Xu (Migration)

[2019] AATA 2716

Xu (Migration) [2019] AATA 2716 (29 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Xuancheng Xu

CASE NUMBER:  1711997

HOME AFFAIRS REFERENCE(S):           BCC2017/996727

MEMBER:Brendan Darcy

DATE:29 March 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Class TU visa.

Statement made on 29 March 2019 at 2:17pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – psychological issues – controlling  mother in Australia – forced to choose course of no interest to applicant – mother’s return to China – amount of money already spent on education – genuine intention to study – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140
Migration Regulations 1994, Schedule 8, condition 8202, r 2.43(1)(la)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 May 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 had breached a condition imposed on his visa and that the grounds for cancellation outweighed the grounds for not cancelling. 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, a citizen of the People’s Republic of China, appeared before the Tribunal on 27 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Xiaohu Xu, claiming to be the applicant’s mother. 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 his registered migration agent or lawyer. The representative attended the Tribunal hearing. Later the applicant replaced this representative with another one for purposes of his post hearing submission. 

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 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.

   According to the decision record submitted by the applicant at the time of this review application, the applicant was granted this student visa for higher education purposes on 28 March 2015 and that the visa was set to expire on 15 March 2019. It also shows that Provider Registration and International Students Management System (PRISMS) records indicate the applicant had been enrolled in a registered course of study between 20 July 2016 and 28 May 2017.

9. The decision record further indicated that the applicant enrolled in three registered courses of study on 29 May 2017 and it noted these enrolments were created after the issuing of the Notice of Intention to Consider Cancellation (NOICC) on 15 May 2017. 

10. During the scheduled hearing the applicant explained that he had been initially enrolled in an English course for academic purposes and a Bachelor of Science (Food Technology and Nutrition) at RMIT University (RMIT). The applicant stated that he neither completed English language coursework nor his enrolled degree. PRISMS also indicate that the applicant did not satisfactorily attend the English coursework and he did not begin his Bachelor’s degree.

11. The applicant claimed he enrolled in a further English course, a Diploma of Information Technology and a Bachelor of Business with the same education provider. The enrolment was later cancelled on 6 August 2018.

12. According to the delegate, the applicant’s response to the NOICC as to whether he was non-compliant with condition 8202 was ‘unknown’.

13. The Department proceeded to cancel this student visa under review on 31 May 2017.

14. In the applicant’s oral and written evidence submitted to the Tribunal, the applicant did not dispute that he had breached condition 8202. At the scheduled hearing, the applicant acknowledged and admitted he was not compliant with condition 8202.

15. Based on the evidence before it, the Tribunal finds that the applicant had not been enrolled in any course work between 20 July 2016 and 28 May 2017 – a total of 313 days.

16. Accordingly, the applicant has not complied with condition 8202(2) and had been in breach of s.116(1)(b).

    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’.

18. In this decision, the Tribunal has placed considerable weight on the familial background of the applicant and the submitted psychological assessment. The psychological assessment is outlined below. However some context about his family background is required. The applicant’s parents divorced when he was five years old and had since then lived with his grandfather until he was twelve years of age. Since then, at a formative age, the applicant has lived with his mother (the witness) and who moved to Australia to continue to reside with him. While his mother has not remarried, his father who remains in China has remarried and has two children. 

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

19. The fact remains the applicant was not enrolled any coursework, including a degree, between July 2016 and May 2017. The delegate stated the applicant had considerable time during his period of non-compliance to remedy the situation to make alternative plans to depart if he was unable to study.

    Explanations not accepted

20. The applicant provided very confused and unconvincing evidence that after failing his English language coursework he went to student services in August 2016 who recommended he ‘come next time’ and that the university did not send an email to the correct address about his enrolment being threatened with cancellation. PRISMS indicate he did not attend sufficient class, which undermines this claim that he failed coursework.  The applicant further argued that although he was looking at his emails and the education provider’s online portal for students, it was only until December 2016 he became aware that his enrolment was cancelled.

