Su (Migration)

[2018] AATA 5481

Su (Migration) [2018] AATA 5481 (19 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Han Su

CASE NUMBER:  1721654

HOME AFFAIRS REFERENCE(S):           BCC2017/2391729

MEMBER:Nicola Findson

DATE:19 November 2018

PLACE OF DECISION:  Perth

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 19 November 2018 at 3:34pm

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 – actively engaged in study for bulk of stay in Australia – circumstances in which the ground for cancellation arose – poor migration advice – mental health issues – insomnia and digestive disorder – sought medical assistance – set to study towards a Bachelor degree in Commerce – decision under review set aside

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

CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 4 September 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. A copy of the delegate’s notification of cancellation was submitted to the Tribunal by the applicant for the purposes of the review. The delegate cancelled the visa on the basis that Departmental records indicated that the applicant had not been enrolled in a registered course of study since December 2016.  The delegate went on to consider that the factors in favour of cancellation outweighed those against and cancelled the visa.  

3. The applicant appeared before the Tribunal on 15 November 2018, to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. 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

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 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).

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 delegate’s notification of cancellation records that on 7 August 2017, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of his student visa.  In summary, that NOICC set out the statutory basis for the consideration of the cancellation of the applicant’s student visa and also indicated that it appeared from the Provider Registration and International Student Management System (PRISMS) that the applicant had not been enrolled in a registered course of study since 15 December 2016.  At hearing this was discussed with the applicant and he confirmed that this was the case and that he did not hold enrolment in a registered course for a period after 15 December 2016.

9. On the evidence before it, the Tribunal finds that the applicant ceased to be enrolled in a registered course from 15 December 2016.  Accordingly, the applicant has not complied with condition 8202(2)(a) of his visa.

   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. It is well established that the function of the Tribunal is to arrive at the correct or preferable decision (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60). That case also considered the role of policy, and the Tribunal has had regard to Departmental policy.

12. The applicant responded to the NOICC. In his own written submissions, the applicant provided, by way of summary, the following information:

    ·He came to Australia, at the behest of his parents, to complete a foundation program and then a Bachelor of Science (Architecture).

    ·After completing the foundation program, he began to worry he would find it difficult and not enjoy the study of Architecture.  He sought assistance with changing his course of study, in to the direction of hospitality management.  However, obtaining a release letter from the University of Western Australia proved to be a problematic process for him and he was ultimately unable to enrol in any course of study in early 2017. 

    ·He was stressed and frustrated at losing the opportunity to study in the first half of 2017.  He also was scared to let his parents know what had happened with his studies.  As a result, he developed insomnia and a digestive disorder.  His symptoms worsened and as a consequence he failed to commence any study, as he had planned, in July 2017.

    ·Since receiving the NOICC, he has explained his situation to his parents who are supportive of him continuing to receive medical treatment and pursuing study in the Business Management field, specifically a Diploma and then Bachelor degree in Commerce. 

13. The applicant provided evidence to the Tribunal that he completed a foundation program at Taylors College in Western Australia between February 2015 and mid-2016.  He indicated that he had enrolled in and commenced attending classes in respect of his Bachelor of Science at the University of Western Australia in July 2016. However, he said that it immediately became apparent to him that he did not possess the skills, nor the interest, to pursue the Architecture degree his parents’ wanted him to do, so he approached the university student centre and went through the process of deferring his course until the beginning of 2017.  He indicated that in the meantime he completed an additional English bridging course at the University - between October and December 2016 - and also sought assistance, without his parents’ approval, in changing his course of study into the Business / Hospitality field.  He indicated that coupled with his naivety about his visa conditions, he received poor advice from his agent, which resulted in him not being enrolled in any course of study whatsoever from the beginning of 2017. He also gave evidence that he felt immense pressure and was consumed with feelings of failure, isolation and lack of support during this time. 

14. The applicant told the Tribunal that he presented at the Royal Perth Hospital and then consulted Psychologist, Dr Leung on at least three occasions while he was not studying, to address symptoms of insomnia and vomiting caused by mental health issues.  He said he is coping better now.  

15. The applicant informed the Tribunal that since the cancellation of his visa, and since arranging the ability to study on his Bridging visa, he has completed a Diploma of Business between October 2017 and March 2018 at Kingston College.  The applicant provided evidence of this study.  He also indicated that but for the status of his current visa, he would have applied to enrol in a Bachelor of Commerce.  He indicated that he has already made inquiries of Griffith University to enable him to do this.

16. The applicant said his parents are now aware, and supportive, of him studying in the area of Business.  He said he both he and his parents will be very disappointed if he is required to return to China without a tertiary qualification.

17. The purpose of a student visa is to enable the visa holder to pursue study in Australia.  The Tribunal finds that the applicant was not enrolled in a course for some months, from December 2016 to September 2017.  However, the evidence before the Tribunal indicates that the applicant has pursued two years of study since entering Australia, successfully completing his foundation program as well as an additional English bridging course.  In addition, since the cancellation of his visa, the applicant has completed a Diploma of Business at Kingston College.  He has also indicated that but for the status of his current visa, he would have commenced working towards attaining a Bachelor of Commerce. 

