Yee (Migration)

[2020] AATA 551

Yee (Migration) [2020] AATA 551 (25 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Shu Hui Yee

CASE NUMBER:  1832909

HOME AFFAIRS REFERENCE(S):          BCC2018/4047242

MEMBER:Genevieve Cleary

DATE:25 January 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 25 January 2020 at 5:39pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 500 (Student) – fashion design – not genuine student – not enrolled in registered course for more than one year – study difficulties – incident out of applicant’s control – voluntarily ceased studies – financial pressure – pending dependent visa – intends to remain in Australia with family – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 359A, 499
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212, Schedule 8, Condition 8202

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 November 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) 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 not been enrolled in a registered course of study since 4 August 2017, and that there was nothing provided by the applicant that substantiated the reasons why she told the Department she stopped studying. 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 17 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Swee Heng Phang, the applicant’s mother. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. Prior to the hearing the applicant provided to the Tribunal the Decision Record of the Delegate.

5. The Tribunal has also had regard to the Department file.

6. In preparing for these reasons for decision, and before I had made a decision as to the applicant’s application, I reviewed all of the information provided to the Tribunal by the applicant, the recording of the Tribunal hearing and the Department file.  I became concerned that some of the evidence given by the applicant and her mother suggested that she was not a genuine student for stay temporarily in Australia.  Specifically, at the hearing of the matter the applicant told the Tribunal the following:

   ·Should her Student visa be returned to her, she would not commence study straight away, as she would need to work to accumulate funds for fees;

   ·She voluntarily ceased her studies so that her brothers could continue theirs;

   ·She believed that she no longer had to study once her mother had applied for the 187 Visa, and

   ·Once she finished studying she intended to get a job in Australia, and that she did not intend to leave Australia to either work or continue her studies elsewhere.

7. In addition, the applicant’s mother gave evidence of her intention for her entire family, including the applicant, to remain in Australia permanently.

8. On 23 December 2019 the Tribunal wrote to the applicant pursuant to Section 359A of the Act, setting out its concerns raised by the evidence set out above, telling the applicant that in telling the Department in her response to the notice of intention to consider cancellation that she did not know she had to continue studying once the 187 Visa application had been made, and telling the Tribunal the points set out above, that:

   Each of these statements, of themselves and together, raises the question of and causes the concern that you may not be in Australia seeking to stay temporarily as a genuine student. If that is the case, the Tribunal is concerned that that would be a reason to cancel your student Visa pursuant to s 116 (1)(fa) of the act, should you have one. The Tribunal is also of the view that such a finding would weigh against you having returned to you your Student visa in the exercise of its discretion. Therefore, if the Tribunal finds that you are not a genuine student here temporarily, the Tribunal considers that that finding would be the reason, or part of the reason, for affirming the decision that is under review.

9. The applicant was invited to give comments on or respond to the information in writing by 6 January 2020. The applicant sought and was granted an extension of time within which to respond, responding, in time, on 20 January 2020.  The applicant’s response is important to the findings of the Tribunal and is attached in full at Annexure A to these reasons.

10. 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

11. 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?

12. 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)

    ·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: 8202 (2)(b); and

    ·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(c)(ii).

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

14. A Notice of Intention to Consider Cancellation was sent to the applicant by the Department on 8 October 2018.  The delegate noted in that letter that based on the Provider Registration and International Student Management System (PRISMS) that the applicant had not been enrolled in a registered course of study since 4 August 2017 and had therefore not met the requirements of sub clause 8202(2)(a).

15. The applicant agreed at the hearing before the Tribunal that she was not enrolled in a course from 4 August 2017, and since that time.  She said she understood that one of the conditions of her visa was that she was enrolled in a registered course of study.

16. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

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.’

    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

18. The applicant came to Australia from Malaysia to study Foundation Studies in Art, Design and Architecture when she was 18 at RMIT in Victoria. She came to Melbourne and commenced the course on 22 February 2016, however did not complete the course.

