LAE-CHOE (Migration)

[2019] AATA 4650

LAE-CHOE (Migration) [2019] AATA 4650 (28 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss SUWANNA LAE-CHOE

CASE NUMBER:  1830473

HOME AFFAIRS REFERENCE(S):           BCC2018/1398510

MEMBER:Amanda Pearson

DATE:28 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 28 October 2019 at 4:35pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – family and personal difficulties – depression and anxiety – psychologist report – decision under review affirmed

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 12 October 2018 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 (the Act).

2.The delegate cancelled the visa on the basis that the Applicant was not enrolled in a registered course from 23 October 2017 until 6 August 2018 and as such breached condition 8202(a).  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 25 October 2019 to give evidence and present arguments.  

4.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

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.On the 25 October 2019 the Applicant provided the Tribunal with the following documents to support her case:

·a confirmation of enrolment for an Advanced Diploma of Leadership and Management course for the period from 7 October 2019 to 4 October 2020;

·a medical report from Chiangrai Regional Hospital for Mrs Meema Patnarin dated 9 October 2017;

·a medical sickness certificate prepared by Dr Zora Sebez dated 4 October 2018 for Miss Suwanna Lae-Chae; and

·a psychological assessment report prepared by registered psychologist Hamid Dadgostar dated 21 October 2019 for Ms Lae-Chow.

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

9.The delegate’s decision which outlined that the Provider Registration and International Student Management System (PRISM) indicated that the Applicant had not been enrolled in a registered course between 23 October 2017 and 6 August 2018.  The delegate cancelled the visa on 12 October 2018. The Tribunal discussed this with the Applicant and she confirmed this to be correct. The Applicant did supply a certificate of enrolment as noted in paragraph 7 above, however she advised that she has not progressed with this course and she confirmed she was not was not enrolled from 23 October 2017 to 6 August 2018. On the evidence before the Tribunal and by her admission, the Applicant was not enrolled in a registered course. Accordingly, the Applicant has not complied with condition 8202(2) for 9 months before the visa was cancelled.

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’.

Background evidence taken at hearing

11.The Applicant is 24 years of age. She arrived in Australia from Thailand in June 2014. The Applicant confirmed she has not returned home to see her family since arriving in Australia.  Her objective to coming to Australia was that her family wanted her to study.

12.Prior to arriving in Australia, the Applicant completed her secondary schooling in Thailand.

13.The Applicant told the Tribunal that when she arrived in Australia, she completed a general English language course and a Certificate IV in Business Management at the Group Colleges Australia (GCA). She then commenced the Diploma of Business Management program at the GCA.

14.During October 2017 to August 2018 the Applicant testified that she was suffering from severe anxiety and associated depression. 

15.The Applicant further testified that she received a notification on 12 October 2018 that her visa was cancelled. She explained that in September 2017 she was informed by her family that her grandmother had a stroke and had developed serious health and functional issues that the Applicant found hard to deal with because her grandmother was like a mother to her.    

16.The Applicant provided a psychologist’s report dated 21 October 2019 which stated that the Applicant had received a notification on July 2017 of her certificate of enrolment being cancelled as the GCA had not received her tuition fees which she found strange because she believed she had paid her tuition fees.  The report further states that she discovered that her migration agent had cheated her tuition fees and had not paid two terms of fees.

17.The psychological report also indicated that whilst the Applicant was trying to manage her stressed and depressed mindset from her stolen enrolment fees and her grandmother’s poor health condition, that she was pressured at the time by her then boyfriend and his family to get married, something she refused because of her ambition of achieving her educational objectives.

18.As a consequence of the cumulative effect of the above circumstances, the psychological report states that the Applicant reduced her social interaction with others and cut all connections with her friends because she was in fear of further stressing situations.

19.The Tribunal had a discussion with the Applicant regarding whether she attempted to defer her studies between October 2017 and August 2018 and the Applicant explained that at that time she could not do anything; she could not concentrate, lost motivation and she lost interest in most activities.  She further told the Tribunal that she did not contact the GCA and was not sure what to do at that period of time.

20.The Applicant told the Tribunal that as she always wanted to pursue and complete her course, in August 2018, the Applicant tried to enrol into the Diploma of Business Management at the New England College but her student visa was cancelled on 12 October 2018.

21.The Applicant is from a family of five.  Her parents are coffee farmers in Thailand.  She testified that she has a younger brother and sister who are in high school in Thailand. Her paternal grandmother who had a stroke in 2017 is still alive in Thailand. The Applicant testified that her parents have always had high academic expectations for her.

22.The Applicant is currently living in Rockdale with friends in Australia who are also from Thailand. She is working as a gaming assistant where she told the Tribunal she could earn between $400 to $500 per week.  She has also relied upon her parents for financial support whilst she has been living in Australia.

23.

According to the Applicant, she is currently enrolled in an Advanced Diploma of Leadership and Management at the Australis Institute of Technology and Education which began on 7 October 2019 and is due to complete on 4 October 2020.

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

24.The Applicant expressed a need to remain in Australia to complete her studies because her future will be brighter and she does not want to disappoint her parents.  The Applicant stated she needs a chance to complete the Advanced Diploma of Leadership and Management in Australia.  The Applicant testified that if she is able to continue to study in Australia that she would like to complete a one year business management degree after completing the Advanced Diploma of Leadership and Management course and intends to return to Thailand in the second half of 2021.

25.The applicant stated to the Tribunal that when she returns home, that she will start her own coffee brand business. 

26.The Applicant claimed that if she is prevented from studying in Australia because her visa is cancelled, then her future will be really bad because of her family expectation of obtaining higher education in Australia. The Applicant told the Tribunal that whilst she could study back in Thailand, she wishes to remain in Australia because of her family expectations.  The Tribunal gives these reasons minimal weight as the Applicant can reapply to study in Australia after the exclusion period.

27.The Tribunal gives limited weight to the Applicant’s concerns pertaining to the stress, pressure and family disappointment if she has to return to Thailand. However the Tribunal appreciates the significance of obtaining a student visa for the Applicant and her family, but it does not operate to ameliorate the Applicant for a lack of prioritising her studies because of lack of maturity or family set-backs.

The extent of compliance with visa conditions

28.The Applicant has stated that she has complied with all other conditions on her visa.  There is nothing before the Tribunal to indicate that this is not the case.  The Tribunal gives this some weight in favour of the Applicant and not cancelling the visa, however remains mindful that it is expected that all visa holders adhere to the conditions on their visa.

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

29.The Applicant explained that if her visa is cancelled then it will hurt her parents as they expect her to complete her studies. She told the Tribunal that if she is not able to study in Australia it will be really bad for her as she will not be able to face them in Thailand as they expect her to bring back a degree certificate.

30.The Tribunal accepts that the cancellation of a visa is disappointing.  It also accepts that the hardship is felt by family members who may also feel let down and disappointed.

31.The Tribunal accepts that a cancellation may contribute to the emotional pressure and stress that the applicant may already be facing.  However, the Tribunal is also mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition such as non-enrolment.  Whilst appreciating the hardship the Applicant and her family may face regarding a cancelled visa, it does not outweigh the breach and the Tribunal gives these reasons limited weight in its considerations.

Circumstances in which ground of cancellation arose.

32.The Applicant claimed that in September 2017 she was informed by her family that her beloved grandmother had had a stroke and that her everyday functional issues would be changed forever.  The Applicant found this piece of news a month prior to not being enrolled in a registered course. The Applicant told the Tribunal that her grandmother had been a mother like role model as she had been involved in raising her since she was a baby.

33.The Tribunal has considered the psychologist’s report pertaining to the Applicant. The report states that during the period from October 2017 to August 2018 that the Applicant was feeling so depressed she could not tolerate at times being with others or in crowded places and for that reason could not cope with being at school surrounded by a lot of people.  Nevertheless the report is dated 21 October 2019 and the report is simply restating what the Applicant was feeling at that time.  The medical evidence reports that the Applicant continues to experience some depression and anxiety symptoms at times but to a lesser extent.  The report provided does not support that the Applicant was so affected that she was unable to attend, enrol or defer her course.

34.Whilst the Tribunal acknowledges that the Applicant is still depressed and has associated symptoms, it does not satisfy the Tribunal that the Applicant was unable to study and as such justify her non-enrolment.

35.The Tribunal acknowledges that the Applicant has stated she wishes to study in Australia.  The Tribunal has given some weight to her claim that she experienced financial difficulties from her stolen enrolment fees (as detailed in the psychological report), her grandmother’s stroke and her relationship difficulties (as detailed in her psychological report). The Tribunal accepts that the culmination of a series of adverse circumstances of a personal and psychological nature may have caused the Applicant pressure. However, appreciating there would have been pressure and stress, student visas are granted for the purposes of studying and achieving a qualification. Individually and cumulatively the issues put forward by the Applicant pertaining to the circumstances in which the breach occurred are given some weight but not sufficient weight to outweigh the reasons for cancelling the visa because of the seriousness of the breach.

Past and present behaviour of the visa holder towards the department

36.There is nothing before the Tribunal to indicate any adverse conduct by the Applicant to the Department and as such the Tribunal gives this some weight in favour of the Applicant.

Whether there would be consequential cancellations under s.140     

37.This is not relevant to the Applicant.

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

38.In the event that the Applicant’s visa is cancelled she would need to obtain a bridging visa to ensure she is lawful until she makes arrangements for her departure.  The Applicant could avail herself of migration advice.

39.The Applicant told the Tribunal that she wanted another chance to get a higher qualification in Australia.  She further told the Tribunal that if she is not able to continue to stay in Australia and be able to study, that things for her will be really bad as her family expects her to obtain higher qualifications and they will be disappointed if she returns to Thailand without any qualifications.  Whilst the Tribunal appreciates the Applicant may now be determined to complete her studies in Australia because of family pressure, it does not outweigh the breach and the Tribunal gives these reasons limited weight in its considerations.

40.The Tribunal appreciates that the Applicant would face a three year exclusion period and would need to ensure her immigration status was lawful however these are the natural consequences of a cancellation and as such, the Tribunal gives this minimal weight in favour of the applicant. 

Australia’s international obligations

41.There is nothing before the Tribunal to suggest that the cancellation of the visa holder’s visa would breach any international obligations.  The Tribunal places no weight on this in favour of the Applicant.

Any other relevant matters

42.This is not relevant to the Applicant.

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

DECISION

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

Amanda Pearson
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.