Yang (Migration)

Yang (Migration) [2020] AATA 4437 (7 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Qiuping Yang
CASE NUMBER:  1730246
HOME AFFAIRS REFERENCE(S):          BCC2017/3609088
MEMBER:Wendy Banfield
DATE:7 August 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 07 August 2020 at 2:10pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered Higher Education course ceased – applicant unaware of course cancellation – family medical issues – applicant changed to Vocational courses – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 359
Migration Regulations 1994, Schedule 8, Condition 8202
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 28 November 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had breached condition 8202 attached to her student visa because she had not been enrolled in a course of study from 3 April to 3 November 2017 when a Notice of Intention to Consider Cancellation (NOICC) was issued. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Background
The applicant is a citizen of China and is currently 26 years old. She arrived in Australia on 27 February 2010 as the holder of a Subclass 570 Student visa to undertake secondary school studies. On 18 March 2013 the applicant was granted a Subclass 573 Student visa to study higher education. On 16 March 2017 the applicant was granted a Subclass 500 Student visa. The applicant was enrolled in a Diploma of Hospitality, but records indicate her enrolment was cancelled on 3 April 2017.
The applicant appeared before the Tribunal on 24 October 2019 and 20 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s great uncle, Mr Kai Yang. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant chose not to use the interpreter for some of the proceedings.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
Prior to the hearing the applicant submitted the following documents:
·     Department’s decision record dated 27 November 2017;
·     Statutory declaration of the applicant;
·     Statutory declaration of Mr Kai Yang;
·     Statutory declaration of Zhao Xiuzhen;
·     Medical documents in relation to the applicant’s father, Jin Yang including hospital admission from 29 October to 24 November 2015;
·     Passport information for Mr Jin Yang;
·     Commonwealth Bank statement in the name of the applicant dated 18 October 2019;
·     Diploma of Business certificate issued by Salisbury College Australia (Salisbury College) on 19 September 2019;
·     Completion letter from Salisbury College for a General English course from 4 March 2019 to 16 June 2019;
·     Confirmation of Enrolment letter from Salisbury College for enrolment in an Advanced Diploma of Business from 17 February 2020 to 14 February 2021.
First hearing
The applicant was advised that the Tribunal needs to consider whether there were grounds to cancel her visa and if so, whether the Tribunal should exercise its discretion to cancel the visa. The applicant provided a copy of the Department’s decision dated 28 November 2017 that she wanted to rely on in her application for review. The decision record identified the grounds for cancellation as failure to comply with condition 8202(a) in that the applicant has not been enrolled in a registered course of study since 3 April 2017. The applicant also relied on a Diploma of Business from Salisbury College.
According to the Department’s decision, the applicant was granted a student visa on 16 March 2017, but her enrolment was cancelled on 3 April 2017. The decision found that the applicant had not been enrolled to study but had continued to reside in Australia as the holder of a student visa. The applicant disagreed this was the case. She claimed she was still studying hospitality “during that time” and had paid $4,000 to her agent towards her Bachelor course. She said her school did not tell her they would be cancelling her enrolment and she did not know until she received an email from immigration that her visa had already been cancelled.
The applicant advised she had studied at Holmes Institute where she paid for hospitality and part of her fees for a business course. The Tribunal put to the applicant the Department had relied on the PRISMS record which indicated her enrolment had been cancelled. The applicant said her enrolment in business was cancelled but she was still doing her Diploma of Hospitality.
The Tribunal referred the applicant to the findings in the NOICC and put it to her that despite her claim that she was studying, she was not enrolled after 3 April 2017. She was asked whether she had any evidence that she was in fact enrolled between 3 April 2017 and 28 November 2017. The applicant repeated that she was still studying her diploma then and she had asked her school to provide her with another COE. She said it was her Bachelor of Business that was cancelled, and her school did not tell her the visa would be cancelled. The applicant repeated that she paid $4,000 to her agent to hold a seat to be able to study a degree. The Tribunal told the applicant she has not provided any documentary evidence to show she was enrolled during the relevant time.
