Li (Migration)

[2019] AATA 6633

Li (Migration) [2019] AATA 6633 (18 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Jialin Li

CASE NUMBER:  1723981

HOME AFFAIRS REFERENCE(S):          BCC2017/2654059

MEMBER:David Thompson

DATE:18 December 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 18 December 2019 at 11:55am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of travel and stay – circumstances giving rise to non-compliance – serious breach – ameliorating circumstances – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 October 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not complied with subclause 8202(2)(a) of condition 8202 on her visa in that she was not enrolled in a registered course of study between 11 January 2017 and 31 August 2017. The delegate held that this enlivened the power to cancel the applicant’s visa provided by s.116(1) of the Act, and that the grounds for cancelling her visa outweighed the grounds for refraining from doing so. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 18 September 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by her registered migration agent.

5. 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

6. 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?

7. 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).

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course between 11 January 2017 and 31 August 2017.

9. At hearing, the applicant stated that she disagreed with the delegate’s finding that she had not been enrolled in a course of study between 11 January 2017 and 31 August 2017. The Tribunal then invited her to explain what, in her view, the true state of affairs had been. The applicant referred to a Confirmation of Enrolment (CoE) that had, she said, been issued in late August 2017, perhaps on the 27^th or 28^th of that month. The Tribunal located a copy of this CoE on the Department’s file. The applicant confirmed that it was the CoE to which she had been referring. The document in question was CoE 917D0B87, issued by the Australian Academy of Commerce in respect of an IELTS Preparation (Upper-Intermediate to Advanced) court due to start on 28 August 2017 and to finish on 17 December 2017. The Tribunal notes that, on the face of the CoE, it was created on 1 September 2017. This would appear to explain the later end of the date range for which the delegate found that the applicant was not enrolled.

10. The Tribunal pointed out to the applicant that the CoE upon which the applicant was relying only contradicted the delegate’s finding in respect of a few days at the end of the period to which the delegate’s finding related. The applicant responded with an explanation of what she had been doing during that period to obtain enrolment in a registered course. That explanation is potentially relevant to the exercise of the discretion to cancel the applicant’s visa, but is not relevant to the issue of whether a ground for cancellation (and thus a factual circumstance enlivening s.116(2)) existed. The applicant ultimately admitted that she had not been enrolled in a registered course of study from 11 January 2017 to 27 or 28 August 2017. That suffices to answer the question in hand, that is, whether or not the applicant complied with condition 8202.

11. The Tribunal finds that on the evidence before it, the applicant was not enrolled in a registered course between the dates 11 January 2017 and at earliest 27 August 2017. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

12. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers.’

13. The applicant has provided the Tribunal with the following documentary evidence:

    a.a copy of the delegate’s decision record dated 2 October 2017;

    b.a letter dated 7 September 2019 from Dr Shu-Huei Lin, a clinical psychologist, in respect of the applicant;

    c.an email message dated 11 September 2018 from Kristan Schirato of the International Admissions Team at Western Sydney University to the applicant;

    d.an email message dated 16 August 2018 from Hui Xu of the International Admissions office at Macquarie University to the applicant;

    e.a chain of emails between the applicant and the admissions and enrolment officer at University of New South Wales dated between 3 March 2017 and 15 March 2017;

    f.a chain of emails between the applicant and the admissions and enrolment officer at University of New South Wales dated between 19 May 2017 and 22 May 2017;

    g.a chain of emails between the applicant and the admissions and enrolment officer at University of New South Wales dated between 26 May 2017 and 2 June 2017; and

    h.a chain of emails between the applicant and the admissions and enrolment officer at University of New South Wales dated between 30 August 2017 and 1 September 2017.

14. The Tribunal has also had regard to the documentary evidence contained in the Department’s file with respect to this matter. That documentary evidence is as follows:

    a.an extract from the applicant’s passport;

    b.a letter dated 11 September 2016 from Dr Ming Lo Sze, a clinical psychologist, to the Student Office of the University of New South Wales;

    c.a medical certificate dated 10 December 2016 issued in respect of the applicant by Haibo Yu, a registered Chinese herbal medicine practitioner and acupuncturist;

    d.a medical certificate dated 17 January 2017 issued in respect of the applicant by Dr Chong Maw Goh of Healthpac Medical Centre;

    e.a medical certificate dated 11 February 2017 issued in respect of the applicant by Dr Alice Kim of Healthpac Medical Centre;

    f.an itinerary issued to the applicant for a Hainan Airlines flight leaving Sydney on 24 January 2017 for Changsha in the People’s Republic of China;

    g.an itinerary issued to the applicant for a China Southern Airlines flight leaving Sydney on 16 March 2017 for Guangzhou in the People’s Republic of China;

    h.a letter dated 28 June 2017 from Monash University to the applicant, conditionally offering her a place in the university’s Master of Information Technology course in Semester 2, 2017, with International Student Course Agreement attached; and

    i.a copy of CoE 917D0B87, already described in paragraph 9 above; and

    j.a copy of the department’s notice of intention to consider cancellation of Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa (NOICC), dated 30 August 2017.

