Wang (Migration)

[2019] AATA 3884

Wang (Migration) [2019] AATA 3884 (6 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Zijiao Wang

CASE NUMBER:  1719666

HOME AFFAIRS REFERENCE(S):           BCC2017/2447265

MEMBER:Joseph Lindsay

DATE:6 June 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 06 June 2019 at 5:57pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – applicant ceased enrolment – unsatisfactory academic progress – health issues – family bereavement – decision under review affirmed       

LEGISLATION

Migration Act 1958, s 116
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 24 August 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. The delegate cancelled the visa on the basis that the applicant failed to remain in a registered course of study and breached condition 8202(2)(a) of her student visa. 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. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Applicant’s submissions  

4. The applicant attended the hearing on 22 March 2019 with her representative.

5. The applicant provided to the Tribunal a copy of her written submission as to why her visa should not be cancelled.

6. She provided the Tribunal a copy of a Confirmation of Enrolment (COE) dated 15 March 2016 indicating that her enrolment in a Bachelor of Commerce was due to start on 7 November 2016. She provided a COE dated 15 March 2016 for the Diploma of Commerce at the Melbourne Institute of Business and Technology.

7. The applicant also provided a copy of three medical certificates from Dr Jilin Luo dated 11 December 2016, 18 May 2016 and 17 July 2017.

8. The applicant also provided a report from Guan Wang dated 20 March 2019.

9. The applicant also provided a “certificate of deregistration” dated 14 March 2017. This document appears to be a translation of an original document which was not supplied to the Tribunal and in addition the translation is not done by a National Accreditation Authority for Translators and Interpreters (NAATI) accredited translator.

10. The applicant also provided a copy of the decision record from the Department of Immigration and Border Protection. The applicant indicated she had read the decision and understood it.

    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 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?

12. 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).

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

14. In her application for review, the applicant provided a copy of the decision record from the Department that found the applicant had not been enrolled in a registered course of study since 15 December 2016.

15. The Tribunal put these facts to the applicant, and the applicant agreed that she had not been enrolled in a registered course of study since 15 December 2016.

16. 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)(a). The Tribunal finds that the ground for cancellation of the applicant’s student visa is established in respect to s.116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

17. 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’.

    Level of English

18. The Tribunal asked the applicant what her level of English skill was. The applicant responded that she can understand English but that the hearing was important to her and that was why she needed the interpreter to interpret for her.

19. The Tribunal confirmed to the applicant there was no issue with her using the interpreter, but that the Tribunal would consider what her level of English actually was.

20. The Tribunal asked the applicant whether she had a problem with English such that it impacted on her study. She responded that she thought she was okay doing her study but that she was nervous at the hearing so she needed the interpreter.

21. The Tribunal put to the applicant that if the applicant was going to use the interpreter for the entire time, the Tribunal would consider how reliant the applicant was on the interpreter to understand what was being said in the hearing. The applicant indicated that she wanted to use the interpreter for each and every exchange of communication during the hearing.

22. The Tribunal put to the applicant that if she was going to be so heavily reliant on the interpreter, the Tribunal asked how that would convince the Tribunal that the applicant was sufficiently able to cope with a course of tertiary study in English. The Tribunal put to the applicant that the Tribunal may find her level of English skill was at the lower end if she was so heavily reliant on the interpreter during the hearing.

23. The applicant responded that the fact that she had obtained a student visa in the first place and had enrolled at Monash University meant that her English was good enough for her to study.

24. The Tribunal put to the applicant that it acknowledged what she had said but nevertheless she had indicated that her English was not sufficiently good enough to be able to speak to the Tribunal at the hearing without the use of an interpreter. In response the applicant said yes.

25. In consideration of the applicant’s English ability, it was apparent to the Tribunal that during the course of the hearing the applicant was heavily reliant on the translator to communicate with the Tribunal. Accordingly, the Tribunal finds that the applicant’s English abilities are not sufficient to satisfy the Tribunal that she would be able to successfully undertake and complete a tertiary course of study in English even if she had a student visa.

    The circumstances in which the ground for cancellation arose

26. The Tribunal spoke to the applicant about the circumstances in which the ground for cancellation arose.

27. The applicant indicated she first came to Australia in July 2015. The applicant then indicated she commenced a diploma at Monash University of which she completed two subjects but then transferred to Deakin University. She indicated that the way education was provided at Monash did not work for her.

28. She indicated that she then transferred to Deakin University in 2016 to study a diploma but she did not finish the diploma. She then enrolled in a Bachelor of Business through Deakin University. She indicated that she paid her course fees and that the reason why she ceased enrolment had nothing to do with non-payment of fees. She then indicated she enrolled in another diploma and a bachelor course.