19. The applicant came separately to her family, however they also moved to Australia after she moved to Melbourne, as they wished to immigrate to Australia.  The applicant at first said at the hearing that she found the cost of study too high, and moved to Perth, where her mother was.  She also said that she realised that the course was not what she wanted to do. Later in the hearing, however, the applicant said that she realised, part way through the course, that she did not wish to study fashion and that the cost was too high and she returned to Malaysia. She lived with her father there, who had remained there with her 2 brothers, while her mother had already moved to Perth. She stayed in Malaysia for, on her estimation, less than a year.  It was then that she thought about what she actually wanted to study and she returned to Perth to live with her mother and to embark on a course of study. The applicant told the Tribunal that she wanted to get a qualification to get a “proper job” in Australia.  Because her family wish to live here permanently, she did not plan to leave them, or go anywhere else to either study or work. 

20. She said she had always had an interest in fashion, however in merchandising.  She found out that she had to complete a Certificate IV in Fashion Design before she could complete a course in merchandising. This was different to the course she had commenced in Melbourne which was an introduction to art rather than fashion itself.

21. She applied for a second Student visa while in Malaysia, which was granted on 30 August 2016, and she came to Perth.  She first took an English course at a TAFE in the city of Perth.  She did not complete it.

22. The applicant’s mother, Swee Heng Phang works in a car rental company in Perth.  She applied for a Regional Employer Nomination (subclass 187) visa in June 2017, however that application was refused on 9 January 2018.  Ms Phang’s application included the applicant as a dependent. As a consequence, the applicant’s application, as well as her father and brothers’ as dependants, was also refused. Ms Phang is on a Bridging visa A.  She told the Tribunal that she has a full time job, and wanted to apply for permanent residency.  Her employer agreed to sponsor her.  She said that the visa was refused because she did not have the appropriate W.A. State Government Regional Certifying Body advice.  She said that her agent submitted the application in June 2017, which was after the time 187 visa applications ceased being assessed, and that that is the reason for the refusal.  Ms Phang has sought review, however there is no outcome from that review as yet.  She agreed that the applicant will be covered by the Bridging visa A should her Bridging visa E, which she is currently subject to pending this review, cease.

23. The applicant’s father works here as a part time chef.  Her brothers are still in high school.  The applicant has an aunt living in Melbourne.

24. Ms Phang told the Tribunal that she wanted to bring her family to Australia for her childrens’ education and because she felt it was a better environment for them. She said that their lifestyle was hectic in Malaysia, and they wanted to try to stay in Australia. In Malaysia she had a full time job, working long hours, without much time to spend with her family.  Her children spent long hours in day care.  She felt that Australia would provide a better grounding for family life.  Ms Phang’s mother and sisters are still in Malaysia.

25. Ms Phang felt that the applicant was now more ready to re-commence her studies than she was 3 years ago.  She may have been too young, she felt, then to determine her direction, but at the age of 22 she hoped that her daughter would be more able to handle the study regime.

26. Ms Phang is aware that to travel she needs to apply for a Bridging visa B.  The applicant’s brothers are able to study on their current Bridging visas.  There is nothing before the Tribunal to suggest that there is any impediment to the applicant being on a Bridging visa which enables her to study while her mother’s Regional visa application review is being determined.

27. Ms Phang hopes that her daughter can complete a proper education.  If she is to return to Malaysia, she feels she may become more reserved. She intends to assist and guide her through her study.  Ms Phang agreed that if the applicant is attached to her visa, she can also remain and study. 

28. The Tribunal is satisfied that the applicant had a reasonable and compelling reason for coming to Australia to study in 2016; it is understandable that a young person would want to gain qualifications in Australia from an institution such as RMIT in Melbourne.  The Tribunal is therefore satisfied that the applicant had a compelling reason to travel to Australia, and gives this some weight towards the visa not being cancelled.

29. However, shortly after arriving in Australia in early 2016, the applicant’s family circumstances changed, and her mother arrived in Australia with, according to her mother’s evidence to the Tribunal, the intention of residing here permanently. It is acknowledged that upon her return to Australia, with her father, the applicant commenced another suite of courses, beginning with an English course, however given the changed nature of the applicant’s family circumstances, that is, that they now live in Australia and have taken steps to apply to remain here indefinitely, the Tribunal is satisfied that the applicant now has a compelling reason to remain in Australia over and above the need to stay for study.  This is an important factor when considering to reinstate the applicant’s Student visa, and the weight to be given to the factor is addressed later in these reasons.

