SUN (Migration)

[2019] AATA 4338

SUN (Migration) [2019] AATA 4338 (25 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss QIAN SUN

CASE NUMBER:  1726506

HOME AFFAIRS REFERENCE(S):           BCC2017/2875522

MEMBER:Peter Newton

DATE:25 September 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 500 (Student) visa.

Statement made on 25 September 2019 at 3:23pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – not enrolled in registered course – COE cancelled – mental health – resumed studies – genuine student – 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 24 October 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (Cth) (Act).

2. The delegate cancelled the visa on the basis that in breach of condition 8202(a) of Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations) the applicant was not enrolled in a registered course of study between 23 February 2017 and 17 October 2017. 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 24 September 2019 to give evidence and present arguments.  The applicant was represented in relation to the review by her registered migration agent.

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 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 of study between 23 February 2017 and 17 October 2017.

8.    The applicant accepted that her Confirmation of Enrolment (CoE) with the University of New South Wales Sydney for a bachelor of commerce was cancelled and she was not enrolled in a course of study between 23 February 2017 and 17 October 2017.  The applicant says that she believed that because she did not enrol for the first semester of 2017 by the last enrolment date of 23 February 2017 her enrolment was  suspended (for twelve months) as opposed to being cancelled and she had a right of readmission to the same course the following year. 

9.    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

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.      By reference to the following factors, the evidence and submissions set out below is the most relevant to my determination:   

·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.      The applicant was born in China on 29 March 1997.  She attended junior high school at Zhenjiang Yangzhong Foreign Language Middle School.  She was thereafter admitted into Senior High School affiliated to Nanjing Normal University Jiangning Campus.  The High School ran the University of New South Wales (UNSW) Foundation Programme.  After completing year 10, the applicant progressed to the UNSW Foundation which was taught by Australian teachers from the UNSW Foundation.  In November 2014, the applicant completed the UNSW Foundation programme and was accepted for direct entry into the Bachelor of Commerce course at UNSW.

13.      The Decision Record indicates that the applicant was granted a Student (Temporary) (class TU) Higher Education Sector (Subclass 573) visa on 8 January 2015. Through or with the assistance of the UNSW Foundation Programme, the applicant obtained a CoE for a bachelor of commerce with UNSW starting 2 March 2015 with a course end date of 31 December 2017.

14.      The applicant says she arrived in Australia in February 2015.  At the time she was just 17 years of age.  She had never previously travelled outside China.  She arrived in Australia alone.  The applicant obtained university accommodation.   

15.      The applicant commenced her studies for a bachelor of commerce with UNSW on 2 March 2015.  She says she was the youngest in each of her classes of more than 20 students.  She became overwhelmed by the study and her new environment. She said her English wasn’t good enough to understand what the teachers were talking about. She says that the UNSW bachelor English requirement was IELS 6.5 and she was accepted by UNSW with an IELTS of 5.5.  The applicant said she felt she had gone from being a successful student to having learning difficulties. She became depressed and anxious.  She experienced difficulties sleeping.  She lot 5kg.   She felt ashamed and alone.   The applicant only passed two subjects in her first year of study.  She returned to China for Christmas 2015.   She did not tell her parents of her difficulties through fear of letting them down because they had expressed to family and friends their pride in their daughter studying for a bachelor of commerce in Australia.

16.      The applicant returned to Australia and resumed studies at UNSW in 2016.  She continued to experience difficulties with her studies and depression.  She consulted a student advisor who was unable to devise a strategy for the applicant to cope with her studies.  The applicant failed all 4 subjects during the first semester of 2016.  In July 2016 the applicant returned to China and told her parents of the difficulties she was experiencing.  She attended the Yangzhong Mental Health Hospital and was treated for depression, anxiety and insomnia.  The applicant provided to the Tribunal contemporaneous medical evidence of the treatment she received in July 2016 in China.

