Yun (Migration)

[2020] AATA 3410

Yun (Migration) [2020] AATA 3410 (20 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jiayin Yun

CASE NUMBER:  1935771

HOME AFFAIRS REFERENCE(S):          BCC2019/3285395

MEMBER:Michael Biviano

DATE:20 August 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 20 August 2020 at 5:25 pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolled at lower level than visa requirement – enrolled in diploma course as step to degree courses – study and health difficulties – return to home country and diagnosis of rare illness – enrolment in degree courses cancelled – enrolled in health-related diploma course without also enrolling in degree courses – intention to return to original courses – letter of offer – discretion to cancel visa – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(b)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 December 2019 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 she was not enrolled in a registered course at the same level, or a higher level, than the registered course in relation to which the visa was granted.  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 25 May 2020 to give evidence and present arguments.

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

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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?

7. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

   ·must 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);

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c).

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was in breach of subclause (2)(b) of condition 8202 of her visa, as she was not enrolled in a registered course at the same level, or a higher level than the registered course in relation to which the visa was granted for the period from 1 March 2019 to the cancellation of the visa on  11 December 2019.

9. The decision record of the delegate of the Department of Home Affairs on 11 December 2019, which was provided to the Tribunal by the applicant, confirms that the Department cancelled the Student Higher Education (Temporary) (Class TU) (Subclass 500) visa, which was granted on 15 March 2017 and was to expire on 15 March 2023, and gives the reasons for the cancellation of the visa (Decision Record).

10. Prior to coming to Australia the applicant had completed high school and had completed a tri-college certificate in car sales. The applicant obtained employment in China as a Plan Manager at Work Construction Co, which was involved in building and construction. The applicant sought to undertake architecture studies in Australia so that she could join the family’s architecture business.

11. The applicant was granted a Student (Higher Education) (Class TU 500) visa on 15 March 2017. The Decision Record confirms the visa was granted to the applicant for the following courses:-

CoE ID	Course	Education Provider	Start date	End date
8AC4F643	Master of Architecture	Queensland Uni of Technology	28/2/2022	31/12/2022
8AC4ED41	Bachelor of Design	Queensland Uni of Technology	26/02/2018	31/12/2021
8AC4E771	English for Academic Purposes	Queensland Uni	26/10/2017	06/02/2018
8AC4DE69	English for Academic Purposes	Queensland Uni	29/6/2017	03/10/2017
8AC4D648	General English	Queensland Uni	27/03/2017	02/06/2017

1. The highest Confirmation of Enrolment (CoE) in relation to which the visa was granted was a Master of Architecture, which is a course at level 9 of the Australian Qualifications Framework (AQF).

2. The applicant gave evidence that she undertook the General English and English for Academic Purposes courses at Queensland University of Technology (QUT) and received certificates.

3. She had the opportunity to enrol in a Diploma of Creative Industries at QUT. In June 2018, she enrolled in that Diploma and she was issued with new CoEs. The new CoEs enabled the applicant to study the Diploma of Creative Industries but also study the Bachelor of Design and Master of Architecture after the conclusion of the Diploma. The new CoEs extended the time to complete the Bachelor’s degree and the Master’s course. While the Decision Record confirms that the applicant claims that she was stressed and anxious with her studies and that she was diagnosed with depression, she claims that by undertaking the Diploma, it would ease her into studies and assist her moving forward with her studies. She was to get a credit of 1 year of subjects for the Bachelor’s degree.

4. The applicant claimed that she had sought advice from the Department of Home Affairs whether, if she enrolled in the Diploma, she needed to change her student visa. She was told that she did not, which was the correct advice as she was maintaining her enrolment in level 9 of the AQF.

5. The applicant completed the Diploma of Creative Studies on 2 February 2019. She claims that she remained depressed and she was stressed. She gave evidence that she was sick. She had headaches, depression, was teary, bleeding and had dizziness. The applicant flew back to China on or about 24 March 2019 and was hospitalised. She was diagnosed with idiopathic thrombocytosis, which is linked to leukemia. She claims her parents did not wish her to return to Australia to study. However she wished to return to Australia to complete her studies.

