Liu (Migration)

[2019] AATA 3951

Liu (Migration) [2019] AATA 3951 (18 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Yiren Liu

CASE NUMBER:  1703411

HOME AFFAIRS REFERENCE(S):           BCC2017/221994

MEMBER:Wendy Banfield

DATE:18 June 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 18 June 2019 at 6:03pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Bachelor of IT – not enrolled in registered course for nine months – relationship breakdown – mental health issues – physical injury – family illness – no compelling need to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202, Public Interest Criterion 4013

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 February 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).

   Background

2. The applicant is a citizen of China and is currently 36 years old. She came to Australia in 2013 as the holder of a Subclass 573 Student Visa to undertake a course of study leading to and including a Bachelor degree. The applicant began her studies and completed an English preparatory course. She had enrolled and commenced her degree at Macquarie University when she encountered a series of problems that led to her breaching the conditions of her Student Visa.

3. The delegate cancelled the visa on the basis that the applicant was not enrolled to study from 19 April 2016 until 1 February 2017 when the Department issued a Notice of Intention to Consider Cancellation (NOICC). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 26 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

6. The applicant submitted evidence to the Tribunal in support of her application for review:

   ·     Representative’s submission dated 21 March 2019;

   ·     Medical record (uncertified English translation) and Chinese document regarding a 3 day hospital stay of Shenmin Qi from 21 to 24 November 2016;

   ·     Certified translation of a work agreement between the applicant and an employer in China dated 26 December 2015.

7. The applicant also provided submissions to the Department following the issue of the NOICC which has been taken into account. The documents provided were a response by an authorised representative dated 15 February 2017, copy medical certificate in the name of the applicant dated 14 February 2017 and a Confirmation of Enrolment Certificate (COE) for a Diploma of Software Development.

   Written submissions

8. The applicant’s written response to the Department dated 15 February 2017 was submitted by her then representative and acknowledges the grounds for cancellation of the visa exist. The submission refers to the applicant’s study results following her arrival in Australia until February 2016 when it was claimed she was unable to re-enrol at Macquarie University and mistakenly believed she had done so. It was also claimed the applicant’s father had to undergo surgery in 2016 and the applicant spent her time supporting him via phone calls. The submission further states that in January 2017 the applicant suffered a brain concussion impacting her ability to function normally.

9. The written submission to the Tribunal dated 21 March 2019 asserts the delegate failed to assess relevant factors in the applicant’s case. It states the applicant has complied with conditions imposed on her Student Visa previously, has returned to her home country regularly and the purpose of her travel is commensurate with the grant of the Student Visa. It is claimed the applicant has family ties to her home country and has employment there. She invested significant funds to study in Australia which will benefit her career. It is claimed the applicant was not enrolled from April 2016 to February 2017 due to factors beyond her control. The reasons given were that prior to her travel to Australia the applicant broke up with her long term boyfriend and she suffered depression. In February 2016 she tried to enrol at Macquarie University via an online portal but was unable to. She contacted the university but did not receive a response. At the same time her father suffered a health condition and needed surgery causing her to worry. In January 2017 the applicant suffered a fall that affected her sleep, her thinking and mobility.

   The hearing

10. At the Tribunal hearing the applicant outlined similar information to that provided in the written submissions. She said she had wanted to study in the IT field because of her interest in computers and a desire to develop software for her parents who are doctors. Since arriving in Australia the applicant had completed an English course and a Diploma and was enrolled in a Bachelor of IT at Macquarie University. She explained how she had broken up with a boyfriend and lost motivation to study. The applicant stated she had [a medical condition] to some degree which made it difficult for her to communicate with others.

