Kaewthong (Migration)

[2019] AATA 6129

Kaewthong (Migration) [2019] AATA 6129 (11 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Sasiwimon Kaewthong

CASE NUMBER:  1731536

HOME AFFAIRS REFERENCE(S):          BCC2017/3333893

MEMBER:David Thompson

DATE:11 October 2019

PLACE OF DECISION:  Perth

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 11 October 2019 at 12:38am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – discretion to cancel visa – factors for and against cancellation – sexual harassment and stalking by classmate – mental health – no action taken by institution – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

CASES

Rani v MIMA (1997) 80 FCR 379

Tien v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 5 December 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 condition 8202 on her visa, in that she was not enrolled in a registered course of study as required by condition 8202(2)(a) between 12 April 2017 and 7 November 2017  . 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 9 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

4. The applicant was represented in relation to the review by her registered migration agent.

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.

   Did the applicant comply with Condition 8202?

7. 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).

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

9. At hearing, and in the written submissions lodged by the applicant’s registered migration agent on the morning of hearing, the applicant admitted that she was not enrolled in any course of study between 12 April 2017 and 7 November 2017. On the evidence before the Tribunal, the applicant was not enrolled in a registered course between those dates. Accordingly, the applicant has not complied with condition 8202(2).

   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 submitted at hearing that her sole purpose in travelling to and staying in Australia was to study and obtain qualifications she could use in her family’s businesses in Thailand. There is no evidence before the Tribunal that the applicant has any other purpose in staying in Australia. She has no family or assets in this country, and has only worked casually as a waitress. The evidence before the Tribunal shows that the applicant has been enrolled in registered courses of study since 7 November 2017 and has been progressing in her studies. The Tribunal accepts the applicant’s submission on this point and finds that her sole purpose in travelling to and staying in Australia was and has been to study. The Tribunal gives this factor some weight in the applicant’s favour.

12. The evidence before the Tribunal shows that the applicant was in breach of visa condition 8202 for a period of approximately 7 months. That is a substantial period, and if the applicant had no explanation for committing a breach of that length, it would way strongly against her. However, the applicant has given evidence to the Tribunal providing a compelling explanation for her breach, as will be seen below. The Tribunal finds that the applicant’s explanation significantly ameliorates the seriousness of her breach, and gives this factor only a little weight against the applicant. Further, there is no evidence before the Tribunal suggesting that the applicant has breached any other condition on her student visa. The Tribunal gives this factor a little weight in the applicant’s favour.

13. The applicant’s explanation for her breach, which led to cancellation of her visa, was (in summary) that during late 2015 and throughout 2016 she was subject to incidents of sexual harassment and stalking at the hands of a classmate. Eventually, the distress and anxiety this caused her led her into a state of depression, and she ceased studying.

14. The applicant was asked at hearing what action she had taken to address this harassment. Her evidence was that she approached the authorities of her educational institution to seek help. The institution offered to set up a face to face meeting with her harasser so that she could confront him and attempt to resolve the situation. The applicant stated that she did not take this offer up, because she was afraid of the consequences for herself and her personal safety. The applicant gave evidence that she also asked her institution to change her classes, so as to minimise the chance of day to day contact with her harasser. She also gave evidence that she made efforts to change study groups to the same end. Those efforts were also unsuccessful. The impression this evidence leaves is that the applicant’s institution simply did not take her problem seriously, and doubted that she was in fact being sexually harassed. The Tribunal, having observed the applicant’s demeanour at hearing as she recalled the events of that period, is under no such doubt.

15. The applicant produced a written assessment of her condition from a registered psychologist, a Mr Dadgostar, dated 30 October 2017. The delegate made the point in his decision record that this assessment was obtained after the Department had issued its Notice of Intention to Consider Cancellation (NOICC) to the applicant, the implication being that the applicant obtained that assessment in order to address the NOICC rather than as treatment for her depression. The applicant was asked at hearing whether she had sought treatment before seeing Mr Dadgostar. She said that she had not, and explained that her condition has been such that she had not been able to leave her house or talk to anyone, even her family in Thailand and her housemates. When asked why she felt she could not speak to her family, the applicant said that in her depressed state she would have felt ashamed to do so, having been the one who had convinced her parents to allow her to study in Australia in the first place. She further explained that receiving the NOICC forced her to seek professional help from a migration agent, and that her agent (Ms Tanomvongtai) had sent her to Mr Dadgostar, both in order to obtain a report for the purposes of responding to the Department and because in Ms Tanomvongtai’s view, she needed to see a psychologist. The applicant describe the relief she felt on seeing Mr Dadgostar and being able finally to talk to someone about her situation. The Tribunal finds these explanations credible, both in themselves and in view of the timeframe involved.

16. The Tribunal finds that the circumstances in which the applicant’s breach of condition arose were not of her making and were beyond her control. This factor, and the circumstances reviewed in paragraphs 13 to 15 above, weigh very strongly in the applicant’s favour.

17. The applicant claims that if her visa is cancelled, she and her family will suffer financial hardship, in the form of the waste of the considerable funds she says her parents have spent on her education in Australia. The applicant puts that sum at $54,000. There is no evidence before the Tribunal verifying that figure, but it is not implausible in itself as a figure covering living expenses and tuition fees over a period of some 5 years. The applicant also claims that she will suffer emotional hardship and shame if she is forced to return to her home country without the qualification she came to Australia to obtain. The evidence before the Tribunal is insufficient to arrive at any view as to the level or extent of such emotional hardship, but the Tribunal is prepared to accept that some such hardship will be suffered. Taken together, the Tribunal gives these factors some weight in the applicant’s favour.

18. There is no evidence before the Tribunal to suggest that the applicant has failed to cooperate with the Department, or has dealt with the Department in bad faith in any way. The Tribunal gives these factors some weight in the applicant’s favour.

19. There is no third party whose visa depends on the applicant maintaining her visa. The Tribunal gives this factor no weight, either for or against the applicant.

20. There is nothing before the Tribunal to suggest that affirming the delegate’s decision to cancel the applicant’s visa will lead to any breach of Australia’s international obligations. The Tribunal gives this factor no weight, either for or against the applicant.

21. If the applicant’s visa is cancelled, she may become an unlawful non-citizen liable for detention under s.189 of the Act, and removal from Australia under s.198 of the Act if she does not depart the country voluntarily. She would also be subject to s.48 of the Act, which would limit the classes of visa for which she would be entitled to apply whilst in the migration zone. Cancellation would also mean that the applicant would be unable to satisfy public interest criterion 401 for a period of up to 3 years, which would limit her entitlement to be granted a further student visa. The Tribunal gives this factor a little weight in the applicant’s favour.

22. No other relevant matter arises for consideration on the evidence before the Tribunal.

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

    DECISION

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

    David Thompson
    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.