21. The Tribunal does not accept these arguments as it was revealed in the evidence by the applicant’s witness, his mother, that she called her son stupid for not being more active about his studies and for procrastinating after he became non-enrolled. She described as ‘’his big mistake’.  It appears the applicant and his mother both understood he was non-compliant long before December 2016.  As the witness’ testimony undermined the applicant’s attempt at cobbling together administrative errors beyond his control for his non-compliance leading to the cancellation of visa, it places no weight on the applicant’s unsubstantiated claims about administrative negligence errors being responsible for his non-compliance.

22. The applicant also made claims that he attempted to reapply for enrolment at RMIT in the first half of 2017. In the post hearing submission, the applicant submitted through his new representative the claim that he came across an email in April 2017 and lodged a complaint to RMIT which after much discussion led to his re-enrolment that was after the issuing of the NOICC. He said he placed in complaints to the university about the cancellation of his visa on 19 May 2017 – many months after the cancellation. Yet the applicant also presented earlier email exchanges whereby he was told by the university in December the enrolment was cancelled and he had to re-enrol. This indicates the applicant did not act according to his own arguments until March or April 2017.  

23. This argument pertaining to not being aware of his non-enrolment by his post hearing submission of an email from the education provider dated 24 June 2016, inviting the applicant to reapply. There is no documentary evidence that he did not receive this on that date and the Tribunal does not accept the email was not delivered. The applicant also claimed he had no prior knowledge of the cancellation of the enrolment. Yet the applicant had applied for a new letter of offer indicating that he understood that he was required to re-enrol when course work had not been satisfactorily undertaken.  This explanation is found to be a contrivance and is not accepted.

24. More extraordinary had been the claim by the applicant’s mother that the applicant did not seek to re-enrol in another education provider because the conditions on his visa would not allow him to enrol with a private education provider. Yet in the post hearing submission, the applicant has provided a letter of offer from a private education provider, Cambridge International College which fundamentally undermines the witness’ otherwise trivial claim.  This explanation is not accepted and it further demonstrated to the Tribunal the propensity of the witness to fabricate evidence in this review matter.

25. When the Tribunal enquired of the applicant and his mother the reasons the applicant did not depart prior to the cancellation of his visa to apply for another visa, the witness claimed that she advised her son that it was better to have the visa cancelled so as to have review rights than risk not being granted a further student visa. The Tribunal accepts this advice was provided as claimed. However, as discussed in the hearing, it further indicates that both the applicant and the witness knew of their non-compliance with condition 8202 and no administrative or technological errors on the part of the education provider arose.

26. He then weakly added that he and his mother were forced to relocate to different accommodation during 2016 due to disputes between his mother as a tenant and the real estate agents or landlords.  The dispute also included some litigation, it was claimed. This, he argued, pre-occupied him to the extent that he could not study. The Tribunal accepts he was required to move accommodation but it does not accept this sufficiently disrupted or disturbed him to the extent he could not be enrolled.

27. The applicant has also argued that he was unable to maintain his studies and enrolment due to Irritable Bowel Syndrome (IBS) which had been exacerbated by Chinese medicine. The applicant did not provide a medical certificate indicating that he could not study effectively due to the ongoing but treatable disease. He explained that his doctor refused to provide a medical certificate indicating he was unable to undertake full time study.  The Tribunal also asked the applicant to explain the reasons halitosis (chronic bad breathe) prevented him from studying or maintaining his enrolment given it was raised in his written claims. The applicant said it was his mother’s suggestion and the doctor would not provide a medical certificate. Overall, the applicant agreed with the Tribunal that these medical issues were not barriers preventing him from being non-compliant with condition 8202. The Tribunal places no weight on these medical reasons as extenuating circumstances leading to the cancellation of the visa.

28. With regard to these explanations the applicant’s and the witness’ oral and written evidence were weak, unconvincing, riddled with discrepancies and with no documentary evidence, submitted or otherwise, to substantiate the claim that there were extenuating circumstances.  The applicant many adequate opportunities to avoid his non-compliance when he was offered a letter of offer in June 2016. The applicant also had many opportunities to mitigate his non-compliance.

