Leung (Migration) - [2021] AATA 389

Leung (Migration) [2021] AATA 389 (19 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Ka Lai Leung
CASE NUMBER:  1928965
HOME AFFAIRS REFERENCE(S):          BCC2017/1081820
MEMBER:Penelope Hunter
DATE:19 January 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 19 January 2021 at 1:42pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Federal Circuit Court remittal – enrolment in a registered course ceased – family health issues and bereavement – poor English skills – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 48, 116, 140, 359
Migration Regulations 1994, Schedule 8, Condition 8202
CASES
Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 12 May 2017 made by a delegate of the Minister for Immigration and Border Protection 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 under s.116(1)(b) on the basis that the applicant did not comply with condition 8202 which requires the visa holder (hereinafter referred to as the applicant) to be enrolled in a registered course.
The Tribunal received an application for review of the delegate’s decision from the applicant on 16 May 2017.
On 3 December 2018, the Tribunal, differently constituted, determined to affirm the decision of the delegate to cancel the applicant’s visa.
The applicant sought a review of that decision to the Federal Circuit Court, and on 25 September 2019, orders were made remitting the application back to the Tribunal for reconsideration.
Following the court remittal, the applicant again appeared before the Tribunal via video on 11 December 2020 and 12 January 2021 to give evidence and present arguments. The hearings were conducted with the assistance of an interpreter in the Cantonese and English languages. The applicant confirmed at both hearings that she could understand and was satisfied with the quality of the interpreting.
The applicant was represented in relation to the application for review by her registered migration agent. Her representative did not attend the hearings.
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
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?
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’s visa was cancelled on the basis the applicant was not enrolled in a registered course: condition 8202(2).
With her application for review to the Tribunal, the applicant provided a copy of the decision record of the delegate under review. The delegate’s decision refers to the applicant’s Provider Registration and International Student Management System (PRISMS) records that the delegate had obtained as of the date of the delegate’s decision dated 12 May 2017. The PRISMS record contained information that the applicant had not been enrolled in a registered course of study since 13 June 2016.
The decision record also set out that the applicant was notified of the intention to consider cancellation (NOICC) of her visa on 3 May 2017. The Tribunal is satisfied that the NOICC was validly issued.
The applicant provided submissions in response to the Department on 9 May 2017. In the response, among other things, the applicant set out that she understood she had breached a condition of her visa.
The delegate considered the submissions of the applicant and supporting documentation and proceeded to cancel the visa on 12 May 2017.
The applicant confirmed in oral evidence to the Tribunal that she was not enrolled in a course of study between 13 June 2016 and 12 May 2017. The applicant also did not dispute that she had not complied with condition 8202(2) of her visa.
Therefore, on the evidence, the Tribunal finds that the applicant was not enrolled in and did not have a Confirmation of Enrolment (CoE) in a registered course or a full time course of study or training from 13 June 2016 and 12 May 2017. Failing to maintain enrolment means that the applicant has not complied with condition 8202(2).
The Tribunal is therefore satisfied that the grounds for cancellation in s.116(2)(b) exist.
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 Procedural Instruction ‘General visa cancellation powers’.
Background
The applicant is a 31-year-old citizen of Hong Kong. She first arrived in Australia in 2013 on a working holiday visa, and returned to her home country prior to the expiry of this visa in May 2015. She then applied, and was subsequently granted, a Subclass 572 student visa, and in June 2015, she returned to Australia for the purposes of undertaking study in a course of English for Academic Purposes, a Certificate IV in Massage Therapy Practice and a Diploma of Remedial Massage at the Universal Institute of Technology (UIT) concluding in October 2017.
The applicant has provided various submissions to the Department and the Tribunal in relation to the matter. Her initial submission to the Department was dated 9 May 2017 and accompanied by supporting documents, including the following:
·     Certificate authorising burial of the body of her brother, dated 23 November 2015.
·     Medical certificate from Glen Family Medical Centre dated 26 April 2017 regarding attendances of the applicant between 14 August 2015 and 4 April 2016; a copy of tax invoices for consultations on 4 January 2016, 11 January 2016, 23 February 2016, 29 February 2016, 4 April 2016, 3 October 2016 and 26 April 2017.
·     Letter dated 17 September 2015 in respect of the applicant’s mother, Wan Yaung Ho, confirming a spinal operation was done and the patient has metal screws and rods inserted.