11. The applicant said she had tried to re-enrol at Macquarie University but could not access her student account. The Tribunal asked the applicant what she did during the period when she was not enrolled to study and she said was trying not to [details deleted]. She did not seek help from her education provider or a medical practitioner at the time because she was out of touch with everyone, although she claimed she did later. Regarding her failure to re-enrol at Macquarie University, the applicant said she had sent many emails but did could not get any response. The Tribunal asked the applicant about the written statement provided to the Department in response to the NOICC and she said the submission had not been prepared by her and did not include any of her personal issues. She said that when she received the NOICC from the Department she had not been prepared to respond. The applicant was asked whether her father was indeed unwell at the relevant time and she said her previous migration agent had included that. She then said although her father was ill the reason she had not successfully re-enrolled a university was due to her personality and getting no response from the school.

12. The applicant was asked about her claims of having concussion as outlined in her response to the Department. She said she did have a fall and bump ahead and people at Macquarie University were concerned about her. She said that she remembered presenting the problem to Macquarie University. The applicant agreed that she had not been enrolled for a period of approximately nine months and there were grounds to cancel the visa.

13. The Tribunal accepted that the applicant’s original reason for travelling to Australia was to study. Regarding any compelling need to remain in Australia the applicant stated first, she loved computing and maths and wants to make the best of her talent; second she said she had signed an agreement for a large amount of debt in order to study and third, she enjoyed studying in Australia rather than China where it was unacceptable for women of her age to study. The applicant said she believed she had complied with all other visa conditions apart from the period when she was suffering from depression.

14. The applicant advised she has a large amount of debt and if she is unable to continue studying she will suffer hardship as a result. The applicant also claimed she would suffer psychological and emotional hardship if her visa is cancelled as she would be unable to maximise her abilities in life. The applicant advised she understood the legal consequences of visa cancellation. The Tribunal asked the applicant whether she considered deferring her studies to deal with personal issues and she said the issues that led to her problems had been resolved and she was working with a psychologist in that regard.

15. The applicant’s representative relied on the written submission provided and said that there had been extenuating circumstances beyond the applicant’s control. He said cancellation of her visa will exacerbate her condition and cause hardship in her personal life. It was submitted the applicant had never breached any laws or regulations previously.

16. 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

17. 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?

18. 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).

19. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

20. The applicant gave evidence that she had been enrolled and studying at Macquarie University until the beginning of 2016. At that time she failed to complete her re-enrolment at the university and then was not enrolled in any course of study for a period of 9 months. 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

21. 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

22. The Tribunal is satisfied that the applicant’s original purpose in travelling to and staying in Australia was to study.

23. The Tribunal considered whether the applicant has a compelling need to remain in Australia. In this regard the applicant advised she wanted to make the best of her talent for maths and computing and she also has a large amount of debt related to her studies in Australia. She also indicated a preference for studying in Australia because it was less acceptable for women of her age to study in China. The Tribunal assessed this evidence in considering whether the discretion to cancel the visa should be exercised. The evidence presented shows the applicant was employed before she travelled to Australia and is expected to return to the same employer, albeit with enhanced qualifications. While the applicant may prefer to undertake further study in Australia, she has employment to go back to and for this reason; the applicant’s evidence does not demonstrate a powerful or convincing needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

24. The applicant failed to maintain enrolment as required by the conditions of her Student Visa which is a fundamental breach of a student visa that weighs against the applicant.

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

25. During the course of the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of her visa being cancelled. In response the applicant said she has a large amount of debt which will result in hardship if she cannot study. The applicant also claimed she would suffer psychological and emotional hardship if her visa is cancelled as she would be unable to maximise her abilities in life. On balance, although no independent financial evidence was submitted, the Tribunal accepts that cancellation of the applicant’s visa will lead to a degree of hardship and has given some weight in favour of the applicant in this regard.

26. The Tribunal is takes into account that the cancellation of the visa means the applicant would have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, this is an intended consequence of the legislation and does not weigh in favour of the applicant in the Tribunal’s discretion to cancel the applicant’s visa.

