LEUNG (Migration) - [2018] AATA 5714

LEUNG (Migration) [2018] AATA 5714 (3 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss KA LAI LEUNG
CASE NUMBER:  1710467
HOME AFFAIRS REFERENCE(S):           BCC2017/1081820
MEMBER:Joseph Lindsay
DATE:3 December 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Student (Temporary) (Class TU) Vocational Education and Training Sector (Subclass 572) visa.

Statement made on 03 December 2018 at 3:59pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 572 Vocational Education and Training Sector –not enrolled in a registered course – consideration of discretion to cancel visa –-financial hardship – poor English skills – depression – mother’s operation – brother’s death – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 48, 116(1)(b), 140
Migration Regulations 1994, Schedule 8, Condition 8202
CASES
Kandel (Migration) [2018] AATA 1383
Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333
Wei v Minister for Immigration and Border Protection [2015] HCA 51

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 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 did not comply with condition 8202(2)(a) of her visa, and the applicant was not enrolled in a registered course. In particular, the applicant has not been enrolled in a registered course of study since 13 June 2016.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 19 September 2018 and 22 November 2018 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
PRELIMINARY MATTERS
The Tribunal notes that two hearings were held for the applicant. During the first hearing, the applicant spoke mostly in English and, at times, used the interpreter to assist her. After the first hearing, the applicant submitted a statutory declaration indicating that she had problems with the interpreter and that, as a result, her responses to the Tribunal were not accurate.
In consideration of this matter, the Tribunal made the decision to hold another hearing to address the applicant’s concerns with the interpreter. The day before the second hearing, the applicant indicated she did not want to have the same interpreter.
During the second hearing, the same interpreter as for the first hearing was present. The Tribunal addressed the applicant’s concerns in regard to the interpreter. After some discussion, the applicant indicated that she was satisfied with the interpreter and the second hearing was conducted with the use of the same interpreter. The Tribunal accepts that the interpreter is a level 3 NAATI accredited interpreter in the Cantonese language and that this is the highest level possible to achieve for a NAATI accredited interpreter.
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.
In both hearings, the applicant agreed that she had breached condition 8202(2) as she had not been enrolled in a registered course of study since 13 June 2016.
On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).
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.’
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
In response to this issue at the first hearing, the applicant indicated her main purpose in travelling to Australia was to study.
The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.
The extent of compliance with visa conditions
In response to this issue at the first hearing, the applicant indicated she had complied with her visa conditions apart from the condition that required her to remain enrolled in a registered course of study – condition 8202.
Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
In response to this issue at the hearing, the applicant indicated that if her visa was cancelled she would suffer financial hardship because she needed to support her mother and father on her return to Hong Kong and that she would not be able to adequately support them with if she had no qualifications.
In consideration of the applicant’s response, the Tribunal accepts that the applicant may suffer some financial hardship if her visa was cancelled in the circumstances as she has detailed. However, the Tribunal notes that the applicant indicated she had previously had employment in a massage business in Australia when she did not have any qualifications in massage therapy. Accordingly, the Tribunal finds that the applicant is likely to be able to find work in her chosen field of endeavour should her visa be cancelled.
Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.
Past and present behaviour of the applicant towards the Department
There is no evidence that the visa holder has been uncooperative with the Department in the past.
The Tribunal accepts that there is no evidence that the visa holder has been uncooperative with the Department in the past. Having taken this into consideration, I give these considerations some weight in the visa holder’s favour.
Whether there would be consequential cancellations under s.140
When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that there were no dependants attached to her student visa.
The Tribunal places low 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
When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that she was aware of the legal consequences of the cancellation of her student visa.
The Tribunal accepts that if the applicant’s student visa is cancelled, she would need a visa to remain in Australia lawfully.
At present, the applicant is on a Bridging Visa E for the purposes of the review. However, once the decision is affirmed, that Bridging Visa E will cease to remain in force at some point in the future. 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 chose not to return to Hong Kong.
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.
The Tribunal places low 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
There is no indication that there would be a breach of any international obligations if her student visa was cancelled.
The Tribunal places low weight on this information in the applicant’s favour.