18. The Tribunal accepts that the applicant has been, in the main, fulfilling the purpose of his travel to, and stay in, Australia because he has actively engaged in studies from the time of his entry to Australia, except for the period December 2016 to September 2017.  The Tribunal gives this factor some weight in favour of the visa not being cancelled.

19. The Tribunal has considered the circumstances in which the ground for cancellation arose.  The applicant claims, essentially that he was depressed and unmotivated by the Bachelor course at the University of Western Australia, which he felt obliged to do because of his parents’ expectations.  He took misinformed steps to change his course direction, without telling his parents, and ultimately ended up not being enrolled in any course at the beginning of 2017.  The applicant also presented evidence that he began suffering physical symptoms associated with a mental illness, for which he was treated, and that his health impacted on his conduct which resulted in an extended period of non-enrolment. 

20. The Tribunal was persuaded by the applicant’s oral evidence that he received poor advice and also suffered some mental health issues and accepts that he did consult a psychologist - Dr Leung - more than once and was medicated for symptoms of insomnia and vomiting.  While the Tribunal has some concerns about the duration of the period the applicant remained unenrolled, the Tribunal accepts that the poor advice the applicant received as well as his psychological condition impacted on his conduct which resulted in the period of non-enrolment.  The Tribunal also accepts that the applicant has recently completed a Diploma of Business, in which he is interested, and that he is set to study towards a Bachelor of Commerce if his visa is reinstated. 

21. The Tribunal finds that all of the evidence before it indicates that the breach in this case was not beyond his control, but that the evidence and actions of the applicant indicate that he suffered psychological difficulties, attempted to take all reasonable actions to continue studying, and has demonstrated a desire to continue studying, all of which ameliorate the breach, and the Tribunal finds that the circumstances of the breach in this case do not weigh towards the visa being cancelled.  The Tribunal gives them little weight towards the visa being cancelled in this regard.

22. The Tribunal has considered the extent of compliance with visa conditions.  It is the case that the applicant has breached condition 8202, and that the breach is of some significance given its duration.  However, there is no evidence that the applicant has breached other conditions of his visa, and the evidence to hand such as actively engaging in studies from the time of his entry to Australia, except for the period December 2016 to September 2017, as well as his request to be granted study rights is indicative that he wishes to study in compliance with his relevant visa conditions.  The Tribunal therefore gives this factor little weight towards his visa remaining cancelled.

23. With respect to the degree of hardship, the applicant indicated to the Tribunal that his family want him to study in Australia.  While they would be disappointed if he returned to China without a tertiary qualification, it would not cause them financial hardship because they are financially comfortable.  However, he will feel extremely guilty for wasting his parents’ money, if his visa is cancelled before he obtains a tertiary qualification.  He also told the Tribunal that he would feel like he has ruined his life if his visa is cancelled.  He indicated that it would be impossible for him to enter a university in China because he came to Australia after completing his penultimate year of high school, and is therefore now ineligible to sit for the National Entry Examinations of Tertiary Education – “Gaokao”.  

24. According to the delegate’s decision record, there is no evidence that the applicant has been uncooperative towards the Department.  The Tribunal gives this little weight towards the visa not being cancelled.

25. There is nothing to suggest, and the applicant does not claim, that Australia’s international obligations would be breached as a result of the cancelation.  The Tribunal gives no weight to this consideration.

26. The delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, s.48 of the Act means that he will have limited options to apply for further visas in Australia. The Tribunal gives these consequences some limited weight in favour of not cancelling the visa.

    Any other relevant matters

27. The applicant indicated to the Tribunal that he wished to continue studying to obtain a Bachelor degree in Commerce, with his parents’ financial support, if his visa is reinstated.  The Tribunal accepts this evidence.  The Tribunal considers that the applicant’s recent completion of a Diploma of Business and his intended choice of further study is indicative of his genuine intention to study, and gives it some weight in his favour.

28. The Tribunal has considered the totality of the applciant’s circumstances.  Having regard to the period of non-enrolment, the Tribunal finds that the applicant breached condition 8202 of his visa.  The Tribunal is of the view that the breach is of some significance, given its duration.  However, the Tribunal accepts that the applicant’s breach was caused by poor migration advice and mental health issues.  The Tribunal accepts that the applicant may be personally affected if the visa is cancelled, as he will not be able to complete his studies in Australia, his family’s intention since he arrived in Australia.  The Tribunal has found that the cancellation would not be in breach of Australia’s international obligations and no other person, and no children, would be affected by the cancellation. The Tribunal places significant weight on the fact that the applicant has actively engaged in studies throughout the bulk period of his stay in Australia.  The Tribunal finds that despite all the matters outlined above, the applicant has been, in the main able to maintain the purpose of his travel to and stay in Australia.  In the Tribunal’s view, that outweighs other considerations

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

    DECISION

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

    Nicola Findson
    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.