Lam (Migration)

Lam (Migration) [2020] AATA 1412 (13 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Wing Yu Lam
CASE NUMBER:  1807084
HOME AFFAIRS REFERENCE(S):          BCC2017/4899121
MEMBER:L. Symons
DATE:13 February 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Statement made on 13 February 2020 at 3:30pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 572 Vocational Education and Training Sector visa – enrolment in a registered course ceased – unsatisfactory course progress – maintaining residence in Australia – failure to notify change of address – effect of cancellation upon marriage and family – allegations of plagiarism – obtaining letter of release – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 48, 116, 359
Migration Regulations 1994, r 2.12; Schedule 3; Schedule 8, Condition 8202
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 13 March 2018 made by a delegate of the Minister for Home Affairs 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).
The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course since 11 December 2017. On 16 March 2018, she applied to the Tribunal for a review of that decision.
The applicant appeared before the Tribunal on 3 December 2019 to give evidence and present arguments.
The applicant was represented in relation to the review by her registered migration agent, Andrew Rowe, who attended the hearing.
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 AND FINDINGS
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 breach condition 8202?
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).
In the present case, the applicant was granted a subclass 572 Student visa on 8 April 2016. This visa was subject to a number of conditions including condition 8202. On 13 February 2018, the delegate sent her a Notice of Intention to Consider Cancellation (NOITCC) of her Student visa. She was given an opportunity to comment on the ground for cancellation identified in the NOITCC and give reasons why her Student visa should not be cancelled.
On 27 February 2018, the applicant’s migration agent provided written submissions to the Department of Immigration (the Department) including details as to why she was unable to maintain enrolment in a registered course of study and comply with condition 8202(2)(a). The Department was also provided with a statement from Nguyen Thi Minh Thuan dated 19 February 2018, a Medical Certificate dated 19 February 2018, an employment contract with Results Laser Clinic and a number of payslips from RLC Bondi Pty Ltd. The delegate cancelled her Student visa on 13 March 2018.
The applicant provided the Tribunal with a copy of the Department’s Decision Record dated 13 March 2019. Prior to the hearing, the Tribunal received a large folder of documents from the applicant’s migration agent. This included written submissions to the Tribunal dated 26 November 2019, a copy of the submissions to the Department dated 27 February 2018, supporting documents (referred to below) and a large volume of documents that appear to have been part of an application for a Partner visa. Following the hearing, the Tribunal received Group Certificates for the applicant, her husband’s Certificate of Citizenship by decent and email correspondence between her migration agent and the Executive Director of Scots English College.
The records of the Department indicate that the applicant was granted a Student visa on 12 September 2013 and a second Student visa on 8 April 2016. Both visas were subject condition 8202. The records of the Department of Education indicate that she was enrolled in fifteen courses being Certificates, Diplomas and Advanced Diplomas in marketing, tourism, travel, management, early childhood education and care, beauty therapy, accounting administration and accounting. Her enrolment in ten of these fifteen courses was cancelled. She completed five courses the last of which was on 13 May 2017.
The records of the Department of Education indicate that her enrolment in the Diploma of Beauty Therapy was cancelled on 11 December 2017 for unsatisfactory course progress. She then enrolled in a Cambridge Examination Preparation Course from 5 March 2018 to 25 May 2018 but that is inactive. The Tribunal put this information to her, pursuant to s.359AA of the Act, and noted that it may find that she has breached condition 8202 of her Student visa as she was not enrolled in a registered course from 11 December 2017 to 4 March 2018.
The applicant responded that her first Student visa was valid for 2 years. She stated that her education agent organised a program for her from the level of a Certificate III to Certificate IV to Diploma to Advanced Diploma. She stated that she first enrolled in marketing but after one or two tasks found that she did not like it. She stated that she changed to a Diploma of Tourism and completed that. She stated that the other courses were a mistake. She stated that her plan was to study a Diploma of Tourism. She stated that she wanted to ask her parents whether she could go to university but they did not have enough money.
The applicant stated that she decided she would like to stay in Australia and that is why she studied the Certificate in Early Childhood. She stated that her education agent enrolled her in different courses so that she could go up step by step. She stated that it is not that she wanted to study different courses so that she could stay in Australia. She stated that she studied what she wanted to do. She stated that she was thinking to look for a sponsor to live in Australia.
On the evidence before it, the Tribunal finds that the applicant was not enrolled in a registered course of study between 11 December 2017 and 4 March 2018 and accordingly has not complied with condition 8202(2)(a) of her Student visa.
Consideration of the discretion to cancel the visa
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’.
Purpose of the visa holder’s travel and stay in Australia. Did the visa holder have a compelling need to travel to or remain in Australia?
The applicant gave evidence that she initially applied for a Student visa to study in Australia. She stated that she subsequently decided that she wanted to live here permanently and looked for ways of obtaining permanent residence in Australia. She stated that that was why she enrolled in a Certificate in Early Childhood. She stated that she completed three courses in Australia and started a Diploma in Beauty Therapy in the hope that her then employer, Results Laser Clinic, would sponsor her for a visa. She gave evidence that she last studied in December 2017.
The Tribunal asked the applicant what she did between 12 December 2017 and the birth of her baby on 18 November 2018. She responded that she was stressed. She stated that around Christmas time she tried to find a college to enrol in but it was difficult. She stated that she finally found a college that would enrol her but they needed a release letter. She stated that they helped her to contact her previous education provider, SBDI. She stated that SBDI said they would issue a release letter but did not. She stated that she knew she could not enrol without that.
The applicant stated that she received a NOITCC from the Department. She stated that she then started getting documents. She initially stated that she met her husband is November or December (2017) and then stated that it was at the end of January (2018). She stated that he proposed marriage to her in February (2018) and in March (2018) she found out that she was pregnant. She stated that they got married two weeks later. She stated that she was working part time at Results Laser Clinic at the time. She stated that once her visa was cancelled she did not have work rights and left her job. She stated that she later got a Bridging E visa and could work for 20 hours a week. She stated that she had bad morning sickness and only worked from July to October (2018). She stated that her son Mathias was then born. She stated that she did not undertake any studies during this period.
The applicant stated that her plan was to go back to her studies when her baby is older. She stated that she would like to complete the Diploma of Beauty Therapy and work in a higher position in the company.
The applicant’s evidence is that she has not studied in Australia since December 2017. There is no evidence before the Tribunal that she is currently enrolled in a registered course of study. The Tribunal accepts that she hopes to complete the Diploma of Beauty Therapy when her baby is older and hopes that this would lead to her getting a higher position in the company. These hopes are aspirational and her timeline in relation to when she may return to her studies is vague and uncertain.
In submissions to the Tribunal dated 26 November 2019, the applicant’s migration agent made the following submissions:
Since the cancellation of her Student visa, the applicant has been unable to enrol in a further course due to the pregnancy and birth of her son. The applicant hopes to one day complete her studies. However, she is currently financially restrained and unable to study as she remains the main care taker of her son. Should she enrol in a course in the near future, the applicant would likely defer her studies until her son can attend school and she and Mr Boscolo are financially stable enough to support the applicant through her studies. The applicant submits that her ultimate career goal is to be promoted to the position of manager; a goal which cannot be achieved without the completion of her studies.
The Tribunal notes that the applicant’s child was born on 18 November 2018 and is currently under 14 months old. He will therefore not be of school age until approximately 2024. The Tribunal is not satisfied that she has demonstrated a need to remain in Australia as the holder of a Student visa.
The Tribunal gives this consideration little weight in the applicant’s favour.
The extent of non-compliance with visa conditions
The applicant was not enrolled in a registered course of study between 11 December 2017 and 4 March 2018. This is a considerable period of time during which she was in breach of condition 8202(2)(a) of her Student visa.
In submissions to the Tribunal, the applicant’s migration agent referred to the applicant breaching condition 8506 (notify change of address at least 2 working days in advance) of her visa. When asked about this, she responded that it was a mistake. She stated that her in-laws visited for a month and left 5 days before they had to move. She stated that her husband returned to work, her baby was ill, she had to pack, organise a removalist and a cleaning company. She stated that she forgot to inform the Department of her change of address in advance. Her migration agent indicated that he subsequently informed the Department of the change of address. The Tribunal accepts that this breach of condition 8506 was unintentional.
In submissions to the Department, the applicant’s migration agent referred to the applicant being accused by her education provider, SBDI, of breaching condition 8105 of her visa by working more hours than she was allowed and that she denied breaching condition 8105. There is no evidence before the Tribunal to indicate that she breached condition 8105 of her Student visa.
The Tribunal does not give this consideration any weight in the applicant’s favour.
Degree of hardship that may be caused
The Tribunal asked the applicant what hardship may be caused if her Student visa is cancelled. She responded that she is married and has applied for a Partner visa. She stated that it would be difficult to get her application for a Partner visa approved if she has a visa cancellation on her record. She stated that it is “not correct” to cancel her Student visa.
The evidence before the Tribunal is that the applicant applied for a Partner visa (subclasses 820 and 801) on 11 October 2018 and is currently on a Bridging visa. She is therefore able to remain in Australia lawfully until such time as her application for a Partner visa is processed. Under s.48(1)(b)(ii) of the Act, applicants who have had their visas cancelled since their last entry into Australia may only make a valid visa application for the classes of visas which have been prescribed by r.2.12 of the Migration Regulations (the Regulations). Partner visas are a prescribed class of visas under r.2.12 of the Regulations and are therefore not barred. Public Interest Criteria 4013 and 4014 would also not apply to the applicant as they do not apply to Partner visas and her Student visa was cancelled under s.116(1)(b).
In submissions to the Department, the applicant’s migration agent stated that the applicant was engaged to her fiancé, Mr Boscolo, and they planned to get married on 28 February 2018. He stated that they plan to have a family and a future together in Australia. He stated that their respective families approved of their relationship and marriage. He stated that Mr Boscolo is unemployed, the applicant is the main breadwinner and he relies on her for financial support. He stated that they rely on each other for emotional support. He stated that if the Student visa is cancelled they will be forced to live in different countries and their future plans would be halted. He stated that this would cause financial hardship to Mr Boscolo.
In submissions to the Tribunal, the applicant’s migration agent stated that since the last submissions were filed the degree of hardship caused by the cancellation of the visa had increased exponentially. He stated that the applicant got married on 28 March 2018, she gave birth to a child on 18 November 2018, she stopped working at Results Laser Clinic in about November 2018, she recommenced working part time in about June 2019 and Mr Boscolo commenced working full time on 2 March 2018. Lengthy submissions were made on the social, financial and emotional aspects of their relationship and the birth of their chid that are more relevant to an application for a Partner visa.
The applicant’s migration agent submitted that the applicant lodged an application for a Partner visa on 11 October 2018 and is currently on a Bridging visa. He stated that she is required to establish that compelling and compassionate circumstances exist for the waiver of Schedule 3 criteria. He stated that it is his view that she has grounds for this criteria to be waived but the cancellation of her Student visa has caused unnecessary stress and hardship in the lodgement and determination of the Partner visa application. He stated that upholding the cancellation of the Student visa increases the possibility of her Partner visa being refused, forcing her to return to Hong Kong and causing the breakup of the family unit.
The Tribunal does not accept these submissions. The applicant’s application for a Partner visa would be subject to Schedule 3 criteria. Her migration agent has submitted that it is his view that she has grounds for this criteria to be waived. Without seeking to pre-empt the outcome for her application for Partner visa, the Tribunal is also of the view that the circumstances of this case would satisfy the waiver of the Schedule 3 criteria. The application for a Partner visa would therefore be able to be assessed and, if she is in a genuine spousal relationship as she claims, there is no apparent reason why her application for a Partner visa would not be successful. Therefore, the Tribunal does not accept that, if her Student visa is cancelled, it would have an adverse impact on her application for a Partner visa.
The Tribunal is of the view that the likelihood of the applicant being forced to return to Hong Kong and the breakup of her family unit is remote. The Tribunal gives this consideration little weight in her favour.
Circumstances in which the ground for cancellation arose
In submissions to the Department, the applicant’s migration agent stated that the grounds on which the applicant’s enrolment was cancelled was “plagiarism and tardiness to class”. He referred to the PRISMS Student Course Variation and submitted that the applicant asserts that the hours she worked affected the frequency of her tardiness to class of between 5 and 10 minutes but did not affect her ability to attend classes and to complete and submit assignments as claimed by SBDI. He submitted that she had been suffering from depression for approximately 5 months from around December 2016 and this was compounded by the breakdown of her relationship with her then partner and juggling of her college and work commitments which affected her ability to complete some assignments to the best of her ability. He submitted that, on 8 April 2017, she sought treatment from a doctor who prescribed antidepressants.
