Lee (Migration)

[2021] AATA 2810

Lee (Migration) [2021] AATA 2810 (21 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Hyeyoung Lee

CASE NUMBER:  1932519

HOME AFFAIRS REFERENCE(S):          BCC2019/3284691

MEMBER:Joseph Lindsay

DATE:21 June 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Student (Temporary) (Class TU) (Subclass 500) visa.

Statement made on 21 June 2021 at 2:09pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) visa – did not maintain enrolment in a registered course at required AQF level – changed from Accounting to Commercial cookery – incorrect advice from migration agent – presence in Australia for several years – applicant aware of responsibility to maintain enrolment at required AQF level – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 48, 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, visa condition 8202

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 November 2019 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 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 attended a hearing by audio with the Tribunal on 17 June 2021 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent. Mr Geoffrey Paul Roberts attended the hearing as a witness for the applicant.

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 (Cth) (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 full time registered course: 8202(2)(a);

   ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b);

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i); and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

7. In the present case, the applicant’s visa was cancelled on the basis the applicant did not 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.

8. The Australian Qualifications Framework (AQF) is the policy for regulated qualifications in the Australian education and training system. It is monitored and maintained by the Commonwealth Department of Education and Training, in consultation with the states and territories. It is made up of 10 levels as follows: 1 – Certificate I; 2 – Certificate II; 3 – Certificate III; 4 – Certificate IV; 5 – Diploma; 6 – Advanced Diploma, Associate Degree; 7 – Bachelor Degree; 8 – Bachelor Honours Degree, Graduate Certificate, Graduate Diploma; 9 – Master’s Degree; 10 – Doctoral Degree.

9. The Tribunal then put to the applicant that she had provided the delegate’s decision to the Tribunal. In respect to the delegate’s decision, the applicant made admissions that the information in the decision record was correct.

10. In the hearing, the Tribunal put to the applicant that the information in the decision record indicated that she had not maintained enrolment at the required AQF level since 28 March 2019. In response, the applicant indicated that she had not maintained enrolment at the required AQF level since 28 March 2019.

11. Accordingly, the applicant has not maintained 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. Accordingly, the applicant has not complied with condition 8202(2)(b) of Schedule 8 to the Regulations and the Tribunal accepts that there are grounds to cancel the applicant’s visa under s 116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

12. 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 Procedural Instruction ‘General visa cancellation powers’.

    The circumstances in which the ground for cancellation arose

13. The Tribunal has considered the applicant’s response dated 15 October 2019 to the Notice of Intent to Consider Cancellation dated 10 October 2019. The Tribunal has also considered the written submissions provided by the applicant’s representative dated 2 June 2021.

14. In the applicant’s statement dated 28 May 2021, she said:

    I, Hyeyoung Lee, also known as Emily, [address deleted] in support my participation in the AAT application as follows:

    1.1 When I started the Bachelor of Business (Accounting) degree, my enrolment was late due to the fact that my certificate from a previous course that I’d completed had not been issued to me causing the delay in enrolling to Kaplan Business School. Therefore, I had to wait for 2 weeks before I could actually enrol in the Bachelor of Business (Accounting) course by which time I could not catch up with the class. After the start of the trimester there were exams and assignments which were already due for submission. For this reason I failed each subject for that first trimester.

    1.2 In the second trimester I again failed one subject after I had reduced my subjects from three to two because of significant health issues at that time. I felt very frustrated from all the work load because I really wanted to pass this trimester but it was not possible.

    1.3 As my stress levels were on overload about the course, time limits, money, school, and capability I had a consultation with an education specialist agent Maggie in order to discuss the possibility to change my course. She advised me that it would be OK to change without any explanation or risk of cancellation of Visa.

    1.4 Accordingly I changed my course from Accounting to Commercial cookery and found my study load manageable and was able to pass each subject/unit. When I unexpectedly received a call from Immigration in regards my course change I was really shocked.

    1.5 After my visa was cancelled I expressed that I really wanted to continue so as to complete my course but the cookery school advised me that is was not possible due to the fact that my COE had been cancelled.

    1.6 I explained that I did have permission from Immigration to continue studying without the COE but they would not allow me to go back to the Institution. Consequently, I was really frustrated and upset about what I faced and that all my efforts to date were to no avail and of no value in completing the course.

    1.7 If the cookery school did not kick me out from the course I would have completed the course in time and could also have used the waiting time for AAT hearing in a more valuable and worthwhile way.