6. The applicant returned to Australia in April 2019. In the interim her enrolment in the Bachelor of Design and the Master of Architecture were cancelled. The applicant claimed she sought advice from QUT about her enrolment. They recommended that she enrol in a lower level of course such as a diploma. She did not check with Department whether she needed to change her visa, by reason of the answer she had previously received from the Department. She decided she could enrol in the Diploma of Remedial of Massage.

7. The Decision Record confirms that the enrolment in the Master of Architecture was cancelled on 1 March 2019.

8. The applicant confirms that when she returned to Australia, she enrolled in Diploma of Remedial Massage at Skills Institute Australia (SIA). The CoE submitted by the applicant for the course confirms that the enrolment date was 5 April 2019 and that she was to commence her studies on 10 June 2019 and conclude her studies on 7 June 2020. She claimed that she had received remedial therapy as treatment and that had assisted her with her symptoms of headaches and dizziness and she believed that the course would assist her in treating her condition and improving her health.

9. The applicant submitted prescriptions and invoices for medication that she was taking, which was consistent with her condition. The applicant gave evidence that with medication and remedial massage, her condition has improved substantially and she now believes that she is able to undertake the Bachelor of Design and then undertake the Master’s course.

10. On 20 May 2020 the applicant completed a Diploma of Remedial Message at SIA.

11. On 22 October 2019, the applicant received a Notice of Intention to Consider Cancellation (NOICC) of her visa. 

12. On 25 October 2019, the applicant, through her migration agent, provided a response to the NOICC (Response). As part of the Response the applicant, through her representative, submitted a personal statement from the applicant and supporting documents, including CoEs, letters and medical records (Reply).

13. The statement stated (omitting formalities):-

    Thank you for your email on 22 October 2019!

    I had got CoEs from QUT to study English, Bachelor degree and Master degree. I passed English in June 2018, and QUT accepted me to study Diploma of Creative Industries, so I continued to study the Diploma from 20/06/2018 to 19/02/2019

    When I came to Australia, I had left school for around 8 years, and I was not very accustomed to the  study in QUT. I felt very stressful, and always  anxious about my study. I could not sleep well at night, and had no appetite to eat. I went to  see  doctor, and was diagnosed depression. I submitted the medical certificate to QUT, and QUT suggested me to change to study Diploma first other than the Bachelor, as this would be more suitable for me.

    I finished the Diploma in February 2019, but I was still tortured by my depression.  In the  study I had headache and dizziness. I talked with QUT's academic advisors sevaral times seeking for help and su ggest ion . Finally QUT suggested me change to study in some other school to relieve me. I got QUT's release in March 2014 (please see the attached QUT letter of release).

    To find my illness and get treatment, I flew back to China on 24/03/2019. My parents took me to hospital, and I was diagnosed as "Idiopathic thrombocytosis." If platelet increases dramatically, it might cause thrombus. The doctor told me to have more exercises, and should not sit or study for long time. My parents asked me to stop the study, but I still wish to get an Australian qualification, therefore in April 2019 I came back to Australia. During my previous study I had often went to massage therapy clinic in Brisbane, as I found the remedial massage could help me relieve from headache and dizziness symptoms. The more I touch about massage, the more I was interested in the massage field. I decided to study Diploma of Remedial Massage in SIA, as this will also benefit my health.

    Massage involves the knowledge of body, systems, movement, and disease:

    Massage therapy students study anatomy and learn the basic parts of the body. In these classes, you are taught the general organization of the body and how it all works together.

    Massage therapists need to understand the functions of the body to provide their clients with the most useful and safe massages. Students learn physiology, the study of the various systems of the body. Students learn about cells, including their parts, structure and location. We also learn about tissue function and the senses of the body.

    Massage therapy students learn about physical activity and its effects on a per son's health and quality of life. Students explore the various muscle groups in classes and learn about where each muscle is found and how it functions within the body.