·     A letter of offer addressed to the applicant from Central Melbourne Institute (CMI) for the applicant to enrol in a Certificate IV in Massage Therapy with course dates from 15 July 2018 to 14 July 2019, to be accepted by the applicant by 14 July 2017.
On 7 February 2018, in response to a request for information pursuant to s.359(2) of the Act, the Tribunal received a letter of submission from the applicant and further documents which included:
·     A letter dated 6 February 2018, from Janet Su, manager ZU Relaxation, confirming that the applicant had been working as a volunteer in the shop from May 2017.
·     Letter of reference confirming that the applicant worked as a sales assistant at Buffalo Cookware Box Hill from May 2014 to August 2015.
·     Letter from Dr Juan Wang, dated 7 February 2018.
On 19 September 2018, the Tribunal received a further statement from the applicant dated 17 September 2018.
On 27 September 2018, the applicant provided a statutory declaration to the Tribunal, and on 1 October 2018 the Tribunal received submissions from her representative.
On 18 September 2018, at a hearing before the Tribunal (differently constituted), the applicant submitted further documents including:
· A letter from Dr Wang, Glen Family Medical Centre, dated 17 September 2018.
· Letter of offer from CMI dated 17 September 2018, for the applicant to undertake a Certificate IV in Massage Therapy and a Diploma of Massage with course dates from 15 October 2018 to 12 October 2021.
On 3 December 2020, the Tribunal received further submissions from the applicant which included the following:
·     Birth certificate of the applicant and certified translation.
·     Birth certificate for the applicant’s brother, Shin Hin Leung.
·     Change of name certificate for the applicant’s father.
·     Change of name certificate for the applicant’s brother, Shin Hin Leung.
·     Change of name certificate for the applicant.
·     Photo of the applicant with her brother.
·     Identification card for the applicant’s brother, Shin Hin Leung.
·     Statement of Tong Li, dated 2 December 2020.
The purpose of the applicant’s travel and stay in Australia, whether the applicant has a compelling need to travel or remain in Australia
The purpose of the visa grant was for the applicant to travel and stay in Australia for the purposes of study. The applicant confirmed in her evidence to the Tribunal that her courses were to conclude in late 2017. There is no evidence that her intention to stay in Australia was other than for this purpose.
The applicant completed her 12-week English course; she told the Tribunal that she did not recall whether she passed any units of her Certificate IV in Massage Therapy Practice. The applicant claimed that she wished to study in the multicultural teaching system offered by Australian education providers and she wished to obtain further skills in English. Her current bridging visa does not permit her to undertake study. She has no current enrolment in a course of study, and she has not studied since early 2016.
It is accepted that the applicant would prefer to obtain her qualifications in Australia, but the applicant also acknowledged that similar courses were available in her home country. The applicant did not advance any other reason that she wished to stay in Australia. On the material before it, the Tribunal is not satisfied that the applicant has a compelling need to travel and remain in Australia.
The Tribunal gives this issue low weight in favour of the applicant.
The extent of compliance with visa conditions
The applicant did not comply with condition 8202(2) and was not enrolled in a registered course of study from 12 June 2016, and the Department cancelled her visa on 12 May 2017. The Tribunal considers this period of 11 months to be significant, and the Tribunal is mindful that it is expected that all visa holders adhere to the conditions of their visa.
The applicant told the Tribunal that she stopped attending classes in the early months of 2016, and she is not sure whether she passed any of the units relating to her Certificate IV in Massage Therapy Practice commenced in September 2019. However, her education provider did not issue any certifications in relation to these matters. The Tribunal also acknowledges that there is no other evidence that the applicant did not comply with any other conditions on her visa.
Although there is no other evidence of non-compliance, considering the lengthy period of time the applicant was not enrolled in a registered course of study prior to the date of cancellation, the Tribunal gives this discretionary factor little weight in favour of the applicant in exercising the discretion not to cancel the visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
At the hearing on 11 December 2020, the applicant told the Tribunal that without a high quality certificate, any future wage in Hong Kong would be lower. Under further questioning by the Tribunal, the applicant accepted that courses were available in her home country, and that she was aware that there were good quality courses available, but she claimed that if she could learn English language skills it would make her more professional. The applicant has also provided submissions that she has spent considerable time while awaiting review to improve her English skills. At the hearing on 12 January 2021, she again provided evidence that she had spent considerable time improving her English skills and expressed confidence in her ability. While it is accepted that the applicant would prefer to study in Australia, the applicant continues to have various options available for future study and she is now confident in her English skills.
