Lyu (Migration)

[2020] AATA 2532

Lyu (Migration) [2020] AATA 2532 (21 February 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Miss Xiyao Lyu

CASE NUMBER:  1835834

DIBP REFERENCE(S):  BCC2018/4065416

MEMBER:  Michael Bradford

DATE AND TIME OF

ORAL DECISION AND REASONS:         21 February 2020 at 12:04 pm (NSW time)

DATE OF WRITTEN RECORD:                8 May 2020

PLACE OF DECISION:  Sydney

DECISION:  The Tribunal affirms the decision under review.

Statement made on 08 May 2020 at 12:17pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – discretion to cancel visa – enrolment and study history – breakdown of relationship and mental health – completion of course despite these issues, then no further enrolment – enrolment in new course shortly before tribunal hearing – visa expired in any case – decision under review affirmed

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Student (Temporary) (Class TU) visa under section 116(1)(b) of the Migration Act 1958 (the Act).

2. At the hearing on 21 February 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS
   Background and procedural aspects

3. The delegate cancelled the visa on 30 November 2018 on the basis that the applicant had not complied with condition 8202(2)(a) because she had not been enrolled in a registered course of study since 29 December 2017, a period of about 10 months. The issues on this review application are whether that ground for cancellation is made out and, if so, whether the visa should be cancelled.

4. On 29 October 2018 the Department sent to the applicant an NOICC and invited her to comment on the possible breach of condition 8202(2)(a) arising from her non-enrolment and to give reasons why her visa should not be cancelled.

5. The applicant responded to the NOICC on 2 November 2018 by providing to the Department a letter dated 2 November 2018 (the Explanation Letter) together with a Psychologist’s Report. The Tribunal will come back to the content of these documents later in these reasons.

6. On 30 November 2018 the applicant was notified by the Department that the visa had been cancelled for breach of the condition.

7. The review application was filed on 6 December 2018. At the time the applicant filed this application she provided to the Tribunal a copy of the delegate’s decision. The review application is within time.

8. It may be that at the time the review application was filed the applicant also provided to the Tribunal a copy of the Explanation Letter and Psychologist’s Report.

9. On 10 December 2018 the Tribunal acknowledged receipt of the application and informed the applicant that if she wished to provide material or written arguments for the Tribunal to consider she should do so as soon as possible. It may be that in response to this letter some or all of the written material that I have just referred to was provided to the Tribunal.

10. On 14 January 2020 the Tribunal sent to the applicant an invitation to appear at the hearing scheduled for today, 21 February 2020. This invitation was accepted when the applicant returned to the Tribunal the completed hearing response form on 22 January 2020.

11. On 24 January 2020 the applicant’s migration agent, Ms Lee, forwarded to the Tribunal an email in which she advised that the applicant was currently enrolled in a registered course of study and a confirmation letter from the course provider, Salisbury College, was attached to this email. The letter is from the Principal Executive Officer of the College, is dated 22 January 2020 and confirms that the applicant was at the date of the letter currently enrolled as a full-time student at the College in an Advanced Diploma of Business due to start on 17 February this year and to finish on 14 February 2021.

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1. Shortly prior to the hearing the Tribunal obtained, as it often does in these cases, an updated PRISMS record generated on 14 February 2020, two Confirmation of Enrolments (COEs) for the courses which the applicant has completed in Australia, and a Movements record containing details of the applicant’s international travel and other pertinent information relating to her immigration status from time to time.

2. The Tribunal discussed with the applicant and with Ms Lee the details in these documents which were not relevantly in dispute. The Tribunal will come back to these details later in these reasons.

3. On 21 February 2020 the applicant appeared at the hearing together with Ms Lee. A Mandarin interpreter was required and the applicant gave her oral evidence through the interpreter.

4. In the course of the hearing Ms Lee also provided in response to a request from the Tribunal a copy of the applicant’s enrolment application to Salisbury College, which is dated 2 January 2020. The Tribunal has read this document.

5. For the reasons which follow the Tribunal has concluded that the decision to cancel the applicant’s visa must be affirmed.

