Tao (Migration)

[2018] AATA 1042

Tao (Migration) [2018] AATA 1042 (8 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xinzi Tao

CASE NUMBER:  1710648

DIBP REFERENCE(S):  BCC2017/416955

MEMBER:Tigiilagi Eteuati

DATE:8 March 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 08 March 2018 at 5:35pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector visa – Second student visa – Failed to complete several courses – Poor academic performance – No will or desire to successfully undertake a bachelor’s degree in Australia – Breached Condition 8202

LEGISLATION
Migration Act 1958 s116
Migration Regulations 1994 Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 May 2017 made by a delegate of the Minister for Immigration 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 had breached the condition of her visa to remain 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 applicant appeared before the Tribunal on 30 January 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. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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. The delegate found that the applicant had not been enrolled in a registered course since 14 June 2016. This was admitted by the applicant and accords with records held by the Department. 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 to exercise its discretion to cancel the visa.

11. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

12. When the applicant first arrived in Australia on her first subclass 573 visa she said that she was enrolled in an English Language course to be followed by a Diploma of Hotel Management and then a Bachelor of Business. She said that she completed the English language course in September 2012 but did not begin the Diploma of Hotel Management because she wanted to change subjects. Her enrolment in the diploma course was cancelled in October 2012 and her enrolment in the Bachelor of Business course was cancelled in November 2012.

13. The applicant then enrolled in a Certificate IV in Business, a Diploma of Management, a Diploma of Business and a Bachelor of Commerce. The first three courses were to be held at Sarina Russo Schools and the Bachelor of Commerce was at Griffith University. The applicant said that she successfully completed the Certificate IV in August 2013 but did not complete the Diploma of Management or the Diploma of business. Her enrolment in the Bachelor of Commerce degree was cancelled in July 2015.

14. The applicant applied for, and was granted, her second student visa in September 2015. When that visa was granted the applicant said she was enrolled in a Bachelor of Business degree with James Cook University. That course began in November 2015. The applicant said that she developed a skin condition in January 2016 and stopped attending any classes by February 2016. She said that in around March 2016 she began losing hair from her head.

15. The applicant said that she was very upset and did not want to attend classes or to be seen in public with her skin and hair conditions. She also said that in May 2016 her grandfather passed away. She said that this was very upsetting to her as she had been very close with him. The applicant had provided the Department with certificates from two doctors indicating that they were treated the applicant for her skin and hair conditions and 2016. The applicant also provided photographs which showed her scalp evidencing hair loss in October 2016. Neither letter indicated that the applicant was medically unfit to attend university although the Tribunal accepts that the applicant felt embarrassed by her conditions and that this was a significant reason for the applicant’s non-attendance at University in 2016. The applicant claimed that both the skin and hair conditions were related to a deficiency with her immune system. She said that while her hair has regrown and she understands that her immune system is healing, she has ongoing problems with her skin.

16. The Tribunal asked the applicant whether she or any members of her family would suffer hardship if her visa remained cancelled. The applicant said “No.” The applicant claimed that her family was unaware that her visa had been cancelled and that her parents had been paying for her living expenses in Australia. She also claimed that her parents were unaware of her medical condition.

17. The Tribunal raised with the applicant its concern that because the applicant had performed very poorly during the period of the first visa, and had ceased studying in February 2016 and failed to re-enrol in any course since, the applicant may not have the will or desire to successfully undertake a bachelor’s degree in Australia.

18. The applicant said that she had attempted to re-enrol at James Cook University in February 2017 but that when she attempted to re-enrol, enrolments for the first semester of 2017 had closed. She said that she wanted to continue to study but was prevented from doing so, first by her skin and hair conditions, then by the death of her grandfather and finally by enrolments being closed when she eventually attempted to re-enrol in February 2017.

19. The Tribunal pointed out that the applicant had a year, between the time she ceased attending University in February 2016 and the time she claims that she tried to re-enrol in February 2017, to find out when enrolments for 2017 closed. The Tribunal suggested that the applicant’s failure to make enquiries as to when enrolments closed may suggest that the applicant did not have the will to undertake the bachelor’s course. The applicant claimed that she did not know how to find out when enrolments closed and that she relied on her education agent for enrolment in courses.

20. The Tribunal has decided to affirm the decision to cancel the applicant’s student visa.

21. The Tribunal has found that the applicant does not have the will or desire to successfully undertake a bachelor’s degree in Australia. This is evidenced by the applicant’s very poor academic performance during the period of the first student visa. She was enrolled in courses leading to a Bachelor of Business but dropped out of those courses and enrolled in a number of vocational courses leading to a Bachelor of Commerce. The applicant admitted that she only completed an English language course and a Certificate IV in Business and did not complete the three diplomas and the Bachelor of Commerce in which she was enrolled.

22. Surprisingly, the applicant was granted a second subclass 573 visa which was cancelled for non-enrolment. She stopped attending classes in February 2016 and her enrolment in the Bachelor of Business course was cancelled in June 2016. The Tribunal does not accept that the applicant has ever tried to re-enrol in any course since that time. The applicant has provided no evidence that she has done so.

23. The Tribunal accepts that the applicant suffered from skin and hair loss conditions in 2016 and accepts that the applicant’s grandfather passed away in May 2016. The Tribunal accepts that these things greatly affected the applicant. However the applicant has been granted visas on two occasions to study a degree course in Australia. The Tribunal does not consider that the applicant has made any real progress towards the completion of a degree since she arrived in Australia initially in 2012. She abandoned her first bachelor’s course in 2012 abandoned the second bachelor’s course in 2015 and abandoned the most recent bachelor’s course in February 2016. She also abandoned diplomas in hotel management, management and business. While the applicant asserts that her medical conditions and the death of her grandfather prevented her from studying in 2016, the study history for the applicant which she has provided to the Tribunal indicates that she has had troubles completing courses and maintaining enrolment in courses since she arrived in 2012, long before the problems she faced in 2016.

24. The applicant was in Australia for the purpose of study and while the Tribunal accepts that she had some difficulties with her health and the passing of her grandfather in 2016, her failure to enrol in a course from the time that she abandoned her studies in February 2016 until May 2017, when her visa was cancelled, strongly suggest that the applicant does not have the will to successfully undertake a bachelor’s degree in Australia.

25. Although the applicant claimed that neither she nor her family would suffer hardship if her visa remained cancelled, the Tribunal is willing to accept that the applicant and her family will feel some sorrow and disappointment that the applicant’s visa was cancelled before she was able to complete a degree in Australia. The Tribunal has also considered that, as her visa was cancelled for breach of condition 8202, that it is likely that the applicant will be unable to apply for another visa for a period of three years from the date that her visa was cancelled in May 2017. The Tribunal considers that these matters weigh against the cancellation of the applicant’s visa.

26. However the Tribunal considers that the breach of condition 8202 and her lack of will or desire to undertake a degree course in Australia heavily outweigh any hardship that the applicant or a family may face and all other considerations.

    DECISION

27. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

    Tigiilagi Eteuati
    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.