The applicant also submitted that a low income would impact on her ability to provide for her family members. When questioned by the Tribunal, she conceded that she was not currently supporting any of her family members. Her father currently worked as a seaman and her mother worked in a butcher’s department in a supermarket. In her written submissions to the Tribunal dated 7 February 2018, she set out that her parents were providing her with financial support while she was awaiting review of the decision. When pressed by the Tribunal, the applicant indicated that she was referring to taking care of her parents when they were older. Her brother had two daughters, they were being provided for financially from his life insurance, but in the future the applicant claimed she would like to contribute to their assistance financially if required. As set out above, the Tribunal is satisfied that the applicant still has study options available to her in her home country, or elsewhere, to improve her future employment prospects and income. She was gainfully employed as a cashier previously in Hong Kong. She now also has the benefit of English skills after several years living, working, studying and volunteering in Australia. The applicant also raised concerns that COVID-19 had made it difficult to find employment, and the Tribunal acknowledges that economic disruption has been experienced as a consequence of the pandemic. However, with the worldwide rollout of a universal vaccine, it is anticipated that trade, travel, tourism and consequential economic disruptions with diminish.
The applicant also claimed that if the cancellation is upheld, it would have an emotional effect upon her. She also confirmed to the Tribunal that she was not currently experiencing depressive symptoms, and confirmed that the letter of Dr Wang, dated 17 September 2018, which set out that she was feeling well now and not depressed, was accurate. The Tribunal accepts that if the applicant’s visa is cancelled, it may affect her emotionally, causing disappointment and distress. However, it is not satisfied that there is sufficient evidence to support that there would be any consequential medical illness. It is also accepted that the applicant’s family may be disappointed.
The Tribunal gives this consideration low weight in favour of the applicant.
Circumstances in which the ground of cancellation arose
In her evidence and various submissions, the applicant has advanced several matters that impacted on her ability to maintain enrolment. These were her poor English skills, emotional stress due to her mother’s spinal operation, emotional stress due to the passing of her brother, the hostile response she received from her education provider and her poor health circumstances.
Poor English skills
In her submissions to the Department dated 9 May 2017, the applicant set out that her English language comprehension was not well developed and she had great difficulty passing the course, and that she was not confident starting her Certificate IV in Massage Therapy Practice straightaway. In her submissions to the Tribunal of 6 February 2018, she set out that passing her English course was a huge achievement and that she put in an enormous effort to improve her English skills. At the hearing on 11 December 2020, the applicant confirmed that she had completed high school in Hong Kong and had previously studied English at high school. In addition, she had spent two years in Australia on a working holiday visa. The applicant confirmed that her education provider did not place any restrictions on her continuing to study at the Certificate IV level. She did not herself seek to undertake any further English studies at this time.
The Tribunal accepts that with it not being her first language, study in English in Australia was challenging for the applicant, as it would be for most international students who are non‑native English speakers. The Tribunal is also mindful that these challenges and the opportunity to undertake study and qualifications in another language is the experience that she hoped to gain as an international student studying in Australia. The Tribunal is not satisfied that the applicant’s lack of English skills prevented her from maintaining her enrolment or that this was a circumstance beyond her control.
Mother’s operation
The Tribunal accepts from the medical certificate issued by the Prince of Wales Hospital that the applicant’s mother underwent spinal surgery sometime prior to the issue of the certificate on 17 September 2015. It is also accepted that the applicant was concerned and distressed being away from her mother at this vulnerable time. There is no evidence from the applicant that her mother experienced any complications following this surgery, from her evidence at the hearing on 11 December 2020, and the applicant’s mother has been able to return to employment at the supermarket where she works. While the Tribunal accepts that concern over her mother’s operation may have interrupted the applicant’s attention to studies proximate to the time of the surgery, it is not satisfied on the evidence that this was a factor that prevented the applicant from pursuing her Diploma of Remedial Massage from 12 July 2016, or obtaining or continuing enrolment during the relevant period from 12 July 2016 to 12 May 2017.