   The Department’s decision and the Tribunal’s approach to the issues

6. Turning firstly to the Department’s decision, as I have already indicated, the delegate found that the applicant had not been enrolled in a registered course of study since 29 December 2017. This finding was based on information in a PRISMS record which the delegate had access to. Accordingly, the delegate was satisfied that the applicant had not complied with condition 8202(2)(a) as and from that date and that a ground for cancellation of her visa under section 116(1)(b) had consequently been made out.

7. As to whether the visa should be cancelled the delegate considered the purpose of the applicant’s travel to and stay in Australia, the extent of her non-compliance with condition 8202, the hardship which would be caused to her family in the event that her visa was cancelled, the circumstances in which the ground for cancellation arose, and her behaviour towards the Department. After taking into consideration other factors, which were regarded to be either irrelevant or of little weight, the delegate was satisfied that the grounds for cancelling the visa outweighed the reasons for not cancelling it. Accordingly the applicant’s visa was cancelled.

8. The Movements record indicates that the applicant’s TU-573 visa expired on 15 March 2019. Obviously, the Tribunal must therefore proceed on this basis.

9. As the NOICC recites, the TU-573 visa which had been granted to the applicant on 17 March 2015, was subject to various conditions one of which was condition 8202. The Movements record confirms as much.

10. At the hearing of the review application today the applicant did not dispute that at the time of the delegate’s decision she had not been enrolled in a registered course of study as from 29 December 2017 although she sought to explain this on the basis that she was suffering from a medical condition and that the breach was thus beyond her control.

11. This being so, it will be necessary for the Tribunal to consider two issues on this application, firstly whether the applicant has not relevantly complied with condition 8202 and, secondly, if the applicant has breached that condition, whether her visa should be cancelled. Of course, in considering these issues, the Tribunal must consider the evidence and conduct the review

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afresh having regard to the evidence before it whether or not that evidence was before the delegate. As it happens the only differences in the evidence before the Tribunal and the evidence before the delegate consists of the application to Salisbury College and the enrolment letter from the College.

The first issue-has the applicant relevantly failed to comply with condition 8202?

1. So far as the power to cancel the visa is concerned, as I have said, there is no dispute that the visa was subject to condition 8202(2)(a) and that the applicant has breached that condition. The fact that extenuating circumstances may have existed and may explain wholly or in part the breach of that condition does not affect the issue of breach although, of course, those circumstances will need to be considered at the discretionary stage, that is to say on the issue of whether the visa should be cancelled.

2. In her oral evidence today the applicant accepted that she came out to Australia in early June 2015 having obtained the TU-573 visa offshore on the basis of her proposed study in an English course at UTS and in a Bachelor of Business at UTS. PRISMS indicates that her enrolment in the Bachelors course was cancelled on 15 April 2016 for non-commencement of studies and the applicant accepted as much in her oral evidence.

3. PRISMS records that the applicant enrolled in an Advanced Diploma of Leadership and Management and there is a COE for this course. The Tribunal notes that she enrolled in this course on 3 January 2017 and that it was due for completion on 29 December 2017. The applicant does appear to have completed this course on time.

4. At the hearing, the applicant accepted that she had not been enrolled in a registered course of study between 29 December 2017 and 2 January 2020, this being the date on which the applicant returned to Salisbury College the completed enrolment application form. This being so, the issue of whether condition 8202(2)(a) has been breached must be answered affirmatively unless the applicant can establish that the breach was beyond her control.

5. The fact that the applicant had enrolled in and successfully completed the Advanced Diploma of Leadership and Management during 2017 indicates quite clearly that she had engaged effectively in her studies during that year despite the trauma from the break-down in her relationship in January of that year. There is nothing in the evidence to suggest that any other factors were operating on her in the aftermath of the break-down during 2017 and, even if there were, the applicant was nonetheless able to engage effectively in her studies during that year.

6. This being so, the Tribunal is quite unable to see in these circumstances how it could be said that the breach during the 10 month period in 2018 was beyond her control.

   The second issue-should the applicant’s visa be cancelled?

7. Turning to the second issue, namely whether the visa should be cancelled, having found that the applicant had not complied with a condition of the visa the Tribunal must consider whether the visa should be cancelled. Of course, there are no matters specified in the Act or the Regulations which must be considered in the exercise of this discretionary power. Obviously, regard must be had to the individual circumstances of each case, including in this case the matters raised by the applicant, together with other matters referred to in the Department’s Procedures Advice Manual. These matters will be specifically addressed later in these reasons insofar as the evidence relates to them.

