Tee (Migration)

[2023] AATA 3571

Tee (Migration) [2023] AATA 3571 (7 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Phoebe Nsin Yee Tee

CASE NUMBER:  2212112

HOME AFFAIRS REFERENCE(S):          BCC2022/2176877

MEMBER:Rachel Westaway

DATE:7 September 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 07 September 2023 at 4:24pm

CATCHWORDS
MIGRATION – cancellation – Student (Class TU) visa – Subclass 500 (Student) – not enrolled in full-time registered course – study history and personal circumstances – fees paid to agent but loss of contact with agent and provider – physical injury and treatment – end of relationship, medical procedure and mental health – no approach to provider for deferral – current enrolment in same course by another provider – mandatory legal consequences – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 2, condition 8202(2)(a)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 August 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant was not enrolled in a full-time registered course of study. 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 29 August 2023 at 10:00am 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 not represented in relation to the review.

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 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.

   Background

7. The applicant is a 27-year-old female from Malaysia.

8. The applicant was granted a TU-500 visa on 14 October 2019.

   Tribunal Application

9. The applicant lodged their application for review on 18 August 2022. They provided the Department of Home Affairs notification letter, along with their application for review.

10. On the 21 July 2023 the applicant’s authorised representative submitted the Department of Home Affairs decision record.

11. On 25 August 2023 the applicant submitted an MR5 form, removing her previous representative and also an email addressed to the Tribunal outlining her desire to stay in Australia and what has happened up to now in relation to her studies.

    Department of Home Affairs Application

12. On 11 July 2022 the Department of Home Affairs sent a Notice of Intention to Consider Cancellation (NOICC) letter to the applicant.

13. The applicant responded to the NOICC stating that:

    • She completed her Certificates II and III English as an Additional Language (EAL) in 2018 and 2019 and had every intention to go on to study her Diploma of Business in 2020, but due to a series of unfortunate incidents outside of her control this was not possible.
    • In April 2020 her school advised they were transferring their teaching to online. She paid her agent the tuition fee and believes the school received this fee. She was not able to start the course immediately.
    • On 28 May 2020 she paid a $3,000 tuition fee to Raych Consulting because they advised her she had to ‘fix’ her CoE. Melbourne subsequently went into lockdown due to the Covid-19 pandemic and she could not contact her agent or her school.
    • In November 2020 she accidently injured her right eye when it was poked by a chopstick.
    • She lost her vision and was referred to eye surgeon Dr Yu on 5 December 2020. She visited the surgeon several times thereafter so he could monitor her recovery.
    • In March 2021 her vision worsened, and she developed recurrent corneal erosion.
    • She was referred to Dr Goh and is expecting to have an operation so that she does not lose her sight.
    • In April 2021 she broke up with her boyfriend. She had [a Medical procedure] and was on her own during this time. Her mental state deteriorated.
    • In May 2021 she discovered her foster-mother, who is her only family, is a gambling addict and has debts to loan sharks. She tried to travel overseas but was unable to find a flight.
    • She became depressed and was unable to concentrate on making any arrangements in relation to her study.
    • She is sorry she was not strong enough to face all of life’s difficulties and that she did not maintain her enrolment. She is willing to change and hopes she is given a second chance.
    • She has complied with all her other visa conditions.
    • She is now enrolled in a Diploma of Business. Her sole purpose for being in Australia is to study so she can get a good job and support herself and her foster-mother.
    • If her visa is cancelled and she is required to return to Malaysia without a good qualification all her time and money would have been a waste. She will not be able to find a good employer.
    • She does not have a higher education so the Diploma of Business will at least enable her to source ‘English related jobs in the business area’. Furthermore, she has yet to have her eye surgery.