The circumstances in which the ground for cancellation arose
There are a range of information sources from the applicant indicating the circumstances in which the ground for cancellation arose:
-Her response to the Department dated 9 May 2017;
-Her written submissions dated 5 September 2017, 6 February 2018 and 17 September 2018;
-Her oral evidence from both hearings;
-Her statutory declaration dated 27 September 2018;
-Written references in relation to the applicant;
-An undated submission from the applicant’s representative but received by the Tribunal on 1 October 2018.
While the issues tended to overlap, in an endeavour to summarise the matters put forward by the applicant as to the circumstances in which the ground for cancellation arose, the Tribunal lists the circumstances as follows:
-Her poor English skills and the consequent difficulties caused to her in undertaking her course;
-Emotional stress due to her mother’s spinal operation;
-Emotional stress due to her brother passing away;
-The hostile response from her course provider when she applied for deferment of her course;
-Her poor health circumstances.
In respect to the information the applicant supplied to the Tribunal in these matters, the Tribunal finds that there were key aspects of the information she provided to the Tribunal that were not credible. Those aspects are: a) the interaction she claimed she had with her course provider, b) her claims about her depression and the impact it had on her ability to study c) her claim that her brother died.
Credibility – Interaction with course provider and notification about course attendance concerns
The Tribunal has concerns about the applicant’s credibility where she gave inconsistent evidence about what interaction she had with her course provider. In her response to the Department dated 9 May 2017 and in her written submissions dated 5 September 2017, 6 February 2018 and 17 September 2018, the applicant indicated that she commenced her course but that due to a number of factors, including the stress from her mother’s operation, her brother’s death and her own health issues, she did not regularly attend her classes. The applicant’s written submissions indicated that the course provider had asked her to attend her course or they would cancel her course, and that in June 2016 her course provider had sent her an email about this matter. The applicant’s written submissions indicated that her course provider then cancelled her course without telling her.
However during the hearings, the applicant claimed she had never received any notification from the course provider that they would cancel her enrolment.
When questioned during the first hearing as to the inconsistent information she had provided on this point, she claimed that she did not write her written submissions dated 6 February 2018 and 17 September 2018 but that they were written by other people and were therefore not accurate. She claimed that a person named ‘Megan’ wrote the letter dated 6 February 2018 for her and that a person named ‘Michelle’ wrote the letter dated 17 September 2018 for her. When questioned as to whom exactly ‘Megan’ and ‘Michelle’ were, the applicant claimed that ‘Megan’ was her agent at that time. When asked who ‘Michelle’ was, the applicant attempted to respond, but the representative cut her off and claimed that ‘Michelle’ was an employee in his business who wrote the letter on the applicant’s behalf. In further questioning from the Tribunal, the applicant indicated she did not know if either ‘Megan’ or ‘Michelle’ were NAATI accredited translators. The applicant then attempted to argue that due to misinterpretations by both ‘Megan’ and ‘Michelle’, the letters they wrote on her behalf were not accurate.
In further discussion in regard to the letter dated 17 September 2018, the Tribunal put to the applicant that in the hearing she had told the Tribunal that she did not get any emails or correspondence from the provider and that she only went through her agent. However, in the letter the applicant indicated that she had received emails ‘from the school to keep up with my attendance’. In response she indicated she did not check her emails and she did not receive any emails or correspondence from the course provider until she got the visa cancellation letter from the Department. The Tribunal put to the applicant that was not what she had said in the letter; in the letter she indicated that her email account contained emails from her school to keep up with her attendance. The Tribunal put to the applicant the applicant had put inconsistent information to the Tribunal in the hearing which is different to the information she had supplied in writing, and because of the inconsistencies in the evidence it may cast doubt on the credibility of her claims. In response, the applicant indicated that she thought it was due to a misinterpretation by ‘Michelle’ and that because she communicated with ‘Michelle’ in English the language may not be accurate.
The Tribunal put to the applicant further inconsistencies between what she had told the Tribunal and what she said in her letter dated 17 September 2018 (two days before the hearing) that the applicant had claimed was correct information. The Tribunal put to the applicant that in the hearing she indicated she did not go to the school with her problems but that in the letter she indicated she did go to the school. In response, she indicated it might be a misunderstanding in communication between ‘Michelle’ and herself and that she never went to the school.