8. Before coming to the detail of the documentary case the Tribunal is, for reasons which will be become apparent in a moment, unable to accept at least part of the applicant’s oral

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evidence. Generally speaking, she appeared to give her evidence in a careful and considered fashion but some of her explanations for her failure to enrol in a registered course since 29 December 2017 simply cannot be accepted.

1. Some of these explanations are inconsistent with her documentary case, with what she stated in her letter to the delegate and with what appears in the Psychologist’s Report. The Tribunal must be cautious about accepting explanations from the applicant now which have not found their way into that sort of material. To give an example, the applicant gave oral evidence today that her failure to enrol in a registered course after December 2017 was because of, or at least partly because of, financial difficulties. Neither in her explanation letter to the delegate nor in the history which she gave to the Psychologist in November 2018 did she mention anything about financial constraints.

2. These concerns are exacerbated by her oral evidence to the effect that her father was funding her tuition here. Ms Lee made an oral submission at the end of the evidence to the effect that there was still scope for this explanation to operate because businesses have a habit of returning variable profits but, as no documentary evidence was led in the applicant’s case to the effect that her father’s business was having financial issues, the Tribunal is quite unable to accept this submission.

3. It would appear that the applicant’s father funded the initial package which the applicant had enrolled in which consisted of an English course costing about $9,000 and a Bachelor of Business which, as noted earlier, the applicant did not commence. Although the cost of that course is unknown, according to the applicant’s oral evidence, the Bachelor of Business course which she now wishes to enrol in after she completes the Advanced Diploma at Salisbury would cost about $33,000.

4. The Tribunal infers in these circumstances that the applicant’s father had the funds to pay for the Bachelor course in her initial study package, had she gone ahead with it. Given that he is also prepared to pay for the vocational course at Salisbury and the Bachelor course at UTS or Sydney University, there is no basis in this evidence for a finding that there were any financial difficulties operating on the applicant before or after December 2017.

5. The Tribunal does not accept the applicant’s belated explanation that her non-enrolment after December 2017 was due partly to financial constraints. If the applicant’s case is that these issues have arisen during the period from November 2018 to January of this year, the Tribunal does not accept the assertion that financial constraints have operated on her during this period, or any part of it.

6. The applicant did make some very frank admissions during the hearing which do enhance her overall credibility and the Tribunal is prepared to accept certain aspects of her evidence whether or not they are corroborated by the documentary record. Ultimately most of the objective facts, by that I mean the evidence on which the Tribunal can rely, mainly comes from the documentary case.

7. The applicant was born in China in December 1989 and she is now 30 years of age. In one of the documents which she provided today, namely the application form for her enrolment in the course at Salisbury, she states that she completed her secondary schooling in 2008. Apart from that, the Tribunal has no other evidence concerning her experience after her secondary schooling.

8. As I indicated earlier, she was granted the TU-573 visa on 17 March 2015 having presented a study package to the Department which consisted of the English course at UTS and a Bachelor of Business also at UTS. The evidence reveals that the applicant did, in fact, complete the English course, a course which took about four months.

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1. In her oral evidence today the applicant accepted that her enrolment in the Bachelor of Business at UTS was cancelled for non-commencement of studies on 15 April 2016. There is no acceptable evidence before the Tribunal to explain why she did not commence her studies in that course.

2. The documentary evidence reveals that the applicant enrolled in the Advanced Diploma of Leadership and Management at the Business Institute on 3 January 2017. There is therefore an additional period of no enrolment from 16 April 2016 to 3 January 2017, a period of about 8 months. There is no acceptable explanation from the applicant in relation to this additional period apart from what she asserts in the Explanation Letter about living under stress and depression because of difficulties which her partner was having in obtaining a student visa to study in Australia. The Tribunal does not accept these uncorroborated assertions.

3. As noted earlier, the applicant commenced her studies in the Advanced Diploma of Leadership and Management in early January 2017 and completed this course in late December 2017.

4. The Tribunal accepts that in early January 2017 the applicant broke up with her partner of some five years. Their joint intention was for both of them to come out here together to study but there were difficulties with her partner’s application, apparently, and the applicant came here alone to study in June 2015, with her partner remaining in China. The Tribunal accepts this would have a difficult time for the applicant and that, in early January 2017, their relationship came to an end.

