Li (Migration)

Li (Migration) [2020] AATA 1947 (30 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Yanghua Li
CASE NUMBER:  2004453
HOME AFFAIRS REFERENCE(S):          BCC2019/5117516
MEMBER:Vanessa Plain
DATE:30 April 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 30 April 2020 at 5:43pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – mental health and treatment – poor treatment by husband – withdrawal from course and refund of fees – unsatisfactory progress in lower-level course and cancellation of enrolment – did not realise enrolment had been cancelled as college stated she was enrolled and was still asking for payment of fees – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 459AA
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 4 March 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant failed to maintain enrolment in a registered course of study. 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 30 April 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin 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 set aside.
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 full time registered course: 8202(2)(a)
·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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course.
The applicant submitted the following documents in support of her application:
·COEs for a Diploma and Advanced Diploma in Leadership and Management at Newton college, generated on 13 February 2020 for class commencing on 3 March 2020;
·Psychiatrist letter dated 28 October 2018;
·Personal statement;
·Release and refund from Deakin University
·Emails from Newton College Finance Department in August and September 2019 attaching tuition fee payment. The body of an email dated 30 August 2019 expressly states “You are currently enrolled in a Diploma of Leadership and Management.”
The Tribunal has had regard to the matters set out in those documents, together with the applicant’s evidence at hearing.
An examination of the Delegate’s file and the Tribunal’s file reveals that the applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 500) visa on 7 June 2018 for the purpose of undertaking an English course leading to a Masters of Education at Deakin University.
In late 2018, the applicant withdrew from this course of study on account of serious mental issues she was facing at that time, which were supported by and described in a letter from her treating psychiatrist dated 26 October 2018. Deakin University accepted the medical evidence provided by the applicant to withdraw from her course and it fully refunded her fees. The Tribunal has had regard to the contents of the psychiatrist’s letter and communications from Deakin University evidencing these matters.
The applicant enrolled shortly thereafter in a less academically rigorous course, a Diploma of Leadership and Management, at Newton College in Melbourne. That enrolment was cancelled on 12 April 2019, for unsatisfactory course progress.
The applicant acknowledged receiving a Notice of Intention to Consider Cancellation (NOICC) of the visa dated 7 February 2020.
At the hearing, the applicant candidly admitted that she was not enrolled in a registered course between 12 April 2019 and 2 March 2020, however she provided details reasons for the reasons for her non enrolment which are set out below.
The applicant responded in detail to the NOICC by written response dated 13 February 2020.
On the evidence before the Tribunal as set out above, the Tribunal is satisfied that the applicant was not enrolled in a registered course between 12 April 2019 and 2 March 2020 Accordingly, the Tribunal finds that the applicant has not complied with condition 8202(2)(a).
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’.
Circumstances in which ground of cancellation arose
The circumstances that led to the cancellation of the applicant’s visa are that she failed to maintain enrolment in a registered course between 12 April 2019 and 2 March 2020.
The applicant gave candid evidence of her struggles with depression, supported by contemporaneous evidence from her treating psychiatrist, that led her to be unable to commence her studies in her original Masters degree. She withdrew from that course and was refunded her fees. She enrolled in a less academically rigorous course, a Diploma of Leadership and Management at Newton College.
The applicant married in late 2018 and based upon the matters set out in the applicant’s personal statement and the tone and manner in which she conveyed her viva voce evidence at hearing, her husband treated her poorly. So poorly in fact, that upon her discovery of her husband’s deceptions generally, she spiralled into depression and anxiety that she has clearly struggled with for many, many years, as evidenced by her psychiatrist’s report.
The Tribunal asked the applicant whether she sought treatment for her illness in 2019, around the time of the breach in question. She candidly admitted that she did not, because she was financially constrained by her husband who did not permit her to spend money, due to their combined finances, on seeking treatment. In the Tribunal’s view, the applicant suffered from financial abuse at the hands of her husband at an extraordinarily vulnerable time in her life. The Tribunal places significant weight on the credibility of the applicant’s viva voce evidence as to this issue, based upon its assessment of her general demeanour and candour when answering the Tribunal’s questions.
Further, the Tribunal asked the applicant to explain why she did not seek deferral of her Leadership and Management course in early 2019 when she was clearly suffering from the difficulties associated the matters set out above.
The applicant responded candidly, that although she struggled immensely with her assignments and concentrating generally, she did not want to defer her course and she wanted to try and finish it by 2021 and in her view, because the college was still asking her to pay her fees, she did not realise that her enrolment had been cancelled until she received the NOICC.