29. While it is open to the Tribunal to make further adverse credibility findings about the applicant’s other claimed circumstances, it detected a discernible thread of evidence – both in the hearing and in the post hearing submission - that the applicant proffered these weak and far-fetched explanations because he was under considerable distress arising from a domineering family member. This is examined immediately below.

    Psychological circumstances leading to the applicant’s non-compliance

30. In the applicant’s NOICC he did not elaborate on any significant psychological reasons as extenuating circumstances leading to the visa’s cancellation.

31. However during the hearing, the Tribunal noticed that the applicant was withdrawn, flaccid and impassive in his demeanour and in the answering his questions. The applicant spoke often in whispers; struggled to make eye contact; and his posture was slouched. It was clear that the applicant, unlike the vast majority of young student visa holders in Australia, was not only living with his mother who held temporary visas but his mother had contributed to his studies and his non-compliance.  He admitted he had few friends and was socially isolated.

32. At the end of the hearing, the Tribunal indicated to the applicant he appeared to be psychologically vulnerable and that as a post hearing submission it expected his underlying psychological problems were outlined as it appeared relevant to the Tribunal in undertaking its decision making.

33. In that post hearing report, a joint report by clinical psychologist Dr Michael G King and Mr Slobodan Bendjo, Registered Psychologist on 18 March 2019 outlined the following:

    ·Both the applicant and his mother are significantly above "average" in terms of general intelligence.

    ·The applicant is comfortably capable of university level studies.

    ·The applicant has major social difficulties with a clinically significant level of "weakness" in terms of self-assertion and self-esteem, as well as a demonstrated weakness in forward planning.

    ·The applicant has a psychopathological profile that indicting the well-established patter representing the condition of an anxious-depressive state and a diminished capacity to assert himself.

    ·The applicant’s mother has a personality structure showing clear weakness of understanding at the "social competence" level, a tendency to have outbursts of anger which would not be anticipated by those she interacts with (and thus all the more threatening and upsetting to a person such as her son who has demonstrated deficits in terms of self-assertive capacity.

    ·The declaration by the applicant is taken as providing an overall umbrella of evidence that a previously much younger instance of this present young man has been pathologically submissive and unassertive, and that his currently-demonstrated weakness in forward planning was a significant factor in the unfolding pattern of disjointed academic progress.

34. The psychologists further stated:

    "From the current narrative provided by this family, it is now recognized that the mother had asserted her dominance over the young man, and more than "guided" his study directions she had imposed/demanded that he study a course that was far from his domain of interest.

    From the perspective of an Educational Psychologist, with extensive experience in guiding and assisting tertiary level students, it is our jointly-developed opinion (that is Dr King and Mr Bendjo) that when a student is reluctant to follow a path, is not interested in that study domain, then failure and withdrawal of involvement is the inevitable outcome.

    From my understanding of and involvement with Immigration and Visa matters, it is my opinion that the now-established factors that led to the current situation of Mr XU's visa status can be seen to meet Special Consideration criteria. He has effectively been emotionally abused and forced into a situation that was likely to result in failure.

    Further from the current narrative, it is my understanding that mother has recognized the negative impact of her well-meaning but ultimately destructive level of involvement in her now-adult son's education pathway. She has agreed to return to China, and Mr XU himself is keen to follow his desire to study an achievable tertiary course in Australia.

    It is finally relevant to note that Mr XU has now made clinical contact with our services, and that the additional support of a Mandarin-speaking counsellor (Mr Bend/o) with whom a level of clinical rapport has been established, will stand as a continued additional resource for this young man to rely upon."

35. The Tribunal largely accepts this psychological assessment and it concurs with the legal submission that the applicant’s self-esteem and capacity to forward plan for his own educational development and progress was significantly and adversely impacted upon by his mother’s domineering him and dismissing his own academic interests. It accepts the argument that the applicant’s controlling parentage caused him to lack the maturity and psychological strength that most adults his age have.

