Peng (Migration)

[2018] AATA 5217

Peng (Migration) [2018] AATA 5217 (12 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Chen Peng

CASE NUMBER:  1709804

HOME AFFAIRS REFERENCE(S):           BCC2016/4281293

MEMBER:Joseph Lindsay

DATE:12 December 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 12 December 2018 at 5:34pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa  – Subclass 573 Higher Education Sector – Cancellation – not maintained enrolment in registered course – pregnancy and birth of child – did not reasonable steps to manage her course enrolment – decision under review affirmed

LEGISLATION
Migration Act 1958, s 116(1)(b)
Migration Regulations 1994, Schedule 2, condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 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).

2. The delegate cancelled the visa on the basis that the applicant did not comply with condition 8202(2)(a) of her visa, and the applicant was not enrolled in a registered course. In particular, the applicant has not been enrolled in a registered course of study since 8 March 2016.

3. The applicant appeared before the Tribunal on 20 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband Mr Yewei Li. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was not represented in relation to the review.

5. 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

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.

9. In the hearings, the applicant agreed that she had breached condition 8202(2)(a) as she had not been enrolled in a registered course of study since 8 March 2016.

10. 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

11. 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

12. In response to this issue at the hearing, the applicant indicated her main purpose in travelling to Australia was to study.

13. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

14. The Tribunal has no evidence that the applicant has not complied with her visa conditions, apart from condition 8202.

15. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

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

16. In response to this issue at the hearing, the applicant indicated that if her visa was cancelled she would suffer some hardship.

17. The applicant indicated that, if her visa was cancelled, her life planning would be disturbed. She indicated that in order to come to Australia, both she and her husband have sacrificed a lot, and gave up their careers and connections in Singapore. The applicant indicated that, if her visa was to be cancelled it would be a disaster for her, her husband and her baby that was born in Australia. The applicant indicated that her child needs to go through a vaccination plan. The applicant indicated that she also has a sick cat that needs to continue with treatment in Australia, and may not survive if it had to travel.

18. In consideration of the applicant’s response, the Tribunal accepts that the applicant may suffer some hardship if her visa was cancelled in the circumstances as she has detailed.

19. Accordingly, the Tribunal gives some weight in the applicant’s favour in regard to these factors.

    Past and present behaviour of the applicant towards the Department

20. There is no evidence that the visa holder has been uncooperative with the Department in the past.

21. The Tribunal accepts that there is no evidence that the visa holder has been uncooperative with the Department in the past. Having taken this into consideration, I give these considerations some weight in the visa holder’s favour.

    Whether there would be consequential cancellations under s.140

22. The decision record notes that cancellation of the applicant’s visa will result in the consequential cancellation of the applicant’s husband’s visa.

23. During the hearing, the applicant’s husband confirmed that cancellation of the applicant’s visa will result in the consequential cancellation of his bridging visa. In addition, the applicant’s husband indicated that he was applying for a work visa. However, Departmental records indicate that the applicant’s husband has not applied for a work visa. Accordingly, the Tribunal finds that that cancellation of the applicant’s visa will result in the consequential cancellation of the applicant’s husband’s visa.

24. The decision record notes that the applicant’s daughter, Lillian Elizabeth Chen Li, has not been officially added to the applicant’s visa but by operation of the law the then new born child would hold the same visa as the primary visa holder. Accordingly, the Tribunal finds that that cancellation of the applicant’s visa will result in the consequential cancellation of the applicant’s daughter’s visa.

25. The Tribunal places some weight on this information in the applicant’s favour.

    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

26. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that she was aware of the legal consequences of the cancellation of her student visa.

27. The Tribunal accepts that if the applicant’s student visa is cancelled, she and her family would need a visa to remain in Australia lawfully.

28. At present, the applicant, as well as her husband and child, is on a Bridging Visa E for the purposes of the review. However, once the decision is affirmed, that Bridging Visa E will cease to remain in force at some point in the future. The Tribunal accepts that the applicant and her family will need to make their own arrangements to obtain a visa to lawfully remain onshore and that if they do not do so, they will be in Australia unlawfully and may be liable to detention and removal if they chose not to leave Australia.