14. The applicant’s representative also provided documents with the reasons as to why the visa should not be cancelled, these included:

    • 30 August 2018 Education Access Australia (EAA) – Record of Result Certificate II in EAL, Certificate II in EAL and Completion Letter.
    • 22 January 2019 EAA – Record of Result Certificate III in EAL, Certificate III in EAL and Completion Letter.
    • 28 May 2020 screen shot of payment of $3,000 to Raych Consulting with the description ‘fees’.
    • 14 July 2022 Letter of Offer Queens College – Diploma of Business commencing on 18 July 2022.
    • 15 July 2022 CoE Queens College – Diploma of Business commencing on 18 July 2022.
    • Passport.
    • Medical documents:
    • 19 October 2019 Mt Waverley Eye Surgeons, Dr George Kong – Diagnosis: Right eye
    • Recurrent corneal erosion syndrome
    • 23 November 2020 Invoice 15592 Melbourne Vision Network, Dr Yu Xiang George Kong, Ophthalmologist
    • 5 December 2020 Invoice 16105 Melbourne Vision Network, Dr Yu
    • 26 February 2021 Invoice 19357 Melbourne Vision Network, Dr Yu
    • 1 March 2021 Invoice 19430 Melbourne Vision Network, Dr Yu
    • 1 March 2021 Mt Waverley Eye Surgeons, Dr Joanne Goh – Diagnosis: Right recurrent corneal erosion syndrome

15. On 11 August 2022 the Department notified the applicant that his visa was being cancelled.

    Did the applicant comply with Condition 8202?

16. 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 full-time registered course: 8202(2)(a)

    ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

    ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

    ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

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

18. According to the Provider Registration and International Student Management System (PRISMS) as detailed in the delegate’s decision and provided to the Tribunal by the applicant, she was granted a Student (subclass 500) visa on 14 October 2019 on the basis she intended to study an approved Higher Education level principal course of study, specifically the following package of courses at Alice Spring College: A Diploma of Business to commence on 11 November 2019 and end by 3 January 2021, and A Diploma of Business Administration to commence on 15 January 2021 and end by 14 January 2022 PRISMS indicates the applicant ceased studying her Diploma on 1 April 2020 and did not pay her fees, thereby indicating she had ceased studying. As a result, on 5 May 2020 her Certificate of Enrolment (CoEs) for her Diploma of Business was cancelled. Her CoE for her Diploma of Business Administration was subsequently cancelled on 3 February 2021 when she failed to commence her study on 15 January 2021.

19. The applicant was enrolled in an Advanced Diploma of Business 25 January 2021 – 14 January 2021 but this was cancelled due to non-commencement of studies.

20. The applicant confirmed her period of non-enrolment at the Tribunal hearing.

21. The visa holder has therefore not been enrolled in a registered course since 3 February 2021.

22. The evidence before the Tribunal, the applicant was not enrolled in a full-time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

23. 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 Procedural Instruction ‘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

24. The applicant told the Tribunal that she originally came to Australia for a holiday in 2009 and she travelled to Gold Coast. She loved the environment and decided to come to Melbourne on her second trip in 2017 in order to study and improve her English. She stated that her cousin and her cousin’s children lived in Box Hill in Victoria and she could stay with them.

25. She confirmed she completed high school in Malaysia and her foster mother paid for her studies in Australia. The applicant stated she would like to remain in Australia to complete her studies. She claims that she would like to study a Bachelor of Nursing and continue to improve her English.

26. The applicant intended to study a package of courses at Alice Spring College including a Diploma of Business to commence on 11 November 2019 and end by 3 January 2021, a Diploma of Business Administration to commence on 15 January 2021 and end by 14 January 2022 however the applicant ceased studying her Diploma on 1 April 2020 and did not pay her fees and as a result, on 5 May 2020 her Certificate of Enrolment (CoEs) for her Diploma of Business was cancelled. Further, her Certificate of enrolment for the Diploma of Business Administration was subsequently cancelled on 3 February 2021 when she failed to commence her study on 15 January 2021.

27. The applicant was enrolled in an Advanced Diploma of Business 25 January 2021 – 14 January 2021 but this was cancelled due to non-commencement of studies. The applicant had not been enrolled in a registered course since 3 February 2021.

28. Whilst the Tribunal acknowledges the applicant has stated that she would like to remain in Australia to complete her studies she has not provided a compelling reason. Her non-engagement in her studies for which her visa was granted, and the absence of compelling reasons for her to remain in Australia, weighs in favour of visa cancellation.

    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

29. The applicant claims that a range of reasons led to her non-enrolment.  She explained that her course was conducted on-line in April 2020 due to COVID and she could not commence immediately. She paid her initial fees but also stated that her mother was facing financial difficulties. She stated that she was asked to pay a further $3000 to her agent to rectify her cancelled CoE (that was cancelled on 5 May 2020) but was unable to contact her school or her agent to follow through with this so it remained cancelled. She claims that after her COEs were cancelled she stopped studying.

30. The applicant stated she had been experiencing eye problems and had hurt her eye in November 2020. Her sight issues resulted in intermittent sight loss and she provided a letter from Dr Goh confirming a referral for eye surgery and evidence of seeing an ophthalmologist on four occasions. The Tribunal asked the applicant if she underwent the surgery and she stated that she did not because her site issues were intermittent and she has not had any recent issues. At hearing she stated that her vision is back to normal and she has check-ups.

31. She also claimed that her relationship with her boyfriend ended in April 2021 and [medical information redacted]. She did not provide supporting medical evidence for this. The applicant claimed at hearing that she was unable to concentrate on her studies and she was depressed as she had discovered in May 2021 that her foster mother who had brought her up had a gambling problem and owed money to loan sharks.

32. The Tribunal has considered the applicant’s claim regarding her foster mother’s financial situation. However, there is no evidence provided of the depletion of savings that would have had to have been provided to apply for the student visa.  

33. The applicant was asked to clarify details of her mother and she claims that she was adopted and was brought up by her foster mother and had no knowledge of her father. She explained she only learnt she was adopted when she was 17 years old. This was not claimed to be a reason for her non-enrolment.

34. The Tribunal notes that there is no evidence before it or claim made that the applicant that she approached her education provider or the Department either seeking a deferral or informing them of her non-compliance respectively.

35. The Tribunal acknowledges that COVID led to online teaching but this would not have prevented the applicant from continuing to study.

36. The Tribunal acknowledges the applicant’s eye issues that had existed prior to 19 October 2019 with medical documentation indicating the next issue arose in November 2020 but there is no evidence that the applicant sought a deferment on medical grounds for her studies or indeed further treatment when the issues again arose. Further, the applicant stopped studying in April 2020 which is before her RCES symptoms occurred. The Tribunal notes that the applicant claims that the condition she has is intermittent and she would still like to study but has not undertaken the eye surgery. As the delegate had also highlighted, Dr Goh stated that the applicant experienced RCES “once a year for the last couple of years”. Given this, the Tribunal is not satisfied that the applicant’s eye issues had any direct correlation with her inability to pay her fees or remain in a registered course of study. Whilst the Tribunal accepts that the applicant did experience RCES, it is not clear how this impacted her studies or why she did not inform that course provider and request a deferment.

37. In regard to the reasons put forward by the applicant as to why she was not enrolled in a registered course of study, the Tribunal is not satisfied that these reasons constitute matters that were outside of the control of the applicant, because in each instance she could have sought deferral and informed her course provider and in the instance of her sight issues, undertaken the operation. Further, she has provided minimal evidence aside from her RCES that can substantiate these claims pertaining to her [Medical procedure], her agent’s request for further fees, her depression and inability to concentrate and her foster mother’s financial issues. This weighs in favour of visa cancellation.

    the extent of compliance with visa conditions

38. The applicant has not complied with condition 8202 of her student visa because she has failed to maintain enrolment in a full-time registered course of study from 3 February 2021. The applicant’s non-compliance for a period of five months prior to the issuing of the NOICC weighs in favour of visa cancellation.