As an international student, the applicant had responsibilities to her education provider and obligations to the Department to comply with her visa conditions. If she was unable to meet her responsibilities to her education provider because of her health or other personal circumstances, the Tribunal would expect her to have spoken to her education provider and made arrangements to defer her studies or made some other acceptable arrangement. The Tribunal would also expect her to have contacted the Department, explained why she was unable to comply with the conditions of her Student visa and made acceptable arrangements with the Department. She did not do so. She also had the option of returning to Hong Kong if she was unable to study in Australia and returning when she was able to do so. She did not do this.
The applicant’s migration agent submitted that, prior to December 2017, two of the applicant’s classmates informed their teacher, Kim, that the applicant had plagiarised an assignment from her friend and classmate, Katie. He stated that Kim spoke to Katie who admitted that she had mistakenly sent a copy for her assignment to the applicant, the applicant had never requested that she do so and did not copy her assignment. A handwritten statement dated 19 February 2018 from Katie was enclosed confirming this information. He stated that Kim never questioned or contacted the applicant about this incident and she only found out about it from Katie.

The applicant’s migration agent submitted that in about early December 2017, the applicant’s education provider (SBDI) ran its plagiarism software over a second assignment the applicant had submitted and detected an identical paragraph found on the Internet. He stated that the teacher, Chantal, spoke to the applicant after class on 7 December 2017 and accused her of plagiarising the assignment which she denied. He stated that following this meeting Chantal sent her an email on 7 December 2017 summarising their discussion. This email was copied to Deborah, the Head of Education and Training at SBDI. He stated that Deborah sent an email to Chantal and the applicant requesting a meeting on 11 December 2017 to discuss the plagiarism claim in relation to the second assignment. He stated that, at the meeting on 11 December 2017, the applicant was asked whether she had plagiarised the first assignment and she denied that. He stated that Deborah informed the applicant that SBDI does not condone plagiarism and given the history of her conduct regarding plagiarism they would no longer accept her enrolment at SBDI and her enrolment would be cancelled immediately.
The applicant’s migration agent submitted that the applicant did not take any evidence to the meeting as she was not aware that the meeting on 11 December 2017 was part of a formal or informal complaints process and investigation into her conduct as a student and neither Deborah nor Chantal indicated this in their email correspondence. He submitted that Deborah, Chantal and Kim did not provide any evidence to support the assertions or inform the applicant that the meeting was part of the formal or informal complaints process or explain to her how the process would work.
The applicant’s migration agent submitted that SBDI failed to inform the applicant of its complaints and investigation procedures which prevented her from presenting evidence and defending the allegations properly. He submitted that SBDI failed to give her the opportunity to present evidence given that SBDI had omitted to advise her of the purpose of the meeting on 11 December 2017. He submitted that the impending holiday period may have led to the expeditious decision to cancel the applicant’s enrolment and the holiday period prevented her from obtaining the necessary information needed regarding the review and complaints process which put her at an unfair disadvantage.
During the hearing, the Tribunal asked the applicant whether she sought an internal review of the decision of SBDI to cancel her enrolment. She responded “not yet”. She stated that she did not know how it worked and did not understand what she could do. She stated that she was trying to appeal to SBDI or look for another school. She stated that she contacted her migration agent. She stated that she did not lodge any appeal with SBDI because she did not know how it worked. She stated that she received a NOITCC in February 2018 and was more focused on contacting the Department in relation to the cancellation of her Student visa.
The Tribunal has before it information that SBDI has an Enrolment Prospectus for students. It sets out information in relation to a number of matters including Students responsibilities. This includes the responsibility to “Not plagiarise, collude or cheat in any assessment activity.” The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that she was aware of or should have been aware of her responsibilities as a student. The Tribunal noted that it therefore had some difficulty accepting the submissions that she was not aware of plagiarism until 11 December 2017 and that the circumstances that led to the cancellation of her enrolment were beyond her control.
The applicant responded that she did have some knowledge of plagiarism. She stated that when she did the assessment she had in it a sentence from the internet. She stated that she did not know it was a big issue and she just copied a sentence. She stated that the teacher told her it was not her work. She stated that English is not her first language. She stated that she told the teacher she found it on the internet and the teacher told her “you know you cannot copy it. Change it to your words. Change it and send it back to me”. She stated that she was going to do that. She stated that the teacher forwarded the email to the Head of Education and she said it is not right.