5. The Psychologist’s Report was procured by the applicant shortly after the NOICC was served on her. The report is dated 1 November 2018 and was prepared by the author, Mr Hamid Dadgostar, after he interviewed the applicant on 31 October 2018. The report contains an assessment of the applicant’s psychological state as from January 2018. The history which the applicant gave to her psychologist relates to her relationship break-down and the aftermath of that and to relationship issues with her father, these issues having arisen because that the applicant had been in a same sex relationship with her partner and perhaps also because he had high expectations of her in terms of her study here. The Tribunal has no reason to doubt that the report contains an accurate summary of the given history.

6. It is noted in the report that, during 2018, the applicant had experienced various anxiety and depressive type symptoms such as a depressed mood, loss of interest and motivation, feelings of hopelessness and sleeping and eating disorders. The Tribunal is prepared to accept, although not without come hesitation, that the applicant did exhibit at least some of these symptoms during 2018 as a result of her relationship with her partner having come to an end in January 2017 and/or as a result of her relationship issues with her father.

7. Under the heading “Presenting Issues” Mr Dadgostar records at page 3 that the applicant disclosed to him during the interview that she had in effect come under notice from the Department regarding her visa compliance and informed him that, despite her previous struggles, she was now looking forward to resuming her studies as she did not want to disappoint her father anymore. Pausing here, this evidence is significant because, despite having indicated to her psychologist in November 2018 that she then looking forward to resuming her studies, the evidence reveals quite clearly that she did not do so. Nor has she given to the Tribunal any acceptable explanation for not having done so.

8. Mr Dadgostar goes on to state in his report that the applicant was still experiencing some of the depressive and anxiety symptoms mentioned earlier but that these were lately of a lesser extent.

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1. The report records that he conducted a Psychometric Assessment during the interview which indicated to him that the applicant was then suffering from a high level of distress consistent with a diagnosis of depression. I am not sure how that assessment sits with the history which the applicant had given to him concerning her improvement in recent times but, in any event, not much would appear to turn on this. The report does note on page 4 that the applicant had experienced increased anxiety levels when she received the NOICC and the Tribunal has little difficulty in accepting that she did.

2. What is important to note, of course, is that despite reciting the nature of her relationship with her father and what he expected from her studies here there is no mention in the report of any history about financial constraints or difficulties and no mention that her father was refusing to pay for her education. Indeed the impression which the Tribunal has from reading the report, viewed in conjunction with the other evidence led in this case, is indeed to the opposite effect, that what her father probably wanted was for the applicant to demonstrate that she was making progress in her studies.

1. Under the heading “Clinical Opinion” on page 5 Mr Dadgostar puts forward the view that, in light of his findings, it appeared to him that the applicant’s symptoms have directly affected her academic progress during 2018.

2. The Tribunal is unable to accept this finding because no information appears to have been given to him concerning the applicant’s completion of the Advanced Diploma in Leadership and Management during 2017, a course which ran throughout that year. The evidence in this case establishes clearly enough that the applicant was able to effectively engage with her studies immediately after the relationship came to an end, in early January 2017, and that she was able to do so during the next 12 months despite her personal issues. These objective features are hard to reconcile with the psychologist’s finding on page 5, if it can be so regarded, that she was unable to study during 2018. Indeed, it appears to the Tribunal that the finding can only be rationally explained on the basis that Mr Dadgostar was not given a full account of the applicant’s academic progress in the Advanced Diploma since January 2017. According to the report, the applicant does not appear to have given to him this sort of information.

3. The Tribunal cannot be satisfied in these circumstances that Mr Dadgostar would have expressed the conclusion in the terms he did had he been made aware of the fact that she had been able to complete the Advanced Diploma during 2017 despite having these personal issues.

4. There is a reference in the report under the heading “Background” to the fact that the applicant had studied an English language course followed by the Advanced Diploma. But there is no mention beyond that of her performance in those courses, in particular of having completed both of them on time and what, if anything, flowed from that. There is no mention of the timing of these courses and whether they were undertaken before or after the relationship breakdown. The Tribunal does not regard the mere disclosure that she studied these courses to have been fully informative.

