or seek deferment or talk to the education provider; she said at that time she preferred face-to-face learning and because of the things she was going through she did not have the urge to change enrolment or defer. She later referred to being unable to study because of the mental health issues and then having to terminate her pregnancy in Janaury 2021.

    ·She said around this time her family were angry that she was not returning.

    ·As to her work in Australia she said from 2018 and 2019 she worked in a chocolate factory and then on a remote farm. She then gave confusing evidence as to her work in Australia but said and then confirmed that from November 2021 to date she has been working part-time at a noodle restaurant.

    ·When asked whether she ever saw a medical professional about her mental health issues, she said it was during Covid and she did not want to go out and she was just lying in bed. She confirmed she never saw a medical professional. The Tribunal questioned this as Doctors and other medical professionals were seeing patients online and questioned why she would not if her mental health was so critical she could not go out or study. It noted she said she was working part-time from November 2021 and questioned how she was able to work and go out but she could not see a Doctor, particularly  if her mental health was preventing her from study.

    ·As to why she changed her study from the Certificate Iv in Patisserie to General English; she said her English needed improvement.

    ·As to why she decided her career aim is now to open a patisserie or bakery shop on return; she said because she likes baking and making cakes.

    ·The Tribunal raised with her why she is not working in the area in Australia to gain valuable experience. She said they only employ people with the relevant education. She said once she finishes the Certificate IV in Patisserie will obtain employment in that area.

24. She provided further evidence as outlined below under each of the headings.

25. Her representative submitted that she did not breach any conditions on the first two visas and has only beached condition 8202 in the student visa, she came to Australia leaving her young son as she was suffering family violence as it was a toxic environment for her in China, she has reconciled with her husband, on completion of the current courses she will return with better employment prospects to assist the family, she only worked for one year in China and without completing the courses it is hard to find good employment in China, she has suffered from mental issues following termination her pregnancy and other matters raised, she has finally found a course she wants to do, she has already completed some units towards the Certificate IV in Patisserie  and she has the commitment, incentive and motivation to finish the courses she is currently enrolled in. He submitted that the applicant accepts she made a mistake, she is very remorseful and deserves another chance.

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

26. The purpose of the visa grant was for the applicant to stay in Australia for the purposes of study. The evidence indicates that she first arrived in Australia on a 462 Working Holiday visa on 11 April 2018, which was extended  to 11 April 2020. She then applied for and was granted on 24 July 2020 a Subclass 500 Student visa valid to 15 March 2023. She was enrolled in a Diploma and Advanced Diploma of Leadership and Management to be studied from 25 July 2020 to 20 November 2022, however enrolment in these courses was cancelled on 2 February 2021 when enrolment in the Diploma of Leadership and Management was cancelled for unsatisfactory course progress. The evidence indicates she was not enrolled in any course of study from 2 February 2021 until she obtained COES on 3 November 2022 to study the Certificate IV in Patisserie after from 23 January 2023 and to finish on  22 December 2024. Enrolment in this course was varied on 11 October 2023 to first study a General English course from 4 September 2023 to 25 August 2024 followed by a Certificate IV in Patisserie from 8 October 2024 to 21 June 2026 and then a Diploma of Hospitality from 13 July 2026 to 20 December 2026.

1. The evidence indicates that despite being granted a student visa on 25 July 2020 indicating it was her intention to study in Australia, she did not study for a period of 23 months from February 2021 to January 2023 and is yet to complete any course successfully. The evidence indicates she enrolled in the Certificate IV in Patisserie to commence in January 2023, in November 2022 after receiving the NOICC. The Tribunal views the length of time she was not studying from being a period of 23 months, not enrolled for a period of 21 months and that she only enrolled after receiving the NOICC to undermine her claim her stay in Australia was for the purpose of study. The Tribunal is of the view if her intention were to study, she would have enrolled and studied in this period.

2. In making this finding the Tribunal has considered the reasons she did not achieve course progress and was enrolled in a course of study from February 2021 to November 2022 when she submitted the enrolment to study the Certificate IV in Patisserie to commence on 23 January 2023.

