YAN (Migration)

[2017] AATA 302

YAN (Migration) [2017] AATA 302 (23 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Feiyang YAN

CASE NUMBER:  1614556

DIBP REFERENCE(S):  BCC2016/2739850

MEMBER:Rachel Westaway

DATE:23 February 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 571 (Student) visa.

Statement made on 23 February 2017 at 6:34pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 571 Schools Sector – s 116(1)(b) – Adequate arrangements for accommodation, support and welfare – Applicant moved from registered homestay – Overcrowded and unhygienic accommodation – Distance from education provider – References from Principal and Homestay manager – Brief duration of breach – Keeping Department informed

LEGISLATION

Migration Act 1958, ss 48, 116(1)(b)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 September 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 571 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the holder has not complied with a condition of the 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. The applicant appeared before the Tribunal on 23 February 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Stanton, the applicant’s school Principal and Mr Armour who is he applicant’s homestay host. 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 her registered migration agent.

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. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

7. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8532(b) was attached to the applicant’s visa. This condition requires that the visa holder maintain adequate arrangements for their accommodation, support and general welfare for the duration of their stay in Australia, whilst under the age of eighteen.

8. The applicant was born on 26 October 1998. She was 17 years and 10 months of age at the time her visa was cancelled. The applicant’s visa was issued on 27 June 2016. The Department received notification that the applicant had left her approved accommodation on 15 August 2016 and on the 18 August 2016 her CAAW was cancelled. The applicant confirmed at hearing that she had left her approved accommodation to reside elsewhere.

9. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

   Consideration of discretion to cancel the visa

10. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

11. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘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

12. At hearing the applicant stated that she wanted to continue her studies in Australia and that she would like to study law and return to China. She confirmed her father is a lawyer and her mother works for a church. The applicant brought a witness, Mr Stanton who is her school Principal. He confirmed that she came to the school in term 4 in 2016. He stated that she is “incredibly polite and she comes to school every day and her English has improved already and she is very studious. He stated that he is aware of the documents detailing her situation and demeanour with her former host family and course provider and he stated that it is very hard to believe and he found it like “Jekel and Hyde” and he is very surprised that it is the same person he knows. He confirmed the applicant is in Year 11 VCE and is studying 7 subjects. The principal stated that he could not ask for a better student and that there has been no need to deal with her parents. I am willing to accept that the applicant’s purpose was to travel to and stay in Australia to study and I give this some weight in favour of the visa not being cancelled.

    the extent of compliance with visa conditions

13. It was explained to the applicant that the condition on her visa is there to ensure she is safe and accounted for and that the other conditions are on her visa to ensure she does what the visa intends her to do, namely study successfully and remain lawful. The applicant stated that she had only just arrived in Australia and was new to the culture and customs and sought advice which was incorrect - namely that she could choose her own accommodation given she was unhappy where she was. She stated that her mother was aware she was moving but she did not know when and that she had already lodged a complaint with her homestay Manager at her former school. The documents available to the Tribunal do indicate that the applicant took all appropriate steps to inform people and request new accommodation and the situation was not rectified within a week and she had not received an update. Whilst the applicant should not have simply moved out, the Tribunal is cognisant of the difficult circumstances which faced her. These include accommodation which was between 1.5-2.5 hours from her place of study, overcrowding, provision of food which was not culturally suited to the applicant, an animal which lived in the house and slept on her bed and a level of household cleanliness which was not acceptable to her. The applicant moved to a non-registered or approved homestay. She received advice which was incorrect and moved into the home of a man named Michael who was a business contact of another Chinese student’s parents.  However when realising and understanding that it must be approved accommodation she moved into an approved homestay within weeks.

14. Her current registered homestay ‘parent’, Mr Paul Amour is registered with AHN – Australian Homestay Network. He attended the hearing and provided supporting evidence. The applicant’s Principal also confirmed that the school suggested the company and AHN appointed Paul as the ‘parent’.

15. Mr Armour stated that he met ‘Tina’, the applicant in October/November 2016. He is located a short bus trip from her school. He has one other student at a different school. He stated that she moved in only a few weeks after moving from the first registered accommodation.

16. He stated that she has settled in well at home and is obliging and listens to what they have to say and at meal time is polite and eats everything without complaint and is generally good to have around. He stated that when she came he knew something had happened but he wasn’t sure what and he now knows. He said she attends school regularly and gets on well with the other student in their house and he and his wife are happy to have her. He stated that AHN is very professional and provided a thorough interview and search to ensure it was suitable. They move students who are not suitable and he has asked for this to happen before and they do so immediately. He suggested that the issue with the last homestay may not have necessarily been the applicant’s fault. He stated that Tina’s mother has spoken Mr Armour and she seems happy. There is daily communication with Tina and her family.

17. I have considered evidence given by the applicant’s Principal, the applicant and her host family, that the applicant appears not to have breached other conditions on her visa and it appears that the breach which did occur was for 3 weeks when she was looking for suitable accommodation. I note that the breach was not for a significant period and was due to difficult and inappropriate living conditions and desperation and naivety on behalf of the applicant and that there are no breaches of other conditions that the Tribunal is aware of. As such I therefore give this significant weight towards the visa not being cancelled.

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

18. The applicant breached a condition on her visa for approximately three weeks. She is eighteen years of age and is a studious student. If the visa remains cancelled she will incur a ban for three years and it may be detrimental to her successfully obtaining visas in the future. Given her youth and the implications of a three year ban at a significant point in her studies, namely VCE, I consider the hardship faced by the applicant to be significant and I give this some weight towards the visa not being cancelled.

    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

19. The applicant and her witnesses provided a detailed account of the circumstances in which the cancellation occurred. The previous accommodation was inappropriate on several levels and the applicant attempted to bring this to the attention of her homestay manager. These details are listed above and include overcrowding, unhygienic accommodation, inappropriate food and a location which was a long way away from the applicant’s course provider.

20. The applicant was naïve and acted impulsively. However, the Tribunal acknowledges she was young, she told her family and the course provider and homestay manager and this is documented. She felt desperate and was provided with incorrect advice as to her rights which resulted in a breach of her condition for a short period.

21. The Tribunal gives the circumstance of the breach significant weight in regards to not cancelling the visa.

    Past and present conduct of the visa holder towards the department

22. Whilst the account of the homestay manager indicates that the applicant was difficult towards everyone involved when the applicant left her original homestay, the applicant’s witnesses have stated this is out of character. The Tribunal also found the applicant to be significantly different from that which was betrayed by other reports. There was no evidence that the applicant had been uncooperative towards the Department as she has updated that Department on her accommodation and moved, as required to a registered homestay. As such, I give her conduct towards the Department some weight in her favour.

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

23. 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

24. The applicant understood that she would need to return to China if her visa was cancelled. I acknowledge that she would need to apply for a bridging visa E to remain lawfully in Australia so that she can finalise any outstanding matters and it was discussed with the applicant that she would be subjected to Section 48 of the Act which would limit her options for returning to Australia or applying for other visas.

    whether there would be consequential cancellations under s.140

25. Not relevant.

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

26. On the evidence before me, including her statement at hearing, there is nothing to conclude that Australia’s protection obligations would be engaged and I give this no weight in the applicant’s favour.

    any other relevant matters.

27. Not relevant

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

    DECISION

29. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 571 (Student) visa.

    Rachel Westaway
    Member