    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

30. When studying the English course in Perth, the applicant was [involved in an incident] on campus. [Details deleted].  Given the applicant’s distress at the hearing before the Tribunal when giving this evidence, the Tribunal did not require the applicant to provide further details of the [incident]. The Tribunal is satisfied that the applicant experienced a traumatic event entirely out of her control.  The applicant did not tell anyone at the time of what had happened. The applicant estimated that this occurred when she was studying English, which appears to have been around or towards the end of 2016.

31. The applicant did not return to classes.  She received an email from the school asking about her attendance, however she felt she could not explain the situation.  She simply told them that she did not feel comfortable returning.  When enrolling in the Certificate IV in Applied Fashion Design and Technology course, the college saw that she had not completed the English course and asked her why. It was then that she told the college about what had occurred to her. When she enrolled, she had the intention of proceeding with a course in fashion, culminating in a Bachelor of Fashion (Merchandise Management).  She was able to enrol, and she was provided with some therapy sessions.  She was provided with, she thinks, less than 5 sessions, and went to all the sessions provided.  Particular diagnoses were made in relation to depression and anxiety. The applicant felt that the sessions assisted at that time, however later her family could not afford any further sessions over and above what was offered by the school. It was not included in her insurance.

32. The applicant commenced the fashion course, however may have only completed one semester.  She told the Tribunal that she was feeling better, and feels she was doing well. Towards the end of semester one, her father and brothers arrived in Australia. That meant that her mother had to pay for her two brothers, who were 14 and 16, to complete their high school education, which was expensive, because they were international students.  It was therefore difficult for the applicant to study at the same time, and caused financial pressure on the family. The applicant volunteered to stop her studies because she was aware that although she could return to study in the tertiary sector, her brothers could not wait to complete their high school education.

33. By this time she was 21 years old.  She did not want to simply defer, because she did not know how long it would take for her to return to study, hoping that she would eventually be able to fund her own studies. She also hoped that her mother would gain her residency, and they would get some assistance with her fees. She told the Tribunal that she had always intended to return to study.

34. When the applicant spoke to the TAFE upon withdrawal of the fashion courses, the TAFE told her that she needed to be enrolled in order for her visa to continue, but she knew that her mother had also included her as a dependant on her visa, and they were on a Bridging visa, and so she assumed that she was now under a different visa regime.  The applicant told the Department, as noted on the Decision Record of the delegate, that as she had applied for a subclass 187 visa as a dependent visa applicant in June 2017 she did not know that she had to continue her study with TAFE. She has not returned to study since. 

35. While the applicant may be technically correct in her assumption that if she is granted a 187 visa by virtue of her dependency on her mother’s application, she may not have a condition imposed that she maintain ongoing enrolment in a registered course of study, it is for the applicant to ensure that she complies with all relevant conditions on any visa by virtue of which she remains in Australia. As it was, as at August 2017, despite the fact that the applicant was included in her mother’s application, a valid and ongoing Student visa remained active. The Tribunal is satisfied that the applicant’s willingness to end her study because of that assumption is evidence of her voluntarily ceasing her studies. 

36. Because she cannot work or study on the Bridging visa, the applicant now assists her mother around the house from day to day.

37. The applicant does not feel that she has recovered from the [incident], but feels that she has learnt to live with the effects. It still, to a certain extent, effects her day to day life.  She is scared of going out on her own, and generally has her brothers accompany her; she stays away from people.

38. The Tribunal accepts that young students may struggle being away from home, and attempting tertiary studies in a foreign language.  The Tribunal also accepts that young students do not always know what they really want to study when they leave school, and may have a change in direction.  Changes to courses and course providers, and some failures in units, are reasonable in those circumstances.  The Tribunal does not place any weight against the applicant for the struggles she had in completing the first course she attempted in Melbourne, or the change in direction in her desired courses.

