Yu (Migration)

Yu (Migration) [2019] AATA 3079 (13 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Kun Yu
CASE NUMBER:  1801456
HOME AFFAIRS REFERENCE(S):          BCC2017/3212163
MEMBER:Vanessa Plain
DATE:13 May 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 13 May 2019 at 12:29pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – did not obtain letter of release from first institution to enable enrolment at second institution – bad advice of migration agent – circumstances beyond applicant’s control – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b), 140
Migration Regulations 1994 (Cth), Schedule 8, condition 8202
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 10 January 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study between 14 March 2017 and 28 August 2017. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 13 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Shilu Qiu. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by her registered migration agent, although the migration agent did not appear at the hearing on 13 May 2019.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 registered course, or in limited cases, a full time course of study or training: 8202(2)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 6 May 2016.
The applicant was sent a Notice of Intention to Consider Cancellation (NOICC) on 8 November 2017. In response, the applicant sent an email dated 9 November 2017 setting out the circumstances of her non enrolment during the relevant period. The applicant gave evidence at the hearing consistent with her email dated 9 November 2017, albeit in far greater detail.
At the hearing, the applicant confirmed in her evidence that she was not enrolled in a registered course during 14 March 2017 and 28 August 2017, but put forward to the Tribunal the circumstances under which the breach occurred.
The applicant gave evidence that she had had completed foundation studies at RMIT in June 2016 approximately. The foundation studies course was a preliminary course one undertakes before commencing a substantive course. The applicant was scheduled to commence a Diploma at RMIT in Fashion Design in February 2017. The applicant had second thoughts as to whether she wanted to commence this Diploma. She stated that she wanted to undertake a course at the Box Hill Institute of Tafe in Art and Drawing. She stated that she received a letter of offer from Box Hill, but that her migration agent (who is the same migration agent on record with the Tribunal) informed her that she must procure a release from RMIT before she can accept the offer from Box Hill Institute. The applicant informed the Tribunal that she would instruct her migration agent to provide a copy of the letter of offer from Box Hill Institute to the Tribunal via email.
The applicant gave evidence that she attended upon student services at RMIT several times between January 2017 and March 2017 respectively for the purpose of obtaining a release so as to enable her to enrol at Box Hill Institute. She was informed by Student Services that she had to provide written reasons for wanting to change to another school. She made written applications to RMIT to be provided with a release. The applicant recalls receiving a written response from RMIT, but not a release letter. The applicant recalls that she never received a release letter, the only response she received from RMIT was to the effect that she should have chosen her major more carefully.
The Tribunal asked the applicant whether she went to Box Hill Institute to attempt to enrol without the release letter. She said that she did not. The Tribunal asked the applicant why she didn’t attempt to enrol. The applicant said she relied upon the advice of her migration agent, who told her that she would not be able to enrol, without a release from RMIT. The Tribunal notes that the applicant gave this evidence consistently.
There is no evidence before the Tribunal as to the accuracy of the migration agent’s information provided to the applicant. What is clear, is that the applicant relied on the advice and the failure to procure a letter of release from RMIT was the sole reason for the applicant’s failure to be enrolled. These are matters which are not reasonably within the applicant’s control. The applicant was frank and candid in her admissions to the Tribunal which speaks to the credibility of her evidence as a whole.
However, based on the candid admissions by the applicant in her 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
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’.
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 is a diligent student. She has successfully completed her previous studies in Australia. She completed a 40 week course in English studies in 2014 and Foundation Studies and a Diploma in Textile Design at RMIT in June 2016. In August 2017, she was enrolled at Holmes Institute and studying a 12 week English course and a Bachelor of Fashion Design and at the time of her visa cancellation, she was studying this degree. If the outcome of this review is successful, she seeks to continue with this Bachelor Degree. .
The applicant’s parents support her financially while she is studying in Australia. The have a family business in fashion in Beijing and she wishes to work in the family business upon completion of her studies. The applicant stated that it would cause her great difficulty with her parents to return to her home country without having successfully completed her Bachelor degree. The applicant is not married, nor in a de facto relationship in Australia.
I therefore find that the applicant has no compelling need to remain in Australia and that she has demonstrated her purpose as being to study, despite unfortunate circumstances not of his own wilful making. I give these factors some weight towards the visa not being cancelled.
The extent of compliance with visa conditions
As above, the applicant has not complied with condition 8202(2) although not for a considerable period of time. However, as above, I find that the applicant had a compelling reason for the breach based on her evidence above, namely, that the circumstances that led to the breach were not reasonably within her control and she relied, in good faith, on the advice of her migration agent and took steps with RMIT, based on that advice. Whilst I find that the applicant did breach the condition, given the circumstances of the breach, I give this no weight towards the visa being cancelled.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant described the emotional hardship he would endure at the hands of her parents if she returned home in circumstances where his visa had been cancelled and she hadn’t completed the study she set out to complete while in Australia. She would also suffer some financial hardship as she had received financial support from her parents while studying in Australia. The applicant said her parents were ‘old school’ in their expectations of her and she did not want to return home having ‘failed her parents’ by not achieving a degree. Further, Ms Qiu gave evidence that the applicant would be caused further embarrassment in her family if she returned without a degree, because her parents were divorced, both remarried and have more children and as the eldest, this would place the applicant in a position of some difficulty and embarrassment with her parents. I accept that the cancellation has led to some minor personal detriment, which would be compounded by the continuation of the cancellation and I therefore give this some weight towards the visa not being cancelled.
Circumstances in which ground of cancellation arose
The circumstances that led to the cancellation of the applicant’s visa have been described above in paragraphs 12 – 15.
I find that the applicant addressed the NOICC promptly and acted upon the advice of her migration agent, which may or may not have been accurate, but in any event, the evidence clearly establishes that the applicant has acted in good faith.
The applicant’s primary failing was that she failed to ‘test’ the voracity of her migration agent’s advice. In that, she did not attempt to enrol at the Box Hill Institute without a letter of release form RMIT. She cannot sensibly be criticized for such a failure. Given the circumstances, I find the applicant has not acted in bad faith, nor has there been an attempt to mislead the Department or avoid studies. I therefore give this some weight toward the visa not being cancelled.
Past and present behaviour of the visa holder towards the Department
The applicant has conducted herself in good faith in her dealings with the Department. This is demonstrated by the fact that she responded immediately and frankly to the NOICC and gave evidence at the hearing, consistent with her response to the Department. I give this significant weight in favour of the visa not being cancelled.
Whether there would be consequential cancellations under s.140
Not applicable.
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
If the visa were to be cancelled, the applicant would be excluded from making applications for certain types of visas and most importantly to the applicant, would not be able to complete her Bachelor Degree at Holmes Institute. Given the circumstances set out above, this would be manifestly unfair and I give this some weight 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
Not applicable.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
Not applicable.
Any other relevant matters
Not applicable.
As above, it is clear that the breach does not reveal any bad faith on the part of the applicant. It is also clear that the considerations I have arrived at, on examining all the evidence before me, lean towards the visa not being cancelled and I so find.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Vanessa Plain
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.

[2019] AATA 3079

13 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice