Yang (Migration)

[2018] AATA 5174

Yang (Migration) [2018] AATA 5174 (26 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xiao Yang

CASE NUMBER:  1620399

DIBP REFERENCE(S):  BCC2016/3151497

MEMBER:Rachel Westaway

DATE:26 September 2018

PLACE OF DECISION:  Melbourne

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 26 September 2018 at 12:26am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – 572 Vocational Education and Training Sector visa – not enrolled in a registered course of study – breach of condition 8202– satisfactory education history – a long history of mental health issues – ground for cancellation arose were beyond the visa holder’s control - Decision under review set aside

LEGISLATION
Migration Act 1958, ss 116,140

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 November 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant, Ms Yang, is a citizen of China. Since arriving in Australia the applicant has held several visas for study purposes. She was granted the visa to which this review relates on 13 February 2015.

3. The delegate cancelled the visa under s.116(1)(b) on the basis that that the visa holder has not complied with a condition of the visa. It appeared that the applicant was not enrolled in a registered course. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 11 December 2017 to give evidence and present arguments.

5. The applicant was represented in relation to the review by her registered migration agent.

6. The applicant provided the Tribunal with a copy of the delegate’s decision in her application for review.

7. For the following reasons, the Tribunal has concluded that the decision under review should be substituted for a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

   SUBMISSIONS

8. The Department file included the applicant’s response to the Notice of Intention to Consider Cancellation, dated 15 November 2016, in which she states that:

   ­She did not receive any advice from her school that she needed to enrol by 9 November 2015 or advice of the consequences to her visa status if she did not enrol.

   ­Her studies at TIV from February 2015 had been disrupted by her school changing locations and subsequent timetable and calendar changes without notice. She did not transfer education providers at that time because she did not meet the requirements and was concerned about the financial loss that would be incurred.

   ­She experienced personal issues, including relationship problems, an unplanned pregnancy, depression, and she could not manage school related issues.

   ­She wishes to continue studying in Australia.

9. The Tribunal received a detailed written submission by the applicant’s representative setting out the applicant’s circumstances. It is summarised as follows:

   ­   The applicant came to Australia in 2007. After completing her VCE she was accepted into the Bachelor of Engineering at the University of Melbourne.

   ­   Since 2012 the applicant has experienced a series of tribulations, including that her mother was diagnosed with a malignant tumour and it was uncertain if she would live. The applicant’s mother is her closest relative and she wanted to return to China but she had to prepare for her exams in Melbourne. The applicant’s relationship with her boyfriend broke down and she became depressed. The applicant claims to have received psychiatric treatment including medication.

   ­   On 29 November 2012 the applicant returned to China without sitting for her exams because her mother’s health was unstable. On 13 December 2012 the applicant returned to Australia and was granted special consideration by the University of Melbourne on medical grounds. The applicant then returned to China.

   ­   On 4 February 2013 the applicant returned to Australia. She reduced her study load to two units per semester, and while she tried her best, her studies were affected by low mood, poor concentration, poor sleep, low energy and anxiety. She also quarrelled with her boyfriend. For these reasons her mental health deteriorated in June 2013. The University of Melbourne approved a suspension of the applicant’s studies for one year and her submission stated that this permitted her to remain in Australia during the period of suspension.

   ­   The applicant returned to China in July 2013 to visit her mother. She also received treatment from a psychologist, however her illness continued.

   ­   The applicant re-commenced her Bachelor of Engineering in second semester of 2014, however the submission outlines that it was difficult for her to catch up and she failed a subject. In February 2015, in order to try and start afresh and follow her interest in food, the applicant transferred to the Technical Institute of Victoria (TIV) to study commercial cookery.

   ­   The applicant’s studies at TIV were negatively impacted by unpredictable changes to the timetable and calendar, including classes being scheduled during term break while she was in China. This disorder made the applicant feel unwell. In order to relax she holidayed in Malaysia. When she returned to Melbourne she discovered she was pregnant. Her boyfriend wanted the pregnancy terminated and the relationship ended. She claims to have become severely depressed and she stayed in her room for almost a month. Following her psychologist’s advice to find a fun activity in order to lift her mood the applicant decided to visit Cairns and learn to dive in October 2015.

   ­   The applicant missed the enrolment dated at TIV due to the provider changing its schedules. She claims to have also struggled to return to her studies due to the poor attitude of staff at TIV and because she was haunted by negative memories. She continued diving and receiving psychological treatment to fight her depression. After serious consideration the applicant decided to devote herself to the diving and tourism industry. The submission outlined that the applicant’s depression has improved.