The applicant was asked whether she recalled receiving the NOICC and she replied that she had not known. The Tribunal then referred the applicant to her statutory declaration in which she stated that she had received it but did not respond because she was stressed. The Tribunal indicated that subject to the applicant providing any evidence that she was enrolled between 3 April and 28 November 2017, it appeared the Department’s finding was correct, and she had been in breach of visa conditions. She was invited to make any further submissions as to why she claimed the grounds for cancellation do not exist.
Using the interpreter, the Tribunal explained again the issues that need to be considered in the applicant’s case, including whether the grounds for cancellation exist and if so, whether the Tribunal should exercise its discretion to cancel the visa. It was explained the Tribunal needs to consider the circumstances in which the grounds for cancellation arose and whether there are extenuating circumstances. She was advised again that her enrolment in a Diploma of Hospitality and Bachelor of Business had been cancelled by the education provider. The Tribunal noted the applicant had said she thought she was still enrolled and was studying hospitality, but she had not provided evidence that she was enrolled between 3 April and 28 November 2017. The applicant was asked why the Tribunal should not accept and find that she was not enrolled during the relevant period. She said she acknowledged her enrolment had been cancelled but said she had already had her visa extended, she had paid for classes and attended during the relevant period. The Tribunal advised this information is relevant to the discretionary considerations but do not change the information in the records that her enrolment in a diploma and bachelor’s degree were cancelled.
The applicant referred to her father having been ill with dengue fever that led to her being depressed. She said as a result she left everything with her agent and concentrated on attending classes. The applicant said she had her visa extended because she wanted to study hospitality. The applicant said she did not know the school would cancel her visa and she was not able to contact her agent in order to negotiate.
The Tribunal clarified the applicant’s evidence with her. It was also clarified that the Tribunal was referring to her education provider cancelling her enrolment, not her visa. The applicant said she understood. The Tribunal then referred to the applicant’s claims that she was depressed about her father having suffered from dengue fever and pointed out that the medical evidence of his hospitalisation was from 2015 but the period she had not studied was between April and November 2017. The applicant stated her father suffered from a severe case and his business was mismanaged by relatives. Before cancellation, her father still supported her but was then unable to send funds to her regularly. The applicant said she was encouraged by her family to continue studying.
The Tribunal put to that applicant that she had said she paid fees of $4,000 to her agent for her Diploma and Bachelor courses in 2017. She agreed she had the fees at the time but said it had come from her great-uncle and aunt. The Tribunal suggested in that case, her father’s illness in 2015 had not prevented her paying fees. She agreed her father had stopped supporting her in late 2015 but her relatives supported her with fees and living expenses.
The Tribunal asked the applicant why her enrolment had been cancelled, according to the PRISMS record. She said she did not know why that was the case and reiterated she had continued to attend Holmes Institute at the relevant time. She claimed no one at the college told her about her enrolment having been cancelled. The applicant reiterated she had still been able to pay the fees and still attended the college. The Tribunal then asked the applicant why she had not contacted the Department when she received the NOICC to tell them that she had no knowledge of Holmes Institute cancelling her enrolment. The applicant said she had not received any letters about her visa being cancelled but the Tribunal reminded her this is not what she said in her statutory declaration. The applicant advised she had left matters to her agent and had not realised she needed to respond to the Department.
The applicant said she had completed high school in Australia, and she wants to complete a bachelor’s degree. She said this is because it will be difficult in China without a degree and her family will be disappointed. The applicant said if her visa is cancelled, she may request assistance from the immigration minister for another student visa.
The applicant confirmed she had completed a Diploma of Business from Salisbury College and a General English course in 2019. She said she did this because she still wanted to obtain a certificate and to demonstrate she really wants to study in Australia. She said if she can, she will continue with an Advanced Diploma of Business. The Tribunal asked the applicant if she had been issued with a COE for her studies with Salisbury College because she had not submitted any in evidence. The applicant said she was issued one, but she would have to provide it later and she had thought the diploma itself was important.