15. Prior to hearing, the Tribunal obtained a copy of the applicant’s record from the Provider Registration and International Student Management System. That record was put to the applicant in the course of hearing in compliance with s.359AA of the Act, as further discussed below.

16. The Tribunal has also paid close regard to the evidence the applicant gave at hearing, as well as to her and her representative’s submissions, both to the department and to the Tribunal, and including the applicant’s representative’s written submissions to the department dated 30 August 2017 in response to the department’s Notice of Intention to Consider Cancellation (NOICC). The Tribunal has relied on all of that evidence in considering the factors bearing on exercise of the power or cancellation provided in s.116(1) of the Act, and it is to those factors that the Tribunal now turns.

    The purpose of the applicant’s travel to and stay in Australia, and whether the applicant has a compelling need to travel to or remain in Australia

17. The applicant was issued her visa in order that she might, after undertaking some English courses, study for a Master of Information Technology. There is no evidence before the Tribunal suggesting that she had any other purpose in coming to Australia.

18. The applicant’s PRISMS record shows that the CoE for her Master of Information Technology Course (which course was supposed to commence on 27 February 2017 and to run to 31 December 2018) was cancelled on 22 September 2016, for non-commencement of studies. As was noted above, the applicant’s PRISMS record was put to her at hearing pursuant to s.359AA of the Act. The aspect of her PRISMS record that was drawn to her attention was the cancellation of her CoE for her Master of Information Technology course. In particular, it was put to her that the date of cancellation could be considered inconsistent with evidence that the applicant had given at hearing to that point about her attempts to obtain enrolment in 2017, and that this would (subject to her comments or response) be a reason to find against her and affirm the delegate’s decision.

19. The applicant responded by explaining the course of her studies. She gave evidence that she had originally been enrolled in what she described as an English course in two parts, the first being Essential Academic English, and the second being a University English Entry Course. The applicant stated that because she had failed a test during her first attempt at Essential Academic English, her enrolment had been extended and in some sense diverted into a different English course, an IELTS Test Preparation course which ran from 10 October 2016 to 12 December 2016, and which she finished. This resulted in cancellation of CoEs for her University English Entry Course, and in a new CoE for that course being issued.

20. The applicant’s CoE for her Master of Information Technology course was cancelled, as stated above, on 22 September 2016 for non-commencement of studies, well before the date upon which it was scheduled to start. The applicant’s representative, Mr Huang, submitted that the correct reading of these records was that the Master’s course CoE had been cancelled because the applicant’s original CoEs for her University English Entry Course had been cancelled, with the result that the applicant would have to start the Master’s course in the July 2017 intake, after she had competed her English studies. The applicant’s PRISMS record shows that the date of cancellation of the CoE for her Master of Information Technology followed hard on the heels of the cancellation of the CoE for her University English Entry Course, and shortly before she started her IELTS Test Preparation Course. For that reason, the Tribunal accepts Mr Huang’s submission and finds accordingly.

21. There is evidence before the Tribunal, in the form of email exchanges dating from March, May, and June 2017 (the documents noted at paragraphs 13(e), (f), and (g) above) showing that the applicant was attempting at that time to re-enrol herself in English language courses (she referred to them at hearing as ‘articulation’ courses) at the University of New South Wales, with a view to continuing to higher studies at that institution. In the earlier of those exchanges, it is made clear that the applicant attempted to do so because she did not pass her IELTS test in January 2017, although she had finished the IELTS preparation course in December 2016. It should be noted that these exchanges took place before the department issued its NOICC.

22. Further, there is evidence before the Tribunal (see paragraph 14(h) above) that in or about June 2017 the applicant sought to enrol in a Master of Information Technology course at Monash University, and was conditionally offered a place. This happened before the Department issued its NOICC, and there is no evidence that the applicant had any ulterior motive in seeking that enrolment. There is also evidence before the Tribunal in the form of emails sent in August and September 2018 from the admissions offices of Western Sydney University, showing that the applicant attempted to enrol in those institutions. Those dates fell well after the applicant’s visa was cancelled, and it is clear from those emails that this is at least one of the reasons why the applicant’s attempts at enrolling failed. Only a little weight can be put on those later, post-cancellation, emails, but the earlier pre-cancellation email exchanges are evidence that the applicant was pursuing her original purpose in coming to study in Australia even at those dates.