29. The Tribunal accepts that the applicant will receive a three year exclusion period as a consequence of her student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

30. The Tribunal places low weight on this information in the applicant’s favour.

    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

31. There is no indication that there would be a breach of any international obligations if her student visa was cancelled.

32. The Tribunal places low weight on this information in the applicant’s favour.

    The circumstances in which the ground for cancellation arose

33. A large part of the applicant’s submissions relate to the circumstances in which the ground for cancellation arose, including:

    a.        the applicant’s response to the Department dated 24 January 2017,

    b. the applicant’s submissions to the Tribunal dated 20 February 2018,

    c.        the applicant’s submissions to the Tribunal dated 27 September 2018.

34. In the applicant’s response to the Department dated 24 January 2017, the applicant indicated that she came to Australia to study Economics, but after her course started she became pregnant and had a child and some consequent medical issues.

35. The applicant’s written material provided to the Tribunal included:

    a.        a copy of her daughter’s immunisation record,

    b. a copy of an email she wrote to Jose Rodriguez Neto at the Australian National University (ANU) on 28 July 2015,

    c.        a copy of some of her medical information, it appears related to her pregnancy,

    d.a statement from her husband indicating that he witnessed her provide a written application for maternity leave to the Australian National University (ANU) on 15 March 2016,

    e. a statement from her indicating that on 24 July 2015 she obtained a course exemption approval from Professor Jose Rodriguez Neto but that the university’s online course registration system (ISIS) had not been updated until February 2016, she did not receive any notification from the university and so was not able to choose which course to register, and on 15 March 2016 her and her husband attended the university to apply for maternity leave for which she received no response from the university,

    f. a copy of the veterinary medical history for her cat ‘Rascal’,  

    g.a letter of offer from the ANU dated 17 April 2015,

    h. a letter of offer from the University of Sydney dated 14 April 2015,

    i.an email dated 8 March 2016 to the applicant from the ANU’s Academic Standards and Quality Office notifying her that she had not enrolled,

    j.a statement from her dated 27 September 2018 indicating that she did not see the email dated 8 March 2016, she was not informed that her course had been cancelled, the email dated 8 March 2016 proves she did not request the cancellation, the ANU could not find her program leave request from 15 March 2016 because her course had been cancelled on 8 March 2016, she did not follow up her case because she did not know her course was cancelled or her maternity leave was not approved, and she was experiencing  a difficult time in respect to her physical and mental health.

36. At the hearing, the applicant indicated that both she and her husband came to Canberra in mid-2015 so that the applicant could commence her course in the Master of Economics at the ANU.

37. In the initial discussion with the applicant, and in the interests of transparency, the Tribunal indicated to the applicant that the Tribunal Member (Member Lindsay) had attended the ANU and that the Tribunal Member’s own sister had undertaken the Master of Economics at the ANU and, for those reasons, the Tribunal was very much aware of the processes and procedures of the ANU and also how difficult the Master of Economics program can be. At that point, the applicant broke down in tears.

38. When she composed herself, the applicant indicated that she commenced the Master of Economics program in the mid-2015. The applicant indicated that, very early on in the course, she found the course hard. She indicated she then met with one of the facility academic staff, Jose Rodriguez Neto, and had a discussion with him about her studies as evidenced by the email dated 28 July 2015. The applicant indicated that Jose Rodriguez Neto gave her an undertaking that he would give her ‘course exemptions’ but that she never followed up these arrangements with the International Admissions Team at the ANU. Instead, the applicant indicated she checked her student enrolment using the ANU’s online enrolment system (a system called ‘ISIS’), where she found that the subjects she had requested to be exempted had not in fact been exempted and that, as a consequence, she chose subjects that are harder than the original subjects.

39. When the Tribunal asked the applicant for documentation regarding her student enrolment history, she indicated she did not have such documents. When the Tribunal indicated to the applicant that the Tribunal was reasonably aware that the ANU would keep such records and she could access those records if she chose to, the applicant indicated to the Tribunal that the ANU advised her they did not keep enrolment records.

40. When the Tribunal put to the applicant that it was not Professor Neto’s responsibility to change her course enrolment details, she indicated that she agreed.

41. The applicant indicated she would provide records of her course enrolment within seven days of the hearing. As at the time of this decision, no such records have been provided to the Tribunal.

42. In further discussion, the applicant and her husband indicated they returned to Singapore (where they are both permanent residents) for a short time in early 2016 before coming back to Canberra in early 2016.  The applicant indicated that she became pregnant and her daughter was born on 5 November 2016 in Hobart. The applicant’s husband indicated that the applicant’s mental and physical health was not good during the pregnancy and that as a result she was not able to focus.  The husband indicated that the applicant’s mental and physical health situation continued to be problematic after the birth of the child. The applicant’s husband indicated he was under the impression that the ANU did not alert the applicant in relation to any issues concerning her course or potential enrolment cancellation.

43. The applicant’s husband indicated that he had started a job as a software engineer in Hobart in January 2016 and while initially the applicant stayed in Canberra, she later went to join her husband in Hobart where they stayed until the baby was born on 5 November 2016.

44. The applicant and her husband indicated that in March 2016 they both attended the ANU to apply for maternity leave.  The applicant and her husband indicated that they submitted a written application for maternity leave but never got a written response. The applicant indicated she actually got an oral approval from the staff member she gave the maternity leave application to.

45. The Tribunal raised concerns with the applicant about the very short period of time after conception that she applied for maternity leave – barely a few weeks. 

46. The applicant and her husband indicated that by the time they went to the ANU to apply for maternity leave, the ANU had already cancelled the applicant’s student enrolment but failed to tell her. The applicant and her husband indicated that they were under the impression that the maternity leave had been approved and were surprised when they received notification from the Department of an intention to consider cancellation on 9 January 2017. 

47. The applicant’s husband indicated that up until one month before the hearing the applicant still had access to ISIS (the ANU student online enrolment system).

48. The applicant’s husband indicated that he, the applicant and their child are now residing in Melbourne where he works as a software engineer.

49. When the Tribunal asked the applicant how she would propose to continue her studies at the ANU in Canberra given the current circumstances, she indicated that she would move to Canberra. When the Tribunal asked the applicant whether she meant she would move to Canberra with her child while her husband stayed in Melbourne, she did not directly answer the question but gave a response that would be best described as ambivalent.

50. In consideration of the above, the Tribunal does not accept that the applicant took reasonable steps to maintain her enrolment in the Master of Economics at the ANU. The Tribunal accepts that the Master of Economics at the ANU is a difficult course. The Tribunal accepts that while the applicant did approach faculty staff to discuss her concerns, her failure to follow up with International Student Enrolments at the ANU was unreasonable. The Tribunal does not accept that that ANU does not have the applicant’s student enrolment records. The Tribunal does not accept that the ANU would not provide the applicant a copy of her student enrolment records on request. The Tribunal finds that, given the applicant had access to ISIS up until one month before the hearing, she would reasonably have had access to her student enrolment information and it was open to her to check that information at any time, including in relation to her maternity leave application and cancellation of her course enrolment.

51. The Tribunal finds that, given the circumstances as detailed above, the applicant did not take reasonable steps to manage her course enrolment – circumstances that were well within the applicant’s control. The Tribunal finds that the medical information provided does not support the applicant’s claim that her pregnancy and the birth of her child had such an adverse impact on her mental and physical health that it caused her to not remain enrolled in her course – a course in which the enrolment ceased after she submitted her maternity leave application.

52. Accordingly, the Tribunal does not accept that the circumstances as detailed above warrant the Tribunal exercising its discretion in the applicant’s favour.

53. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    Any other relevant matters

54. The Tribunal asked the applicant whether there were any further matters that she wanted to raise, and she indicated there were no matters she wanted to raise. 

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

    Conclusion

56. The Tribunal finds that since the applicant received her Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 17 June 2015, now some three and a half years ago, the applicant has not completed any higher education courses.

57. The Tribunal finds that since 8 March 2016 the applicant has not been enrolled in a registered course of study at the higher education level and, accordingly, the applicant has not complied with condition 8202(2)(a).

58. The Tribunal finds that the circumstances that led the applicant to not be enrolled in a registered course of study, as detailed above, are not exceptional circumstances. 

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

    DECISION

60. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Joseph Lindsay
    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.