   ­   The applicant does not want to return to China without a qualification. She does not want to let her mother down.

   ­   The Department granted a waiver of condition 8207 (no study) on the applicant’s visa in early 2017 and the applicant commenced a Diploma of Travel and Tourism at Holmesglen Institute. She has performed well and passed all units and is expected to graduate in December.

   ­   The applicant’s purpose in Australia is to develop knowledge for her future career. The applicant’s previous study plans were affected by what she described as compelling and compassionate circumstances beyond her control. She claims to be “back on track”, her diploma is due to be completed within a month and she has received a conditional offer to study a Bachelor degree. For the purpose of continuing her studies the applicant has a compelling need to remain in Australia.

   ­   The applicant will suffer hardship because she will lose her opportunity to obtain her Diploma and Bachelor qualifications, her mother will suffer financial loss, and it is highly likely the applicant’s depression will return. The applicant’s High School Certificate will not be sufficient to enable her to get a job in China or receive admission to a formal university in her hometown.

   ­   The circumstances of the non-compliance involved one-time situations and the applicant is back on track. As shown by her VCE grades and results at Holmesglen Institute the applicant is a hardworking and capable student, however her studies have suffered as a result of her mother’s illness, her depression, her relationship breakdown and the termination of her pregnancy, and the disruptive scheduling at TIV. She pursued diving as a natural treatment for her depression.

   ­   The applicant has been truthful and cooperative with the Department; she responded to the NOICC and resumed her studies after obtaining the relevant waiver.

10. The Tribunal received the following documents relating to the applicant’s health:

    ­A letter dated 13 December 2012 by Dr Cate Bailey, a Psychiatry Registrar at St Vincent’s Hospital, confirming the applicant was client of the Crisis Assessment and Triage Service between 5 November 2012 and 27 November 2012. It is advised that the applicant was assessed as suffering a moderate to severe depressive illness, she had been unwell for approximately one month before approaching the service, her symptoms included low mood, poor concentration, poor sleep, low energy, decreased appetite and anxiety. These issues lead to great difficulty studying and the applicant was not fit to study for or sit exams.

    ­A letter dated 19 January 2017 by Fertility Control Clinic confirming that the applicant attended the clinic on 27 August 2015 due to an unplanned pregnancy and the pregnancy was terminated.

11. The Tribunal received the following documents relating to the applicant’s mother’s health:

    ­The applicant’s birth certificate, showing her mother’s name

    ­A hospital discharge certificate confirming the applicant’s mother was admitted to hospital from 2 December 2012 to 26 December 2012. A PET-CT imaging diagnosis report dated was also included. The reports confirm the applicant’s mother had a tumour, but does not indicate the nature of the tumour or her prognosis.

12. The Tribunal received the following document’s relating to the applicant’s studies:

    ­VTAC certificate dated 14 December 2009.

    ­An application dated 5 November 2012 for special consideration to the engineering faculty at the University of Melbourne, indicating the applicant’s depression has been exacerbated by the breakdown of her long-term relationship and her mother suffering an illness.

    ­An email from the University of Melbourne to the applicant advising that the university had informed the Immigration Department that the applicant’s studies had been suspended and she is permitted to remain in Australia on her current visa because the suspension is due to academic reasons. It is stated that her COE expires on 31 December 2013 and if she wishes to remain in Australia to study in 2014 then she is required to apply for a new COE and a further student visa.

    ­Bachelor of Engineering academic transcript issued by the University of Melbourne, for studies undertaken from 2010 to 2014

    ­Divemaster certificate, dated 10 November 2015

    ­Open Water Scuba Instructor qualification, dated 7 August 2016

    ­Bridging visa E grant notice dated 24 February 2017 which confirms the applicant was granted permission to study

    ­COE 8A584897 for a Diploma of Travel and Tourism at Holmesglen Institute, 30 January 2017 to 31 December 2017

    ­Statement of results dated 16 November 2017 for the Diploma of Travel and Tourism Management, the Front Office Pathway course, and the Diploma of Holiday Park and Resort Management

    ­A letter dated 6 December 2017 by Sandi Tomadin, Travel and Tourism Teacher at Holmesglen Institute, confirming the applicant studied the Diploma of Travel and Tourism / Resort Management and Holiday Park in 2017. She states the applicant was a very capable student and completed the assessments to a satisfactory level

    ­IELTS booking for 9 December 2017

    ­Academic transcript dated 22 December 2017 issued by Holmesglen for the Diploma of Holiday Park and Resort Management

    ­Academic transcript dated 22 December 2017 issued by Holmesglen for the Diploma of Travel and Tourism Management

    ­Letter of Offer by Holmesglen Institute to study a Bachelor of Hospitality, commencing 12 February 2018 and ending 31 December 2019. The offer was conditional upon the obtaining a particular IELTS score and required successful completion of the Diploma of Hospitality program.