23. For these reasons, the Tribunal finds (contrary to the delegate) that the applicant’s purpose in staying in Australia after her CoEs were cancelled remained that of pursuing studies in this country. Accordingly the Tribunal gives this factor some weight in favour of the applicant.

    The circumstances in which the ground of cancellation arose

24. The applicant’s evidence at hearing was that the ground for cancellation of her visa – the cancellation of her CoE 853A7C69 for her University English Entry Course on 11 January 2017 – was a result of her having been diverted into her IELTS Test Preparation course. Her evidence was that that diversion occurred because she had experienced difficulty with her earlier English studies, and that those difficulties were caused (at least in part) by emotional issues she suffered as a result of the breakdown of her relationship with her boyfriend, and also by a physical illness she suffered around the end of 2016.

25. The applicant had previously made this submission to the Department, and had provided a letter dated 11 September 2016 from a clinical psychologist, Dr Ming Lo Sze, to the Student Office at the University of New South Wales in support of her evidence and claim regarding emotional difficulties. The applicant relied on that evidence again at hearing, and also on a letter dated 7 September 2019 from Dr Shu-Huei Lin, another clinical psychologist, addressed “To Whom It May Concern.” The applicant gave evidence that she had met her ex-boyfriend in China and that they had been together for a year or more when they broke up in June 2016. Dr Sze’s letter mentions that they had been living together prior to their breakup, but the applicant gave no direct evidence to the Tribunal to that effect. The applicant was asked at hearing what had caused the break-up, and answered that it was to do with her ex-boyfriend’s involvement with a third party. The Tribunal asked the applicant whether there had been any violence in the relationship. The applicant stated in response that there had been no physical violence, but that she had suffered considerable verbal abuse.

26. Dr Sze states that the applicant’s symptoms at the outset of treatment were “sleeping problems, anxiety, feelings of frustration, irritable mood, reduced appetite, excessive crying, loss of concentration, breathing difficulties, heart palpitations, and burning skin sensation on the face.” She also noted that the applicant “reported she has experienced impairment in her academic functioning” and that “she felt tired constantly due to inadequate sleep and thus had been skipping lectures.” Dr Sze’s assessment of the applicant at the time of her letter was that her symptoms “did not meet the full criteria for any mental disorder. Nevertheless, she seemed to be experiencing clinically significant distress caused by her ongoing problem in interpersonal relationships.” Dr Sze went on to note that the applicant had commenced a course of treatment on 24 August 2016 involving weekly sessions. That course of treatment was expected to last for 3 months. The applicant gave evidence at hearing that she had been unable to attend weekly due to conflicts in her study timetable. Dr Lin’s letter of 7 September 2019 confirms that the applicant was in treatment for eight sessions between 16 March 2019 and 7 September 2019, but does not give any information regarding the applicant’s condition and so does not take this issue any further. The applicant gave evidence that this distress affected her ability to study effectively and contributed to her failing her English course.

27. The applicant also gave evidence of an episode that occurred in the course of her studies, in which she was scolded by her teacher for speaking to another student in Mandarin rather than in English. She described this scolding, which does not appear to have been protracted, and said that it put her in fear of her teacher. She also said that the teacher in question failed on of her assignments, and ascribed this to the scolding she had received. She said that this fail led to her failing the course overall. Whilst the episode may have had a subjective effect on the applicant, there is no independent evidence before the Tribunal of any such conduct on the teacher’s part. The Tribunal does not give this evidence any weight.

28. The applicant also gave evidence that she had suffered from a physical ailment late in 2016 She has produced medical certificates confirming this. The first certificate, dated 17 January 2017, was issued by the doctor who had treated her, a Dr Chong Maw Goh of Healthpac Medical Centre. Dr Goh stated that the applicant suffered from a severe urticarial condition during December 2016, and that the medications she was prescribed caused drowsiness and poor concentration, and “severely affected her studies.” The second medical certificate, issued by Dr Alice Kim of the same practice, appears on its face to be based on Dr Goh’s notes. As Dr Kim did not, it seems, see the applicant herself, this certificate does not take the issue any further. The dates mentioned in both certificates do make it clear, however, that the applicant suffered from this ailment while she was doing her IELTS Test Preparation course.

29. At hearing, the applicant stated that as well as her urticarial condition, she suffered from bad hay-fever, and that the medicines she was taking for these conditions did not make her drowsy, but rather induced a “fever” in her that made it difficult to sleep and so interfered with her ability to concentrate in class at the time. She stated that she felt that this also affected her ability study effectively. There is some dissonance between the medical certificates and the applicant’s evidence at hearing on this point, although it is difficult to say whether it amounts to a contradiction or not. In any event, the Tribunal is not convinced that these conditions, striking the applicant relatively late in her course, had any marked effect on her studies or made any significant contribution to the applicant’s breach of visa condition. Accordingly, the Tribunal gives this evidence no weight, either in favour of or against the applicant.