5. The other document which the delegate had was the applicant’s Explanation Letter which I have referred to previously. That letter was prepared apparently by the applicant and is dated 2 November 2018. The Tribunal does not need to dwell on the detail in that letter other than to say that the Tribunal is certainly prepared to accept that the applicant was anxious and distressed as a result of the breakup with her partner in January 2017 and that it most probably involved the sequelae referred to in the letter.

6. When asked whether the consequences during the first half of 2017 were the same as what she was experiencing in the second half of that year the applicant confirmed they were. She

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gives some history of going back to China in July and August 2017, which the Movements record confirms, for a period of a few weeks. But, as I have indicated, none of this had any real impact on her ability to study so far as the evidence goes because we know that she completed the Advanced Diploma on time in that year.

1. Again, despite the applicant dealing with her relationship with her father in some detail in this letter, there is no mention that he withdrew his financial support during 2018 for any reason. There were apparently issues with him arising from the nature of the relationship which the applicant had with her partner but there is nothing to suggest there was anything beyond that, nothing to suggest it had any other ongoing consequences.

2. In the letter the applicant also refers to having received the NOICC and she goes on to say that her receipt of that document resulted in her suddenly waking up, that she regretted her previous attitudes towards her life. She said that her mental condition has not fully recovered but she believed that it was moving in the right direction and that she wanted the delegate to give her another chance to study.

3. There is evidence that the applicant did go back to China and that she sought some medical attention for her depression during her visit. However, the Hospital Report dated 17 August 2017 is of limited evidentiary value in that there is no history set out in the report. There is a diagnosis of moderate depression which is broadly in line with the views expressed in Mr Dadgostar’s report.

4. Whilst the Tribunal is prepared to accept that the applicant was distressed as the result of the breakdown of her relationship in January 2017 this appears to have had little or no impact on her ability to engage effectively with her studies during that year. In these circumstances the Tribunal simply cannot accept that these issues had anything to do with her failure to enrol in a registered course in the period from late December 2017 to early January 2020, a period in the order of 2 years.

5. The Tribunal in this case is looking at an applicant who was not enrolled for 8 months from April 2016 to January 2017 and from December 2017 to January 2020. In all this is a period of no enrolment of some 2 years and 8 months in circumstances where the applicant had arrived here in June 2015.

6. The Tribunal accepts that the applicant enrolled in the Advanced Diploma at Salisbury on 2 January 2020, this being shortly prior to her receipt of the hearing invitation on or about 14 January 2020. Of course, the Tribunal can infer in these circumstances that the applicant was well aware by that stage that the Tribunal would shortly be dealing with her review application and it appears to the Tribunal in these circumstances that her belated enrolment in this course was in recognition of the need for her to demonstrate enrolment in a registered course of study for the purposes of her application.

7. Insofar as the applicant’s oral evidence suggests that her non-enrolment after December 2017 was related to financial difficulties, the Tribunal simply does not accept this

   explanation. It finds no support in her documentary case. During the course of her oral evidence the applicant indicated that she may be able to provide some documentary proof of this but the Tribunal is not inclined to further investigate this because she has had ample opportunity to present this material to the Tribunal. A request for supporting documentary material was made in the Tribunal’s acknowledgement letter. It was also made in the hearing invitation which was sent to the applicant on 14 January 2020

8. In her oral evidence the applicant also purported to explain her non-enrolment on the basis that her maternal grandmother has been ill. Again, the Tribunal is not prepared to accept this explanation without some form of corroboration. There is nothing to this effect in her

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documentary case in the Tribunal nor was there anything along these lines in the documents she provided to the delegate. It may be that the explanation for this is because her grandmother was not ill at that time but, as I say, the applicant has not provided any documentary evidence to this effect despite having ample opportunity to do so since the review application was filed in early December 2018.

1. The Tribunal is prepared to accept that her grandmother was ill at some stage during 2017 although the Tribunal does not know exactly when. It may be that the applicant returned to China to see her grandmother during that year. But, as I say, the evidence falls well short of establishing that this had any bearing on her ability to study during that year, or after it. The applicant has not returned to China since September 2017.

2. When asked why she did not study for a period of about 2 years from early 2018 to the end of 2019 the applicant told the Tribunal that “I thought about attending class but because of my condition I did not feel it was in my control”. The Tribunal is quite unable to accept this explanation in circumstances where she was able to complete the advanced leadership and management course on time in 2017 at a time when one would logically think her symptoms would have been at their highest.