In the second hearing, the applicant changed her story. In the second hearing, the applicant indicated it was the letter dated 9 May 2017 that was drafted by ‘Megan’ rather than the letter dated 6 February 2018.
When asked how the applicant knew what the letters said, she responded that she verbally spoke to ‘Megan’ and ‘Michelle’ in English but that when she had problems expressing herself her friend ‘Rita’ helped her. She indicated that she and Rita communicate together in Mandarin and that Rita can also speak English but not Cantonese. The applicant indicated she spoke to Rita in Mandarin and Rita spoke to ‘Megan’ and ‘Michelle’ in English on her behalf because the applicant still had problems with her English skills. The Tribunal indicated to the applicant that the method she used to have the two letters prepared was fraught with difficulty as she had not used an accredited interpreter for this purpose. The applicant responded that ‘Rita’ is a nurse whose English is very good. She indicated she was not clear as to exactly what had been translated but she was sure that Rita was competent. The Tribunal put to the applicant that, if what she said was true, the two letters should be an accurate reflection of what she said to ‘Megan’ and ‘Michelle’, to which she responded that she did not pay good attention to dates and times.
The Tribunal put to the applicant that she was suggesting that where there was an inconsistency in her evidence (between what she had said during the hearing compared to what was written in the letters she had supplied) she was saying the documents were not accurate, to which she responded ‘yes’.
In consideration of the above, the Tribunal finds that the applicant has provided inconsistent evidence about her alleged interaction with her course provider in regard to being notified about her poor course attendance and potential enrolment cancellation and her claims are not credible.
Credibility – Interaction with course provider and notification about death of brother
In the first hearing, the Tribunal asked the applicant about her claim that her brother passed away in November 2015 and the impact this had on her ability to study. In response, the applicant indicated that her brother died because he had a heart problem but that his cause of death was when he fell in a toilet in Hong Kong and drowned.
In her response to the Department dated 9 May 2017 and in her written submissions dated 5 September 2017, 6 February 2018 and 17 September 2018, the applicant indicated that her brother’s death had a significant impact on her and that she went back to Hong Kong to attend his funeral. She supplied a copy of a certificate dated 23 November 2015 from a Hong Kong Coroner purporting to authorise the burial of Leung Shun-hin. No other documentary evidence was provided to prove that Leung Shun-hin was actually the applicant’s brother.
In any event, during the first hearing the Tribunal put to the applicant that she had told the Tribunal at the hearing that she did not approach her course provider with news of her brother’s death or the consequent difficulties she was facing in an endeavour to defer her studies, but that in her written submissions the applicant indicated she did approach her provider but that she got a hostile response. The Tribunal put to the applicant that, subject to her response, she appeared to have provided inconsistent evidence in this respect that may cast doubt on the credibility of her claim. In response she indicated that she spoke to her agent and not to her course provider. She further indicated that her agent advised her that there was nothing they could do to help. She further indicated that she gave a copy of the ‘form 11’ certificate to her agent but she did not know if her agent passed the form along to the course provider. She further indicated that her agent was a Chinese woman named ‘Amanda’ who acted for her. The Tribunal asked the applicant if she had any documentary evidence of her communications between herself and Amanda, and she indicated she did not. She indicated she only ever communicated with Amanda in person or over the phone, and that she only communicated with Amanda by email before she came to Australia. The Tribunal put to the applicant that at one point of the hearing she indicated she did approach the course provider with her issues, but then later in the hearing she indicated she did not approach the course provider but rather she only liaised with her agent about her brother’s death and application for deferment. The Tribunal put to the applicant that because her story kept changing the Tribunal had a concern about the applicant’s credibility regarding her evidence in this respect. In response the applicant indicated that she did not change her story, and that whatever is mentioned in the letter she did not go to school (the course provider) but she did see her agent.

The representative then submitted to the Tribunal that the applicant did, through her agent, request a deferral of her course from her course provider. The Tribunal put to the representative that not one single document had been provided to the Tribunal in support of the applicant’s claim that she approached her agent to obtain a deferment from her course provider. The representative agreed with the Tribunal that no such documentation had been provided. The representative submitted that the issue was whether the agent had performed their fiduciary duty to inform the college. The representative then indicated he was overwhelmed as it was the first time he was hearing from the applicant that the information she had provided in her written letters was not correct.
In consideration of the above, the Tribunal finds that the applicant’s oral evidence is inconsistent with her written submissions on this point. Accordingly, the Tribunal is not satisfied that Leung Shun-hin is the applicant’s brother. The Tribunal finds that the applicant’s claims in regard to her alleged interaction with her course provider in regard to notification about the death of her brother and her application to defer her course are not credible.
Credibility – Claims about depression
In her response to the Department dated 9 May 2017 and in her written submissions dated 5 September 2017, 6 February 2018 and 17 September 2018, the applicant claimed that she was suffering depression due to the stress of her mother’s operation and her brother’s death. The applicant provided a number of documents from Glen Family Medical Centre, many of which were copies of tax invoices. In particular, the applicant supplied medical certificates from Dr Juan Wang dated 26 April 2017, 7 February 2018 and 17 September 2018. The medical certificate dated 26 April 2017 makes no mention of depression at all. The medical certificate dated 7 February 2018 states that the applicant had been suffering from depression since March 2017 and had been referred to a psychologist. The medical certificate dated 17 September 2018 states that the applicant visited the surgery on 7 February 2018 and that she had been depressed since November 2017 and had been referred to a psychologist on 7 February 2018.
In the first hearing, the Tribunal asked the applicant if she had received treatment for depression and she indicated she had not been treated for depression and that she just stayed at home.
The Tribunal discussed the documentary evidence the applicant had supplied to the Tribunal about her claimed medical condition, specifically in relation to the period she claimed she was suffering depression. The Tribunal spoke with the applicant about the medical certificate from Dr Juan Wang dated 7 February 2018. The Tribunal put to the applicant that the dates referred to on the medical certificate did not match with the dates she had earlier claimed she had experienced depression (late 2015 to mid 2016) – a condition she indicated adversely impacted on her study. In response, she referred the Tribunal to ‘previous medical certificates’ from the doctor.
The Tribunal put to the applicant that she had earlier indicated to the Tribunal she had never been treated for depression or anxiety, but then the medical certificate from Dr Wang indicated that the applicant attended the doctor to state she had depression since March 2017. The Tribunal asked the applicant if she went to a psychologist and she indicated she never attended the psychologist. The Tribunal put to the applicant that there was no evidence that she had received treatment for depression. The applicant indicated that her friend suggested she go to the doctor in regard to her depression. The applicant indicated the doctor asked her if she wanted to be referred to a psychologist, and she told the doctor her condition is improving and so she did not go. The Tribunal put to the applicant that there appeared to be conflicting evidence between what she had said during the hearing about her claimed mental health condition. The Tribunal put to the applicant that the evidence she had supplied to the Tribunal revealed very little information about her ‘diagnosis’ and treatment plan which she appeared not to have followed in any event. The Tribunal put to the applicant that, as a result, the Tribunal may place low weight on the evidence from Dr Wang. In response, the applicant indicated that she regretted that she did not follow the treatment plan from the doctor and she thought she could resolve the situation by herself and so did not listen to the doctor’s advice.
In the second hearing, the Tribunal put to the applicant that in the first hearing the Tribunal had spoken to her about the state of her health during this particular period of time and that she had attributed a substantial part of the reason to her depression, and that this was spoken about at length. The Tribunal put to the applicant the concerns it had about the evidence the applicant provided about her assertion that she had depression and about what treatment she had. In response, the applicant indicated that the reason why she did not receive any treatment during this period of time was that she was so sad and depressed that she did not even get out of the door.