1. There can, however, be no doubt on the evidence before the Tribunal that the applicant did suffer some psychological distress in late 2016, and that this was not in any sense within the applicant’s control. The Tribunal finds that this contributed to the ground of cancellation, and gives this factor some weight in favour of the applicant.

   The extent of the applicant’s compliance with visa conditions

2. There is no evidence before the Tribunal suggesting that the applicant was in breach of her visa conditions at any time other that the period of non-compliance that formed the basis for the delegate’s decision. That circumstance weights in her favour.

3. However, the applicant was in breach of condition 8202 on her visa for some 7 ½ months. That is a significant period, and would weigh heavily against her, unless there were circumstances that ameliorated the seriousness of the breach.

4. The applicant put forward a number of ameliorating circumstances. Firstly, the applicant gave evidence at hearing that she was unaware that her CoEs for her University English Entry Course (CoE 853A7C69) and her Master of Information Technology course had been cancelled, so that her non-compliance was unintentional. The Tribunal accepts that this was the case as of 11 January 2017, but takes the view that the applicant must have realised that there was an issue with her visa very soon afterwards, because she left Australia very shortly afterwards. Secondly, the applicant returned to China on 24 January 2017, and again on 16 March 2017. She gave evidence that she did so while she tried to sort out her enrolment at the University of New South Wales. Thirdly there is the fact, established by evidence, that the applicant did try to re-enrol and continue her studies during the breach period. That evidence is to be found in the documents noted at paragraphs 13(e), (f), and (g) and 14(h) above. These circumstances ameliorate to some extent the seriousness of the applicant’s breach of condition, and so weigh in her favour.

5. Taking all these matters into consideration, the Tribunal finds that the extent of the applicant’s compliance with her visa conditions weights neither for nor against the applicant.

   The degree of hardship that may be caused by cancellation

6. At hearing, the applicant was asked whether cancellation would cause her any hardship. The only hardship she was able to identify was that she would have to break off the course of psychological treatment in which she is currently engaged. The applicant agreed that she would be able to seek treatment in China if she were to return there, but said that she thought it would not be such good quality treatment as is available in Australia. She also said that she depends on her stable connection with her psychologist and would find it difficult to change to another practitioner. However, in the main the applicant’s evidence at hearing on this point was directed to the hardship she suffered whilst studying and waiting for hearing, rather than prospective hardship. The Tribunal accepts that the applicant would prefer to continue treatment with her current psychologist, and that in all likelihood this would lead to the optimal outcome for such treatment. However, the applicant will not be completely deprived of treatment if she must leave Australia, and the quality of that treatment relative to the quality of the treatment she is currently receiving can only be a matter of speculation.  The Tribunal gives this factor only very slight weight in favour of the applicant.

   The applicant’s past and present behaviour towards the department

7. There is no evidence before the Tribunal suggesting that the applicant has at any time dealt with the department in bad faith, or has been obstructive or dilatory in her dealings with it. The Tribunal gives this factor a little weight in the applicant’s favour.

   Whether cancellation of the applicant’s visa would result in consequential cancellations under s.140 of the Act

8. The applicant gave evidence at hearing that cancellation of her visa would not result in the consequential cancellation of any other person’s visa. There is no evidence to the contrary before the Tribunal. The Tribunal gives this factor no weight, either for or against the applicant.

   Whether cancellation of the applicant’s visa carries mandatory legal consequences

9. If the delegate’s decision is affirmed, the applicant will, if she does not leave Australia voluntarily, become liable to be detained pursuant to s.189 of the Act, and may become liable to being removed from Australia pursuant to s. 198 of the Act. Further, affirmation of the delegate’s decision would place a limitation under s.48 of the Act on the Australian visas which the applicant could be granted. The applicant may also be ineligible for a grant of a further temporary visa for a period of time by reason of Public Interest Criterion 4013. However, these are the consequences provided by statute for cases such as this, and are to be expected. The Tribunal gives this factor no weight, either for or against the applicant.

   Whether cancellation of the applicant’s visa would result in Australia breaching any of its international obligations

10. There is no evidence before the Tribunal suggesting that cancellation of the applicant’s visa would result in any breach of any of Australia’s international obligations. The Tribunal gives this factor no weight, either for or against the applicant.

    Any other relevant matters

11. Neither the evidence before the Tribunal nor the applicant’s submissions at hearing raise any other relevant matter for the Tribunal’s consideration.

12. Considering the circumstances as a whole, the Tribunal finds that such relevant factors as bear any weight all weigh in favour of the applicant. Accordingly, the Tribunal concludes that the visa should not be cancelled.

    DECISION

13. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    David Thompson
    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.