Death of her brother
The Tribunal accepts from the birth certificates and change of name certificates provided that Shin Hin Leung, born 1972, was the applicant’s elder half-brother. Further, from the certificate of burial produced by the applicant, it is also accepted that he died proximate to 23 November 2015. It is also accepted that the applicant departed Australia for approximately 10 days in early December 2015 to travel to Hong Kong to attend her brother’s funeral. It is also accepted that this was a circumstance outside the control of the applicant. Again the Tribunal accepts that the sudden passing of her brother may have interrupted the applicant’s studies proximate to the time of his passing while she was undertaking the Certificate IV in Massage Therapy Practice. However on the evidence, and in consideration of the medical evidence as is subsequently discussed, it is not satisfied on the evidence that this was a factor that prevented the applicant from pursuing her Diploma of Remedial Massage from 12 July 2016, or obtaining or continuing enrolment during the relevant period from 12 July 2016 to 12 May 2017.
Depression of the applicant
In her submission to the Department of 9 May 2017, the applicant claimed that she was in extreme distress and trauma when she returned to her studies following the burial of her brother and that she was not in a position to pursue her studies. The applicant claimed to the Department that she was suffering from depression, a claim that she repeated in her various written submissions to the Tribunal. At the hearing on 11 December 2020, the applicant told the Tribunal that her depression was so severe she could not stand to be around people, she had extreme anxiety, remained at home and was crying and very unhappy. The applicant maintained that these symptoms affected her ability to study, impacted on her ability to function for a considerable time and that she did not go out of the house until around December 2017. She confirmed in her evidence at the hearing that she was significantly affected by the condition for approximately two years.

The Tribunal has carefully considered the medical evidence submitted by the applicant, the medical certificate issued by Dr Juan Wang dated 26 April 2017, records that the applicant attended for consultations on 4 January 2016, 11 January 2016 and 23 February 2016 for tonsillitis, 29 February 2016 for an upper respiratory tract infection, and on 4 April 2016 again for tonsillitis. In a letter dated 7 February 2018, Dr Wang lists further consultations of the applicant and provides the following details: 3 October 2016 for contraception, OCP, 3 June 2017 for amenorrhoea secondary, 16 November 2017 for a lump in breast, and on 30 November 2017 for hayfever and PCOS. The Tribunal notes that none of the reasons listed for these consultations corroborate the applicant’s claims of severe depression and anxiety. It was not until 7 February 2018 that the applicant is able to produce medical evidence that she is suffering from depression, yet this medical evidence was not consistent with the applicant’s oral evidence to the Tribunal that her depression had eased by December 2017. Further, in his brief letter, Dr Wang states that the applicant had been suffering from depression since March 2017 and was referred to a psychologist. He does not corroborate the applicant’s claim that she was suffering from depression since December 2015, following the death of her brother, or that the applicant was suffering from depression during her enrolment in the Certificate IV of Massage Practice or for 10 months of the period that the applicant was not studying. He also does not set out the basis for this diagnosis.
When the Tribunal raised with the applicant at the hearing on 12 December 2020 that her medical evidence did not corroborate that she was incapacitated by depression and mental illness to the extent claimed, the applicant claimed that her mental condition was so severe that she was not aware that she was mentally ill. The Tribunal has considerable difficulty with this proposition; the applicant made claims of extreme distress and anxiety, that she was unable to leave the house and she was crying and unhappy. If the applicant was affected to this extent for such a considerable period due to depression, it is reasonable that she would have sought medical assistance. The record of the applicant’s consultations in the relevant period demonstrate that the applicant was able to leave the house to attend medical consultations and seek assistance. Furthermore, the applicant’s evidence to the Tribunal that she did not recognise that she was suffering from depression is undermined by her submission to the Department dated 9 May 2017 where she makes claims of depression. Despite identifying to the Department that she had been suffering from this condition for a considerable time in May 2017, there is no record that the applicant identified any issues relating to her mental health to her treating doctor until 7 February 2018. The Tribunal further notes that this was also after the Tribunal had written to her to provide evidence to support her application pursuant to s.359(2) of the Act.