The applicant stated that every school gives you documents and she did not read the document (from SBDI). She stated that she did not copy the whole answer just two sentences. She stated that she did not know that counted. The Tribunal finds her evidence to be inconsistent and unconvincing. She has been a student in Australia since 2013 and every education provider she studied with would have had policies in relation to plagiarism. Her evidence is that “every school gives you documents”. It was her responsibility as a student at SBDI to ensure that she found out what was required of her by her education provider and satisfied those requirements. The Tribunal does not accept that she was not aware of plagiarism and the consequences for plagiarism.
The applicant initially stated that she only copied one sentence from the Internet. She subsequently stated that she copied two sentences from the Internet. In his submissions, her migration agent stated that SBDI ran its plagiarism software over the applicant’s assignment and detected an identical paragraph from the Internet. Presumably these submissions were based on instructions from the applicant. These inconsistencies raise concerns in relation to her credibility and the extent of her plagiarism.
The Tribunal has been provided with an email dated 7 December 2017 from Deborah (the Head of Education and Training at SBDI). This email was sent to Chantal (a teacher at SBDI) and the applicant and copied to other trainers. It states in part:
Further to this any student who is in breach of the rules of evidence i.e. not producing and submitting their own work will be in serious breach of their enrolment contract and visa conditions upon which they are enrolled into the course and immediate cancellation of the students CoE will result. Please be advised that I request a meeting to discuss this matter with Tracey and yourself at your earliest convenience.
The applicant would have received this email on 7 December 2017. The meeting took place on 11 December 2017. She was put on notice that not producing and submitting her own work was a serious breach of her enrolment contract and visa conditions and that this could lead to the immediate cancellation of her enrolment. She should therefore have been aware that this was a serious matter with serious consequences for her. She had the opportunity to seek advice from her education agent and her migration agent prior to the meeting and to obtain evidence to provide at the meeting. If the timeframe was insufficient, she could have sought a postponement of the meeting to a later date.
The Tribunal does not accept the applicant’s migration agent’s submission that SBDI failed to give her the opportunity to present evidence given that SBDI had omitted to advise her of the purpose of the meeting on 11 December 2017.
The Tribunal has before it information that SBDI has a Complaints and Appeals Procedure. This is part of the Enrolment Prospectus that is given to students when they enrol. It makes provision for an internal review process by a higher authority and an external appeal. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that as a student of SBDI it would expect her to have been aware of this. The Tribunal noted that it would expect her to exercise her rights to access the appeal procedure if she thought she had been unfairly dealt with. The Tribunal informed her that it had difficulty accepting the submission that she was not aware of the Complaints and Appeals Procedure and was unfairly dealt with.
The applicant responded that she did not. She stated that it never happened like this. She stated that she was thinking of appealing to SBDI and was trying to appeal. She stated that SBDI was closed from December to February. She stated that she contacted her lawyer. She stated that she then received the NOITCC. When asked why she did not lodge an appeal with SBDI, she responded that she did not know that she needed to tell them that she was going to appeal. When the Tribunal pointed out to her that she had an education agent and a migration agent who could have helped her, she responded that she went to school the following day. She stated that she did not know she needed to tell them that she wanted to appeal. She stated that the Head of Education told her she had ruined her life and was now trying to find something to fight with them and walked away. She stated that she was thinking of appealing.
The Tribunal pointed out to the applicant that the NOITCC was not sent to her until 13 February 2018 and it does not take 2 months to appeal. She responded that she did not know what to do and was not experienced about these things.
The Tribunal has been provided with a letter dated 18 December 2017 from the applicant’s migration agent to the Department indicating that the applicant’s enrolment was cancelled on 11 December 2017, she was considering the appeal process and was also reviewing alternate courses in which to enrol. The Tribunal raised this as an issue with the applicant and noted that this letter is dated a week after her enrolment at SBDI was cancelled. The Tribunal noted that it had difficulty accepting that she did not know about the appeal process particularly as she said she did know about it and was thinking of appealing.
When asked why she did not lodge an appeal with SBDI, the applicant responded that she was going to and was collecting documents. She stated that she had a question in her mind whether she could appeal. When questioned whether she understood the urgency of the situation, she responded that she wanted to understand what she could do. She stated that she talked to her lawyer and education agent. When asked whether she obtained advice from them, she responded that she did not know the process and thought she could tell her lawyer and do the process. She stated that she tried her best. She stated that she knew it was urgent as everything closes for Christmas.