    Students are also taught about joints and their contribution to body movement.

    Pathology, or the study of disease, plays a role in massage therapy instruction. This point is specially important to me, as I wish to know how to treat or ease my disease by massage and knowing what I should do.

    I found the University Bachelor/ Master study is not suitable for me any more, as I could not sit too long time to do the research work. And massage program is the best study suitable for me, not only I could practice and do exercise in class, but also I know how to take care  of myself.

    Hence I got CoE from SIA, which provide the one year Diploma of Remedial Massage program.

    Since I hold subclass 500 visa for long time, and I learned that even I study Diploma of Remedial Massage, it is still subclass 500 visa, so I thought I did not need to apply for a new student visa. In fact when I studied Diploma in QUT I had gone to Department of Homes Affairs, and they told me I did not need to change my student visa. I thought this was the same case as before.

    Now I receive the email from you, and I learn if I don't remain the enrolment in a course at the same level, I need to apply for a new student visa. I am sorry I made the mistake, please consider I am an international student, and I am still tortured by disease, and forgive me about this and give me one more chance so that I can apply for an appropriate student visa!

    In addition, I am studying very well in SIA now , and the teachers are all very satisfied with my performance. During the study did a lot of practice, and I realize how  to treat myself properly. Together with the regular medicine treatment (please see the attached medical certificates and prescriptions), I am getting better now. The doctor said I could get cured if I kept doing well and exercise. If so, I wish to continue to study my Bachelor degree in QUT, as the Bachelor degree is always my family's and my dream.

    Dear Case Officer, please consider my compassionate situation , and allow me to apply for a new student visa. I am confident I will get the new visa so that I can finish the Diploma study.

14. The applicant conceded in evidence that she was not enrolled in a registered course that, once completed, would provide her with a qualification from the AQF that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted for the period from 1 March 2019 to the cancellation of the visa on 11 December 2019, being a period of 10 months and 10 days.

15. By reason of not being enrolled in a course at level 9 of the AQF or higher from 1 March 2019 to the cancellation of the visa on 11 December 2019, she did not meet condition 8202(2)(b) of her visa.

16. The applicant claimed that she did not know that by not being enrolled in a Master’s course or course of at least level 9 of the AQF, that she would be in breach of her visa.

17. On the evidence before the Tribunal, the applicant has not complied with condition 8202(2) of her visa for a period of 10 months and 10 days. As this was a condition that was attached to her visa, the applicant therefore breached a condition of her visa and the visa is liable to cancellation under s.116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

18. 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 or to remain in Australia

19. The applicant gave evidence that she came to Australia to study and undertake the courses as discussed above. 

20. As discussed above, the applicant has been enrolled in courses and studied since her arrival in Australia. She has completed 2 language certificates and 2 diplomas.

21. The applicant has studied consistently until and beyond the cancellation of her visa.

22. The applicant claims that she did not know that she was required to remain enrolled in a course at level 9 of the AQF. It is incumbent on applicants to ensure that they are aware of the conditions of the visa and she either knew or ought to have known of that condition.

23. The applicant submitted a letter of offer from QUT dated 22 May 2020, which offered the following pathway for her to undertake future studies in Australia from 2020 to 2025 to study:-

    a.Bachelor of Design; and

    b.Master of Architecture.

24. Since the hearing the applicant has obtained CoEs in those courses which have been submitted to the Tribunal. Those courses are expensive courses and reveal a strong motivation to study these courses. The tuition fees for the Master of Architecture was $72,400 and the Bachelor of Design is $108,600.

25. The applicant gave evidence that she intends studying and completing those courses in the future and she wants to complete those courses so that she can return to China and work as an architect in the family business.

26. Having regard to the applicant’s evidence and her conduct of continued study during the time she has been in Australia, the Tribunal accepts that the applicant travelled to Australia and stayed here to study, and she has studied here during her stay and she intends to study here in the future.