It is also of concern for the Tribunal that, in his letter of 17 September 2018, Dr Wang sets out that the applicant had visited the surgery on 7 February 2018 and stated that she was depressed since November 2017. Once more, the date set out does not corroborate the applicant’s evidence, but even allowing for the possibility that this is a typographical error, it indicates that a basis for his comment in his letter of 7 February 2018 that the applicant was suffering from depression was her own statement. Dr Wang further states that she had presented to the surgery again on 17 September 2018 and stated that she was feeling well now and not depressed. The applicant had set out in her submission to the Tribunal of 6 February 2018 that because of regular health check-ups and medications she had started to feel better, and further, with the good support of family and friends she took their advice to attend counselling. But in her evidence to the Tribunal at the hearing on 11 December 2020, the applicant said that she did not attend a psychologist and she also did not receive any medication prescribed by a medical practitioner. At the hearing on 12 January 2021, the applicant also gave evidence that she did not attend any counselling. When asked to explain the claims in her submission of 6 February 2018, the applicant said that she had some over‑the‑counter medicine from her friend to help her sleep, and she also talked with her housemate and this was informal counselling. The Tribunal is not satisfied that the assertions made by the applicant in her written claims are reliable. The Tribunal further discussed with the applicant at the hearing that it had difficulty accepting that if she was so significantly affected by depression for over two years, that the condition could be effectively resolved without any treatment or intervention in approximately six months. The applicant did not accept that it was a dramatic recovery and claimed that she worked very hard to resolve the illness. The Tribunal considers that this assertion is not supported by the evidence that the applicant actually pursued any treatment. The Tribunal is further not satisfied that it can attribute any weight to the letter of Dr Wang of 7 February 2018, setting out that the applicant was previously suffering from depression.
The Tribunal has also considered the statement submitted of the applicant’s housemate, Tong Li, dated 2 December 2020. Ms Li states that she observed depressive symptoms in the applicant following the death of her brother. However, Ms Li only reports symptoms for about a year, not two years as claimed by the applicant at the hearing. In addition, although the applicant claimed that talking and receiving informal counselling from her housemate was the main method by which she resolved her depression, Ms Li sets out that the applicant refused her suggestions for help. Due to her close friendship with the applicant and the discrepancies as identified above, the Tribunal is also not satisfied that the statement of Ms Li can be relied upon to support the applicant’s claims. Additionally, although the applicant claimed in her evidence to the Tribunal at the hearing on 11 December 2020 that due to her depression she did not leave the house until December 2017, in her letter of reference dated 6 February 2018 Janet Su of Zu Relaxation sets out that the applicant has been working as a volunteer at their shop since May 2017.
Overall, the Tribunal is not satisfied that on the evidence, the applicant was significantly suffering from depression and that she was unable to study between June 2016 and May 2017, and that this was a circumstance outside her control. In fact, the absence of medical evidence corroborating her claims of depression, despite repeated consultations by the applicant proximate to the relevant period, significantly undermines for the Tribunal the reliability of this claim.
Other medical conditions
The Tribunal accepts that in early January 2016, the applicant was suffering from tonsillitis and this recurred in April 2016. It is also accepted that in February 2016, the applicant suffered from an upper respiratory tract infection. It is accepted that these illnesses may have disrupted the applicant’s study. The records of the applicant’s consultations do not demonstrate that the conditions persisted beyond June 2016 or that she was impacted by these conditions in the relevant period of non-enrolment. The Tribunal is also not persuaded that these conditions corroborate the applicant’s claimed severe depression. The applicant has not claimed, and the Tribunal is also not satisfied, that any of the other medical conditions for which the applicant consulted her doctor during her period of non‑enrolment from June 2016 to May 2017 prohibited her from studying throughout the period.
Harsh response from her education provider
Again, the Tribunal found the totality of the evidence presented by the applicant in relation to this matter to be inconsistent and unreliable, and the Tribunal is not satisfied that the applicant effectively sought assistance from her education provider or a deferral of her studies.