36. However, the Tribunal does not accept this was totally or comprehensively outside of the applicant’s control as he was not so psychologically injured that he could not confront, avoid or evade his mother as an adult or seek professional help to assist him to overcome his propensity to procrastinate and sense failure. He also had family in China, namely his father, who could assist. The Tribunal does not accept the testimony by the applicant’s mother that his father has a new family and therefore does not materially or emotionally care for his son on the basis of the witness lacking overall credibility.

37. The Tribunal has independent evidence provided by the psychological report regarding the mindset of the applicant’s mother. It states that she has a wider array of social interactive indicators indicating a consistent pattern of ‘dominance’ and tendency to assert her will over others. On the ‘Over Controlled Hostility’ scale she was rated ‘moderate elevation’.  It is noted in the most recent legal submission the behaviour of the applicant’s mother was characterised as well-meaning. However the Tribunal is unable to accept this generous characterisation. 

38. As a witness at the scheduled hearing, the behaviour and testimony supposedly in support of her son appalled this Tribunal Member. This includes her willingness to fabricate explanations for his non-compliance with condition 8202 with weak and far-fetched claims and her admission in providing him with poor migration advice.  She provided evidence whereby she had a willingness to litigate her way out of problems such as her attempts to intimidate RMIT into providing an enrolment and over tenancy agreements.  In combination with psychological report, the applicant’s mother has invited the Tribunal to consider that she has symptoms of narcissistic disorder: She exhibited a grandiose and inflated sense of her own judgment and importance, a sense of entitlement for herself and a history of difficulties in maintaining relationships. She appeared to demean, belittle and intimidate others to garner outcomes to which she feels entitled. More urgently to the Tribunal, the applicant’s mother demonstrated a lack of empathy and recklessness towards others including towards the applicant and his emotional and educational development.  The witness’ recklessness extended to taking advantage of her son’s sense of filial duty towards his mother and his psychological vulnerability to be complaint when confronted with her mean-spirited belittling and bullying. 

1. Taking all this psychological evidence and its informed observations into consideration, the Tribunal accepts the applicant has been living in Australia as a student visa holder under considerable emotional and psychological stress which has arrested his development into a confident and independent young adult. However the psychological distress has not been assessed to be severe as he has not claimed to have been sectioned under any mental health laws or hospitalised or even medicated.  It is further noted the psychological report states the applicant has a diminished capacity to assert himself, not ‘no capacity’ or ‘an incapacity’. Accordingly the Tribunal finds these extenuating circumstances not to have been beyond his circumstances given had many opportunities to address his non-compliance. 

2. In summary, the Tribunal finds that the applicant’s psychological symptoms arising from his familial background contributed to his non-compliance of condition 8202 as a considerable extenuating circumstance that was not beyond his control. Nevertheless it places considerable weight on it in favour of having the visa not cancelled.

   The purpose of the visa holder’s travel to and stay in Australia

3. Overall the academic outcomes of the applicant were so poor that he did not complete his English language coursework or begin his Bachelor in Science. Ordinarily this poor academic record would lead to adverse findings or weightings that the applicant did not travel to Australia for the purposes for full time study.

4. During the scheduled hearing, the applicant elaborated that his mother chose his Bachelor for him and that his interests lied in information technology. However the applicant’s mother insisted that it was the applicant’s decision to pursue a career in science and specifically nutrition and food technology. In the context of the abovementioned findings regarding the domineering nature of the applicant’s mother, it is clear that her destructive interference had affected his enrolment and his ability to engage his studies.

5. Overall the Tribunal accepts the applicant’s testimony that he wished to enrol in coursework pertaining to information technology and that he is sufficiently educated, intelligent and proficient in English to reach those academic goals on a full time basis.

6. With regards to the applicant’s psychological capacity to complete his degree, the Tribunal welcomes clinical contacts that the applicant has made with psychological services and that he has established a clinical rapport with a Mandarin-speaking counsellor. It is satisfied reliable support structures are available to the applicant on an ongoing basis and that the capacity of the applicant to mature and engage his studies is substantially enhanced by his mother undertaking to return to China, as indicated in the post hearing submission.