3. Moreover, despite having indicated to the psychologist in October 2018 that she wanted to engage in her studies, the simple fact is she has not done until January 2020 by which time a hearing before the Tribunal was imminent.

4. For completeness I should also mention that the applicant indicated in her oral evidence that after the Advanced Diploma of Business at Salisbury she wants to enrol in another course, namely a Bachelor of Business at either UTS or the University of Sydney. When asked how long that course would take to complete she indicated it would probably be between 2 and 3 years at a total cost of some $30,000 to $40,000 per year. According to the applicant her father is prepared to provide these funds.

5. Given that the applicant’s father funded the initial study package and has been partly funding her living expenses here and tuition expenses for the leadership and management course and is prepared to provide significant money to enable her to do what she wants to do in terms of her education in Australia, the Tribunal is quite unable to accept there has been any financial constraints operating on her at all.

6. The Tribunal has no difficulty in finding that the purpose of the applicant’s travel to Australia in 2015 was for the purposes of study. The fact that the TU-573 visa was granted offshore and on the basis of a package which consisted of the English course and the Bachelor of Business indicates as much. The Tribunal however is not prepared to find in this case that the applicant’s primary purpose of her stay in Australia has been to study. The objective features of this case simply do not permit the Tribunal to make this finding.

7. Having not commenced studies in the Bachelor of Business course and having her enrolment in that course cancelled on 15 April 2016 the applicant has not explained why she did not enrol in another registered course at that time. The Tribunal is uninformed of the reasons for this apart from what she has asserted in the Explanation Letter to the effect that she was lonely and stressed because of the immigration difficulties which her partner was having at that time. Absent any medical or other reliable evidence to substantiate these assertions the Tribunal is not prepared to find that these things impacted her ability to study during the 8 month period from April 2016 to January 2017.

8. In late October 2018 when the NOICC was served on her the applicant consulted Mr Dadgostar and informed him that she was improving and looking forward to re-engaging with her studies. Not only does she not do that but she does not give to the Tribunal a

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satisfactory explanation for not having done so at that time or over the ensuing 14 months to January 2020. The applicant has not suggested that the cancellation of her visa had anything to do with it nor could she given that she did re-enrol earlier this year, some 13 months after the cancellation.

1. In these circumstances the Tribunal cannot regard the re-enrolment of the applicant in the Advanced Diploma at Salisbury to be a factor of any great weight when it comes to consider for the purpose of her stay in Australia. It simply comes too late in the day and appears to the Tribunal to be a defensive measure.

2. At the end of the day, the fact that the applicant has a total period of no enrolment of some 2 years and 8 months is a very significant and weighty factor in the overall context of her academic program here. The absence of any satisfactory explanation for this extensive breach is no less significant and weighty.

3. It may well be that the applicant has complied with other conditions attaching to her visa. The Tribunal accepts that she has not been working but these are matters of relatively little or no weight in the overall circumstances of this case.

4. As to the degree of hardship that may be caused to her and her family the Tribunal accepts that if the decision of the delegate is affirmed, as it must be, this will involve a degree of hardship on the applicant in that she will be in a position where she will have to make arrangements to return home or take other steps to maintain her residence in Australia.

5. The Tribunal cannot but find in this case that the applicant has brought all of this on herself. It does not regard the hardship element to be significant and indeed it is of relatively little weight when viewed in the overall circumstances of this case. It is not the function of the Tribunal to alleviate or ameliorate the consequences of the applicant’s folly in circumstances where she has not been enrolled in a registered course of study for such a long period and without adequately explaining why.

6. So far as her father is concerned the Tribunal readily accepts that he will be disappointed. He has helped to fund the applicant’s education in Australia and has been put to the expense of doing that. He is prepared to expend further significant moneys to enable the applicant to complete her education in Australia. But, of course, again this is not something to which the Tribunal can attach any great weight simply because it too is directly connected with the applicant’s own conduct and decisions in Australia. The Tribunal accepts there will be hardship to the applicant and to her father but these are not factors which the Tribunal can attach great weight to in the overall circumstances of this case.