In her submission to the Department of 9 May 2017, the applicant alleges that when she went in person to her education provider, she received a hostile response and they refused to accept her deferment request. When asked about her approach to her education provider at the hearing on 11 December 2020, the applicant was extremely evasive when requested to provide details or any request, and initially asserted generally that the school refused her leave application because maybe they did not understand what she meant and she did not express herself clearly. Under further questioning, she identified that it would have been in January or February 2016 that she approached UIT, she did not provide or fill out any documents, only made a verbal request and received a verbal response. When asked about the leave she was seeking, the applicant said she wanted a month off class due to her emotional problems, not that she was seeking a deferral of her enrolment. The applicant could not remember further details for the Tribunal as to who she consulted but maintained that this was the only time that she had approached UIT following her return from Hong Kong. This evidence from the applicant did not demonstrate to the Tribunal that she was met with hostility. When the applicant was again questioned about her approach to UIT at the hearing on 12 January 2021, she initially could not remember where she went or with whom she discussed her application for leave, then she later suggested that it was with the person at the information desk. In relation to the claim of hostility, she claimed that the person talked down to her and said, “why a month leave” and “why so long for this”. The Tribunal does not accept that this was a refusal from her education provider. The applicant on her evidence never actually presented a request or produced medical evidence to support her application; it was all verbal. The applicant conceded in her evidence that she may not have expressed herself properly and the Tribunal is further not satisfied that this general enquiry constituted a request for leave or deferral. It is not satisfied that she reasoned out her compelling circumstances as she has claimed in her submission to the Tribunal of 17 September 2018.
There are further discrepancies for the Tribunal in the information submitted by the applicant regarding her dealings with UIT and the pursuit of her studies in the Certificate IV in Massage Therapy Practice. Although in her submissions to the Department of 9 May 2017 the applicant claimed to have made a point to attend certain classes so she did not become irregular, and in her submissions to the Tribunal of 6 February 2018 that despite all her tragedies she still managed to attend class, this was not corroborated by her oral evidence. At the hearing on 12 December 2020, the applicant told the Tribunal that by Christmas 2015 her attendance had become irregular. When pressed further in her evidence, she said that she attended UIT maybe three more times after that, on at least one occasion she was unable to go into the building due to alleged anxiety. The applicant initially claimed at the hearing on 12 December 2020 that she did not receive any further communication from her college until after her enrolment was cancelled. Although she has made reference in her submission of 6 February 2018 that during this time UIT was asking her to attend class, in her submission of 17 September 2018 the applicant refers to emails from her school that she did not check telling her to keep up her attendance. When asked about the inconsistency between her written and oral evidence at the hearing on 12 January 2021, the applicant again referred to her depression and acknowledged that emails were sent to her by UIT at the time but claimed not to have checked them.
The Tribunal also asked the applicant at the hearing whether she sought any assistance prior to her enrolment being cancelled from a migration agent or education agent. The applicant told the Tribunal that she consulted her education agent on one occasion and advised them that she was not attending her classes and sought advice. At the hearing on 12 January 2021, she told the Tribunal that she was advised to present medical evidence to UIT to explain her absence. The applicant further said that she did not act on this advice and attributed this to her depression. Once more, the Tribunal is not satisfied on the evidence that the applicant was in a severely depressed state as she has claimed that would have prevented her from taking this action and seeking reasonable accommodation from her education provider.
Overall, the Tribunal is not persuaded that the applicant’s education provider treated her harshly, placed barriers to her continuing her studies or created circumstances outside the control of the applicant that prevented her from studying. It appears that the applicant was notified that her attendance was required and her enrolment was at risk and was also in the possession of information that she could present medical evidence to address her lack of attendance. Ultimately, UIT did not cancel her enrolment in the Certificate IV of Massage Therapy Practice or issue any formal certificate in relation to her attendance or course progress, and it was her subsequent enrolment in the Diploma of Remedial Massage that was cancelled when the applicant herself failed to commence studies.
Conclusion
Considering the totality of the applicant’s claims regarding the circumstances in which the grounds for cancellation arose, the Tribunal accepts that in the latter half 2015, the applicant was impacted by two events of personal tragedy being the surgery of her mother and the death of her brother. It is accepted that these events would have caused sorrow, distress and sadness for the applicant and may have disrupted her studies proximate to the time. It is also accepted that the applicant had the medical conditions of tonsillitis and a respiratory tract infection affecting her health in early 2016. In combination these events may be seen to give rise to some compassionate circumstances in favour of the applicant. However, the Tribunal is not satisfied that these impacts persisted during the period of the applicant’s non-enrolment from June 2016 to May 2017, the Tribunal was left with the overwhelming impression that the applicant was attempting to embellish her circumstances to achieve a favourable migration result. On the evidence it does not accept that the events advanced by the applicant created circumstances outside the applicant’s control leading to the cancellation of her student visa. Therefore the Tribunal only attributes them low weight in favour of the applicant.
Past and present behaviour of the visa holder toward the Department
There is no evidence that the applicant has not been co-operative in her dealings with the Department in the past, and she responded to the NOICC. The Tribunal gives this consideration some weight in the applicant’s favour.