The Tribunal then referred to a further medical certificate the applicant had supplied to the Tribunal by Dr Wang dated 17 September 2018. The Tribunal noted that the certificate indicated that a) the applicant had visited the surgery on 7 February 2018 and stated that she was depressed since November 2017 b) she was referred to a psychologist on 7 February 2018 and c) she presented to the surgery on 17 September 2018 and stated she was feeling well and not depressed. The Tribunal put to the applicant that the certificate indicated she told Dr Wang that she had been depressed since November 2017, which is different to the period in the aftermath of her brother dying and her return to Australia in December 2015 and then into 2016 where she did not attend to her course of study. In response, she indicated that from October 2015 she was suffering from depression every day and after her brother died she got worse. She indicated when she returned to Hong Kong she saw all the family members and it was so sad, and when she returned to Melbourne her depression got worse so she did not want to be in touch with anybody. She claimed she was depressed and unhappy everyday but she was unaware how to approach people and did not want to disclose her emotions to anyone because she was afraid people would laugh at her. Later on, Rita and her boyfriend kept comforting her and encouraging her so later she had the courage to take the first step and that was the reason she did not receive any treatment.
The Tribunal put to the applicant that information from the certificate dated 17 September 2018 indicating she was depressed since November 2017 was a completely different time period to the time she claimed she struggled with her course from late 2015 to mid 2016.
In response she indicated she had been unhappy continuously without knowing she was sick.
The Tribunal put to the applicant that was not what Dr Wang indicated she said to Dr Wang in his certificate.
In response she indicated she told Dr Wang she had been feeling depressed for a long time, but the worst time was in November (2017) so she thought that was the time she had to get treatment, but that she chose not to go to the psychologist or have any medication to treat depression.
In consideration of the above information, the Tribunal finds that the applicant’s oral evidence is inconsistent with the written evidence as to claim she had depression. The Tribunal finds that the medical certificates dated 7 February 2018 and 17 September 2018 conflict about when the applicant had depression. The Tribunal finds that the applicant did not consult a psychologist or take any prescribed medication to treat depression. The Tribunal finds that the timeframes indicated by the medical certificates (whether it be March 2017 or November 2017) have no bearing on the timeframe the applicant claimed that her depression impacted on her studies (late 2015 to mid 2016).
Accordingly, the Tribunal places low weight on the medical certificates dated 7 February 2018 and 17 September 2018. The Tribunal finds the applicant’s claim that she was suffering depression during her studies (late 2015 to mid 2016) and that this condition impacted on her studies not to be credible.
Circumstances – English language skills
One of the most significant concerns for the Tribunal was the fact that the applicant had on numerous occasions in both her written and oral submissions claimed that her English skills are very poor, even after being in Australia for a number of years. The applicant’s English language difficulties are referred to in her response to the Department dated 9 May 2017, in her written submissions dated 5 September 2017, 6 February 2018 and 17 September 2018 and also during her evidence to the Tribunal in both the first and second hearing.
The applicant made clear to the Tribunal that her poor English language skills significantly adversely impacted her ability to study her course, even though it was a Certificate IV in Massage Therapy Practice, and also in her ability to provide accurate information to the Tribunal about her situation.
It was during the second hearing in particular that the applicant spoke of her struggles in undertaking her course due to her poor English language skills.
In the second hearing, she claimed that she went to the school three times in 2016 but when she was in class she was unable to cope. She indicated she was unable to cope at all and she did not understand anything the lecturer said. She indicated that because she did not attend the course from the very beginning, this added to her struggles.
When asked whether there was any reading or writing as part of her course, she indicated that she was unable to cope at all and did not understand the terminology and that’s why she stopped going to the course. When asked if she could not understand the English spoken by the teacher, she confirmed that she could not understand the English because the teacher used a lot of terminology.
The Tribunal asked the applicant that if she was to re-enrol, and she was a student again, how can the Tribunal be satisfied she could cope with any course let alone the one in remedial massage because of her poor English language skills. In response, the applicant indicated that if she were given another chance she would attend classes from the very beginning, and would try her best, rather than what she did last time in attending the course in an ‘on-and-off’ manner because she was unable to cope. She indicated she was well aware that her English was poor, and that she was trying very hard to improve her English by watching television, as well as reading magazines and newspapers.
In consideration of the above, the Tribunal places high weight on the applicant’s evidence that her English skills are very poor and that, for this reason, she could not cope with her course. The applicant’s evidence does not convince the Tribunal that the applicant would be able to cope with further study should her visa not be cancelled. Accordingly, the Tribunal finds that the applicant’s English skills are very poor and that, for this reason, she would not cope with any studies conducted in the English language.
