Tang (Migration)

[2019] AATA 1499

Tang (Migration) [2019] AATA 1499 (31 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Li-Ping Tang

CASE NUMBER:  1723437

HOME AFFAIRS REFERENCE(S):           BCC2017/2711200

MEMBER:Dr Colin Huntly

DATE:31 January 2019

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 31 January 2019 at 12:29pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector –applicant not enrolled in relevant course of study –discretion to cancel– demonstrated compliance with previous visa conditions – secured enrolment in a relevant pre-qualification – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 116, 359
Migration Regulations 1994 (Cth), Schedule 8 Condition 8516, cls 573.231, 573.111, 573.112, r 1.40A

CASES

Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 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 of the Migration Act 1958 (the Act).

2. The applicant was represented in relation to the review by a registered migration agent.

3. The applicant’s Movement Record shows that she visited Australia on a number of occasions prior to her authorised travel under the visa that forms the subject of this review.  She travelled on a Visitor (UD976) visa in July 2009, on a Visitor (UD601) visa between May and August 2012 and on a further Visitor (ETA) visa between August and September 2014.  There is nothing before the Tribunal that would suggest the applicant failed to comply with the conditions of her trave visas on those occasions.

4. The applicant was granted a subclass 573 Student (Temporary) (class TU) Higher Education Sector visa on 13 May 2015.  She travelled to Australia on 21 June 2015 and was initially enrolled in a course of study in a course of study, namely a “WA Universities Foundation Program”.  This was a complying course of study required for entry into the Bachelor of Arts Degree Program in which she had obtained conditional enrolment at the University of Western Australia.

5. The applicant ceased to be enrolled in her elected courses of study in the Bachelor of Arts degree program at the University of Western Australia on 27 April 2016 when she failed to commence this program of study.

6. The delegate cancelled the visa under s.116(1)(b) of the Act on the basis that the applicant had not been enrolled in a relevant course of study between 27 April 2016 and 18 August 2017, thereby breaching condition 8516 of the grant of the visa.

7. At the time of her application for review, the applicant provided the Tribunal with a copy of the delegate’s decision record, dated 26 September 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.

8. By letter dated 29 October 2018, the Tribunal invited the applicant, pursuant to s.359 of the Act, to provide written information about her enrolment status in a course of study in a registered course at the relevant time. 

9. A detailed submission, including 8 relevant attachments was received from the applicant in response to this letter later on 29 October 2018.

10. For the following reasons, the Tribunal sets aside the decision to cancel the applicant’s visa should be and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8516 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.

12. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Did the applicant comply with Condition 8516?

    Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.  In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

13. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant met cl.573.231 if they were not an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student.

14. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a bachelor’s degree, masters degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112.

15. To satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application.

16. The Tribunal finds that the delegate made reasonable findings, based on the available evidence that the applicant failed to comply with Condition 8516.  The Tribunal further finds that the applicant herself acknowledges that she failed to comply with Condition 8516.  In particular, the Tribunal notes that the applicant states in her submission in response to the Tribunal’s letter both dated 29 October 2018 that “it was an unintentional mistake.”

    Conclusion

17. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists.

18. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

19. 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’.

20. The Tribunal has considered a number of relevant factors, including matters raised by the applicant and the departmental guidelines when deciding whether discretion should be exercised in setting aside the cancellation decision, notwithstanding the applicant’s apparent breach of Condition 8516.

21. The Tribunal has considered the purpose of the applicant’s travel and stay in Australia.  The Tribunal notes that the delegate specifically found that:

    There is no evidence before me to suggest that {applicant name}’s original intention for her to travel and stay in Australia was not for the purposes of study.

22. The Tribunal concurs with observation by the delegate.

23. The Tribunal has considered the extent of compliance with visa conditions by the applicant more generally.  The Tribunal notes that the delegate specifically found that:

    There is no evidence before me that {applicant name} has been non-compliant with her other visa conditions.

24. The Tribunal concurs with the foregoing observation by the delegate.  Further to this, viewed more holistically, the Tribunal finds that the applicant has demonstrated a positive level of compliance with visa conditions over a number of visa categories and across a number of different periods of travel to Australia.

25. The Tribunal notes that the applicant has secured enrolment in a relevant pre-qualification Diploma-level course in connection with her contingent enrolment in a Bachelor of Business Degree program with Southern Cross University.  Accordingly, the Tribunal finds that the applicant would face significant financial and emotional hardship, in addition to the psychological hardship that gave rise to the circumstances that led to the cancellation of her visa referred to above.

26. The Tribunal notes the detailed submission made by the applicant referred to above and dated 29 October 2018.  The Tribunal has referred to the detailed medical reports and records that are included in this submission and makes the following observations:

    ·     Much of the medical information made available to the Tribunal by the applicant was not available to the delegate.  This is understandable, as its collection and tabulation by the applicant would have required considerable time.  It is clear from this information that the applicant had been experiencing significant and chronic mental health challenges during the course of the Department’s correspondence with the applicant in connection with the “Notice of Intention to Cancel” her visa.  These significant and chronic mental health challenges are well documented and extend back into the period of time during which the applicant was initially enrolled as a student after her arrival in Australia.

    ·     It is clear from the medical information provided to the Tribunal by the applicant that her significant and chronic mental health challenges were beyond the applicant’s control. 

27. The Tribunal has considered the applicant’s past and present behaviour towards the department.  The Tribunal notes that the delegate specifically found that:

    There is no evidence that {applicant name}’s has been uncooperative with the department.

28. The Tribunal concurs with observation by the delegate.

29. The Tribunal notes that there is no suggestion of any be consequential cancellations under s.140 as a result of any cancellation of the applicant’s student visa.

30. The Tribunal has considered whether any international obligations, would be breached as a result of the cancellation of the applicant’s visa.  The Tribunal notes that the delegate specifically found that:

    The circumstances of this case are not such that would engage Australia’s international obligations, and the cancellation of the visa would not lead to a breach of Australia’s international obligations.

31. The Tribunal concurs with observation by the delegate.

32. The Tribunal has considered all of the relevant considerations relating to the question of exercising the discretion not to cancel the applicant’s visa, individually and then cumulatively.  The Tribunal has had the benefit of considering submissions and information of relevance provided by the applicant which was regrettably, not available to the delegate.  This material has been referred to above.  The Tribunal is satisfied that there is a reasonable explanation for the provision of this information at this later point in time.

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

    DECISION

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

    Dr Colin Huntly
    Member