39. In addition, the Tribunal accepts that the [incident] was out of her control, as have been the consequences on her, and is satisfied that those consequences contributed to the cause of her failing to complete the English course and perhaps struggling to a certain degree in the certificate IV course she commenced. The applicant’s family financial status is also beyond her control, although it is noted that on the applicant’s evidence, she worked as a waitress when studying, so did have some income. 

40. The Tribunal acknowledges that as a general rule, a visa should not be cancelled where the reasons for cancellation are beyond the applicant’s control. In this case, the Tribunal finds, the reasons for the cancellation involved a combination of factors, some of which were in the control of the applicant, and some of which were not.  The initial difficulty she had completing the English course was beyond her control, given the [incident] and its consequences.  Her failure to complete the Certificate IV course, while caused by her own decision to cease studying, was made due to her view that the financial circumstances of her family could not sustain her studying leading to her volunteering to cease her studies so that her brothers could complete their high school, and her continuing struggles with anxiety and depression.  If this were the only reason the applicant ceased her studies, the Tribunal may have placed a little weight in favour of the visa being maintained at this point; her decision to defer to her brother’s needs because of the family’s finance’s, the family’s finances and her brothers’ needs are not entirely within her control either. 

1. However, the applicant’s brother’s needs and the family finances were not the only reason, as the applicant told the Tribunal, that she decided not to continue her studies. As has been set out above, the applicant told the Tribunal at the hearing that she was of the view that because she was now on her mother’s permanent visa application, she did not need to continue her studies; the inference being that she was of the view that the Student visa requirements no longer applied.

2. The applicant has set out in her letter to the Tribunal, received on 20 January 2020, in summary, the following reasons as to why she stop studying:

   ·She was struggling with the course and wanted to take a break and focus on her mental health after [the incident];

   ·Her two brothers arrived in Australia and her parents were bearing the school fees for them, which was a large burden on the family;

   ·She wanted to wait for her family to settle in Australia while trying to find a suitable course and to defray the costs and expenses for her parents;

   ·She believed that because she was now on “a completely different visa instead of a Student visa,” she thought that putting her studies on hold would not jeopardise the eligibility to stay and continue her studies when things improved financially.

3. Therefore, the applicant submits that the original [incident] and its consequences, her family’s financial situation and the needs of her brothers, and her belief that she was on “a completely different visa,” were the causes of her stopping her studies. If the Tribunal accepts that those are the three reasons, the first and second cannot be attributed to her and cannot be given weight against her, for the reasons expressed above.

4. However, the third reason is a mistake made by the applicant.  The applicant has not explained why she thought that her Student visa came to an end because she was the subject of an application made on her behalf by her mother for a different type of visa. It is noted that, as has been discussed elsewhere in these reasons, her mother’s application was declined, and is the subject of an application for review in this Tribunal, yet to be heard. The applicant and her mother acknowledged this in their evidence in the hearing before the Tribunal.

5. The applicant’s letter did not contain any explanation or other documentation which showed why or how it came to be that she made that mistake.  It is appropriate to highlight at this point that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts. 

6. It is for the visa holder to ensure that they understand and comply with visa conditions. The Tribunal is not satisfied that the mistake was out of the applicant’s control, and is satisfied that she should have known that the primary reason for the Student visa, which she should have known she was still subject to, was to be enrolled in a registered course, and that weighs against the applicant retaining her Student visa.

7. In any event, even if the Tribunal is satisfied that the applicant made a genuine mistake, for the reasons set out below, her decision to cease studying because she was of the belief that she was no longer required to study do not assist her in her application and in fact draw weight against her being a genuine temporary entrant, and therefore deserving of a Student visa, as is required by cl. 500.212 of Schedule 2 of the Migration Regulations 1994.

   The extent of compliance with visa conditions

8. There is no information before the Tribunal to suggest that the applicant has breached other conditions of her visa, or any other visa. The Tribunal is satisfied that the applicant has, other than the lack of course enrolment, complied with her visa conditions. Her compliance in relation to other visa conditions is in her favour.

9. While she was studying she also waitressed; there is nothing before the Tribunal to suggest that she breached any conditions in relation to work.