    ·     circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

27. The applicant submitted several reasons to explain the circumstances in which the grounds for cancellation arose. In written evidence and at the hearing it was claimed the applicant broke up with a boyfriend after a dispute that involved her family. According to the representative’s submission, this occurred “before coming to Australia in 2015” which appears to refer to the applicant’s return from an overseas trip.  It was claimed the applicant was depressed and lacked interest in anything. It was also claimed the applicant had attempted to re-enrol with Macquarie University but was unable to access the relevant online facilities. The applicant claimed she had attempted to contact the university many times without success but did not provide any evidence of this. The Tribunal finds that while the applicant may have been affected by a relationship breakdown that was against her wishes, it does not account for her failure to study for an extended period of time. In addition, the applicant did not provide evidence of having taken proactive steps regarding her failure to access the means to enrol with her education provider. She declared the education provider advised her to enrol in the next semester but she did not do so.

28. The applicant further claimed her father had been unwell at the relevant time which impacted her ability to study. In the submission from her then representative on 15 February 2017 it was claimed the applicant’s father “had to undergo life threatening surgery for immediate kidney stones removal. Mr Shengmin Qi has high blood pressure for years. His doctor suggested that the surgery this time might threaten his life. This news shocked the entire family especially Ms Yiren Liu”. During the hearing the applicant advised she did not write the submission and it did not adequately cover her personal problems. The evidence submitted regarding her father’s ill health (a translation by the current representative) indicates there was a three day hospital stay from 21 to 24 November 2016 for urological surgery but does not indicate the gravity of the condition. The Tribunal notes the surgery the applicant’s father apparently underwent took place seven months after she failed to re-enrol in her studies. During the hearing, the applicant discounted the effect of her father’s ill health and said although he had been ill the reason she had not successfully re-enrolled at university was due to her personality and getting no response from the school. In this regard the applicant referred to having a degree of [a medical condition].

29. A further reason put forward for the applicant’s failure to maintain enrolment was that the applicant suffered a fall on 24 January 2017. The former and current representatives stated this had caused concussion and affected her ability to sleep or think normally and also limited her mobility. The medical certificate dated 14 February 2017 states the applicant felt dizzy and as a result a CT scan was conducted that showed no injury. In addition, this incident occurred when the applicant had not been enrolled for nine months and does not account for the prior gap in studies.

30. The Tribunal has considered the submissions put forward by the applicant and her representatives and is not satisfied the circumstances that led to cancellation were beyond her control. While the applicant may have faced a number of difficulties and setbacks as a student in Australia, she could have accessed support services, obtained treatment for mental health issues or deferred her studies in Australia until she was able to continue.

31. For these reasons, the Tribunal finds the circumstances in which the cancellation arose as submitted by the applicant weigh against her in relation to the Tribunal exercising its discretion to cancel the applicant’s visa.

    ·     past and present behaviour of the visa holder towards the department

32. There is no evidence to indicate the applicant has not cooperated with the Department and the Tribunal has given this some weight in favour of the applicant.

    ·     whether there would be consequential cancellations under s.140

33. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

34. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit her options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequence of the legislation and do not weigh in favour of the applicant in the Tribunal’s discretion to cancel the applicant’s visa.

    ·     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

35. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations including non-refoulement and the best interests of children.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

36. The Subclass 573 Student Visa is not a permanent visa.

    ·     any other relevant matters

    The student visa program in Australia enables people who are not Australian citizens or permanent residents to undertake study in Australia. The applicant remained onshore for an extended period without being enrolled to study which was the purpose for which the visa was granted. The Tribunal finds this weighs against the applicant in the Tribunal’s assessment of whether to exercise the discretion to cancel the visa.

1. The Tribunal does not accept the representative’s assertions in the written submission dated 21 March 2019 that the immigration delegate failed to assess relevant factors in the applicant’s case. The factors addressed by the representative in his written submission relate to whether the applicant is a genuine temporary entrant rather than the matters in the Department’s Procedures Advice Manual ‘General visa cancellation powers’ that the Tribunal takes into account.

   Conclusion

2. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in her favour, on balance, the Tribunal is satisfied that the majority of considerations weigh heavily against the applicant. The Tribunal finds the length of time the applicant has spent in Australia having breached her visa conditions to be significant. The Tribunal considers it appropriate in this case to exercise the discretion to cancel the visa.

3. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

4. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

   Wendy Banfield
   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.