3. Firstly, she has referred to the mental stress, depression and other mental health symptoms she  suffered as a result of the verbal abuse of her husband and mother-in-law in China, her son being upset at the way she was being treated,  her fear of her husband harming her if she returned, being pregnant from December 2020 and then terminating  her pregnancy in January 2021, the break of her relationship in Australia around that time and the illness of her grandparent as well as the impact of being isolated due to Covid. She said she was at home crying unable to study and go outside. She claims she as depressed and isolated from these events and could not study. While the Tribunal accepts that these events that occurred were outside the applicant’s control,  it is not satisfied that the applicant has demonstrated that her mental response to these events as claimed left her unable to study and that her failure to maintain enrolment and achieve course progression was because of these events. It is of the view that if the mental stress and mental health effects she faced was to the extent that she claimed and which meant she could not study she would have sought medical or professional help in the relevant period. Her evidence is she did not. She referred to being unable to seek medical help face to face, as reason she did not; however the evidence is she could have sought help online at that time. As she enrolled to study online in 2020, it is of the view if she were so mentally unwell from all the reasons she claims she would have sought medical help. The Tribunal is therefore of the view the lack of any evidence that she sought medical help, undermines her claims she could not study due to  her mental health issues for all the reasons she claims.

4. Further of concern and in contrast to her claim she was too mentally ill by events outside of her control to study, including going outside, it was her evidence at hearing that from November 2021 to date she has been working part-time at a noodle restaurant. This indicates that for a year that she claims she was too mentally unwell to study, crying at home and depressed, unable to go outside she was working part-time in a restaurant. The Tribunal is of the view that if she were able to work in this period she would be able to study, if her purpose of being in Australia was to study. This undermines that her purpose was to study in this period.

5. Further, she referred to not enjoying the leadership and management courses and mental issues she faced as to why she did not achieve course progress. The Tribunal views as of concern why she did not advise the provider she wished to change her enrolment if she was not enjoying the course rather than not achieve course progress. While it accepts as the representative submitted the education provider did not offer a patisserie course, she could have sought to change her enrolment. Further if she were facing the mental health and other difficulties she claims from her pregnancy and family issues which she claims led to her not achieving course progress, the Tribunal is of the view if she were in Australia for the purpose to study she would have sought to defer her enrolment. It has difficulty accepting a person in Australia for the purpose to study would not advise the education provider or attempt to alter her enrolment rather than have enrolment cancelled for unsatisfactory course progress. While she has claimed this was because of the mental and other difficulties she was facing at the time, the Tribunal is still of the view if she were in Australia to study she would have sought to defer or alter her enrolment, seeking medical help which she did not. This further undermines her claim that her purpose was to study in Australia.

6. She further referred to having Covid in mid 2022 badly and being sick for a month; however the Tribunal does not accept this explains her lack of enrolment for 21 months and lack of study for 23 months; both before and after this event.

7. She also referred to lockdown from July 2021 to December 2021 as affecting her ability to study; however she first enrolled in an online course and the Tribunal is of the view if she were genuine in her purpose of being in Australia to study for the reasons she claims she would have studied online.

8. It therefore does not accept that her purpose to stay in Australia was to study during the period of non-enrolment and non-study, as well as while studying the Diploma of Leadership and Management. The Tribunal gives this weight in exercising its discretion to cancel the visa.

9. The Tribunal accepts that since January 2023 to date she has been studying, passing some subjects and paying course fees. The evidence is she obtained a COE on 23 November 2022 to study the Certificate IV in Patisserie from 23 January 2023 and to finish on  22 December 2024. Of concern is that enrolment in this course was obtained after receiving the NOICC. Notwithstanding, she studied this course for 10 months until her enrolment was varied on 11 October 2023 to first study a General English course from 4 September 2023 to 25 August 2024 followed by a Certificate IV in Patisserie from 8 October 2024 to 21 June 2026 and then a Diploma of Hospitality from 13 July 2026 to 20 December 2026. It accepts she has paid approximately $14,500 to study these courses. She claims she wants to study these courses as she wants to open a patisserie or bakery shop on return. She has outlined the benefits of studying these courses in Australia to her future. Based on the fees paid and her current study,  the Tribunal accepts she is currently and has been since January 2023, studying and achieving course progress. This is indicative of a person in Australia to study. While she has not yet finalised any course, the Tribunal gives this some weight in exercising its discretion not to cancel the visa.