The Tribunal asked the applicant why she had not continued her enrolment in a Bachelor of Business. She said she had wanted to complete a Diploma course first, and it was necessary to show she at least has some knowledge of business. The applicant claimed she had been told her bachelor’s degree at Holmes Institute would take two years because it was packaged with other courses. It was claimed she did not continue with the degree because of her visa having been cancelled.
The Tribunal referred the applicant to her COEs for her high school studies, as well as Commercial Cookery and Hospitality courses but advised she had not provided COEs for her studies with Holmes Institute. She went on to state she had chosen Salisbury College on the recommendation of a friend. The applicant also advised her plans after finishing a bachelor’s degree are to return to China and assist her family in a restaurant business. When it was put to her that she already has a Diploma of Business, the applicant said she also wants to get experience, and a higher education will be better.
The applicant was asked to comment on the degree of hardship to her or her family if the visa is cancelled. The applicant said she would have to return to China and her family will be disappointed. She said she wants to get the highest education she can before she returns. The applicant stated she has provided truthful information to the Department in the past. She indicated there would be no legal consequences upon her return to China and that she is aware of legal consequences of visa cancellation.
The applicant was given a copy of the PRISMS record to consider. The Tribunal referred her to the entries on the record in which she was enrolled at high school, university foundation studies, nursing, commercial cookery and hospitality. The applicant confirmed the entries on the PRISMS record as put to her by the Tribunal. It was put to her that there is no record of her studies at Salisbury College in 2018 and 2019. The applicant reiterated she did believe she had been issued COEs for those courses. Regarding the reason for having taken courses in cookery, hospitality and business, the applicant said she is interested in the restaurant industry and her agent advised her to take a bachelor’s degree.
In accordance with s.359A of the Migration Act, the Tribunal put to the applicant that according to the PRISMS record, she has been in Australia for many years and has been enrolled in a range of different courses, including nursing. She was told the information may lead to the decision under review being affirmed and that she may respond to the information or request time to respond. The applicant indicated she wanted time to respond. The Tribunal then asked the applicant if she wished to comment on the fact that she had been enrolled in courses during her time in Australia that she had not completed. She repeated that she just wants to be able to finish a bachelor’s degree in Australia.
The Tribunal explained concerns it has about her history as a student visa holder in Australia including that she has had ample opportunity to complete her goals in the time she has been here. It was put to her that her behaviour is indicative of a person who is seeking to remain in Australia rather than for study on a temporary basis, but the applicant denied this was her intention.
Evidence of the witness – Mr Kai Yang
Mr Yang submitted the applicant has a genuine intention to study in Australia. He said she came in 2010 when she was 17 and boarded with him while she was in high school and university. Mr Yang said he was aware the applicant paid $4,000 for tuition to her agent but it was later found the agent had disappeared. He claimed they were baffled when her enrolment was cancelled. Mr Yang indicated he has lived in Australia for more than 20 years and said he has visited several universities. He felt Australia has several leading universities which is why he wanted the applicant to study and “be nurtured” here. Mr Yang said he pays attention to the education of his descendants, including his grandchildren who are at universities in Australia.
The witness thanked the Tribunal for the applicant’s opportunity to explain her situation. He asked that the Australia government permit the applicant to complete her education in Australia so that she can become a useful member of society in China.
The Tribunal asked the applicant whether she has been employed in Australia. She indicated she has worked part-time as a pharmacy assistant since 2017 for approximately 12 hours per week. The applicant confirmed she has some family members in Australia including her great uncle and his family, and her father’s cousins.
The applicant’s representative asked to be able to provide a written submission after the hearing and undertook to submit COE’s for the applicant’s studies at Salisbury College. The Tribunal allowed a period of 14 days for that purpose.