Circumstances – Applicant’s mother’s spinal operation
The applicant provided evidence about the emotional stress caused to her due to her mother’s spinal operation in September 2015. This matter is referred to in her response to the Department dated 9 May 2017, in her written submission dated 5 September 2017, and also during her evidence to the Tribunal in both the first and second hearing.
In the first hearing, the Tribunal asked the applicant if there was any reason why she did not apply for deferral of her course from her course provider. The applicant indicated to the Tribunal that her mother did not want her to come back to Hong Kong but, rather, to stay in Australia and do her study. However, she indicated she did not do her study and she just wanted to go home to Hong Kong. She indicated that if her mother had told her about her spinal surgery while she was in Hong Kong she would not have come back to Australia. The Tribunal asked the applicant why she did not go and speak to her course provider about her circumstances. In response, she indicated that during that period she did not want to be in contact with anyone, including her course provider. The Tribunal put to the applicant that in the latter part of 2015 and early part of 2016 she did not approach her course provider about her difficulties and that it would have been reasonable for her to have done so in the circumstances. The Tribunal put to the applicant that she appeared to simply not want to raise these issues with her course provider. In response, she indicated she agreed that was correct.
In summary, the various submissions from the applicant indicate that her mother’s health condition had an emotional impact on the applicant, and that caused an adverse impact on her ability to study.
In consideration of the above, the Tribunal places some weight on the applicant’s evidence that her mother’s health condition had an emotional impact on the applicant, and that caused an adverse impact on her ability to study.
Circumstances – references
The Tribunal has considered the character reference letters from Janet Su dated 6 February 2018 and Jody Liang dated 7 February 2018. The Tribunal places low weight on these letters.
Circumstances – evidence from Mr Singh
The Tribunal took oral evidence from Mr Singh, a man who claimed to be the applicant’s partner for the last three years. He claimed that they did not live together but he had provided some financial support to her. He indicated that while she had breached her visa condition, if she got her qualification she would be able to support her parents because it is difficult to survive in Hong Kong. The Tribunal has considered these matters and places low weight on them.
Circumstances – representative’s oral submissions
The Tribunal notes that the applicant’s representative made a number of oral submissions. He apologised for the applicant’s inconsistencies in her evidence. By way of explanation for the inconsistencies, he explained that the GTE (genuine temporary entrant) statement does not allow the review applicant to expand much on what had been presented to the Tribunal. He explained that when he had the interview with her he advised her not to ‘go beyond’ the confinements of the GTE which has been written. In regard to the applicant’s inconsistent evidence as to whether she approached the school or the agent, he explained that the agent was first responsible for handling her student visa and the person who did the GTE at the time has set a precedent in what she has written in approaching the school, and the next person who took over drafting her GTE in her current situation has ‘pretty much followed that trail.’ He indicated that the written submissions were consistent in that they both indicated the applicant went to the school.
In response, the Tribunal indicated to the representative that he was the agent in this matter and he had an opportunity to prepare for this matter and the agent was indicating to the Tribunal that the reason as to why the inconsistencies between what the applicant had told the Tribunal at the hearing compared to what had been supplied in written submissions was due to the fault of other people (i.e. those who wrote the letters on the applicant’s behalf). The Tribunal put to the representative that had he been aware of the inconsistencies prior to the hearing, he should have directly addressed those issues prior to the hearing and not at the hearing for the first time. In response, the representative indicated that the written submissions had been prepared prior to the hearing, and that there was a need to distinguish between the applicant’s oral evidence and the documented evidence. The representative indicated that the first time he had become aware that the applicant had approached the agent and not the school was at the hearing. The representative then kept indicating that it was the ‘educational consultant’ who wrote down incorrect information. The Tribunal put to the representative that he was the applicant’s agent, to which he responded ‘I know what you are saying.’ The Tribunal put to the representative that there was nothing stopping the agent talking to his client about this matter, and that indeed the agent was under an obligation to clarify this information before the hearing. In response, the representative indicated ‘which we did.’ The representative claimed that he did not go through the contents of the letter with the applicant prior to the hearing and she confirmed for him that the contents of the written letters were correct.