The Tribunal finds the applicant’s explanation for why she did not lodge an appeal with SBDI to be unsatisfactory. The evidence indicates that she was aware of the appeal process and the urgency of lodging an appeal. She had access to her education agent and migration agent who is a lawyer from whom she obtained advice. She had consulted her lawyer at least by 18 December 2017. In these circumstances, the Tribunal does not accept that she did not know what to do. The Tribunal is of the view that if she genuinely believed that SBDI had not followed the correct procedures in relation to complaints and appeals and that she had been treated unfairly, she would have lodged an internal appeal with SBDI and, if unsuccessful, an external appeal.
The letter dated 18 December 2017 from the applicant’s migration agent to the Department indicates that the applicant was considering both options of either appealing to SBDI or enrolling in another course (with a different education provider). The Tribunal is of the view that if she made a decision not to lodge an appeal with SBDI and instead to enrol in a course with another education provider in 2018, she would have obtained a Letter of Release from SBDI and at least made inquiries about enrolling with other education providers prior to the education providers closing for the Christmas break.
The applicant gave evidence that she was unable to enrol in another course because SBDI did not issue her with a Letter of Release. There is no evidence before the Tribunal that she sought to obtain a Letter of Release or enrol in another course prior to being issued with a NOITCC on 13 February 2018. The Tribunal has been provided with email correspondence dated 16 February 2018 between the applicant and Scots English College. This is 3 days after she was issued the NOITCC. The subject of the email chain is “Lam cancellation of 572 visa”. The first email was sent by the applicant at 2.29pm on 16 February 2018 and provides Scots English College with the name, title and telephone number for the Head of Education and Training at SBDI. The second email was sent by Emily Xu, Associate Director of Scots English College to the applicant at 2.32pm on 16 February 2018 and states in part:
Thanks for forwarding the email and details. However, to be safe, I would wait for the Letter of Release first and then contact her for system issues because I don’t want to call her now for any issues which makes her change mind. Don’t worry. We still have time to make it.
The third email was sent by the applicant at 2.35pm on 16 February 2018 and states “yes I think exactly the same, they will close before 5pm.” The fourth email was sent by Emily Xu at 5.22pm on 16 February 2018 and states “can you please send a photo of your passport asap? We can issue you a Letter of Offer first.”
The records of the Department of Education (Provider Registration and International Student Management System) (PRISMS) indicate that the applicant enrolled in a Cambridge Examination Preparation Course at Scots English College from 5 March 2018 to 25 May 2018 but did not undertake the course. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that it was not consistent with her evidence that she could not study after 11 December 2017 because she could not get a Letter of Release. The Tribunal noted that it may find that she had not fulfilled the purpose for which the Student visa was granted to her and that her Student visa should be cancelled.
The applicant responded that she tried to enrol in different schools. She stated that it was not her intention to cancel her Student visa. She stated that the school told her she could not enrol without a Letter of Release and she has an email. She stated that she was told that SBDI have a system and they need to press a button to release a student. She stated that they tried to help her by calling SBDI to release her. She stated that she could not enrol.
The applicant requested and was granted further time after the hearing to provide additional evidence. She provided the Tribunal with an email dated 5 December 2019 from Emily Xu from Scots English College. It stated in part:
The email that Tracy provided is the only written record.
From my memory, Tracy visited Scots campus and enquired to enrol at Scots English College. Due to Tracy’s visa status and conditions, Scots was required to check her eligibility for enrolling at Scots.
According to ESOS Act (Education Services for Overseas Students Act), we checked if Tracy is eligible to enrol via PRISMS and noticed that Tracy was not released by her previous education provider, which indicated that Scots was not allowed to enrol Tracy unless she was granted a release by her previous education provider. We informed Tracy of the situation and we believe that Tracy contacted her previous education provider for a release but unfortunately the release was not given. Consequently, Scots was unable to accept her enrolment.
In her email, Ms Xu referred to a website for further details. She also stated PRISMS: Provider Registration and International Student Management System is an online system under the Australian government Department of Education for education providers to process enrolments for international students.
