Mak (Migration)

[2019] AATA 3674

Mak (Migration) [2019] AATA 3674 (15 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ka Yee Mak

CASE NUMBER:  1908326

HOME AFFAIRS REFERENCE(S):           BCC2019/278696

MEMBER:Peter Booth

DATE:15 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 15 August 2019 at 11:53am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – course enrolment – no compelling reasons – mental health – insufficient evidence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140
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 3 April 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with condition 8202(2)(a). 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 6 August 2019 to give and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

4. 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

5. 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?

6. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

   ·be enrolled in a full time registered course: 8202(2)(a)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(c)(ii).

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

8. The applicant gave evidence that she had not been enrolled in the course of registered study from 17 November 2019.  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).

9. As the applicant has failed to comply with the visa condition, the ground for cancellation in s.116(1)(b) is made out.

   Consideration of the discretion to cancel the visa

10. 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’

11. The Tribunal turns to consideration of any relevant factors, including matters raised by the applicant and the departmental guidelines which cover matters such as:

    ·     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

    The applicant gave evidence that she arrived in Australia on 17 October 2017 as the holder of a Student (Subclass 500) visa.  Although she gave evidence that she could not remember her intended course of study, she did say that she intended to study in Australia. The applicant gave no evidence that she had or has a compelling need to travel to or remain in Australia.

    ·     The extent of compliance with visa conditions

    The applicant said that she had not been enrolled in a registered course of study from 17 November 2017.

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

    The applicant gave no evidence regarding any degree of financial, psychological, emotional or any other hardship which may be caused by the cancellation of the visa. However, the Tribunal accepts that cancellation of the applicant’s visa will cause some degree of financial hardship in the form of lost tuition fees, or emotional hardship, in the form of disappointment or embarrassment in not completing the course. The Tribunal gives this factor little weight.

    ·     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

    The applicant said that she had not attended any classes after arriving in Australia. In answer to a question from the Tribunal she said that this was due to “depression”. When asked if she had obtained any medical treatment for depression, she said that she had recently been to see a doctor and was given a prescription. The Tribunal enquired whether she was referring to a medical certificate dated 1 August 2019, which had been produced to the Tribunal by the applicant. The applicant indicated positively that it was. She said that she did not obtain any medical treatment in October or November 2017 because she was “in fear of being found out”.  The Tribunal enquired how anyone would know about her treatment, unless she told them. The applicant’s answer was unresponsive to the question and indeed when the question was repeated several times, the answers were unresponsive. The applicant was then asked to describe the medication which she had been prescribed for treatment of the depression.  She could not recall the name but said that “it helps me sleep”.

    The applicant said that she was not currently enrolled in the course of study. In response to a general invitation from the Tribunal to add anything further she said that since the visa has been cancelled her “long term depression has gotten worse”. She said that she had headaches and did not sleep. She also said that she returned to Hong Kong to deal with some family matters involving purchasing real estate, and negotiating contracts. In response to question from the Tribunal, she said that these matters were not relevant to, or the cause of, her depression. She went on to describe a breakup in a relationship and that due to “my depression” she was worried that her classmates would “find out” and therefore she did not attend classes. The Tribunal invited to again to explain how her classmates would do know that she had depression if she did not tell them. She said the depression had symptoms and that others might find out. The Tribunal informed the applicant that her evidence on this point was difficult to accept.

    The Tribunal pointed out that her migration agent had not referred to depression as an issue in a submission to the Tribunal dated 21 March 2019.  In answer to a question she said that she had not told the migration agent, because she did not trust the migration agent.

    The Tribunal finds the applicant’s explanation for not studying to be most unconvincing. The applicant sought no treatment for depression although she gave evidence that it was the cause of her inability to study in 2017.  Indeed she did not seek any treatment for depression until a few weeks prior to the hearing.  She could not recall the name of the medication, and did not tell her migration agent of this matter, when the migration agent was making written submissions to the Tribunal in support of her application.

    Further her reasons for not telling anyone or attending classes because she thought they might “find out”, are not accepted. If she was suffering from depression, it is most unlikely that anyone would have been aware, unless she had informed them. Accordingly the Tribunal does not accept that the reason for the applicant not attending her course of study was beyond the applicant’s control.

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

    There was no evidence in relation to this factor and the Tribunal gives it no weight.

    ·     Whether there would be consequential cancellations under s.140

    The Tribunal was provided with no evidence on this point and gives it little weight.

    ·     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

    The Tribunal accepts that there may be legal consequences as a result of the cancellation. However, these consequences intended by the Parliament when enacting the relevant legislation. The Tribunal gives them little weight.

    ·     Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

    There was no evidence in relation to this factor and the Tribunal gives it no weight.

    ·     If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

    There was no evidence in relation to this factor and the Tribunal gives it no weight.

    ·     Any other relevant matters.

    There was no evidence of any other matters and the Tribunal gives this factor no weight.

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

    DECISION

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

    Peter Booth
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder must be enrolled in a a full-time course of study or training if the holder is:

    (a)a Defence student; or

    (b)a Foreign Affairs student; or

    (c) a secondary exchange student.

    (2)A holder not covered by subclause (1):

    (a)must be enrolled in a full‑time registered course; and

    (b)subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c) must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)changes their enrolment to a course at the Australian Qualifications Framework level 9.