10. As to why there is a compelling need for her to stay in Australia, she referred to wanting to finish the courses she is enrolled in and referred to the fees she has already paid. The applicant acknowledged that there are patisserie course in China  but she indicated they are not as diverse and her business will not be as successful. She said the courses in Australia are better, with more diverse baking techniques. In her pre-hearing submission she said the course in Australia is better because Australia is a multicultural country that attracts many talented people and offers a wide variety of pastries and baking techniques, which is more authentic than in China. She claims in her hometown in Fujian province it is challenging to find any education providers offering patisserie courses with an authentic, globally recognised certificate. She notes that her baking skills will be better if she completes the Australian courses. The Tribunal has some concern that if her aim is to learn broad skills to open a  patisserie in China on return  she would be working in the area in Australia. It has difficulty accepting she cannot obtain employment in that area until she completes the Certificate Iv in patisserie. As there are courses available in China and while they may not be as good or as varied, it does not accept studying in Australia for the reasons she claims vis a visa China represents a compelling need to remain in Australia.

    The extent of compliance with visa conditions

11. The applicant did not comply with condition 8202(2) and she was not enrolled in a registered course of study from 2 February 2021 until 23 November 2023 when she enrolled in the Certificate IV in Patisserie to commence on 23 January 2023. The Tribunal considers this period of 21 months of non-enrolment to be of significant concern, and the Tribunal is mindful that it is expected that all visa holders adhere to the conditions of their visa.

12. There is also evidence that enrolment was cancelled for unsatisfactory course progress in the Diploma of Leadership and Management on 3 February 2021, which may indicate a breach of condition 8202(3).

13. The Tribunal has considered above the reasons which she claims led to the non-compliance but as outlined above does not accept the mental and physical health  issues she faced was the reason for the non-compliance.

14. The Tribunal acknowledges that there is no other evidence the applicant did not comply with any other conditions on her previous work and holiday visas.

15. Although there is no other evidence of non-compliance other than the above, including while the holder of the  Working Holiday visas, considering the period of time the applicant was not enrolled being 21 months in a registered course of study and that enrolment in the Diploma of Leadership and Management was cancelled for unsatisfactory course progress, the Tribunal gives this weight in exercising its discretion to cancel the visa.

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

16. At hearing the applicant referred to being unable to complete her studies in Australia, achieving the hospitality courses she has enrolled in, which would result in her being unable to open a successful and diverse patisserie on return. In her pre-hearing submission  and at hearing she has outlined the benefits to her business of studying in Australia compared to in China, and how this will affect her ability to run a successful patisserie or bakery shop on return.

17. She also referred to wanting to show her son she is independent by having a business and not being reliant on her family in China. In this regard the Tribunal questioned why she could not work in China; and she said because her husband and mother-in-law would want her to stay at home. The Tribunal then asked how she would be able to operate a patisserie on return if this were the case and she said they would allow her to work if good pay. She then said she would try and persuade her husband to pay to invest for the shop.

18. She also indicated that if she did not complete the courses she would be unable to find a good job in China and her husband and mother-in-law would make her look after their son. The Tribunal has difficulty accepting this when she has been able to travel and work in Australia.

19. While the Tribunal is satisfied that the applicant still has study options available to her in her home country, it gives this consideration some weight in favour of the applicant in exercising its discretion not to cancel the visa.

    Circumstances in which the ground of cancellation arose

20. The ground for cancellation arose as a result of the applicant’s breach of condition 8202, as she was not enrolled in a course of study between 3 February 2021 until she submitted a COE on 23 November 2022 to study the Certificate IV in Patisserie from 23 January 2023. It notes that she only enrolled in a course of study after receiving the NOICC, which indicates enrolment was prompted by the NOICC.

