Wang (Migration)

[2019] AATA 5579

Wang (Migration) [2019] AATA 5579 (12 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss WenXuan Wang

CASE NUMBER:  1824303

HOME AFFAIRS REFERENCE(S):          BCC2018/1696844

MEMBER:Joseph Lindsay

DATE:12 December 2019

PLACE OF DECISION:  Melbourne

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 12 December 2019 at 4:01pm

CATCHWORDS
MIGRATION – cancellation – Higher Education Sector (Class TU) visa – Subclass 573 (Student (Temporary)) – non-commencement and cancellation of enrolment in higher education course – enrolment in lower-level course – discretion to cancel visa – factors for and against cancellation – sickness, domestic violence, motor vehicle accident and medical procedures – enrolment in another higher-level course and completion of a number of subjects – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 August 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) of the Act on the basis that the applicant breached condition 8516. 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 5 December 2019 to give evidence and present arguments. The applicant’s representative attended the hearing. The applicant was assisted by an interpreter.

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 delegate found that the applicant was not a genuine student in accordance with s.116(1)(b) of the Act because the applicant breached condition 8516 of her 573 student visa, where she failed to remain enrolled in a higher education course.

6. During the hearing, the applicant made full admissions that she failed to remain enrolled in a higher education course. Accordingly, 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.

7. 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 the discretion to cancel the visa

8. 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’

   The circumstances in which the ground for cancellation arose

9. The Tribunal acknowledges the written submissions provided to the Tribunal on 29 November 2019 where it was explained, in summary, that the applicant experienced a series of difficult circumstances.

10. In the hearing, the Tribunal discussed with the applicant what had happened to her.

11. She made admissions that in 2017 she did not commence her course, Bachelor of Design and Interior Architecture, and then her course enrolment was cancelled on 29 August 2017.

12. When asked for an explanation, the applicant indicated that the University of Technology Sydney (UTS) course, Bachelor of Design and Interior Architecture, was “too simple” and did not meet her expectations. She then enrolled in a Diploma.

13. The Tribunal obviously does not accept the applicant’s explanation, where she moved from an enrolment in a higher education course to an enrolment in a vocational education course. 

14. The applicant then claimed she while at UTS she had become sick, and when she returned she found she was prejudiced by lecturer and that the students were not friendly. She indicated that for these reasons she did not like UTS and decided she wanted to transfer to UNSW where the students were “hardworking and professional.” She claimed she enrolled in the Diploma on advice from her then agent.

15. She then claimed she had actually failed her foundation studies course due to sickness.  She claimed she spoke to UTS staff about her circumstances, but only in respect to her wish to transfer to UNSW and about her medical situation. She claimed she did not tell UTS staff about her treatment in class where she felt the students were not her friends and she felt isolated. She admitted she did not speak to the Department about her situation.

16. In any event, she acknowledged that she was responsible for maintaining her enrolment and her compliance with the conditions of her student visa.

17. She gave evidence in relation to the events that happened to her from late 2017 onwards, where she was involved in a serious incident of domestic violence that resulted in the conviction of her ex-boyfriend as well as a serious motor vehicle accident in which she suffered injuries and has had to undergo various medical procedures as part of her recovery. Documentary evidence was provided in support her these claims.

18. The Tribunal makes the following findings.

19. The Tribunal does not accept that the applicant took reasonable steps to manage her student enrolment and the circumstances as to why she breached her visa condition (8516) were not beyond her control.

20. However, the Tribunal places heavy weight on the subsequent actions of the applicant to prove that she is genuine about actually completing a course of study where she enrolled in a Bachelor of Design at UNSW this year and she has completed a number of subjects.

21. The Tribunal accepts that the applicant has access to the requisite financial resources to support herself and pay her course fees and that she is likely to have access to the requisite financial resources to support herself and pay her course fees in the future in respect to the Bachelor of Design course.

22. The Tribunal has decided to exercise its discretion in favour of the applicant and that she should be given a last chance.

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

    DECISION

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

    Joseph Lindsay
    Member