10. The breach of condition 8202 (2) is significant.  By the time of the cancelation, the applicant had not been enrolled for over a year, and had not completed any of the courses for which the original student Visa was granted. While usually the weight given to the breach in these circumstances would be considerable, the Tribunal is satisfied that only some weight can be given to the breach, given the reasons for the breach, some of which were out of the applicant’s control. The breach of the condition outweighs her otherwise compliance of conditions.

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

11. When hearing evidence from the applicant’s mother, it became obvious that she was not aware of the [incident].  The applicant confirmed this, and confirmed that she did not wish it to be raised before her mother. Ms Phang said that she knew that her daughter was reserved and did not have many friends.  She was not sure how to assist her; her family were trying to help her, but she said this was something that had been occurring since the applicant was young.  Because she had been busy in Malaysia, she had not realised that her reserved nature was so serious; she came to realise the extent of her reservation after she sent her daughter to Melbourne, ans she realised she was not ready to leave home. She felt that if the applicant were able to study, she would feel better about herself.

12. There is no doubt that the applicant should remain with her family, whether in Australia or Malaysia. There is also no doubt that the applicant will suffer financial, psychological and emotional hardship if she is separated from them.  

13. The applicant told the Tribunal at the hearing that if her visa is not cancelled she is hoping to “work a little” as she wishes to save up for her studies. She thinks she will take any work she can. Her mother confirmed, in her evidence, that because they will be required to pay international fees and she can help only with partial financial assistance, and she hopes that her daughter will work part time to support herself and her studies and assist the family.  While the Tribunal accepts that it is still a goal of the applicant to complete her studies, as is expressed elsewhere in these reasons, it appears to the Tribunal that the applicant is not here primarily to study. Although she came to Australia originally to commence a course of study, events have now changed and it appears that one of the primary reasons for the applicant remaining in Australia is that she is part of a family unit that lives in Australia.

14. At the hearing, the applicant’s mother confirmed her intention to have the applicant on her permanent residency visa. There appears therefore to be little risk that the applicant would not be the subject of another visa application, or application for a review, and therefore at least another Bridging visa, should the Student visa remain cancelled. This is significant in the determination of whether the Student visa must be cancelled, as it means the applicant has other means with which she can achieve her goals of remaining in Australia with her family, and possibly ultimately returning to study. 

15. Therefore, the Tribunal finds that the risk of adverse consequences on the applicant in relation to her psychological, financial and emotional well-being, despite being considerable if she is separated from her family, are in fact minimal in this case. This factor cannot be given any weight in favour of the applicant being given her Student visa. When weighed with the purposes for which the applicant wishes to have her Student visa, as found elsewhere in these reasons, the Tribunal finds that the lack of concrete determination to return to study forthwith, and the fact that the applicant’s family now live in Perth outweigh any psychological, financial or emotional hardship to the applicant should the visa remain cancelled. 

    Past and present behaviour of the visa holder towards the department

16. The applicant responded to the NOICC on 12 October 2018, although the applicant understood that it was her mother’s migration agent who did so on her behalf.  The delegate found that there was no information to indicate any specific matters of relevance regarding the applicant’s behaviour towards the Department.  The Tribunal also finds that there is no indication that there are any matters of relevance in relation to her behaviour towards the Department, and  this can be given some weight in her favour.

17. The applicant thought that she spoke to the TAFE when she wanted to withdraw from the course, however she did not speak to the Department. She said that she wanted to, however because her mother already had an agent, she felt that she should hand all contact over to the agent. This does not weigh against her.

    Whether there would be consequential cancellations under s.140

18. This factor is not relevant in relation to this applicant and the Tribunal gives it no weight.

    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

19. The applicant said that if her Student visa remains cancelled, she is aware that she will have to leave Australia, and that she cannot return for 3 years.  She said that she does not wish to return to Malaysia; her whole family is here, and she has no one in Malaysia. She agreed that she does have family in Malaysia still, however she is not close to them.  It is not certain, however, that the applicant will become liable to detention or become unlawful, should the visa remain cancelled.  The applicant’s mother at the hearing, and Departmental records, confirmed that the applicant will be on her mother’s Bridging visa A because of her status as a dependant on her mother’s application. It appears therefore, that she may remain lawfully in Australia on that visa even if her Student visa remains cancelled. The Tribunal does accept, though, that there will nevertheless be a record that, if the visa remains cancelled, she has had a visa cancelled, and it will preclude her from applying in her own right for a period of time in the future. However, that is the intended consequence of a breach of a visa condition, and the Tribunal gives a very limited amount of weight to that adverse consequence in favour of the visa not being cancelled.