29. The Tribunal asked the applicant whether she passed her subjects. In response she indicated that she had not passed her subjects. She indicated that she had some digestive problems and she indicated that her maternal grandfather got sick and passed away. She also indicated she had depression at that time.

30. The Tribunal asked the applicant what she did about her situation when she did not pass subjects. In response she indicated that she was treating her digestive problems, and she was also seeing a psychologist, and she also went back to China for her grandfather’s funeral. She indicated that she felt like no one cared about her at that time.

31. The Tribunal asked the applicant whether she contacted her course provider when she did not pass her subjects, and in response she indicated that she did contact her course provider. When the Tribunal asked her what she said to them, she indicated she hoped to get help because she was having a lot of trouble in her life at that time.

32. The Tribunal again asked the applicant what action she took in relation to managing her course enrolment and what action she took in relation to her course provider about her circumstances.

33. In response, the applicant said she enrolled in two semesters in 2016 one in March 2016 and one in October 2016. She indicated that in early 2017 she went back to China for her grandfather’s funeral and also for psychological treatment and because of that she did not enrol in the third semester but at that time she did not know about her visa situation.

34. The applicant again confirmed she did not enrol for the third semester (beginning of 2017).

35. The Tribunal asked the applicant to further explain her circumstances because as of 15 December 2016 she did not have an enrolment with her course provider.

36. The applicant said that when her grandfather passed away she didn’t know about that (her grandfather’s passing) and she only thought he (her grandfather) was seriously ill when she went back to China. The applicant explained she was eager to go back to China she felt it was quite urgent for her to do so. She indicated she wanted to travel to China to see her grandfather for the last time but by the time she returned to China her grandfather had passed away. She indicated her parents did not tell her beforehand which was quite a trauma for her. The applicant confirmed that her grandfather had passed away on 6 December 2016.

37. The Tribunal noted that her grandfather had died before she ceased her course enrolment and that the circumstances had an effect on her decision-making in relation to her enrolment, to which the applicant agreed.

38. The Tribunal then put the query to the applicant that if the main circumstances that resulted in her ceasing her course enrolment were due to the illness and death of her grandfather in China, how was the issue of her gastro-intestinal problems relevant? The Tribunal confirmed that the timeframe of relevance was early 2017 and at that stage she still held her student visa. The Tribunal put to the applicant that she would reasonably have been aware that she needed to remain enrolled in a registered course of study to comply with the conditions of her student visa. The Tribunal asked the applicant what steps she took in relation to her course provider and in relation to the Department in respect of her situation.

39. In response the applicant claimed she did not know about the visa situation and that she had gastrointestinal problems and she was having treatment.

40. The applicant ultimately confirmed she did not speak to her course provider or the Department in respect of her situation in early 2017.

41. The Tribunal put to the applicant that she had said (in her written submission that she provided to the Department and to the Tribunal) that in 2016 she had gastrointestinal problems that affected her study, to which she agreed.

42. The Tribunal asked the applicant if she passed her subjects in 2016 and in response she said no.

43. In response the applicant indicated that the gastro-intestinal problems she was having were serious – so serious that she was sweating all the time and she could not attend classes. She indicated that the medications she was taking were not working for her. She indicated she was here in Australia by herself and that nobody was taking care of her.

44. The Tribunal asked the applicant to confirm whether or not she said that she did not attend classes. In response the applicant indicated that she could not attend classes like a normal student everyday. The Tribunal asked the applicant when she did not attend her classes. In response the applicant indicated that it was sometime around October 2016 that she stopped attending her classes. The Tribunal asked the applicant if she ended up missing many of her classes.

45. In response she indicated that she did not end up missing many of her classes but that she did not pass her subjects. The Tribunal asked the applicant how many subjects she failed in 2016. In response, she indicated that she did not pass any of the subjects she undertook in 2016.

46. The Tribunal referred to a copy of the three medical certificates from Dr Jilin Luo dated 18 May 2016, 11 December 2016 and 17 July 2017. The Tribunal put to the applicant that the certificate dated 18 May 2016 merely said that the applicant was not fit to attend school for three days between 18 May 2016 and 20 May 2016 and makes a reference to acute gastroenteritis. The Tribunal put to the applicant that the certificate dated 11 December 2016 merely said that the applicant was not fit to attend school for four days between 11 December 2016 and 14 December 2016 and makes a reference to acute conjunctivitis. The Tribunal put to the applicant that the certificate dated 17 July 2017 refers to events in 2017 and has no relevance to events in 2016 and for that reason the Tribunal would place no weight on that certificate in respect to her enrolment in 2016.

47. The Tribunal indicated to the applicant that there was very little medical evidence in relation to her situation in 2016. The Tribunal put to the applicant that she had indicated she was very ill in 2016 with a severe gastroenteritis issue. The Tribunal put to the applicant that there was very little medical evidence in support of her claim, that she was very ill in 2016 with a long-term gastroenteritis issue.

48. In response the applicant indicated she took medication to treat her medical issue. The tribunal asked what medication she took. In response she indicated she took some type of Chinese medicine and some painkillers from the chemist but she could not recall what type of painkiller medication she took.

49. The Tribunal referred to the report from Guan Wang that said he was a registered counsellor and psychotherapist. The applicant claimed that Guan Wang was a psychologist.

50. The Tribunal put to the applicant that, according to the Australian Health Practitioner Regulation Agency (AHPRA) website, Guan Wang was not a registered health practitioner. The Tribunal put to the applicant that Guan Wang was a counsellor and he had produced a counsellor’s report but that it was not a psychology report and he was not a registered health practitioner.

51. The Tribunal noted that the applicant had self-referred to Guan Wang rather than being referred by a medical practitioner. The Tribunal noted that the report said that the applicant had persistent complex bereavement disorder, persistent depression disorder, obsessive-compulsive disorder, obsessive-compulsive personality and dependent personality.

52. In response the applicant indicated that Guan Wang was the only person that she could find that was available to her for the consultation on 18 March 2019 and who also speaks Mandarin. The Tribunal put to the applicant that it would find her assertion difficult to accept because in Melbourne there were many Mandarin speaking mental health and medical professionals. The applicant’s representative indicated that Guan Wang held himself out to be a psychologist. The applicant indicated that she had consulted Guan Wang only once. The applicant indicated that it was news to her that Guan Wang may not be a psychologist or registered health practitioner. The Tribunal put to the applicant that the Tribunal was not prepared to put any weight on any of the information in the report from Guan Wang, and any diagnosis he purported to make, if he was not a registered psychologist or registered health practitioner.

53. The Tribunal gave the applicant until close of business Monday, 25 March 2019 to provide evidence that Guan Wang was a registered psychologist and registered health practitioner. At the date of this decision no further information has been provided.

54. The Tribunal put to the applicant that in any event the report was a record of her visit to Guan Wang on one occasion that appeared to result in a series of diagnoses about her mental health situation. The Tribunal put to the applicant that even if Guan Wang was a registered psychologist or registered health practitioner, she had only gone to him on one occasion and that there was no treatment conducted over a course of time – it was one visit on one occasion and for that reason the Tribunal may put low weight on the information in the report.

55. The Tribunal put to the applicant that she had claimed that she had suffered a range of stressful situations over the course of 2016 and early 2017. The Tribunal explained that if she had consulted a psychologist or mental health professional over the course of 2016 and early 2017 when she claimed she had experienced the stressful situations, the Tribunal would have been prepared to put high weight on the report about that situation but that the report from Guan Wang was not such a report.

56. The applicant responded that when she was in China she had two months of psychological treatment. The Tribunal asked the applicant if she had any documentation about that treatment and she indicated she did not have any such documents.

57. In relation to the above, the Tribunal makes the following findings.

58. The Tribunal accepts that the applicant did not pass any of her subjects in 2016.

59. The Tribunal accepts that the applicant experienced an incident of gastroenteritis where she was not fit to attend school for three days between 18 May 2016 and 20 May 2016 and the medical certificate makes a reference to acute gastroenteritis. The Tribunal accepts that the applicant experienced an incident of acute conjunctivitis and was not fit to attend school for four days between 11 December 2016 and 14 December 2016. However, the Tribunal finds that there is insufficient evidence to support the applicant’s claim that she did not remain enrolled because she had a “severe disease” where she suffered constantly with acute gastroenteritis since May 2016 such that her condition seriously affected her daily life and study. Accordingly, the Tribunal does not accept the applicant’s claim in this respect.

60. The Tribunal finds that there is insufficient evidence to support the applicant’s claim that she got medicine for treatment. There was no documentation provided as to what medication the applicant took to treat her claimed condition and the applicant herself could not recall specifically what medication she took. Accordingly, the Tribunal does not accept the applicant’s claim in this respect. The Tribunal does not accept the applicant’s claim that because of her illness at the time, she was hardly able to study.

61. The Tribunal does not accept the applicant’s claim that she was depressed or suffered depression because there is insufficient evidence to support the applicant’s claim in this respect. The only documentary evidence provided to the Tribunal in support of the applicant’s claim that she was depressed or suffered depression and received treatment for that condition was the report from Guan Wang. While Guan Wang is a registered counsellor and psychotherapist, he is not a registered health practitioner or a registered psychologist as suggested by the applicant. The applicant has not provided any documentation supporting her suggestion that Guan Wang is a registered health practitioner or a registered psychologist. The applicant self-referred to Guan Wang for a single consultation on 18 March 2019 – and this only occurred after the applicant was invited to a hearing on 5 March 2019. There is no indication that any consultation or therapy was provided to the applicant at the relevant time her course enrolment ultimately ceased in 2016.

1. Accordingly, the Tribunal places no weight on the report from Guan Wang in 2019 and does not accept that the applicant suffered a range of stressful situations over the course of 2016 and early 2017. 

2. The Tribunal does however accept the applicant’s claim of her relationship with her grandfather and the stress this caused to her in respect to his failing health and ultimately his death in 2016. However, the applicant freely admitted in the hearing that she did not know her grandfather had died until she got back to China – which was after her course enrolment ceased. The Tribunal finds that the applicant’s grandfather’s death had no bearing at all on the reasons why the applicant’s course enrolment ceased in 2016. While the Tribunal finds that the applicant experienced some stress as a result of her grandfather’s failing health, the Tribunal does not accept that this reason adequately explains why she failed all of her subjects in 2016 and did not maintain her enrolment in a registered course of study. 

3. In balancing the above findings, the Tribunal places low weight in the applicant’s favour in respect to the circumstances in which the ground for cancellation arose, that is, where the applicant was not enrolled in a registered course of study since 15 December 2016.

   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

4. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

   The extent of compliance with visa conditions

5. Based on the applicant’s evidence at the hearing, the Tribunal finds that the applicant appears to have complied with her visa conditions apart from condition 8202. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

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

6. The Tribunal asked the applicant what hardship she would be faced with if the student visa was cancelled.

7. In response, she indicated that she would not be able to find a job. She also indicated that she was 23 years old and she wouldn’t be able to go to other institutions to study. She indicated she was concerned that people would be talking about her and that she would be under a lot of pressure.

8. When the Tribunal asked the applicant whether she could do her bachelor’s degree in China, she responded she could not sit for a college entrance exam because of her age. The Tribunal asked the applicant whether she was saying that she could not go to any other university in China simply because she was 23 years of age. She claimed that her entrance exam she did when she was 18 years old would not be valid at the moment. She indicated she simply wanted to complete studying in Australia and then go back to China.

9. In respect to the above considerations, the Tribunal does not accept that the applicant could not find a job in China or that she would not be able to go to other institutions to study because of her age (23) or that she could not sit a college entrance exam in China or that her entrance exam she did when she was 18 years old would not be valid at the moment. The applicant did not provide any documentary evidence in support of any of her claims in this respect.

10. The Tribunal does however accept that the applicant was concerned about what people would say about her and this would cause her some distress.

11. In balancing the applicant’s concerns and the Tribunal’s findings above, the Tribunal gives low weight overall in the applicant’s favour in regard to this factor.

    Past and present behaviour of the applicant towards the Department

12. The Tribunal accepts there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

13. The applicant has no dependants attached to his student visa. The Tribunal places low weight on this information in the applicant’s favour.

    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

14. The applicant indicated she was very much aware of the legal consequences of the cancellation of her student visa and she was aware of the three-year exclusion period as a consequence of her student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

15. The Tribunal accepts that the applicant will need to make her own arrangements to obtain a visa to lawfully remain onshore and that if she does not do so, she will be in Australia unlawfully and may be liable to detention and removal if she chose not to return to China.

16. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of her student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

17. The Tribunal places low weight on this information in the applicant’s favour.

    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

18. The Tribunal asked the applicant whether she had any fear in going back to China. The applicant indicated that she had no fear about returning to China.

19. In consideration of the above, the Tribunal finds that there would be no breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places no weight on this information in the applicant’s favour.

    Any other relevant matters

20. When asked if there were any further relevant matters, the applicant said she did think about transferring to other universities.

21. There are no other relevant matters before the Tribunal.

    Conclusion

22. The Tribunal finds that the applicant received her Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 11 June 2015.

23. The Tribunal finds that the applicant has not been enrolled in a registered course of study since 15 December 2016. Accordingly, the applicant has not complied with condition 8202(2)(a).

24. The Tribunal finds that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are not exceptional circumstances.

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

    DECISION

26. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Joseph Lindsay
    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.