That evidence is supported by the matters contained in the email from the College in August 2019, which I have referred to above, which clearly informs the applicant that she is currently enrolled and clearly sets out that the applicant sent a payment to the College for what she thought were current fees. Based upon that evidence, the Tribunal is satisfied that the applicant had a reasonable expectation that she was enrolled. Further, the applicant claims the College never informed her she was not enrolled. The Tribunal accepts that evidence, because it is consistent with evidence from the College as set out above, informing her that she is enrolled in August 2019, in circumstances where it actually cancelled her enrolment in April 2019.
Upon receipt of the NOICC, the applicant immediately contacted the college to ask why the College had cancelled her enrolment in circumstances where the finance department was asking her to pay fees in September 2019 and she paid those fees. She was informed that there must have been a mix up in the finance department. The College immediately took steps to issue the applicant with a new COE for a Diploma of Leadership and Management.
Adopting the procedure in 459AA of the Act, the Tribunal informed the applicant at hearing that a PRISMS search was conducted prior to the hearing which demonstrated she was not enrolled in a Diploma of Leadership and Management at the date of hearing. The Tribunal explained why that was relevant and stood the matter down for 10 minutes upon request by the applicant for more time to consider her response. The hearing resumed at 3:40pm. The applicant made enquiries of the College. A staff member informed her that the latest COE had been cancelled solely due to cancellation of the applicant’s visa which meant she no longer had study rights.
The applicant informed the Tribunal that she has not been successful in her studies to date, due in large part to her struggles with depression and her husband’s control of her (they are now separated), but that it is her genuine desire to complete a course in Australia prior to returning home.
The Tribunal finds that the matters set out, in their totality, contributed significantly towards the applicant’s breach of her visa condition and constitute matters which are not reasonably within the control of the applicant.
The Tribunal places significant weight on the fact that the applicant was prevented by her husband from seeking psychiatric help for a serious pre existing mental health condition, at the time of the breach of the visa condition, as a circumstance which constitutes a compassionate or compelling reasons for the breach of the visa condition in question.
The Tribunal therefore gives the above considerations significant weight against cancelling the visa.
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
Although the purpose for which the visa was granted ceased when the applicant ceased to be enrolled, the Tribunal is satisfied, based upon the evidence set out above, that the applicant has demonstrated that her primary purpose for being in Australia is for the purpose of study and that she has no compelling ties to the community that would incentivise her to wish to remain here on a permanent basis.
On the basis of the above, I therefore find that the applicant has no compelling need to remain in Australia permanently and that she has demonstrated his primary purpose as being to study. I give these factors a little weight towards the visa not being cancelled.
The extent of compliance with visa conditions
The applicant has failed to maintain enrolment in a registered course of study since 12 April 2019. This is a significant period. However, due to the fact that I’ve found that the reasons for the breach are not on account of matters which were reasonably within her control, I give this no weight in favor of cancelling the visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant gave compelling and credible evidence of the emotional and psychological hardship that she has ensured as a result of the matters I have set out above.
The Tribunal therefore accepts that the cancellation has led to some personal detriment for the applicant, which has undoubtedly been exacerbated due to the anguish she has experienced given the matters set out above.
The Tribunal further accepts that the detriment would be compounded by the continuation of the cancellation and the Tribunal therefore gives this weight towards the visa not being cancelled.
Past and present behaviour of the visa holder towards the Department
The applicant has conducted herself in good faith in her dealings with the Department. This is demonstrated by the fact that she responded immediately and frankly to the NOICC and gave evidence at the hearing, consistent with her response to the Department and with contemporaneous medical and other documents produced by her. I give this weight in favour of the visa not being cancelled.
Whether there would be consequential cancellations under s.140
Not applicable.
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
If the visa were to be cancelled, the applicant would be excluded from making applications for certain types of visas and most importantly to the applicant, would not be able to complete the Diploma of Leadership and Management at Newton College. Given the circumstances set out above, this would be manifestly unfair and I give this some weight in favour of the visa not being cancelled.
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
Not applicable.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
Not applicable.
Any other relevant matters
There are not further matters before the Tribunal to take into account.
As above, it is clear that the breach does not reveal any bad faith on the part of the applicant and was occasioned by compassionate and compelling reasons not reasonably within her control. It is also clear that the considerations I have arrived at, on examining all the evidence before me, lean towards the visa not being cancelled and I so find.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
Vanessa Plain
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.

[2020] AATA 1947

30 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies