Ren (Migration)

[2019] AATA 3495

Ren (Migration) [2019] AATA 3495 (6 August 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Miss Guoping Ren

CASE NUMBER:  1713268

HOME AFFAIRS REFERENCE(S):          BCC2017/1567122

MEMBER:  Frank Russo

DATE OF ORAL DECISION:  6 August 2019

DATE OF WRITTEN STATEMENT:         7 August 2019

PLACE OF DECISION:  Sydney

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

Statement made on 07 August 2019 at 5:48pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – compelling reason for remaining in Australia – to complete degree already commenced – satisfactory academic progress – less than 12 months to go – financial difficulties – beyond applicant’s control – mental health issues – unfit for studies – decision under review set aside

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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 June 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 meet the requirements of his Student visa as he was not enrolled in a registered course. 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 Tribunal gave its decision on the review at the conclusion of the hearing held on 6 August 2019. The following are the reasons for that decision.

4. The applicant appeared before the Tribunal on 6 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Shuk Yu Lam. 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.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

8. 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).

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

10. The applicant is a 22-year-old Chinese national. In addition to the information provided with her application for review, the applicant provided the Tribunal with copies of the following documents:

a.      Statutory declaration of the applicant, declared on 13 June 2017;

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b.Statement of results in UNSW Foundation Studies, issued by UNSW on 14 June 2016;

c.Reports of Danni Zhang, Registered Psychologist, New Vision Psychology, dated 27 November 2016 and 7 December 2016;

d.Report of Johan Crouch, Accredited Mental Health Social Worker, New Vision Psychology, dated 6 June 2017;

e.Notice of Critical Illness issued in Mandarin by Xinji People’s Hospital, China, dated 15 December 2016, together with a certified English translation;

f.Academic Records for the applicant’s studies in the Diploma of Business, and Bachelor of International Business, issued by TOP Education Institute on 30 July 2019;

g.Confirmations of Enrolment for the Diploma of Business and Bachelor of International Business at TOP Education Institute, created on 9 June 2017;

h.Letter from TOP Education in relation to the applicant’s enrolment in the Bachelor of International Business, issued on 30 July 2019; and

1. Submission by her representative, dated 30 July 2019

1. The Tribunal has had regard to these documents in making its decision. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file.

2. The applicant gave evidence that she arrived in Australia in November 2014 with the purpose of undertaking Foundation Studies at UNSW, followed by a Bachelor of Commerce at UNSW. She stated that initially she undertook a 30-week English language course from November 2014, which she passed. She then undertook two semesters of the Foundation Studies course at UNSW. She stated that she did well in the first semester, but didn’t pass her second semester of Foundation Studies for the reasons which are set out in my consideration of the discretion to cancel the visa, below.

3. The applicant gave evidence that she ceased her studies in the Foundation Program in June 2016. She stated that she did not obtain a sufficient grade to allow her to commence the Bachelor of Commerce at UNSW and her enrolment in this course was cancelled.

4. Adopting the procedure in section 359AA of the Act, the Tribunal put to the applicant that it had on file a copy of his enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal provided the applicant with a copy of his PRISMS enrolment records. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether she had any comments in relation to his PRISMS enrolment records and advised that she may be granted time to comment on or respond to the information if needed.

5. The applicant chose to respond to the PRISMS enrolment record at the hearing and indicated that she is currently enrolled in the Bachelor of International Business, despite her PRISMS record recording that her enrolment in this course has been cancelled. I have addressed the issue of the applicant’s current enrolment in the Bachelor of International Business and the discrepancy with her PRISMS in my consideration of the discretion to cancel the visa, as it is not relevant to whether the applicant complied with Condition

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8202(2). Putting this issue to one side, the Tribunal finds that the applicant’s PRISMS record is consistent with the enrolment history which she gave as part of her evidence.

1. The applicant indicated at the hearing that she accepts that she was not enrolled in a course of study from 20 July 2016 to 8 June 2017, and had failed to maintain her enrolment in accordance with condition 8202. The applicant conceded that there are therefore grounds for cancellation of the visa.

2. On the evidence before the Tribunal, the applicant was not enrolled in a registered course from 20 July 2016 to 8 June 2017. Accordingly, the applicant has not complied with condition 8202(2).

   Consideration of the discretion to cancel the visa

3. 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

4. The applicant told the Tribunal that the purpose for her travel and stay in Australia is to obtain a tertiary education. She stated that she completed high school in China at the end of 2014 and has no tertiary qualifications from China. She stated that she is from Guizhou Province, which she stated is a relatively poor part of China with fewer opportunities for students to obtain a good education. She stated that she enrolled in a Bachelor of Commerce at UNSW because she believes skills in commerce will be useful to her home country, and she enrolled at UNSW because she knows that it is a good university.

5. The applicant gave evidence that she ceased studying in June 2016 after she failed the second semester of her UNSW Foundation Studies. She encountered various difficulties which prevented her enrolment in another course until June 2017, which are set out below in my consideration of the circumstances in which the ground for cancellation arose.

6. The applicant gave evidence about her nervousness surrounding her attempts to re-enrol at UNSW. She stated that she tried to re-enrol in the Foundation Course at UNSW so she could repeat the second semester, but she became nervous, was embarrassed and was affected by the psychological issues which are set out below. The applicant stated that by April 2017 her psychological condition had improved and she was ready to recommence her studies. Because of the issues she experienced in 2016 with her enrolment at UNSW, she decided to enrol at a different institution. In June 2017 she enrolled in the Diploma and Bachelor of International Business at Top Education Institute.

7. The applicant provided the Tribunal with Academic Records for her studies in the Diploma and Bachelor of International Business. As noted above, the applicant gave evidence that she is currently enrolled in the Bachelor of International Business. She expressed surprise that the extract of her PRISMS record which the Tribunal provided her with indicates that her enrolment in this course is cancelled. The applicant stated that the week before the hearing she paid $10,500 for the next semester of her studies, although she did not bring a receipt for this payment with her to the hearing.

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1. The Tribunal notes that the PRISMS record which it has on file was created on 26 July 2019. The applicant provided the Tribunal with a letter from Top Education Institute, dated 30 July 2019, which certifies that the applicant is a full-time student enrolled in the Bachelor of International Business, with a predicted completion date of 30 June 2020.

2. The Tribunal accepts the applicant’s evidence that she paid course fees in the week before the hearing and accepts that she believes that she continues to be enrolled in the Bachelor of International Business. The Tribunal notes that the extract from the applicant’s PRISMS record does not indicate a reason why the applicant’s enrolment was cancelled, and such cancellations can occur for a range of reasons, including for administrative reasons. The Tribunal also notes that the letter from Top Education Institute is dated four days after the PRISMS record, and is likely to be a more accurate reflection of the status of the applicant’s enrolment. In any case, for the purposes of assessing the purpose of the visa holder’s travel to and stay in Australia, there is no requirement that the visa holder be currently enrolled in a registered course.

3. The Tribunal notes that the applicant enrolled at Top Education Institute in June 2017 and according to her evidence and her PRISMS record, she completed the Diploma of Business in June 2018. The applicant has submitted Academic Records from Top Education Institute which show that she has completed seven units in the Bachelor of International Business. According to both the documents the applicant has supplied, and her evidence, the applicant has approximately 11 months left to complete the Bachelor of International Business.

4. The applicant gave evidence that the financial difficulties which her parents experienced at the beginning of 2016 have now been resolved and they are able to financially support her studies.

5. There is no evidence before the Tribunal that the purpose for the applicant’s travel to and stay in Australia is for a reason other than to study. The applicant gave evidence that she only commenced working in Australia part-time in 2017, and there is no evidence that the applicant’s stay in Australia is for economic reasons.

6. The Tribunal finds that the applicant has a compelling reason for remaining in Australia, namely to obtain a Bachelor degree and to complete the Bachelor of International Business which she commenced in June 2017, and which she is planning to complete in less than 12 months. The Tribunal finds that the applicant has made good progress with her studies since June 2017 and is on track towards fulfilling the goal which she originally came to Australia for. The Tribunal gives this some weight against cancelling the visa.

   The extent of compliance with visa conditions

7. As noted above, the applicant did not comply with condition 8202(2) for a considerable period of time. However, she provided evidence of financial difficulties which were beyond her control and the subsequent impact on her psychological state, which are set out further in the consideration of the circumstances in which the ground for cancellation arose. There is no evidence before the Tribunal of other breaches by the applicant of her visa conditions. The applicant gave evidence that she has worked part-time in make-up sales since July 2017 and has complied with the work limitation condition in her visa. I give this some weight against cancelling the visa.

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

8. When asked about the degree of hardship that may be caused as a result of the cancellation of her visa, the applicant stated that she will lose her confidence in her ability to study and

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that she will doubt herself. She stated that her parents will lose the financial investment they made in her studies and will feel as though their efforts have gone down the drain.

1. Whilst the applicant did not raise the potential psychological impact which a cancellation may have on her, in light of the psychological reports provided by the applicant, the Tribunal takes this into account as part of the hardship which the applicant might experience. In particular, the Tribunal notes the following statement contained in the report of Mr Johan Crouch, Accredited Mental Health Social Worker, dated 6 June 2017:

   It is ... recommended that [the applicant] is able to recommence her studies to maintain her current positive mental health. [The applicant] has attached a significant amount of hope on the successful completion of her studies, and her mental health would likely deteriorate if she is not able to progress with this.

2. I also note that the applicant has completed two years of study towards a Bachelor of International Business and a cancellation may affect her ability to now complete this qualification. I also take this into account. I give this some weight against cancelling the visa.

   The circumstances in which ground of cancellation arose. 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

3. The applicant gave evidence at hearing which was consistent with a statutory declaration which she declared on 13 June 2017. She gave evidence that she was enrolled in the Foundation Studies course at UNSW in 2016 and completed semester 1 successfully, however she did not pass semester 2 due to psychological issues which arose after she became aware of financial problems which her parents experienced. She gave evidence that her parents had invested money with an investment company in Guizhou Province. She started to become aware that there was a financial issue in January 2016. At first her parents were reluctant to reveal to her what had occurred. The applicant’s mother told her over the phone that she would need to be more frugal with her finances. The applicant stated that she only became aware of the extent of the issue after she heard that the father of one of her high school classmates had committed suicide after losing all of his savings with an investment company. The applicant told the Tribunal that she then spoke to her mother about the issue in February 2016 as her family had lost nearly RMB 2-million as a result of investment fraud. The applicant gave evidence that as a result of this news and her parents’ inability to continue to support her studies, she began to suffer insomnia, headaches and could not concentrate.

4. The applicant stated that she planned to return to China at this stage, but was told by her parents to stay in Australia to study. She gave evidence of the pressure she felt to complete her studies, with the increased worry that she would not be able to pay her course fees. The applicant gave evidence that she borrowed money from her friend, Ms Lam, in order to pay her fees for the Foundation Studies course. In addition she obtained some money from her grandmother.

5. The applicant gave evidence that the stress of knowing these financial difficulties affected her ability to study and she didn’t do well in the second semester of her Foundation Studies course, and was therefore unable to enrol in the Bachelor of Commerce at UNSW. The applicant gave evidence that she was anxious, unable to sleep and began to overeat, and was unable to cope of to take steps to improve her situation. She stated that she turned to gambling as a way to try to obtain sufficient funds to support herself and her studies.

6. The applicant gave evidence that she first sought psychological treatment in November 2016. When asked by the Tribunal why she sought treatment at that point, she stated that

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she didn’t know at the time that she was sick, but she was urged by Ms Lam, to seek psychological assistance. The applicant stated that the psychologist recommended that she seek support from her family prior to recommencing her studies, which the applicant did, returning to China in December 2016 for a 4-month period.

1. The applicant stated that she was able to resolve her psychological issues during her return to China and returned to Australia in April 2017. She stated that upon her return to Australia she met with an agent in April 2017 to discuss course enrolments. She stated that the agent told her that no courses were open and that she would need to wait until July 2017, when colleges would have their next intake.

2. The applicant provided reports from Ms Danni Zhang, Registered Psychologist, which indicate that the applicant sought treatment in November 2016. A report dated 27 November 2016 diagnoses the applicant as suffering depression, anxiety and stress arises from the circumstances which the applicant gave evidence of at the hearing. The report states:

   It is my opinion that Ms Ren’s pressures are significant, and have caused her to experience symptoms of mental illness. It is also my opinion that her symptoms have impacted on her ability to engage in studies since mid-2016.

3. The report recommends that the applicant take some time away from her studies to focus on improving her mental health.

4. The applicant said that she subsequently enrolled in Business at TOP Education Institute, which she commenced on 17 July 2017.

1. The applicant also gave evidence that her grandfather suffered a heart attack and lung infection in December 2016, which triggered further stress for her. She provided a copy of a ‘Notice of Critical Illness’ issued by Xinyi People’s Hospital on 15 December 2016, which confirms that her grandfather was hospitalised with these conditions and that his condition was life-threatening.

2. The Tribunal heard evidence from Ms Lam, who stated that she has been a friend of the applicant since 2015. Ms Lam gave evidence that in the first half of 2016 she noticed that the applicant was very upset and went through a period where she would not leave her home. She stated that the applicant moved in with her in July 2016 and remained a flatmate until she went to China in December 2016.

3. Ms Lam gave evidence that she noticed the applicant was upset a lot, was crying continuously and was overeating. She suggested to the applicant that she see a psychologist.

4. Ms Lam also gave evidence that the applicant borrowed money from her in early 2016. She gave her $15,000 in order to pay her course fees, which the applicant returned in

   instalments in 2017.

5. Having considered the evidence before it, the Tribunal is satisfied that aspects of the circumstances in which the grounds for cancellation arose were beyond the control of the applicant. The Tribunal is also satisfied that the applicant took steps to mitigate these circumstances and to address her lack of enrolment. The Tribunal is satisfied that the financial difficulty which the applicant’s parents experienced was unforeseen by the applicant and triggered her symptoms of depression, anxiety and stress, which resulted in her inability to cope with her studies, and her subsequent poor results in the second semester of her Foundation Studies. The Tribunal accepts that this was the reason for her inability to then enrol in the Bachelor of Business at UNSW and accepts the applicant’s evidence as to the

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feelings of stress associated with trying to enrol at UNSW and her need to therefore enrol with a different course provider. The Tribunal accepts the psychological reports provided by Ms Zhang and accepts that her psychological condition affected her ability to study, as well as her ability to cope and to take positive steps to improve her circumstances.

1. Whilst the financial difficulties which the applicant gave evidence of may themselves have given rise to a ground for cancellation of her visa as the circumstances which permitted the grant of the visa (the financial capacity to undertake study) ceased to exist, the Tribunal is satisfied that the applicant attempted to mitigate this situation by borrowing money for her course fees from Ms Lam, as well as from her grandmother, which allowed her to complete her enrolment in the Foundation Studies course at UNSW. The applicant also gave evidence that she moved in with Ms Lam in order to save on the cost of rent and other expenses.

2. The Tribunal is also satisfied that the applicant took a number of other steps to mitigate the circumstances. She sought psychological treatment for her conditions in November 2016, approximately six months prior to the Department’s issue of the Notice of Intention to Consider Cancellation (NOICC) of her visa. While the Tribunal notes that this treatment was not sought at the time that the applicant’s financial and study problems first arose, the Tribunal accepts her evidence that she did not at the time understand that she was unwell, and accepts her evidence of severe symptoms which affected her ability to cope.

3. The Tribunal also notes the reports of Ms Zhang recommend the applicant seek support from her family in China and that she take some time away from her studies to focus on improving on her mental health. In her report dated 7 December 2016, Ms Zhang recommends a break of approximately three months. According to her Movement Record, the applicant departed Australia on 30 December 2016 and returned on 28 March 2017. The Tribunal accepts the applicant’s evidence that she sought to obtain enrolment in April 2017, on her return to Australia, and notes that she subsequently enrolled in Business at TOP Education Institute. The Tribunal is satisfied, based on the medical evidence, that the applicant was unfit for studies for part of the period that she was unenrolled, and that she took a number of positive steps to resolve her mental health condition, her financial situation and to obtain enrolment once these issues had been resolved. In light of these findings, the Tribunal gives this some weight against cancelling the visa.

   Past and present behaviour of the visa holder towards the department

4. The Tribunal confirmed at hearing that she has cooperated with the Department and there have been no issues with her behaviour towards the Department. The Delegate noted in the Department’s decision that the applicant has been cooperative with the Department and provided information when requested. In this regard the Tribunal notes the statutory declaration the applicant provided to the Department prior to her visa being cancelled. The Tribunal also notes evidence on the Department’s file that the applicant responded to other enquiries made by the Department. The Tribunal gives this some weight against cancelling the visa.

   Whether there would be consequential cancellations under s.140

5. The applicant confirmed at hearing that there are no persons in Australia whose visas would, or may, be cancelled under s.140. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.

   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

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1. If the applicant’s Student visa is cancelled she would potentially face becoming an unlawful non-citizen and liable for detention and removal under the Act. However, the Tribunal also notes that the applicant could apply for a Bridging visa in order to remain within the community to finalise his affairs before departing Australia.

2. If the visa is cancelled the applicant would be excluded from making applications for certain types of visa in Australia, and would be unable to complete her studies in the Bachelor of International Business. The applicant has completed two years of study towards the Bachelor of International Business and has invested a significant financial amount in fees. The applicant has less than 12 months of study remaining to complete the course which she is currently enrolled in. Given the circumstances as set out above, the Tribunal finds that it would be unfair for the applicant to be precluded for three years from applying for a further Student visa to complete her studies. The Tribunal gives this some weight against cancelling the 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

3. Not applicable.

   Any other relevant matters

4. The applicant requested that the Tribunal consider her current studies for the Bachelor of International Business, which she has made good progress on. The Tribunal is satisfied that despite the Delegate’s visa cancellation decision, the applicant has continued with her studies, obtaining a Diploma in Business and obtaining good results in her studies to date in the Bachelor of International Business. The Tribunal considers this to be a relevant matter and gives this some weight against cancelling the visa.

5. The Tribunal gives particular weight to the applicant’s purpose for her travel to and stay in Australia, which remains for the purpose of study. The Tribunal also gives weight to the circumstances in which the ground for cancellation arose, in particular the steps which the applicant took to mitigate the situation. The Tribunal also places particular weight on the psychological reports of Dr Zhang, which were prepared approximately six months prior to the Department’s issue of a NOICC, and which note the applicant’s mental health affected her ability to study, and recommended that the applicant take a break of three months from her studies to focus on improving her mental health. I have considered the matters that should be taken into account in exercising the discretion, and in respect of a number of these matters I have given some weight against cancelling the visa.

6. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

   DECISION

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

   Frank Russo
   Member

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ATTACHMENT

Migration Regulations 1994

...

Schedule 8

1. (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.

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