Second hearing
The Tribunal explained to the applicant that the Member who heard her matter in October 2019 was no longer available and she was being given an opportunity to provide any further submissions. She was advised that the evidence she provided previously would be considered, but she could provide any updated information. The Tribunal then asked the applicant whether she agreed that the Department had grounds to cancel her visa. The applicant indicated she did not agree. The Tribunal put to the applicant that the Department found she was not enrolled to study for a period of time and she had not provided evidence that she was. The applicant claimed she had been studying before she received notice that her visa had been cancelled.
The applicant advised she had paid fees to her agent and was studying but when she went to the agent’s office, it had closed. At the time the applicant said she was studying a Diploma of Hospitality that was packaged with a Bachelor of Business. The Tribunal asked if the applicant believed her agent had not paid the fees and she advised this may have happened. The Tribunal asked the applicant about her previous evidence that her studies were affected by her father falling ill with dengue fever and she confirmed this had happened in 2015. However, the applicant claimed she continued studying, with the support of her aunt.
According to the applicant, she studied high school in Australia from 2010, then enrolled in Nursing but changed her study path to hospitality. Regarding her studies in business, the applicant stated she wants a degree as well as a diploma because it will be of benefit in China. The Tribunal advised the applicant that the issue of whether there were grounds to cancel her visa would be assessed after which, the Tribunal would consider whether to exercise its discretion to cancel her visa.
Regarding any compelling need to remain in Australia, the applicant said her parents want her to return to China with a degree. She was asked why she did not study a degree after completing high school. The applicant said her parents wanted her to study nursing and because of her grades, she had to begin with a foundation course. She discovered she did not like nursing, so she changed to hospitality. The applicant said she came to Australia when she was 17 and her parents had paid a lot for her to study. Also, it was claimed Chinese parents like to compare their children’s qualifications and she does not want to disappoint them.
The Tribunal asked the applicant how long she would need to remain in Australia to complete a degree. She said her Advanced Diploma will be completed next year and it would then take two years to complete a degree. The applicant was invited to make any further comment on the circumstances that led to her visa being cancelled. She claimed she had been a victim, she has been waiting two and a half years for a hearing and it has been hard to explain the delay to her parents. The applicant confirmed that no one else holds a visa that would be cancelled if her visa is cancelled. She also said she has complied with all other visa conditions.
The Tribunal asked the applicant how she supports herself in Australia and she said through her parents. When asked “have you worked in Australia at all?” the applicant answered “no”. She concluded that she hopes the Tribunal will give her the visa back so she can complete her studies and return to China. The applicant’s representative was invited to make any further submissions but declined.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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?

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 full-time registered course: 8202(2)(a)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full-time registered course.
The Department cancelled the applicant’s student visa because according to evidence available on the PRISMS record, her enrolment in a Diploma of Hospitality and Bachelor of Business had been cancelled on 3 April 2017 for ‘non commencement of studies’. When the Department wrote to the applicant advising her of an intention to consider cancellation, the applicant had not been enrolled to study for seven months. No response was provided to the Departments notice. The applicant has claimed in her evidence at the Tribunal hearings that she was not aware her enrolment at Holmes College had been cancelled and she had continued to attend her course. However, in her statutory declaration submitted to the Tribunal on 23 October 2019 the applicant states:
I was granted a student visa in Australia on the 16 March 2017 for the purpose of this [Hospitality Management] study. Unfortunately, I failed to maintain enrolment for over seven months. This is because my major source of financial support from my parents in China was cut off.
The reason my parents stopped sending money to me was because my father… contracted Dengue virus during his business trip to Nigeria…
I did not know what to do but had no fund to pay the school fee. I wandered around until on 3 November 2017 when I received a letter from DHA Notice of Intention to Consider Cancellation of my student visa.
The applicant’s evidence at the Tribunal hearings is not consistent with her statutory declaration. No independent or verifiable evidence was provided to support her claims of having continued to attend Holmes College between April and November 2017 when records show her enrolment had been cancelled.
On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).