    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

20. The applicant said that she came here to study, and the financial and psychological effects of a cancellation have been discussed elsewhere in these reasons. Otherwise, the applicant did not indicate any other reason or fear of return to Malaysia. The Tribunal finds that there is no information to support that any international obligation would be breached and gives this factor no weight.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

21. The Student visa is a temporary Visa and therefore this factor is not relevant and the Tribunal gives it no weight.

    Any other relevant matters

22. Were the applicant on a particular type of Bridging visa or another type of visa other than a Student visa, the applicant’s mistake would have had the effect as she sets out in her letter – that putting her studies on hold may not have jeopardised her ability to stay and continue her studies when her family’s finances, and no doubt her mental health, had improved.

23. However, in the assessment of whether, in the Tribunal’s discretion, the Student visa should not be cancelled, despite the breach, the applicant’s stated intentions cannot be ignored. In her letter to the Tribunal received on 20 January 2020, the applicant, the Tribunal accepts, conveys that she does have future intentions to study, and that she would like to return to study “as soon as possible.” She also said that she was aware that she needed to be enrolled and attending studies to continue a student Visa. The applicant has not provided the Tribunal with any indication of the courses she intends to take up as soon as possible, the place of study or any further details of inquiries she has made to make sure, should she retain her student Visa, she is able to commence.  Although the Tribunal notes that the applicant had intentions of commencing a course in fashion, and therefore assumes that that would be the type of course that the applicant would take up, it is also noted that the applicant did not complete to the satisfaction of the education institution, her English course and the applicant has not provided any details as to whether she would be required to or in fact intends to complete that course before enrolling in any other course.

24. While the applicant has said that her brother would soon be graduating, and therefore it would not be as much of a burden on her parents as before, the applicant has not given a time frame for her brother’s graduation either, or whether in fact her brother intends to continue to study beyond high school, thus increasing the financial burden. 

25. By her own admission, the applicant must be a current student to retain her student Visa. While it is accepted that the applicant is unable to enrol without a valid Student visa or enabling conditions on her Bridging visa, the Tribunal is not satisfied that the applicant has shown that she has any real firm plans such that it can be satisfied that that she actually does intend to resume studies as soon as possible.

26. Even if the applicant was prepared to commence studies as soon as possible and the Tribunal was satisfied of those circumstances, a further concern is that a student Visa requires the applicant to be a genuine temporary entrant for study in Australia. In her letter to the Tribunal of 20 January 2020, the applicant made it clear, as she did in the hearing before the Tribunal, that she does not intend to leave Australia, whether she is studying or not, as this is where her family now intend to live permanently.  The applicant claimed that should she be returned to Malaysia and banned from entering Australia for three years her well-being would suffer. Given the applicant’s evidence at the hearing, and seeing the applicant’s distress at what happened to her, the Tribunal is satisfied that a return to Malaysia would be detrimental to the applicant’s health, and while the Tribunal gives that some weight in her favour in the exercise of its discretion, the Tribunal must also give wait to the applicant’s clear intentions to remain in Australia permanently. As is clear in the Minister’s Direction No. 69 – ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act, the Student visa regime is not a mechanism for a person to maintain ongoing residence in Australia or to circumvent the intentions of the Australian migration program.

27. While from the response provided to the Tribunal on 20 January 2020, the Tribunal is prepared to accept that the applicant genuinely intends to return to study one day, and therefore, in that sense, may be assessed as at least having the intentions of being a genuine student, the intention to remain in Australia permanently as expressed by the applicant adds significant weight to a determination that the applicant does not intend to stay in Australia temporarily and therefore may not be a genuine temporary entrant as is required by cl. 500.212 of Schedule 2 of the Migration Regulations 1994 for the granting of a Student visa.