The Tribunal put to the representative that his submission did not do much to address the Tribunal’s concerns about the credibility of the applicant’s evidence. Given the Tribunal’s findings above, the Tribunal gives no weight to the representative’s submissions on this point.
The representative put to the Tribunal a submission in respect to the applicant’s PRISMS record. The representative indicated that the Department’s decision record did not reflect that the applicant had approached the provider to defer her course. Given the Tribunal’s findings above, the Tribunal gives no weight to the representative’s submissions on this point.
The representative provided the Tribunal a copy of the case of Wei v Minister for Immigration and Border Protection [2015] HCA 51 and submitted that the information in PRISMS can sometimes be incorrect. The representative indicated that the agent’s approach to the course provider was not reflected in PRISMS and that this could have been an error on the part of the course provider. Given the Tribunal’s findings above, the Tribunal gives no weight to the representative’s submissions on this point.
The representative then made submissions that the applicant may have attended an appointment with a psychologist but that she may not have a copy of the report. The Tribunal put to the representative that the applicant had already told the Tribunal during the hearing that she did not go to the psychologist, to which the applicant then again confirmed she did not go to the psychologist. At this point, the Tribunal invited the representative to provide written submissions to the Tribunal after the hearing to ensure that the submissions were accurate. Given the Tribunal’s findings above, the Tribunal gives no weight to the representative’s submissions on this point.
Circumstances – representative’s written submissions
The Tribunal notes that the representative has provided written submissions received on 1 October 2018. In those submissions, the representative conceded that the applicant had breached condition 8202. In those submissions, the representative essentially attributes the applicant’s failure to study and the course provider’s cancellation of her enrolment to the stress or emotional impact on the applicant from her mother’s spinal operation and her brother’s death. In those submissions, the representative indicated that the cancellation of the applicant’s visa will be disappointing to her and her family.
At para 21 of the submissions, the representative indicated that if an applicant’s PRISMS record was not correct and their student visa was cancelled on the basis of incorrect information from PRISMS, there would be a manifest injustice. The Tribunal places no weight on this submission because the Tribunal finds that there is no indication that the applicant’s PRISMS record is not accurate.
At para 31 of the submissions, the representative indicated that the course provider did not provide written notice of a breach of her student visa condition relating to satisfactory academic performance. The Tribunal places no weight on this submission because the Tribunal finds that in the written submissions the applicant clearly indicated that she received emails from her course provider relating to her course attendance or lack thereof.

At para 37 of the submissions, the representative referred to the case of Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333 but did not indicate how the case was relevant to the applicant’s situation. The Tribunal places no weight on this part of the submission. The submissions are unsigned and undated. The representative enclosed a copy of the decision in Kandel (Migration) [2018] AATA 1383 but did not indicate how the case was relevant to the applicant’s situation. The Tribunal places no weight on this part of the submission.
Circumstances – applicant’s other health issues
The Tribunal notes the applicant’s submissions that she got tonsillitis and an upper respiratory tract infection in 2016. The Tribunal accepts that the applicant suffered with tonsillitis in 2016 and that may have had some impact on her studies and gives this matter some weight.
Circumstances – approach to Department
In the hearing, the applicant indicated she had applied to the Department to allow her to study on her bridging visa. However, the applicant indicated the Department refused to allow her to vary her bridging visa conditions to allow her to study. The Tribunal places low weight on these facts.
Any other relevant matters
The Tribunal asked the applicant whether there were any further matters that she wanted to raise, and she indicated there were no matters she wanted to raise.
Conclusion
The Tribunal finds that since the applicant received her Student (Temporary) (Class TU) Vocational Education and Training Sector (Subclass 572) visa on 13 June 2016, now some two and a half years ago, the applicant has not completed any courses.
The Tribunal finds that since 13 June 2016 the applicant has not been enrolled in a registered course of study and, accordingly, the applicant has not complied with condition 8202(2)(a).
Given the Tribunal’s findings above in relation to the applicant’s credibility as well as her admitted poor English language skills, the Tribunal is not satisfied that the applicant’s circumstances warrant the Tribunal exercising its discretion to not cancel the applicant’s student visa.
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 Student (Temporary) (Class TU) Vocational Education and Training Sector (Subclass 572) visa.
Joseph Lindsay
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.