    1.8 Meanwhile, being a qualified early childhood educator, I felt very happy and valuable that I could work and give care and nurture for children. Also the centre and community which I am working for really appreciated my availability during this period and how I am a valued and important part of their child care community during this pandemic COVID-19 for which I feel very proud and happy.

    1.9 I really wish to complete the journey that I began here in Australia after all my contributions and efforts towards my dream so I sincerely hope and plan to improve my situation in order to bring about a positive outcome for my goals for when I return to South Korea.

    1.10 Before cancelling my student visa I would have very much valued guidance by Immigration in a way that we could have solved the problems I was encounting in order that I could achieve my goals. I had absolutely no intention of wilfully breaking the Immigration laws and would most certainly have returned to the bachelor course I had started after finishing the diploma. I feel regret that they decided to cancel my visa rather than giving me a chance.

    1.11 So I now appeal to the AAT to please listen and come to understand why I had to take the decisions I did and to grant me the opportunity to complete my journey by allowing me to obtain a fresh visa.

15. In the hearing, the Tribunal discussed with the applicant about what her circumstances were that resulted in her ceasing her enrolment in the Bachelor of Business (Accounting) course on 28 March 2019.

16. The applicant explained that, in essence, she started the Bachelor of Business (Accounting) course in mid-2018 but she missed the first two weeks of her course and that this did create difficulties for her studies. She indicated that she did speak to her course provider about her problems but was advised that there was no remedy for this issue. She said that she did end up reducing her study load but she still was not able to pass her subjects.

17. The Tribunal asked the applicant why she enrolled in Bachelor of Business (Accounting) course in the first place. In her response, the applicant indicated that she enrolled in the Bachelor of Business (Accounting) course based on advice she was given from her agent at the time. The applicant indicated that by 2018 she was aged in her early thirties. She indicated that by 2018 she had been in Australia for a number of years, and had held more than one student visa and had enrolled in more than one course.

18. When asked about how she found the Bachelor of Business (Accounting) course, she indicated she found the course to be challenging for her. However, she said had completed her Certificate III in Hairdressing in 2018.

19. The applicant explained that, at this time in her life, she was living independently in South Australia and working as a hairdresser. She said she was paying for her own studies and to support herself. She said she did pay for her course fees.

20. The Tribunal spoke to the applicant about her claim that illness adversely affected her studies in the Bachelor of Business (Accounting) course in 2018. The applicant indicated that she was very stressed because of her difficulties in coping with her studies. She said she could not sleep well. She said she experienced headaches, dizziness and vomiting. The Tribunal spoke to the applicant about the medical information she had provided to the Tribunal, including the medical certificate from Dr Bridget Agnew dated 31 October 2018 indicating that the applicant was unfit for work/study for a few days, from 31 October 2018 to 2 November 2018 as well as the letter of support (stating “patient without current clinical evidence of illness”) dated 7 November 2018. The Tribunal put to the applicant that, based on the medical information she provided, the Tribunal may find that the applicant’s poor academic performance in the Bachelor of Business (Accounting) course in 2018 may not be solely attributable to her medical circumstances at the time. The applicant in response expressed her disappointment about the struggles she experienced at the time.

21. When asked if she approached the Department about her problems, she indicated she did not approach the Department about her problems.

22. When asked about her agent’s involvement in her situation in 2018, the applicant explained that she did approach her then agent “Maggie Yu” about her problems. However, the applicant indicated that “Maggie Yu” advised her that there was no problem in her changing her course enrolment from the Bachelor of Business (Accounting) course to the Certificate III in Commercial Cookery. The Tribunal put to the applicant that, given by 2018 she had been in Australia for a number of years, and had held more than one student visa and had enrolled in more than one course, the Tribunal would reasonably expect the applicant, as the visa holder, to have been reasonably aware that she was required to maintain compliance with her visa conditions and to, in this case, remain enrolled in a course at the required AQF level (level 7). In response, the applicant indicated that she just trusted in the advice of her agent that her change of enrolment from a Bachelor’s course to a Certificate III course would not present any issues for her visa. 

23. When the Tribunal asked the applicant whether she thought that, ultimately, it was her responsibility as the visa holder to maintain compliance with her visa conditions, she indicated in response that she agreed that it was her responsibility as the visa holder to maintain compliance with her visa conditions. The applicant then indicated that she voluntarily ceased her studies in the Bachelor of Business (Accounting) course. She then indicated there was nothing else she wanted to say about the circumstances in which the ground for cancellation arose.

