Huang (Migration)

[2019] AATA 4935

Huang (Migration) [2019] AATA 4935 (6 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zitao Huang

CASE NUMBER:  1834435

HOME AFFAIRS REFERENCE(S):           BCC2018/3912181

MEMBER:Mark O'Loughlin

DATE:6 November 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 06 November 2019 at 4:21pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course  – consideration of discretion – purpose of stay in Australia – circumstances giving rise to non-compliance – major depressive disorder – beyond applicant’s control – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
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 November 2018 made by a delegate of the Minister for Home Affairs 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 condition 8202 and the delegate was satisfied that the grounds for cancelling the visa outweighed the reasons not 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 6 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms @Marie-Louise Fitzpatrick and Mr Yang Dai . The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

7. The Tribunal had regard to documents that had been provided by or on behalf of the applicant namely;

   a.a copy of the delegate’s decision dated 16^th of November 2018;

   b.various submissions prepared by the applicant’s representative and submitted to the Department and to the Tribunal;

   c.medical report Dr Fenella Dermody dated 9^th of November 2018;

   d.confirmation of enrolment University of Adelaide academic English course;

   e.medical report Dr Fenella Dermody dated 29^th of October 2019;

   f.referral from Dr Fenella Dermody dated 5^th of October 2018;

   g.CoE University of Adelaide Bachelor of International Business to commence on the 17^th of Fabry 2020 and finish on 14 July 2022;

   h.separation summary SA health 16^th of October 2018; various notes prepared by witness Marie -Louise Fitzpatrick; and

   i.letter from Headspace Adelaide dated 31^st of October 2018.

8. The Tribunal has not relied on other documents in coming to its decision.

   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).

10. The Tribunal noted that the delegate found that the applicant had not been enrolled in a registered course of study since 15 August 2017.

11. The applicant was asked if that was true.

12. He said that he did not recall the specific dates but accepted that he was not enrolled at about that time.

13. The applicant agreed that the delegate was correct in finding that he had not paid his fees in about August 2017.

14. He said that he could not remember exactly when he stopped attending classes because his memory had been affected by his poor mental health.

15. Although initially he believed the mental health problems that started in 2018 he ultimately said that he believed they started when his performance at University declined and that that was during the earlier part of 2017. He said that he believed that he failed subjects in 2017 and 2018.

16. It was noted that he did not appear to have been enrolled in 2018 up to the time of the delegate’s decision and he agreed that he may have been mistaken and that the subjects he failed in 2017.

17. He agreed that in that event his failed courses were in 2017 and that his mental health issues may have started that about then.

18. Although the applicant could not give a clear answer the Tribunal is satisfied that the applicant did not comply with condition 8202 from about August 2017 until about the beginning of October 2018.

19. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

20. 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’

21. The applicant gave evidence, which the Tribunal accepts, that he suffered difficulties with mental health from about August 2017 until October 2018.

22. The applicant gave evidence which the Tribunal accepts that his mental health improved after his admission to hospital in October 2018 and that although he still takes medication head is not much suffer from depression.

23. The applicant gave evidence that in the time that he was not enrolled he was inactive. The Tribunal accepts the applicant’s evidence that he has never worked while he has been in Australia and at the time he was not enrolled he generally stayed at home and watched movies.

24. Tribunal accepts the applicant’s evidence that since the delegate’s decision he has occupied himself by doing a diploma level business course and by studying English in order to reach a standard necessary to pursue university qualifications.

25. The tribunal further notes that the applicant has secured provisional enrolment in a bachelor degree at the University of Adelaide to commence on 17 February 2020 and to finish on 14 July 2022. That course is a Bachelor of International Business. The applicant gave evidence that he has been working hard on his English and this evidence was supported by the 2 independent witnesses.

26. The Tribunal has had regard to departmental policy and considering whether to cancel a visa.

27. There is no evidence before the Tribunal that the applicant has a compelling need to travel to or remain in Australia other than for study. The Tribunal accepts that the purpose of the visa holder’s travel to and stay in Australia is for study. The Tribunal accords this consideration some weight.

28. The Tribunal observes that the visa holder did not comply with condition 8202 for a period of over one year which the Tribunal finds to be a significant non-compliance. The Tribunal accords this consideration some weight.

29. The Tribunal accepts the visa holder’s evidence that he will be compromised in his career if he is not able to finish his university study. The Tribunal further finds that he will suffer stress and will suffer from the disappointment of his family in China if his visa is cancelled.

30. The Tribunal further finds that the visa holder’s family will suffer hardship if the visa is cancelled because they have spent a significant amount of money supporting the visa holders study and that that will have been wasted if his visa is cancelled.

31. The tribunal further accepts the applicant’s evidence that his family will be disappointed and distressed if his visa is cancelled.

32. For these reasons the Tribunal finds that the applicant of his family will suffer some hardship if his visa is cancelled and accords this factor some weight.

33. The Tribunal notes the evidence that the applicant was diagnosed as suffering from a major depressive disorder at about the time of the cancellation of his enrolment and that this caused or significantly contributed to the ground for cancellation arising.

34. The Tribunal finds that this was outside the applicant’s control.

35. The Tribunal accords this consideration substantial weight in favour of the visa holder.

36. There is no evidence that the visa holder has not been truthful and cooperative in his dealings with the department. The Tribunal accords this factor some weight in favour of the visa holder.

37. There is no evidence that there are persons in Australia whose visas would or may be cancelled under s140 and the Tribunal accords this consideration by weight in favour of the visa holder.

38. If the Student visa is cancelled, the visa holder will become an unlawful non-citizen.

39. He will need to apply for a bridging visa. He may become liable to detention under section 189 and to removal under section 198 if he does not get a bridging visa or leave voluntarily.

40. Future visa grants may be compromised by the cancellation of this visa and in particular, the applicant will come within the risk factors defined in Public Interest Criterion 4013.  That will mean he will be restricted in lodging an application for another visa to Australia for 3 years after the cancellation of the Student visa.

41. There is no information before the Tribunal that shows that the cancellation would result in breach of Australia’s international obligations.

42. The Tribunal is not aware of any other factors relevant to the exercising of its discretion to cancel the visa.

43. The Tribunal has weighed the considerations set out above together and is satisfied that the grounds for cancellation arose from circumstances that are outside the visa holder’s control.

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

    DECISION

45. 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.