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

39. The Tribunal  asked the applicant about the impact a cancellation would have on her and she stated that she would need to return to Malaysia where she would reside with her foster mother. The applicant explained that she would prefer to study English and enrol in a Bachelor of Nursing. She stated that she would work in retail if she was unable to study in Australia, however at present she cares for her cousin’s children and she is paid an allowance.

40. She claimed that if she was unable to complete her studies she would struggle to obtain a good job in Malaysia.

41. She explained that her foster mother faced financial hardship so she could not pay her fees and her cousin has more recently been able to assist her. She stated her foster mother in Malaysia is single.

42. She remained at home for 2.5 years because she didn’t want to return to Malaysia. Her future plan is to remain in Australia. The applicant stated she has a boyfriend of 3-4 months named Jay however she was unable to recall his surname. She claims he is from Malaysia.

43. The applicant stated that “everything is back to normal” and her family is willing to pay for her new course.  She lives with her cousin in Australia and assists her with looking after her children.

44. The applicant has been residing in Australia since 2017 and as such would have developed some ties to Australia. The Tribunal acknowledges the applicant has a boyfriend in Australia and assists her cousin whom she lives with. Further the Tribunal acknowledges the money spent to date on the applicant applying for a student visa and the associated costs and that the emotional and financial hardship a cancellation of her visa may cause. The Tribunal accepts that a qualification from Australia may well assist the applicant in obtaining better employment in Malaysia however there is nothing preventing her from online studies or applying at another time in the future. The Tribunal gives these factors some weight against cancellation.

    past and present behaviour of the visa holder towards the department

45. The Tribunal accepts that the applicant has been co-operative and prompt in her dealings with the Department in relation to the NOICC. The Tribunal gives this some weight against cancellation.

    whether there would be consequential cancellations under s 140

46. There is no one attached to the applicant’s visa and as such the Tribunal gives this factor no weight in its considerations.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

47. The Tribunal has considered the mandatory legal consequences of a cancellation decision. The Tribunal notes that the applicant will become an unlawful non-citizen if her visa is cancelled and she may be liable for detention under s189 and removal under s198 of the Migration Act if she does not voluntarily depart Australia. She will also be subject to an s 48 bar which will limit her options in applying for further visas in Australia. Depending on the visa applied, the Tribunal notes that the applicant will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a temporary visa for three years from this date except in certain circumstances. However, these are the intended consequences of a cancellation.

1. On the evidence before it, the Tribunal weighs this factor neither in favour nor against cancelling the visa.

   whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

2. The circumstances of the applicant would not engage Australia’s international obligations. There is nothing to suggest and the applicant has not claimed that Australia’s international obligations would be breached as a result of the cancellation. There is nothing to suggest that the applicant has any children in Australia whose interests would be affected if the visa was cancelled. Accordingly, the Tribunal gives this factor no weight in its considerations.

   any other relevant matters.

3. The Tribunal is not aware of any other relevant matters which will impact whether the visa ought to be cancelled. As such the Tribunal gives this factor no weight.

   Conclusion

4. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of her visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant is not fulfilling the purpose of her travel to and stay in Australia as she is not undertaking the study for which her visa was granted. The Tribunal is not satisfied that the ground of cancellation arose due to circumstances beyond the applicant’s control in this case. The Tribunal is satisfied that the cancellation will not affect any other person’s visa. It will not be in breach of Australia’s international obligations. The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

5. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

6. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   Rachel Westaway
   Senior Member

   
   

   ATTACHMENT

   Migration Regulations 1994

   …

   Schedule 8

   8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

   (a)a Defence student; or

   (b)     a Foreign Affairs student; or

   (c)      a secondary exchange student.

   (2) A holder not covered by subclause (1):

   (a)      must be enrolled in a full time registered course; and

   (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

   (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

   (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

   (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

   (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

   (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

   (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.