17.      The applicant returned to Australia and resumed studies at UNSW.  She continued to experience difficulties with her studies and depression. She completed semester two and failed three of the four subjects, although she did attain a credit in one subject.  In December 2016 the applicant returned to China.  She again attended the Yangzhong Mental Health Hospital and was treated for depression, anxiety and insomnia.  The applicant provided to the Tribunal contemporaneous medical evidence of the medical treatment she received from December 2016 to February 2017. The evidence records that in a follow up visit in February 2017: “The patient was improved markedly on depression, anxiety, restlessness. The patient was sleeping well, had reasonable diet.” 

18.      On or about 15 February 2017 the applicant returned to Australia ready to resume studies.  Unfortunately, she became bedridden with reflux esophagitis and she says she missed the last enrolment for the hew year on 23 February 2017.   She consulted the student advisor.  It appears there was a breakdown in communication. Based upon what the student advisor said, the applicant believed she had been suspended for 12 months and could re-enrol the following year. The applicant did not understand that she was not enrolled in a course of study and her CoE would be cancelled.  I find that the applicant genuinely held this understanding.  In July 2017 the applicant returned to China to visit her parents and ill grandfather.  She again attended the Yangzhong Mental Health Hospital and was treated for depression, anxiety and insomnia.  The applicant provided to the Tribunal contemporaneous medical evidence of the treatment she received in July 2017.

19.      On or about 24 July 2017 the applicant returned to Australia.  The applicant says she felt that she could not confidently resume her studies at UNSW with confidence and made enquiries with commencing tertiary studies at other universities.

20.      At the end of September 2017 the applicant’s parents in China received the Notice of Intention to Consider Cancellation of her student visa.  It was then that the applicant became aware that her CoE had been cancelled.  The applicant went to the UNSW Student Service and made enquiries about the cancellation of her CoE.  She said she thought she was suspended and she could resume studying in February 2018.  She was provided with a UNSW “Academic Standing & Appeals Procedure” which specifies the rules which apply to the calculation of Academic Standing and provides that the level of academic standing include: “Suspension:  The student is not permitted to re-enrol for one full academic year but has automatic right of readmission to the same program, following the conclusion of their Suspension”.  The Academic Standing & Appeals Procedure supports the applicants understanding that in 2017 her studies had been suspended but she would be permitted to re-enrol the following year.  The applicant said that she asked: “why I wasn’t informed my CoE was cancelled and wasn’t informed what should I do” and she was advised “we thought you knew what should you (sic) do.”  The applicant says, and I accept, that if she had been told her CoE was to be cancelled, she would have enrolled in a course of study with another University. 

21.      On 6 October 2017 the applicant obtained an offer to study a Diploma of Commerce with Sydney Institute of Business and Technology (SIBT).  She obtained a CoE with SIBT for the Diploma of Commerce with a course start date of 16 October 2017 and end date of 13 October 2018. The applicant commenced studies on the course start date.

22.      On 24 October 2017 a delegate of the Minister for Immigration and Border Protection cancelled the applicant’s visa on the basis that the applicant was not enrolled in a registered course of study between 23 February 2017 and 17 October 2017. 

23.      The applicant has subsequently completed the diploma of commerce course. She passed all 8 subjects with an average of 79.3% distinction for all subjects and received recognition of academic excellence from SIBT.

24.      The applicant has subsequently obtained a CoE from Macquarie University for a bachelor of commerce with a course start date of 18 February 2019 and an end date of 31 December 2020.  The applicant has commenced her studies at Macquarie University.  She passed her first term’s three subjects, obtaining a credit in one subject.  She is enrolled in four subjects in the current semester and expects to complete her degree.  Her course progression to date strongly indicates that she will complete her degree.  The applicant says that when she completes her degree she will return to China and work.

25.      The applicant presents as a young, honest, determined student.  She arrived in Australia at the age of 17.  She had little support and encountered difficulties with her studies.  This was due partly to being in a foreign environment and partly because of her limited English skills which were or ought to have been known at the time of her admission.  Her poor course progression manifested itself with the onset of depression, anxiety and insomnia.  The applicant has received treatment for her anxiety, depression and insomnia and has made a good recovery. She appeared before the Tribunal without a translator and demonstrated a good understanding of English.  After her initial setbacks, the applicant has successfully resumed her studies.  She is now back on track and likely to obtain a bachelor of commerce degree in December 2020.