The Tribunal notes that Ms Xu was relying on her memory and an exchange of emails in relation to an interaction between herself and the applicant that took place over 2 years ago. The Tribunal is of the view that the contemporaneous record entered into PRISMS by the education provider is a more reliable source of information. The PRISMS record indicates that the applicant was enrolled by Scots English College in a Cambridge Examination Preparation Course from 5 March 2018 to 25 May 2018 but did not undertake the course. This tends to indicate that either the applicant did not require a Letter of Release to enrol in this course or that a Letter of Release had been provided.
The Tribunal was not provided with any evidence that the applicant had sought to enrol in a course at any other college or with Scots English College prior to being issued with the NOITCC on 13 February 2008. This raises concerns for the Tribunal that she may not have sought to enrol in another course after her enrolment at SBDI was cancelled on 11 December 2017 had she not been issued with a NOITCC by the Department on 13 February 2018.
Having considered all the evidence, the Tribunal does not accept the applicant’s explanation or the submissions made by her migration agent. The Tribunal is not satisfied that the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. The Tribunal does not give this consideration any weight in her favour.
Past and present behaviour of the applicant towards the Department
There is no evidence before the Tribunal to indicate that the applicant has not co-operated with the Department or that she has engaged in unfavourable behaviour towards the Department. The Tribunal gives this consideration some weight in her favour.
Whether there would be consequential cancellations under s.140 of the Act
There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in a consequential cancellation of another person’s visa under s.140 of the Act. The Tribunal does not give this consideration any weight in her favour.
Legal consequences of a decision to cancel the visa
If the applicant’s Student visa is cancelled, she will be able to remain in Australia on a Bridging visa until such time as her application for a Partner visa is processed. If she and her husband are in a genuine and continuing spousal relationship as she claims, there is no apparent reason why she would not be granted a Partner visa. For the reasons given above, the Tribunal is of the view that the Schedule 3 criteria are unlikely to be an impediment to her being granted a Partner visa.
In submissions to the Department, the applicant’s migration agent stated that the applicant will be forced to return to Hong Kong and her efforts and time spent in Australia working and studying would be for naught. He also submitted that it would hinder the future plans made by the applicant and her husband, force them into a long distance relationship, cause financial hardship to her husband and remove the emotional support provided by him to the applicant.
In submissions to the Tribunal, the applicant’s migration agent stated that the cancellation of the applicant’s Student visa would mean that she no longer holds a substantive visa and would be subject to further Schedule 3 criteria which must be waived in order for her to remain with her family in Australia. He submitted that the circumstances that led to the applicant’s cancellation grounds were largely out of her control resulting in significant consequences for her and her family which are disproportionate to the breach of the relevant condition. He submitted that it was not the applicant who sought to cancel her enrolment but her enrolment was forcibly cancelled because of her lack of understanding of the procedures involved and her education provider’s refusal to assist her.
For the reasons given above, the Tribunal does not accept these submissions. The Tribunal gives this consideration little weight in the applicant’s favour.
Australia’s international obligations

The Tribunal asked the applicant whether there was any reason why she could not return to Hong Kong. In her responsive, she gave reasons why she wanted to stay in Australia.
In submissions to the Tribunal, the applicant’s migration agent stated that since the previous submissions and the Department’s decision the applicant has got married and has a son. He submitted that her husband and son are Australian citizens. The Tribunal has been provided with her husband’s Certificate of Citizenship by descent and accepts that her husband and son are Australian citizens.
The applicant’s migration agent submitted that, if the applicant’s Student visa is cancelled, Australia would be in breach of its international obligations under the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child. He submitted that affirming the cancellation of the applicant’s Student visa increases the likelihood that she will be denied a Partner visa and have to return to Hong Kong. He submitted that this threatens to interfere with her family during the initial years of her child’s life and that it would not be in the best interests of her child or her marriage to her husband.
For the reasons given above, the Tribunal is not satisfied that the applicant will be unsuccessful in her application for a Partner visa and will be forced to return to Hong Kong. Therefore, the Tribunal is not satisfied that the cancellation of her Student visa would result in the breach of Australia’s international obligations. The Tribunal does not give this consideration any weight in her favour.
Any other relevant matter
The Tribunal is not aware of any other relevant matter.
CONCLUSION
Having considered all the evidence cumulatively, the Tribunal is of the view that the grounds for cancelling the applicant’s Student visa outweigh the grounds for not cancelling her Student visa. Therefore, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
L. Symons
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.

[2020] AATA 1412

13 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Appeal