27. In relation to the above matters, the Tribunal gives these matters substantial weight towards the visa not being cancelled.

    The extent of compliance with visa conditions

28. The applicant was not enrolled at the appropriate level course from 1 March 2019 until the cancellation of the visa on 11 December 2019, being a period of 10 months and 10 days.  Therefore the applicant has not complied with condition 8202(2) for a substantial period of time.  The non-compliance with condition 8202(2) for such a substantial period of time may weigh towards cancelling the visa unless the Tribunal accepts her reasons for non-enrolment or finds she was not responsible for the reason for non-enrolment. 

29. The applicant gave evidence that she did not maintain her enrolment in the Master of Architecture because:-

    a.she suffered depression and anxiety;

    b.she was suffering from idiopathic thrombocytosis with severe symptoms which affected her ability to undertake studies in the Bachelor’s degree;

    c.she did not know changing courses and not enrolling in a course of at least level 9 of the AQF would have resulted in the cancellation of her visa.

30. As discussed above, the applicant submitted invoices and prescriptions with medication consistent with her medical condition and the Tribunal accepts that she was suffering from the above conditions and the severity of those symptoms would have impacted on the ability of the applicant to undertake a Bachelor’s degree and maintain an enrolment in that course and the Master’s course, which was connected. The medical evidence supports the applicant’s reasons for not maintaining the enrolment.

31. Visa holders who hold a student visa are aware that one of the main conditions of the visa is that they must be enrolled in a registered course of study at the appropriate level and that they are responsible for ensuring they are enrolled in a registered course of study at that level. The applicant was required to be enrolled in a course at level 9 of the AQF or higher.

32. While the reasons given by the applicant for the loss of the enrolment in the Master’s course are accepted by the Tribunal, the duration of the breach is not accepted. The applicant should have taken steps once she became aware of the loss of enrolment in the Master’s course, to re-enrol and defer if necessary. The Tribunal does not accept the applicant’s explanation that she was not aware that she was in breach of her visa and she was not aware that she was required to maintain enrolment at level 9 of the AQF.

1. Whilst the Tribunal accepts that the applicant lost her enrolment in the Bachelor of Design and the Master of Architecture due to her struggles with her health and medical condition, the applicant was obliged to meet her visa conditions and it was her responsibility to maintain enrolment in the appropriate level of course. If she could not maintain that level of enrolment, it was open to her to apply to the Department for a new visa.

2. The Tribunal accepts the applicant’s reasons for losing her enrolment in the course at level 9 of the AQF and not being compliant with the visa for a short period of time, however it does not explain why the applicant was not enrolled at level 9 of AQF or higher for a substantial period of time in circumstances where the applicant ought have been aware that she would be in breach of her visa.

3. The Tribunal finds that apart from the matters before this Tribunal, there are no other matters raised about the applicant not being compliant with her visa. 

4. Having regard to the substantial period of the breach, and that the applicant was responsible for not being enrolled in the appropriate level of course, some weight is given towards the visa being cancelled.

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

5. The Tribunal asked the applicant if she or other members of her family would suffer hardship if the visa was cancelled.

6. The applicant gave evidence that the visa cancellation would cause her and her family a substantial degree of hardship. She claimed that she would need to go back to China and due to her age being 28 years old and the education system in China, she would be unable to study architecture at university and work in the family business.

7. The applicant claims that based on the qualifications that she has achieved in Australia to date, they would be insufficient to provide her with future employment in China especially in architecture.

8. The Tribunal accepts that there will be some hardship caused to the applicant if the visa is cancelled.

9. While the Tribunal finds that these matters may be the consequences of the visa cancellation, they are not matters which would on their own constitute an overwhelming degree of hardship sufficient to weigh against cancelling the visa.

10. The Tribunal considers that the above matters add some weight towards the visa not being cancelled.

    Circumstances in which ground of cancellation arose

11. 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.