Consideration of the discretion to cancel the visa
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 Procedural Instruction ‘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
The applicant had arrived in Australia on 27 February 2010 as the holder of a Subclass 570 Student visa and completed senior secondary school. She was granted a Subclass 573 Student visa on 18 March 2013 to study higher education and was enrolled in a university foundation course and Bachelor of Nursing. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.
During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. In her statutory declaration and in oral evidence at the second hearing, the applicant explained her parents want her to return to China with a degree. She said it was her parents who had wanted her to study nursing which led her to enrol in a university foundation studies and a Bachelor of Nursing. The applicant had decided nursing did not suit her and she chose to pursue hospitality and business instead. According to the applicant she came to Australia when she was 17 and is now 26 but does not yet have a degree. She submitted her parents have paid for her to study in Australia, and they, in common with many Chinese parents like to compare their children’s qualifications and she does not want to disappoint them.
The applicant’s witness, her great uncle Mr Kai Yang advised the Tribunal he maintains an interest in the education of his “descendants” and requested that the applicant be permitted to complete her education in Australia so that she can become a useful member of society in China. Both Mr Yang and his wife provided statutory declarations indicating they have supported the applicant while she lived in Australia and want her to complete her education.
The Tribunal considered the applicant’s evidence but is not satisfied the applicant will complete a bachelor’s degree or that she must do so in order to be productive in her home country. The Tribunal accepts it is likely the applicant’s parents, and her great uncle Mr Yang, will be unhappy she has not completed higher education given the amount of time she had spent in Australia but considers this does not amount to a powerful or convincing reason for her needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.
· the extent of compliance with visa conditions
There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account. However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a student visa and weighs against the applicant in this case.
· degree of hardship that may be caused (financial, psychological, emotional or other hardship)
During the hearings the Tribunal discussed with the applicant, any hardship that may arise as a result of her visa being cancelled. The applicant said she would have to return to China and her family will be disappointed. She advised she wants to get the highest education she can before she returns. In her statutory declaration received on 23 October 2019 the applicant stated: “if the Tribunal revokes my visa cancellation, I will do Advanced Diploma of Business at the same college for 12 months. Then I will return to China to help my father with his business”. Her great uncle Mr Yang also states: “I understand the final goal of the review applicant is to assist her father in the business in China and so she wishes to complete her Advanced Diploma of Business before she returns to China”. This is not consistent with the applicant’s oral evidence at the hearings that her goal is to complete a Bachelor of Business before returning to China. The Tribunal considers that in light of the applicant’s plans to help her father with an existing family business and having completed courses in hospitality and business in Australia, she would be able to carry out that role using her existing qualifications. Nevertheless, having considered the applicant’s submissions, the Tribunal accepts she will be unable to continue living and studying in Australia if her visa is cancelled and there will be a degree of hardship caused. The Tribunal places some weight in the applicant’s favour in this regard.
The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. The Tribunal has assessed the claims and evidence in the applicant’s case and has accepted there will be a degree of hardship to the applicant if her visa is cancelled, however, she has had ample opportunity to achieve her academic goals in Australia, despite having faced some difficulties. The Tribunal is satisfied the applicant could use the qualifications she has achieved to date to pursue her aims in her home country. For these reasons, the intended consequences of the legislation do not outweigh the other considerations in this case.
· 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
The applicant’s visa was cancelled because she remained in Australia as the holder of a student visa but did not continue her studies for seven months. The applicant denied she had ceased attending her course but stated in her statutory declaration that she had not been enrolled for the period identified by the Department. The applicant did not provide independent evidence to support her claim of having continued to attend her college despite PRISMS indicating her enrolment had been cancelled on 3 April 2017. The applicant did explain what she claimed had occurred, both in writing and in person at the Tribunal hearings.