7. For these reasons, the Tribunal finds there is sufficient evidence not to doubt the applicant’s intention and capacity to complete a Bachelor’s degree. In this regard, it has placed considerable weight on that he has the available support to address his emotional and psychological barriers to overcome anxiety, depression and low self-esteem that had earlier prevented him from completing his studies. Based on the available information, the Tribunal is satisfied that the applicant’s purpose of travelling to Australia is to study on a full-time basis and places substantial weight on this overall finding in favour of not cancelling the visa.

   The extent of compliance with visa conditions

8. There is no evidence before the Tribunal to indicate the applicant did not comply with other conditions. The delegate decision does not record any information about further non-compliance. It places some weight on this in favour of the applicant.

9. The applicant was not enrolled in a registered course for a long period of time – 313 days. To mitigate his non-compliance that it was open to seek deferral, to have re-enrol l applied for another student visa for vocational education purposes long before the issuing of the NOICC, or to even leave Australia and to return later. The Tribunal considers this significant to the question whether his visa should be reinstated. While the applicant has provided explanations to the Tribunal for this non-compliance, it gives this factor regarding non-compliance some weight towards the visa remaining cancelled.

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

10. The Tribunal acknowledges and accepts the claim the applicant and his family have spent as much as 100,000 Australian dollars to date on his education and living expenses. It places some weight on this as a financial hardship in favour of the visa to be reinstated.

11. With regards to the applicant’s psychological symptoms outlined above and in the context that his mother is set to return to China, the Tribunal places some weight on the applicant’s self-esteem and confidence if this visa were to remain cancelled. However it does not place considerable weight on it as he will be returning with the support of his family and will have access to the mental health counselling available in the country.

    Past and present conduct of the visa holder towards the Department

12. There was no evidence that the applicant had been uncooperative towards the Department. Overall, the Tribunal gives this factor a little weight in his favour.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

13. Not relevant.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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. While the applicant did not offer any comment in this regard, the Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained or even forcibly removed. It was also discussed that he would be barred up to three years from re-entering Australia. Noting the applicant will be able to resume studies in China, the Tribunal finds little hardship in this mandatory legal consequence on him.  In relation to this factor, the Tribunal gives these considerations only little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

15. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Whether any international obligations would be breached as a result of the cancellation

16. As it remains open to the applicant to seek Australia’s protection obligations, it gives this factor very little weight in his favour.

    Any other relevant considerations

17. The applicant claimed he has never been drunk or worked or earned a salary or engaged in any illegal activities since arriving in Australia. The Tribunal finds there is no evidence of any criminal behaviour or any other issues pertaining to his character. The Tribunal does a little weight on this in favour of the visa being reinstated.

18. The Tribunal has misgivings about the high number of explanations about his non-compliance that were lacking in credibility. Given the psychological vulnerability of the applicant arising from a domineering relative as outlined above, the Tribunal has been able to overcome these concerns. It nevertheless places only some weight on this factor towards the visa not being reinstated.

    Conclusion

19. In considering the evidence, the Tribunal has found the troubling psychological circumstances of the applicant to be considerably extenuating but not beyond his control. It has reached satisfaction that he has the necessary mental health support to continue his studies in a field shaped by his own disposition and interests and to overcome his low self-esteem afflicted on him by a domineering family member. This view is reinforced by the family member in question having undertaken to return to her country of nationality. In this unusual review application for a student visa, the Tribunal has overcome its credibility concerns about the applicant in the context of a submitted psychological assessment and other related evidence.  

20. On balance, it finds there are more factors in favour of having his visa not being cancelled than in favour of those countervailing factors to have the visa remain cancelled.

21. The Tribunal notes that the applicant will have to apply for a new visa in a short period if he wishes to study in Australia. Due to changes in the Migration Regulations, Class TU Subclass 573 visas are not available to the applicant, as the Minister has made reductant Subclasses 570 through to 576 visas. They were replaced by Class TU Subclass 500 student visas on 1 July 2016.

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

    DECISION

23. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Class TU visa.

    Brendan Darcy
    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.