7. As to the circumstances in which the ground for cancellation arose, the Tribunal accepts that the applicant had some relationship issues which would have been stressful and indeed distressing for her during 2017. But the fact is she continued to study effectively during that year and the Tribunal does not accept that she was unable to engage in effective studies from December of that year. More particularly, the Tribunal cannot find in these circumstances that her non-enrolment between December 2017 and October 2018 was beyond her control.

8. Indeed, logic and common sense tells the Tribunal that the applicant would have been in a better position by the end of 2017 to engage in effective study than she was earlier in that year.

9. As to the applicant’s past and present behaviour towards the Department the delegate had no particular concerns about this and nor does the Tribunal. But again, very little weight can attach to this factor in the circumstances of this case.

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1. There would appear to be no other persons whose visa would be cancelled under Section 140 of the Act, so this aspect is plainly not relevant to this case.

2. As to the legal consequences of a decision to cancel the visa, as has already been noted the visa has expired. Obviously the cancellation will have ongoing legal consequences but these arise because the legislation provides for them. The Tribunal cannot attach great weight to them.

3. The Tribunal notes the delegate’s observations concerning the application of Section 48. The decision may well have consequences in that the applicant may have limited options to apply for further visas in Australia at least for a period of time. But again, this is a legal consequence of the legislation.

4. There are no relevant international obligations and, as far as the Tribunal can see, no other relevant matters apart from those to be mentioned shortly.

5. Overall this is a case which really turns on the applicant’s own conduct before and after she undertook and completed the Advanced Diploma in December 2017. There has been a period of 2 years and 8 months during which she was un-enrolled and for which she has offered no satisfactory explanation to the Tribunal. These are on any view weighty if not overwhelming considerations at the discretionary level. The Tribunal simply cannot be satisfied on these facts that the applicant is in Australia primarily to engage in productive study notwithstanding that she has recently enrolled in another vocational course at Salisbury.

6. If she had enrolled in this course 2 years ago the result of this case may have been different but the simple fact is that too much water has now gone under the bridge.

7. Questions might be asked in these circumstances as to whether this applicant really does intend to engage with the Advanced Diploma at Salisbury or whether she has other priorities but it is unnecessary for the Tribunal to make any findings in this regard.

8. The Tribunal in an appropriate case can make allowances for bad mistakes or decisions which misinformed or inexperienced applicants make so as to enable them to get back on track. But, of course, in those cases the student has demonstrated in other ways that he or she genuinely wishes to engage in productive study. This is not a case for allowances of this kind to be made.

9. The Tribunal in this case is quite unable to find that the applicant has remained in Australia since late 2017 primarily in order to undertake a course or courses of study to further legitimate career goals. It cannot find that the course in which she is now enrolled in or the course which she says she wishes to enrol in further down the track would further legitimate career objectives or enhance realistic employment prospects. Once again, the Tribunal has no evidence from this applicant to explain her interest in these courses. There is simply nothing about it.

10. The Tribunal is not prepared to draw any favourable inferences arising from the fact that her father operates a restaurant in China in circumstances where she has not (until recently) engaged in any business or other studies in Australia since late 2017. The applicant has given no evidence that she wants to be involved in this business.

11. Given that the TU-573 visa expired in March 2019, if the applicant wishes to remain in Australia, she would have to apply to the Department for a further visa if she in fact wishes to complete her studies here. This would probably mean she would have to meet the criteria

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for the grant of a Subclass 500 visa. But these are not matters which the Tribunal can or indeed make any predictions about.

Conclusion

1. This is not a case in which the applicant is an incapable student. To her credit she engaged in effective studies during a difficult period in her life thus far and indeed she studied effectively during that period at the advanced vocational level. But, of course, these are not matters which the Tribunal need further consider.

2. The applicant had the opportunity to engage in further studies, ample opportunity in fact, but until recently she had not taken it. The Tribunal is not satisfied in these circumstances that she has re-enrolled in this other vocational course for legitimate academic reasons, nor is it satisfied that she genuinely wishes to revisit higher level education in the business field further down the track.

3. Overall the considerations set out above weigh heavily in favour of the Tribunal exercising its discretion to affirm the delegate’s decision to cancel the applicant’s visa.

   DECISION

4. The Tribunal thus affirms the decision under review.

   Michael Bradford
   Member

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