Whether there would be any consequential cancellations under s.140
The applicant claimed to be single with no dependants. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa was cancelled. The Tribunal gives this factor no weight.
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
There are mandatory consequences in the case of the cancellation of the visa, including detention and removal from Australia, as well as difficulties in obtaining any further visas.
If the visa remains cancelled, the applicant would continue to hold a bridging visa for a short period of time to allow her to finalise her affairs before returning to Hong Kong, subject to any appeal of the Tribunal decision. It is acknowledged that there may be restrictions on travel that may give rise to further delay in the applicant returning to Hong Kong, however there are some allowances in legitimate circumstances for relevant bridging visas to extend. If the applicant remained in Australia without a valid visa, she would be residing unlawfully and liable to detention and deportation. The applicant however provided oral evidence to the Tribunal that she intended to comply with any lawful direction to depart Australia, and therefore the likelihood of the applicant being detained is remote.
If the visa is cancelled, the applicant may be subject to a restriction under s.48 of the Act that she may not be granted a further visa for three years from the date of cancellation. It is noted that this date runs from the date of the delegate’s original decision and the applicant has already served the three-year period. However, it is accepted that cancellation may also restrict the applicant’s future ability to make a successful visa application. The cancellation of the visa has the consequence that the applicant would have difficulties in obtaining any further visas in Australia, however those are also intended and legitimate consequences of cancellation.
The Tribunal gives this consideration neutral weight.
Whether Australia’s international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
The Tribunal has no evidence that Australia’s international obligations may or would be breached if the applicant’s visa was cancelled. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations, nor has the applicant applied for refugee status or invoked Australia’s protection obligations. When asked by the Tribunal whether she had any fear of returning to Hong Kong, the applicant claimed that she had in early 2015 participated in a student demonstration, but she had not ever been contacted in relation to this incident. She also said that for a period she had a yellow ribbon on her Facebook page. However, she removed the item several years ago and has never been contacted by the authorities or anyone in relation to this. Despite these matters, the applicant told the Tribunal that she intended to return to Hong Kong to live permanently in the future to pursue her career and support her family.
There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child (CROC) or that it would be in contravention of the Convention Against Torture.
The Tribunal gives this consideration neutral weight.
Any other relevant matter
The Tribunal has considered the personal references provided by Janet Su of Zu Relaxation and Jody Liang of Buffalo Cookware and accepts that in the past the applicant was found to be a competent volunteer and a hardworking and satisfactory employee. The Tribunal places low weight on these letters in relation to the discretionary factors discussed above.
The representative for the applicant did not participate in the Tribunal hearing or provide any submissions on her behalf. Although the applicant did not claim to rely upon them, the Tribunal has also considered the applicant’s representative’s submissions provided in respect of her previous Tribunal hearing, received 1 October 2018. The Tribunal finds that the submissions do not add further evidence supportive of the applicant’s claims of depression, or demonstrate that the circumstances leading to the cancellation of the applicant’s enrolment was beyond her control. Furthermore, the submissions do not demonstrate that the applicant’s enrolment was incorrectly cancelled, and the applicant does not claim that she proceeded to enrol in the Diploma of Remedial Massage and has acknowledged that emails were sent to her by her education provider regarding her course attendance. The accompanying reference to the decision of the Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333 and extracts of the decision in Kandel (Migration) [2018] AATA 1383 did not indicate how the cases were relevant to the applicant’s circumstances. The Tribunal was unable to place any weight on the submission in favour of the applicant in the exercise of the discretion.

The Tribunal has considered the applicant’s circumstances individually and cumulatively. The Tribunal is satisfied that there are limited aspects that are favourable to the applicant. Although it is accepted that there were events that occurred outside the applicant’s control, such as her mother’s surgery and the death of her brother, it is not satisfied that the applicant demonstrated that her emotional and medical response to these events left her unable to study and that her failure to maintain enrolment was outside her control. Tribunal is also mindful of the seriousness of breaching a visa condition and remaining in Australia on a student visa for a considerable period with studying or maintaining enrolment. Further, that the cancellation of the visa is the intended consequence of breach of the relevant condition. Overall, the Tribunal considers that the limited aspects favourable to the applicant do not outweigh the reasons to cancel the visa. The breach of condition 8202(2) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study in Australia.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Penelope Hunter
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.