24. In respect to the above, the Tribunal makes the following findings.

25. The Tribunal accepts that the applicant enrolled in the Bachelor of Business (Accounting) course in mid-2018 on the advice of her agent. The Tribunal accepts that the applicant missed the first two weeks of the course and this did have an adverse impact on her ability to manage her studies. The Tribunal accepts that the applicant did speak to her course provider about her problems. The Tribunal accepts that the applicant experienced stress due to her circumstances. The Tribunal accepts that the applicant did seek medical assistance in her circumstances. The Tribunal accepts that the applicant had some health issues at the time and accepts that, to some extent, her health issues and the stress that she was feeling, had an adverse impact on her ability to manage her studies. With respect to these matters, the Tribunal gives the applicant some weight in her favour.

26. The Tribunal accepts that the applicant did approach her then agent “Maggie Yu” about her problems. The Tribunal accepts that the applicant’s then agent “Maggie Yu” advised her that there was no problem in her changing her course enrolment from the Bachelor of Business (Accounting) course to the Certificate III in Commercial Cookery. The Tribunal accepts that the applicant trusted her previous agent. However, the Tribunal finds that by 2018 the applicant had been in Australia for a number of years, and had held more than one student visa and had enrolled in more than one course. The Tribunal finds that, given by 2018 the applicant had been in Australia for a number of years, and had held more than one student visa and had enrolled in more than one course, the Tribunal reasonably expects the applicant, as the visa holder, to have been reasonably aware that she was required to maintain compliance with her visa conditions and to, in this case, remain enrolled in a course at the required AQF level (level 7). The Tribunal finds that, ultimately, it is the applicant’s responsibility as the visa holder to maintain compliance with her visa conditions.

27. In respect to these circumstances, the Tribunal places heavier weight against the applicant in respect to her failure to maintain compliance with her visa conditions and to remain enrolled in a course at the required AQF level (level 7) when she reasonably ought to have known that she was required to maintain compliance with her visa conditions and to remain enrolled in a course at the required AQF level (level 7). As she admitted to the Tribunal, the visa holder’s responsibility is to abide by the conditions of her visa.

28. The applicant’s personal circumstances are regretful. Nevertheless, as the holder of a student visa, the applicant is required to maintain compliance with her visa conditions, and the Tribunal places high weight on this matter against the applicant.

29. In consideration of the above circumstances, the Tribunal finds that these circumstances are not exceptional circumstances. Accordingly, the Tribunal places high weight on this information against the applicant.

    The purpose of the visa holder’s travel and stay in Australia

30. The applicant said that her purpose in coming to Australia was to study. The Tribunal accepts that the applicant’s purpose in coming to Australia was to study and gives this consideration some weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

31. The applicant appears to have abided by her other visa conditions. Accordingly, the Tribunal gives some weight in the applicant’s favour in regard to this factor.

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

32. The Tribunal spoke to the applicant about the hardship that may be caused to her if her student visa was cancelled. In response, the applicant indicated that she would be very emotionally disappointed. She said that she felt that she would be harshly judged by her peers in South Korea because of her inability to demonstrate academic achievement. The applicant also expressed concern that she would disappoint her close friends in Australia, Mr and Mrs Roberts.

33. The Tribunal accepts that the applicant would be very emotionally disappointed if her student visa was cancelled. The Tribunal accepts that the applicant feels she would be harshly judged by her peers in South Korea because of her inability to demonstrate academic achievement and that there may be some disappointment caused to the applicant’s friends, Mr and Mrs Roberts. Accordingly, the Tribunal gives these matters some weight in the applicant’s favour.

    Past and present behaviour of the applicant towards the Department

34. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s 140 of the Act

35. The applicant does not have any dependants on her student visa who would be affected if her student visa was cancelled. Accordingly, the Tribunal places no weight on this information in the applicant’s favour.

    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

36. The applicant indicated she is aware of the legal consequences of the cancellation of her student visa and she is aware of the three-year exclusion period as a consequence of her student visa cancellation and that s 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

37. The Tribunal accepts that the applicant will need to make her own arrangements to obtain a visa to lawfully remain onshore and that if she does not do so, she will be in Australia unlawfully and may be liable to detention and removal if she chooses not to return to South Korea.

1. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of her student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

2. The Tribunal places some weight on this information in the applicant’s favour.

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

3. The Tribunal asked the applicant if she feared anything in returning to South Korea. In response she said she feared her father if she went back to South Korea. The applicant indicated she did not have a good relationship with her father. The Tribunal asked the applicant when she last went back to South Korea. In response, the applicant indicated that she went to South Korea in late 2017 and returned to Australia in early 2018. The applicant said she did not see her father when she was last in South Korea. Other than her concerns about her father, the applicant said she feared returning to South Korea because she felt that she would be harshly judged by South Korean society. She said she has not applied for a permanent visa.

4. In respect to these matters, the Tribunal does not accept that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places no weight on this information in the applicant’s favour.

   Any other relevant matters

5. In respect to whether there were any other relevant matters she wished to discuss, the applicant indicated that she wanted to contribute to society. The Tribunal spoke to the applicant about the submissions her representative made on her behalf. The applicant indicated that for a number of years she had worked in childcare. She said that she ultimately wanted to have her own childcare business because she was very interested in caring for children. She said that, given her own background, she is very interested in the wellbeing of children and wants to help children. 

6. The Tribunal then spoke to the witness, Mr Roberts. The Tribunal spoke to Mr Roberts about his written reference for the applicant. Mr Roberts gave evidence that he and his wife had known the applicant for many years and that he and his wife let the applicant live with them in Canberra for many years. Mr Roberts spoke with great affection for the applicant. Mr Roberts expressed his concern that if the applicant were to return to South Korea in the current circumstances she would likely be at a significant disadvantage because she had spent so many years away from South Korea and that it would be difficult for her to re-adjust to life in South Korea, especially given she did not have high academic achievement. Mr Roberts said that the applicant was an honest person and she did not intentionally breach her visa condition.

7. The representative then spoke to the Tribunal. The representative indicated that despite her long history of student visas and length of time in Australia, the applicant had not, before now, been the subject of visa cancellation. The representative indicated the applicant does not negate her responsibilities, but that she honestly accepted the advice of her then agent.

8. In respect to the above, the Tribunal accepts that Mr Roberts and his wife have known the applicant for many years and that they let the applicant live with them in Canberra for many years. The Tribunal accepts that Mr Roberts and his wife have great affection for the applicant. The Tribunal accepts that if the applicant were to return to South Korea in the current circumstances she would likely be at a significant disadvantage because she had spent so many years away from South Korea and that it would be difficult for her to re-adjust to life in South Korea, especially given she did not have high academic achievement. Accordingly, the Tribunal gives these matters some weight in the applicant’s favour.

9. The Tribunal accepts the submission from the representative that despite her long history of student visas and length of time in Australia, the applicant had not, before now, been the subject of a visa cancellation. Accordingly, the Tribunal gives these matters some weight in the applicant’s favour.

10. In respect to the submissions from Mr Roberts that the applicant is an honest person and did not intentionally breach her visa condition, and the submission from the representative that the applicant does not negate her responsibilities, but that she honestly accepted the advice of her then agent, the Tribunal makes the following findings. The Tribunal accepts that the applicant appears to have acted honestly but, in the Tribunal’s assessment, not reasonably, because by 2018 she had been in Australia for a number of years, and had held more than one student visa and had enrolled in more than one course.

11. The Tribunal accepts that the applicant may have honestly accepted the advice of her then agent, but again the Tribunal does not accept that the applicant acted reasonably in the circumstances because by 2018 she had been in Australia for a number of years, and had held more than one student visa and had enrolled in more than one course. The Tribunal finds that the reasonable visa holder would have abided by the conditions of her visa and would have maintained her course enrolment at the required AQF level (Level 7), especially given that by 2018 she had been in Australia for a number of years, and had held more than one student visa and had enrolled in more than one course.

12. The Tribunal can, of course, understand that the applicant would have favourably received the advice from her then agent that she could change her course enrolment from a Bachelor’s course to a Certificate III course without her student visa being adversely affected.  However, given that by 2018 she had been in Australia for a number of years, and had held more than one student visa and had enrolled in more than one course, the Tribunal does not accept that the applicant acted reasonably in the circumstances.

13. The Tribunal does have some sympathy for the applicant’s circumstances. However, the Tribunal places very low weight on these circumstances in the applicant’s favour.

    Conclusion

14. In balancing the overall circumstances above, the Tribunal concludes that the visa should be cancelled.

    DECISION

15. The Tribunal affirms the decision to cancel the applicant’s Student (Temporary) (Class TU) (Subclass 500) visa.

    Joseph Lindsay
    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.