26.      The initial visa was granted to the applicant for the purpose of study.  I am satisfied that the applicant’s intention has always been to study in Australia. Whilst the applicant was not enrolled in a registered course of study from 23 February 2017 to 16 October 2017, the above history demonstrates mitigating circumstances that led to the grounds for cancellation and establishes that the applicant has pursued her desire to study in Australia to obtain a degree in commerce.  The applicant says that after she completes her current course of study, she will return to China to pursue work.  I am satisfied that the applicant is a genuine student and has a compelling need to remain in Australia to continue with her studies. I attach significant weight to this consideration in the applicant’s favour.

·The  extent of compliance with visa conditions

27.      Condition 8202 is a mandatory condition applied to student visas which obliges visa holders to remain enrolled in a course of study and, depending on the course, either meet attendance requirements or meet academic progress requirements.

28.      Student visas (subclass 570-574) are granted for the purpose of studying towards, and achieving, an educational qualification in Australia.  The student visa program provides an avenue to allow non-citizens and non-permanent residents to study in Australia.  In order to be granted a student visa, the visa holder’s primary intention must be to study, maintain enrolment, attendance and course progress, in a Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) registered course.

29.      The applicant accepts her CoE was cancelled and she was not enrolled in a registered course of study from 23 February 2017 to 16 October 2017.  Up to the cancellation of her course of study by UNSW, the applicant met attendance requirements.  The applicant’s course progression may not have been satisfactory however, this was not the reason for cancellation of her CoE and the applicant explained the reasons contributing to her failing all but one subject in her first two years of study.   In the circumstances in which the applicant’s CoE was cancelled leading to her not being enrolled in a course of study, I attach no significant weight to the applicant’s breach of  condition 8202(2) by not being enrolled in a registered course of study. 

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

30. If the Tribunal affirms the decision to cancel the applicant’s visa, the applicant will be an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if she does not voluntarily depart from Australia. Additionally, the applicant will be subject to section 48 of the Act which means that she will have limited options to apply for further visas in Australia. She will also be subject to Public Interest Criterion 4013.

31.      The applicant has given evidence of depression, anxiety and insomnia arising from the difficulties she initially experienced with her studies. She says she felt ashamed and was reluctant to tell her parents.  She is an honest and intelligent young woman who values education and want to justify her parents confidence in her.  In my view, if the decision of the delegate is affirmed, the applicant is likely to suffer psychological and emotional hardship arising from the cancellation of her visa.  In addition, she will feel she has let down her parents.      

32.      In these circumstances and as I am of the view that the applicant is a genuine student, I am of the view that a degree of hardship will be caused to the applicant if the Tribunal affirms the decision to cancel the applicant’s visa.  I give this significant weight in the applicant’s favour.

·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  

33.      I have set out under the heading “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 circumstances in which the ground of cancellation arose.

34.      I am satisfied that the circumstances in which the grounds of cancellation arose provide reason not to cancel the visa.

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

35.      There is no information to indicate any specific matters of relevance regarding the applicant’s behaviour towards the department.  There is no evidence the applicant has been uncooperative with the Department of Immigration. I give some weight in the applicant’s favour when considering this factor.

·Whether there would be consequential cancellations under s.140

36.      There are no dependant visa holders.  Accordingly this factor is not relevant to the Tribunal’s consideration of whether the visa should be cancelled.

·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

37.      This has already been dealt when considering the degree of hardship that may be caused if the Tribunal affirms the decision to cancel the applicant’s visa.

38.      The tribunal accepts that there will be some hardship to the applicant if it affirms the decision to cancel the applicant’s visa and gives some weight in the applicant’s favour when considering this factor.

·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

39.      The circumstances of this case are not such that would engage Australia’s International obligations and the cancellation if the visa would not lead to a breach of Australia’s international obligations.  I therefore place no with on this consideration.

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

40.      This factor is not relevant to the Tribunal’s consideration of whether the visa should be cancelled.

·Any other relevant matters.

41.       I am not aware of any other relevant matters in relation to the Tribunal’s consideration of whether the visa should be cancelled.  

Conclusion

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

DECISION

43.      The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Peter Newton
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.