21. The applicant has advanced several matters that impacted on her ability to study as outlined above. She has referred to the mental  health difficulties she suffered due to complications and verbal abuse from her family in China, not being able to speak to her son, having to undergo a termination in January 2021, the breakdown of her relationship in Australia, the illness of her grandparent, having Covid and being ill in mid 2022, and the impacts of the Covid lockdowns. Considering the totality of the applicant’s claims regarding the circumstances in which the grounds for cancellation arose while it accepts she would have been impacted by the difficulties she was facing, for the reasons outlined above it does not accept that these matters led to her suffering such mental health issues which rendered her being unable to be enrolled and study in the relevant period. As noted above, the Tribunal is of the view if she were so mentally unwell she could not study she would have sought medical assistance, which she did not and been unable to work. However, she indicated at hearing she worked from November 2021, half way though the period of non-enrolment.

22. Therefore, the Tribunal gives this neutral weight.

    Past and present behaviour of the visa holder toward the Department

23. There is no evidence that the applicant has not been co-operative in her dealings with the Department in the past. The Tribunal gives this consideration neutral weight.

    Whether there would be any consequential cancellations under s.140

24. The applicant claimed to be in Australia with no dependants. Her husband and son are in China. There is  therefore no evidence that any other person’s visa would or may be cancelled if the applicant’s visa were cancelled. The Tribunal gives this factor neutral weight.

    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

25. There are mandatory consequences in the case of the cancellation of the visa, including detention and removal from Australia, as well as difficulties in obtaining any further visas.

26. If the visa remains cancelled, the applicant would continue to hold a bridging visa for a short period of time to allow her to finalise her affairs before returning to China, subject to any appeal of the Tribunal decision. If the applicant remained in Australia without a valid visa, she would be residing unlawfully and liable to detention and removal. The applicant, however, provided oral evidence to the Tribunal that she intended to comply with any lawful direction to depart Australia, and therefore the likelihood of the applicant being detained is remote.

27. If the visa is cancelled, the applicant may be subject to a restriction under s.48 of the Act and the applicant would have difficulties in obtaining any further visas in Australia. Under PIC 4013 she also may not be granted a further visa for three years from the date of cancellation. The cancellation may also restrict the applicant’s future ability to  make a valid application for any visa other than those prescribed in reg 2.12. There is no restriction on which visa he can apply for once he leaves Australia. However, those are also intended and legitimate consequences of cancellation.

28. The Tribunal gives this consideration neutral weight.

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

29. When asked by the Tribunal whether she had any fear of returning to  China, she initially said that if she returns and she is unable to make a living her husband and mother-in-law would want her to look after the child and they would create difficulties for her as they  had in the past. She referred to threats her husband had previously made against her and her fear he would harm her on return. The Tribunal questioned how she would be able to open a  patisserie business and she said they would allow her to work if the business had prospects but without such a business the money she earns would not be much and they would make her stay at home. The Tribunal noted she had said her mother was supporting her in Australia and asked why she could not live with her and be supported by her on return so she did not have to live with her husband. She then said her mother has to look after her grandparents. She then said she hopes to re-establish the relationship with her husband and return to live with him and noted he may invest in her patisserie shop. While the Tribunal considers her claims to be of concern, and questions whether she fears return from her husband when she wants to return to live with him if a relationship can be established, it is of the view that they can be fully considered in a protection visa application, which she has not yet made. The Tribunal is of the view that this is the appropriate mechanism for assessing her claims to fear return to China .

30. There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child (CROC) or that it would be in contravention of the Convention Against Torture.

31. The Tribunal gives this consideration neutral weight.

    Any other relevant matter

32. The applicant did not refer to any other relevant matter at hearing but repeatedly referred to being remorseful as to her non-enrolment. She has provided evidence of funds that would enable her to continue to study in Australia. She requested a further chance to  stay and study.

33. The Tribunal has considered the applicant’s circumstances individually and cumulatively. The Tribunal is satisfied that there are some although limited aspects that are favourable to the applicant, particularly that she is currently studying and has paid fees towards the current course and there is a degree of hardship to the applicant in not being able to complete course in Australia. It notes while not as varied or as good there are baking and patisserie courses available in China. The Tribunal is, however, mindful of the seriousness of breaching a visa condition and remaining in Australia on a student visa for a considerable period without studying or maintaining enrolment. Further, the cancellation of the visa is the intended consequence of breach of the relevant condition. Overall, the Tribunal considers that the limited aspects favourable to the applicant do not outweigh the reasons to cancel the visa. The breach of condition 8202(2) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study in Australia.

34. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Gabrielle Cullen
    Senior Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.