According to the applicant’s evidence in her statutory declaration submitted on 23 October 2019, she did not maintain enrolment in her Diploma of Hospitality course after 3 April 2017 because her father had fallen ill with dengue fever which affected his business in China, her family stopped sending money for her studies and she could not pay her fees. This had also caused her to be depressed. She said that after receiving the NOICC from the Department, she had hesitated to respond and later found out her visa had been cancelled. The witness Mr Yang stated in his statutory declaration that although he and his wife were able to provide the applicant with food and accommodation, “we were not in a position to assist with overseas student school fees… the applicant was left in a dilemma during the period”.
At the first Tribunal hearing the applicant claimed several times that her education provider did not tell her they would be cancelling her enrolment and she had not known until she received an email from the Department that her visa had already been cancelled. The applicant was unable to explain how she had been able to continue attending her college and studying when her enrolment was cancelled and did not provide any verifiable evidence that she had done so. She had not contacted her education provider when she received the NOICC from the Department, nor had she responded to the Department to explain that she had no knowledge of her enrolment having been cancelled. If the applicant had indeed continued to attend her course after 3 April 2017, it would have been a simple matter for her to advise the Department of that fact and obtain evidence from her education provider. In her submissions at the hearing, the applicant said she had left everything to her agent.
At the second hearing the applicant claimed she had paid fees of $4,000 to her agent and had continued to study. However, she said that when she went to the agent’s office, it had closed, and she believed the fees may not have been forwarded to the college. The applicant confirmed her earlier evidence about her father having fallen ill but declared she had been able to continue studying with the support of her relatives in Australia. The applicant’s evidence appears to be both that she was unable to continue studying because her father’s illness interrupted her family’s ability to support her (as stated in her statutory declaration) and that she continued to study while being unaware her enrolment was cancelled (according to her evidence at the hearings).
The Tribunal has assessed the applicant’s evidence and accepts some of her claims about the circumstances in which the grounds for cancellation arose. The Tribunal is satisfied the applicant faced some personal difficulties including her father’s illness which is supported by medical evidence. The Tribunal also accepts this may have affected her capacity to pay for her course and she was depressed about her situation. The Tribunal finds that nevertheless, the applicant’s response to her situation was within her control. It was open to the applicant to access support from her education provider or relevant professional, apply for compassionate leave or place her studies on hold and return to her home country until she was able to continue studying. Her situation was not an adequate reason to stay in Australia while failing to comply with the conditions of the student visa for seven months. The Tribunal found the applicant’s evidence in her statutory declaration and at two Tribunal hearings to be contradictory and unreliable. For these reasons, the Tribunal places limited weight on the circumstances in which the ground for cancellation occurred.
· past and present behaviour of the visa holder towards the department
There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.
· whether there would be consequential cancellations under s.140
There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.
· 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
· The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit her options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. There is no evidence to indicate the applicant may be subject to indefinite detention as a consequence of cancellation. As stated in this decision, the Tribunal has assessed the applicant’s claims and evidence and considers she has had ample opportunity to achieve her academic goals in Australia, despite having faced some personal difficulties. The Tribunal is satisfied the applicant could use the qualifications she has achieved to date to pursue her aim of working in with her family in China. For these reasons, the mandatory legal consequences of cancellation do not outweigh the other considerations in this case.
· 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
There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.
· if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The Subclass 500 Student Visa is not a permanent visa.
· any other relevant matters
There are no other relevant matters to be considered in the applicant’s case.
Conclusion
The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in her favour, on balance, the Tribunal is satisfied that most considerations weigh against the applicant. The Tribunal considers the length of time the applicant has spent in Australia having breached her visa conditions to be significant. The Tribunal is not satisfied the issues encountered by the applicant are enough reason for the visa not to be cancelled.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Wendy Banfield
Member

ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:
(a)a Defence student; or
(b)     a Foreign Affairs student; or
(c)      a secondary exchange student.
(2) A holder not covered by subclause (1):
(a)      must be enrolled in a full time registered course; and
(b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
(c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:
(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a)     is enrolled in a course at the Australian Qualifications Framework level 10; and
(b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.

[2020] AATA 4437

7 August 2020

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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