28. From all of the evidence presented by the applicant, including the evidence of her mother, the Tribunal is satisfied that the applicant is a young woman who needs the support of her family. While she came to Australia on her own as a genuine temporary entrant for study, soon after, her family came to Australia with the intention of remaining permanently. The applicant wants to remain with her family but also, as many young people do, would like to study to obtain good qualifications and prospects for a future career.  Those are normal desires of any young person. 

29. The difficulty for the applicant is that she is now caught between two sets of circumstances, firstly, that if her family had not come to Australia, she may well have completed her courses eventually and returned to her family in Malaysia to embark on a career, thereby satisfying the requirements of a Student visa, which is a temporary visa. Because her family are now here with intentions of not leaving, the applicant has become, secondly, like any other young person living with their family in Australia, rather than a young student who has decided to step out on their own and gain qualifications in a country where her family are not.

30. The applicant’s difficulties and reasons for failing to complete her courses, and not being enrolled, must be weighed with her current circumstances and stated intentions in relation to the future. When weighed with those factors, it appears that while the applicant may have come to Australia with the intention of completing full-time study courses, and returning to her family in Malaysia, and the initial reasons for her failure to complete the courses and, to some degree, the ultimate cancellation of her enrolment were beyond her control, as has been found above, the applicant now has a compelling reason over and above study to remain in Australia with her immediate family.  In addition, she intends to remain here permanently, and appears to have no immediate and defined plans to study.  She also, ultimately, voluntarily, although, she says, mistakenly, ceased her studies. As has been discussed above, the Tribunal cannot be satisfied that the ‘mistake’ can be justified. These factors outweigh her original difficulties leading to the cancelation, and the reasons for them.

31. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

    72.      The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

    Genevieve Cleary
    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.

    ANNEXURE A

    I hereby write to you in respond to the information for affirming the decision under review.

    First and foremost, I am aware of your concern as raised in your letter. However, the truth of the matter is that, I was not made aware that I was not allowed to stop attending college although my mother had made the 187 visa application.

    The decision to put my studies on hold was not because I believe that I no longer had to study once my mother applied for the 187 visa. Rather because I was struggling with the course I was having and I wanted to take a break and focus on my mental health at the beginning.

    Meanwhile, my two brothers had also just recently arrived at that time from Malaysia and is still commencing high school. As my family had just moved to Australia recently and we had yet to get our permanent residency, my parents had to bare the school fees for international students for both of them. It was also known that only my mother had a full time job at the time so it was a huge burden and was taking a toll on my family.

    Therefore, I had made the decision to let both of them finish their high school while I’d still

    be able to have the chance to my further studies down the road because you only get to attend high school once. Hence, why I initially wanted to wait for my family to settle down in Australia while I try to find a suitable course and to defray the costs and expenses for my parents.

    However, because I had the impression that I was on a completely different visa instead of a student visa, I thought that putting my studies on hold would not jeopardize my legibility to stay and continuing my studies when things had gotten better with our family financially.

    I was well aware that I need to be enrolled and be attending my studies to continue a student visa. Had I knew that I was still on my student visa, I would never had put my studies on hold. Therefore, I am terribly sorry for the mistake I had made.

    Furthermore, it was never my intention to stop my studies completely and I am very keen to continue my studies here. Should my visa be returned to me, I would wish to commence my studies as soon as possible.

    I would also like to mention that my brother would have been graduating soon hence, the fees wouldn’t burden my parents as much as before. As I would also have working rights in Australia, I would be able to accumulate funds for fees for myself at the same time.

    Above all, my entire family has given up everything we had in Malaysia to move to Australia and are intending to stay here permanently. And as I mentioned during the hearing, I was given the opportunity to attend therapy which was aided by TAFE and was diagnosed clinically depressed with anxiety. I hope you understand that my family’s support and guidance are crucial and I need it immensely. Shall I be returned to Malaysia and be banned from entering Australia for three years, it would be detrimental to my well-being.

    Kind regards, Shu Hui Yee.