    ­COE 96683268 for a Bachelor of Hospitality Management at Holmesglen Institute, commencing 12 February 2018 and ending 31 December 2019

    ­The applicant’s Authenticated Vocational Education and Training (VET) Transcript, dated 1 November 2017

    ­A letter dated 4 July 2018 by Holmesglen congratulating the applicant on achieving the highest results in the Bachelor of Hospitality Management and a statement of results dated 28 June 2018

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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?

    s.116(1)(b) - non-compliance with conditions

14. In her application for review, the applicant provided the Tribunal with a copy fo the delegate’s decision.

15. 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 8202 attached to the applicant’s visa. This condition requires the applicant to be enrolled in a registered course of study and the delegate noted that she was not in a registered since 9 November 2015.

16. The applicant confirmed at the Tribunal hearing that she had not been enrolled in a registered course of study since 9 November 2015. Her notice of Intention to Consider Cancellation was dated 21 October 2016. As such the applicant was deemed not to be enrolled in a registered course of study for approximately eleven months. The applicant explained that she had transferred to Technical Institute of Victoria (TIV) in February 2015, however the education provider was changing premises and she experienced difficulties with her studies as a result. The applicant did not dispute that she was not enrolled in a registered course to either the Department or the Tribunal.

17. Given the applicant’s admission and the evidence before the Tribunal, the Tribunal finds that the ground for cancellation in s.116(1)(b) exists.

    Consideration of discretion

18. 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

19. The applicant informed the Tribunal that she is 26 years old and she was born in Beijing in China. The applicant said that she has one half-sister with whom she shares a mother. Her sister is 8 years older than her and they are not particularly close.

20. The applicant stated that she came to Australia in 2007 when she was 16 years old to pursue her secondary school studies, commencing Year 10 at Peninsular Grammar. She travelled to Australia by herself and her teacher collected her from the airport. The applicant stated that her mother has come to Australia to visit her, including earlier this year in January or February. Upon completing her VCE she was offered a place at Melbourne University to undertake a Bachelor of Engineering. She stated that she came to Australia to study and she wishes to remain in Australia and complete her studies.

21. The applicant discussed how she was supported in Australia. She stated that her mother worked in the government and she is her financial sponsor. She had saved for her daughter’s education. The applicant said her mother owns her own home and she had previously owned a franchise business and a clothes shop. The applicant said that her mother does not know her visa has been cancelled or what course she is in, however she confirmed that her mother was aware that she attended Holmesglen Institute and completed a diving course.

22. The Tribunal notes that the applicant came to Australia as a child. She was sixteen and without a parent. She appears to have been a diligent student who was committed to studying and achieved strong results in her year 12 studies. The applicant demonstrated that from the age of sixteen in 2007 when she came to Australia and up to late 2015 namely eight years, she was a committed student who achieved strong results enabling her to be accepted into a highly regarded course and university.

23. The Tribunal gives significant weight to the continuous and successful studies undertaken by the applicant from the time she arrived in Australia and for the subsequent eight years following this.

    The extent of compliance with visa conditions

24. The applicant from her own admission has confirmed that she has not been enrolled in a registered course of study for a significant period, namely eleven months. Prior to this, the applicant does not appear to have breached conditions on her visa during the prior eight years in which she was in Australia. The Tribunal gives some weight in favour of the applicants due to her long and consistent unblemished record.

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

25. The applicant informed the Tribunal that she thinks of China as home, however she has nothing to return to in China and it would be hard for her there. She said that if she does return to China she would live with her mother.

26. The applicant stated that her mother does not know that her visa has been cancelled and it will be very hard for her mother if her visa is cancelled. Her mother wants her to return with a qualification. The applicant said her mother was upset when she found out she had left Melbourne University.

27. The applicant was asked about her friendships. She said that she did not have a chance to make friends at Melbourne University. She said that she lives by herself and has some friends in Melbourne. She said she engaged in social contact with other students in her diving course. The applicant appeared somewhat uncertain about her friendships in China, she stated that she has her mother and some friends from Peninsula Grammar have returned to China.

28. She informed the Tribunal that in travel and tourism she had finally found a career she loves and it was fun. She said that she had received good results and passed everything. She stated that she has received an offer for the Bachelor degree, however it’s conditional. The Tribunal asked the applicant why she was presently studying the Diploma. The applicant said that she had tried to gain direct entry into the Bachelor degree and the course provider would not accept her.

29. The Tribunal accepts that the applicant would face some degree of hardship should her visa be cancelled. She was sent to Australia from a young age in order to see out her studies. Many international students come to Australia at a tertiary level. The applicant came as a child and performed well completing her secondary school education and being offered a place in one of Australia’s most recognised and reputable tertiary institutions. To return to China after spending a large proportion of her life in Australia without a tertiary qualification would be a significant disappointment to her and her mother given the financial investment and pressure placed on her mother having to support her education from a young age.

1. The Tribunal is also cognisant that the applicant has spent her formative years in Australia studying from 2007 until 2018. Eleven years have since passed. If the visa is cancelled, the applicant will be prevent from returning to Australia for three years. Given the significant period she has spent in Australia, her inability to exercise any choice in returning to visit would stand as a significant psychological hardship. The Tribunal gives some weight to these hardships.

   Circumstances in which ground of cancellation arose. 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

2. The applicant stated that, following her VCE studies, she achieved over 89 in her ATAR and she enrolled in a Bachelor of Engineering at Melbourne University. She received her ATAR in 2009. The applicant completed the first year of her Bachelor, but in around 2012 her mother started fainting and they discovered that she had a tumour in her stomach. The applicant stated that her mother was in hospital and she attended the hospital with her. The Tribunal asked about the presence of the applicant’s older sister at this time and she said her older sister was not as close to them.

3. The applicant gave evidence regarding the events when her mother became ill. She said that a family member called her when her mother fainted and she went straight to the university and asked for help.

4. The applicant informed the Tribunal that in 2013 she was depressed because her mum was very important to her and she was worried. The applicant stated that her mother came to Australia in early 2017 and last year. She came with her sister. The applicant said her mother has been to Australia possibly 4 times since she was released from hospital, but could not be clear on the exact number.

5. The applicant gave evidence regarding her mental health. She stated that the Melbourne University student support service referred her to St Vincent’s hospital. She went to St Vincent’s 2 to 3 times and then in 2012 a counsellor would come to her home.

6. The applicant said she took medicine and then went to China. She returned to Australia in the middle of the exam period to apply for special consideration at university. The applicant confirmed that she was granted special consideration for her exams at the end of 2012 and that the university approved a reduction in her workload to two units a semester in 2013. The applicant said that she failed engineering and mathematics and continued to suffer depression.

7. The applicant could not recall the name of the medication that she took, but suggested it started with an ‘X’. She stopped taking the medication in 2014, stating the said the side effects made her sleepy. She stated that she said that she just went off the medication and never told her GP because Chinese people do not believe in drugs and she wanted to live like a normal person. The last time the applicant saw her psychologist was in China two years ago.

8. The applicant said her mother’s health was better than before by 2014, but was unclear about her mother’s current health status. She stated that her mother, following a period of depression, was treated with traditional Chinese medicine. The Tribunal asked the applicant for further information about her mother’s health. The applicant said that the tumour could not be removed and she spoke of her mother’s high blood pressure, however she was unclear about what type of tumour her mother had and her mother’s health prospects.

9. The applicant gave evidence regarding her resumed studies. She stated that by 2015 she had transferred to another course provider. She explained that the Melbourne University was changing the structure of the course, so she moved. She said that some subjects were undertaken at the Technical Institute of Victoria (TIV) and she had moved to the field of commercial cookery. The applicant said that she thought it would be relaxing and she would like it. She believes that she enrolled for 1 year and that her enrolment was in a Certificate 3. She said her course content included first aid, methods of cooking fish, and work health and safety. She said she passed these units. She also learnt about pastry, how to handle safety equipment in the kitchen, and hygiene issues.

10. The applicant stated that the education provider was terrible and would change the course and term break up schedule. The applicant also took issue with additional fees that were requested of her. She said that she needed a release letter from the education provider before she could transfer. The applicant said that she did not tell her mother about the situation because she was afraid she would get angry.

11. The applicant informed the Tribunal that she was in a 2 year relationship and by August she had found out that she was pregnant. She said that she was confused and scared and it is a big sin to be pregnant. She said that she had a termination and her boyfriend, a Chinese boy, had not wanted the child. She said that following these events she stopped the relationship immediately and she has not seen him since. She did not speak to anyone about the situation.

12. The applicant stated that after August she felt depressed and stayed in her room. She said that when you are depressed you do not seek help. She tried to speak with her mother about her depression but it was hard to communicate.

13. The applicant informed the Tribunal that she discovered scuba diving and took lessons on the Mornington Peninsula, commencing in October. She explained to the Tribunal that she pursued diving because she wanted to relax. She also said that felt embarrassed that she had not been able to manage the pressures in her life.

14. The applicant stated that she drove to the classes, she spent a year scuba diving and in August 2016 she obtained her instructors certificate for scuba diving. She thought of doing something in this field.

15. The applicant provided a significant amount of detail around her education history and health issues since she has bene in Australia. The Tribunal gives weight to the fact that the applicant has had a history of mental health issues prior to the breach and was medicated at times for this. It also gives weight to the fact that she has in essence grown up in Australia from the age of sixteen without the ongoing daily contact and guidance of a parent. Given this she had no support of family as she entered into her first serious relationship and endured a termination in August 2015. It was in November 2015 when the applicant’s enrolment in her course at Melbourne University ceased. 

16. The applicant supplied medical evidence which supported her claims of mental health issues which included moderate to severe depression and which confirmed that her mother was diagnosed with cancer in 2012 and she suffered a relationship breakdown. The Tribunal has given significant weight in favour of the applicant given these circumstances.

    Past and present conduct of the visa holder towards the department

17. The applicant has responded to the department and the tribunal in a timely manner and has not conducted herself in a manner which would be considered problematic..

    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

18. If the applicant’s visa was cancelled she would be required to depart the country within a short time frame. She has confirmed that she would be able to return to China and live with her mother.

    Whether there would be consequential cancellations under s.140

19. The applicant confirmed at the hearing that she is the only person on her visa.

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

21. This is not relevant to the applicant.

    Any other relevant matters.

22. The applicant said that she did not receive any communication from her education provider concerning her enrolment or visa and that she only became aware that her visa may be cancelled when she received notice from the Department.

23. The applicant’s representative made a submission at the conclusion of the hearing. She stated that it is hard to be young student studying abroad. She suggested the applicant may have studied the Bachelor of Engineering because that is what her marks allowed and she said she believes the applicant would have passed the course. She said that ordinary people do not understand depression and sometimes depressed individuals do not display self-insight and linked this to the applicant’s decision to stop taking medication. She said the applicant had spoken to a psychologist on the internet and this is why there is no evidence of her therapy. She said that the applicant preferred to be treated by a Chinese psychologist.

24. The Tribunal has considered the circumstances pertaining to this applicant and has placed a significant amount of weight on the applicant’s successful and long history of studying in Australia prior to the breach and after the breach. She achieved excellent  VCE results which awarded her a place at Melbourne University in an Engineering degree. The applicant experienced significant health problems and her mother was diagnosed with cancer during this period. She had limited guidance during her late teens and early twenties when she entered into serious relationships and experienced the breakdown of a relationship of two years. She also had a termination for an unwanted pregnancy. Under these circumstances, the applicant left her course and changed to another looking for the course she felt better suited to. The Tribunal accepts that her cumulative circumstances of psychological distress and depression as well as her concern for her mother and her lack of interest in her course and the relationship issues were all triggers beyond her control exacerbated by her depression. Whilst the applicant should have informed the Department and returned to China she was suffering mental health issues which her course provider at the time also accepted and which the medical evidence support.  The consequences of a cancellation given her demonstrated commitment to her studies in the past would mean the applicant would be barred from applying for a visa for three years and would return to China without a tertiary qualification. Whilst the Tribunal accepts that she could study in China, she successfully devoted time from the age of sixteen to achieving excellent results and in contrast would have an immigration record and no qualification.  She has articulated clearly that she has now found her career interest and similar to her approach to her year 12 studies, she has enrolled in a Bachelor of Hospitality Management and is achieving distinctions and high distinctions. Her results as a whole indicate that she is committed to studying and that the circumstances at the time were factors leading to the breach and some were beyond her control. The Tribunal has considered individually and cumulatively the issues put forward by the applicant and conclude that the visa should not be cancelled.

    DECISION

25. 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..

    Rachel Westaway
    Senior Member