Wong (Migration)

[2018] AATA 2363

Wong (Migration) [2018] AATA 2363 (16 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Shuk Fan Wong

CASE NUMBER:  1727000

HOME AFFAIRS REFERENCE(S):           BCC2017/2709671

MEMBER:Adrienne Millbank

DATE:16 May 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 16 May 2018 at 12:30pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector visa – Enrolment in a registered course – Cancellation of course by provider – Medical condition – Desire and interest in course – Decision under review set aside

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 25 October 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training 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 was not enrolled in a registered course, and thus did not meet condition 8202(2)(a). 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 27 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from two supporting witnesses. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

4. The applicant was represented in relation to the review by her registered migration agent, who attended the hearing.

5. 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

6. The applicant was born in Hong Kong in 1982 and first arrived in Australia on 11 January 2008 on a Student visa, enrolled in a Bachelor of Design. She successfully completed this degree course, but decided, after working in the area in Hong Kong, to change direction. She returned to Australia on a Working Holiday visa from May 2012 to May 2014. She was granted another Student visa on 15 June 2015 on the basis of her enrolment in a Diploma of Ministry, which she completed on 19 October 2016.

7. The applicant enrolled in but obtained a deferral, until 24 April 2017, on the grounds of her pregnancy, for an Advanced Diploma of Christian Ministry and Theology. Towards the end of 2016, she was advised by the course provider that the course would no longer be offered, because of insufficient enrolments, and that she should seek an alternative course. She claimed she could find no alternative course at the time. She further claimed that she was for a period overwhelmed by events, having entered into a de facto relationship and fallen ill, with post-natal depression, following the birth of her son on 11 March 2017. She claimed that she felt unable to cope with events at the time and for this reason did not attend to her visa and enrolment requirements.

8. 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?

9. 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).

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

11. The applicant’s Provider Registration and International Student Management System (PRISMS) records indicate that the applicant’s enrolment in an Advanced Diploma of Christian Ministry and Theology was cancelled on 24 April 2017.  At hearing the applicant confirmed that she has not been enrolled in a registered course since this time.  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

12. 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.

13. Student visas are temporary visas. Their purpose is to allow people to enter the country temporarily in order to undertake a registered course of study, not to remain onshore indefinitely. The Tribunal in its consideration 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’.

    Relevant factors and findings

14. At hearing the applicant, and her partner, who provided witness testimony at hearing, advised that they lodged a Partner visa application, in November 2017. The applicant acknowledged that she intends, should the visa be granted, to remain in Australia with her partner, an Australian citizen, and their son.

15. Evidence was provided in the form referral letters from health professionals that the applicant was treated and referred to support services for ‘post partum depression, anxiety and insomnia’, in 2017. The applicant advised at hearing that she has recovered, with the support of her partner, and her mother who visited from Hong Kong, from the depression that she claimed had immobilised her for some months.

16. The applicant described the profound interest, sense of purpose and vocation she derived from her studies in theology. She advised that she has developed strong bonds with the Christian Chinese community in Brisbane, and wanted in future to work in some outreach capacity serving the Chinese Christian community in Australia. She stated that the course providers that had cancelled the Advanced Diploma of Christian Ministry and Theology she had enrolled in, whom she knew and respected, had advised her that they now have sufficient applicants to run the course. She stated that she very much wants to complete the course with her original choice of provider.

17. The applicant several times expressed contrition and regret that she had not contacted the Department to discuss her change of circumstances. She explained that she felt overwhelmed by events at the time, and now felt that she had let herself, and the Department, down.  She several times expressed considerable anguish at the prospect of having a ‘black mark’ against her, in immigration terms, on account of the cancellation. She stated that she wanted to be seen as a person of good character, but that she lost control of things for a period when she unexpectedly fell pregnant, had a child and fell ill. She stated that she never intended not to comply with her visa conditions, and felt the need to correct her ‘mistake’. 

18. The Tribunal accepts that the cancellation of the course the applicant was enrolled in, an Advanced Diploma of Christian Ministry and Theology, was beyond her control. The Tribunal accepts that she suffered from post-natal depression, which was also beyond her control.

19. The Tribunal accepts that the applicant has a compelling need to remain in Australia, namely, to be with her partner and son, who are both Australian citizens. The Tribunal also accepts that the applicant feels a strong need to complete her Advanced Diploma of Christian Ministry and Theology.

20. The applicant at hearing confirmed that she understood that the Student visa is intended for temporary study and stay, and it is unlikely that she will be granted another Student visa. She confirmed that she understood that she doesn’t need the Student visa in order to remain lawfully in the country pending the outcome of her Partner visa application. She repeated that she was pleading against the cancellation for the purposes of clearing her name of a possible ‘black mark’; of putting right her ‘mistake’; and of completing the Master’s course because of her profound interest in Christian theology and desire not to jeopardise her chances of working in Christian outreach in the future. 

21. The Tribunal accepts the applicant’s claim that she is experiencing guilt regarding her pregnancy, visa and studies, and that she would suffer considerably, psychologically and emotionally, from the cancellation of her Student visa. The Tribunal finds the applicant sincere in her desire to correct what she perceives to be her ‘mistake’, and to complete her course. At hearing she described how, although the course is full-time, she could organise her attendance around her care for her son. She stated that she has no clear career path in mind, but desperately does not want her options of working in some capacity in the Christian ministry in the future to be limited or undone by a visa cancellation.

22. From the evidence available, apart from her failure to contact the Department sooner regarding her change of circumstances, the applicant has complied with her visa conditions and successfully completed her other courses. The Tribunal accepts that it is important to the applicant that she is seen to be of good character, and for this further reason she would experience significant psychological and emotional hardship from the visa cancellation.

23. The applicant spoke with conviction at hearing, and the Tribunal found her forthright, articulate and compelling. The Tribunal accepted her testimony, and that of her partner, as supporting witness. Having considered 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 572 Vocational Education and Training Sector visa.

    Adrienne Millbank
    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.