12. The applicant gave evidence as to the circumstances that led to the cancellation of the visa, as set out above.

13. Ultimately, the responsibility regarding enrolment rests with the student and the Tribunal is not persuaded by her reasons for the duration of not being enrolled in courses at the appropriate level of the AQF for a period of 10 months and 10 days.

14. The applicant knew or ought to have been aware that by not being enrolled in a registered course of study at the appropriate level (level 9 of the AQF) she would be in breach of condition 8202 and that her visa may be cancelled.

15. The primary purpose of the applicant is to undertake a registered course at a level appropriate to the visa granted. The applicant was not enrolled in a registered course at the appropriate level for a period of 10 months and 10 days, which is substantial period to be in breach of the visa.

16. The Tribunal has considered the applicant’s explanations for why she was not enrolled in a registered course at a level appropriate to her visa for such a substantial period of time, and therefore in breach of condition 8202(2). The Tribunal accepts that the circumstances surrounding why she was not enrolled in a course at the appropriate level were beyond her control for part of the period of time but not the entire period of time.  The Tribunal gives this matter marginal weight towards the visa being cancelled.

    Past and present behaviour of the visa holder towards the Department

17. According to the Decision Record, there was no information before the Department indicating that the applicant had been uncooperative towards the Department or any specific matters of relevance regarding the applicant’s behaviour towards the Department. The Tribunal gives this factor marginal weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140 of the Act

18. The applicant’s husband was formerly in Australia, but he returned home to China 2 years ago and his visa is not the subject of this application. As the cancellation of the visa does not affect the visa of any other person, this matter is not relevant in this application and the Tribunal gives this no weight towards the visa not being cancelled.

    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. If the Tribunal decides to affirm the decision to cancel the visa on these grounds, then the applicant will become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act if she does not voluntarily depart Australia. Further, pursuant to s.48 of the Act, the applicant will have limited options to apply for further visas in Australia, so she would need to depart Australia and apply from overseas for most types of visa.

20. Further, if the Tribunal decides to affirm the decision to cancel the TU 500 student visa on these grounds, then the cancellation will come within the identified risk factors to make the applicant meet Public Interest Criterion 4013, so if the applicant decides to apply for a new visa from overseas if she has to depart Australia, then that application may not be approved within the next 3 years.

21. However, these consequences are the intended consequences of the legislation when a visa is cancelled on these grounds.

22. The applicant gave evidence that if the visa remained cancelled she would return to China and attempt to complete her studies, and therefore there is no indication that she would become unlawful or be subject to detention.

23. Accordingly, the Tribunal gives this factor marginal weight towards 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

24. This matter does not appear relevant in this application as the applicant gave evidence that if the visa remained cancelled she would return to China; she did not give any reasons as to why she could not return to China and she has not made any claims that relate to this consideration. Accordingly, the Tribunal gives this factor no weight towards the visa not being cancelled.

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

25. This matter is not relevant in this application as the cancelled visa is a temporary visa and the Tribunal gives this factor no weight towards the visa not being cancelled.

    Any other relevant matters

26. The Tribunal considers that a relevant matter is whether the applicant is able to obtain enrolment in a registered course at a level appropriate to her visa. If the applicant is unable to obtain enrolment in a course that it is at an appropriate level to her visa, this will weigh towards her visa being cancelled, as there would be little utility to setting aside the cancellation of the visa if the applicant would continue to remain in breach of her visa condition.

27. The applicant gave evidence and provided a letter of offer dated 22 May 2020 that she could obtain an enrolment at QUT for a Bachelor of Design and Master of Architecture. The Master  of Architecture is a course which is at level 9 of the AQF and enrolment in those courses would make her compliant with the conditions of the visa. The Tribunal accepts that the applicant will be able to enrol in a course in the future at the same level she is required to maintain under the visa.

28. Accordingly, the Tribunal gives this factor some weight towards the visa not being cancelled.

    Conclusion

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

    DECISION

30. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Michael Biviano
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)    The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)    a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)     must be enrolled in a full time registered course; and

    (b)     subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)    must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)    is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.