ZHANG (Migration)

[2019] AATA 970

ZHANG (Migration) [2019] AATA 970 (7 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs MING ZHANG

CASE NUMBER:  1621553

HOME AFFAIRS REFERENCE(S):           BCC2016/3186652

MEMBER:Melissa McAdam

DATE:7 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 07 January 2019 at 9:11am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector visa – breached condition 8202 – not enrolled in a registered course of study – not a genuine student – decision under review affirmed

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 December 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

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

3. On 16 November 2016 the applicant was sent a Notice of Intention to Consider Cancellation of her Student visa, inviting her to comment on a possible breach of condition 8202, which required her to be enrolled in a registered course.   The delegate wrote that the applicant appeared to have not been enrolled in a registered course of study since 17 November 2015.

4. The applicant provided a written response to the NOICC dated 18 November 2016. The following is a summary of the response:

   a.The applicant stated that she is a genuine student capable of completing her course.

   b.She did not have any problem until she found out she was pregnant in November 2014, during her second language course.

   c.She and her husband wanted a child and were extremely happy.

   d.She informed her school that she had to postpone her course until after the birth.

   e.She started suffering serious skin irritations in the middle of her pregnancy. She could not sleep well at night. Her doctor told her rashes could spread and develop necrosis.  The prescribed medication would have harmful effects for her unborn baby so she decided to terminate her pregnancy.

   f.Her abortion damaged her physically and spiritually. She could not move smoothly for  the first couple of week. Little movements caused her enormous pain. She became depressed.

   g.On 9 July 2015 her husband left her.

   h.She became numb and lonely.

   i.She did not receive any warning letters from her school.

   j.She could not follow her study plan because of her medical condition.

   k.After one year of recovery she wants to start studying again. She has started studying at the Australia Ideal College.

   l.She has spent lots of time and money on her studies and wants the chance to continue studying. She has sufficient financial support from her family. She would like another chance.

   m.She attached copies of the following documents:

   i.Tax Invoices for Medical services in December 2014

   ii.A medical certificate from Dr Tom Robinson, dated 6 January 2015 stating that the applicant “is suffering from serious skin irritation (which is one of the extreme symptoms occurred during pregnancy period) and she will be unfit for schooling period between 07/01/2015 – 12/04/2015 inclusive.”

   iii.A medical certificate from Dr Kevin Leung, dated 10 April 2015 stating that the applicant “is suffering from serious skin irritation - one of the extreme symptoms occurred during pregnancy period. She will be unfit for schooling period between 10/04/2015 – 30/07/2015 inclusive.”

   iv.The biodata page of her Chinese passport.

   v.A COE dated 22 November 2016 for the applicant from Australian Ideal College for  a Diploma of Leadership and Management starting from 14 November 2016 to 12 November 2017.

   Delegate’s Decision

5. The applicant submitted a copy of the delegate’s decision to the Tribunal.

6. In her decision the delegate noted that PRISMS Records showed the applicant was currently enrolled in a Diploma of Leadership and Management at Australian Ideal College from 14 November 2016.  The delegate also noted that Movement Records show the applicant’s husband departed Australia on 7 July 2015.

7. The delegate considered it would not be unreasonable to expect the applicant to also return to her country at the time.

8. The delegate considered  that the applicant’s current course was not an approved enrolment in a bachelor’s or master’s degree so that the applicant was not enrolled in a course of study of a type specified for Subclass 573.

9. The delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course.  The delegate found that the applicant was not enrolled in a registered course of study between 17 November 2015 and 14 November 2016.

10. The issue in this case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

    Tribunal Hearing

11. On 23 October 2018 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 4 January 2019 at 2pm. On the morning of 4 January 2019 the applicant’s agent sent a message by email to the Tribunal stating that the applicant has left Australia and that a decision should be made by the Tribunal without a hearing.

12. This matter has therefore been determined on the evidence available to the Tribunal.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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?

14. 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 her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

    ·has not been certified by her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

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

16. The applicant has admitted she was not enrolled in a registered course of study from November 2015 for an extended period.  The evidence from the Department’s PRISMS records also confirm that the applicant was not enrolled in a registered course of study between November 2015 and November 2016.

17. 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

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 remain in Australia.

19. The applicant has provided information that she came to Australia to study. She has completed some courses of study in Australia.  She has not presented information evincing a compelling need to remain in Australia. The Tribunal gives this consideration no weight.

    The extent of compliance with visa conditions

20. There is nothing before the Tribunal to indicate that the applicant has breached other conditions on her visa. The Tribunal expects that a visa holder will generally adhere to all the conditions of his or her visa. In this case the applicant’s breach is a significant one.  As such the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

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

21. The applicant has submitted that she has incurred a lot of expense to study in Australia, and that she would like a second chance to continue study.

22. The applicant’s agent has provided information to the Tribunal that the applicant has departed Australia. The department’s movement records also confirm that the applicant departed Australia in July 2018.

23. In all the circumstances there is no current information that any significant hardship may be caused to the applicant if the applicant’s visa remains cancelled.  The Tribunal gives this consideration minimal weight.

    The circumstances in which the ground of cancellation arose.

24. The applicant explained in her written response to the Department her serious health and relationship difficulties which caused her to abandon her studies in 2015/2016.  The Tribunal accepts that these matters would have been quite distressing and would adversely affect the applicant’s ability to attend class or concentrate upon her studies. The Tribunal gives these matters weight in the applicant’s favour.

    Past and present conduct of the visa holder towards the Department

25. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department in her dealings with it, since receiving the Notice of Intention to Cancel her visa.  However, this is expected of all visa holders and does not outweigh the significance of the breach. 

26. Further, the Tribunal notes the applicant’s failure to maintain contact with it in relation to progressing her review application or to inform the Tribunal of her departure from Australia in July 2018.

27. The Tribunal gives this consideration minimal weight in the applicant’s favour.

    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

28. The visa applicant has departed Australia so is not at risk of detention here. However she will be subject to a temporary bar on being granted a further visa in Australia as a result of her visa cancellation. The Tribunal considers that other factors substantially outweigh the significance of this disadvantage to the applicant. The Tribunal gives it only minimal weight in her favour.

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

29. There is nothing before the Tribunal to indicate there are international obligations to consider.

    Any other relevant matters

30. There is no indication of other relevant matters before the Tribunal.

31. The Tribunal has considered all factors listed above both individually and cumulatively. The Tribunal finds that the applicant’s breach is significant. Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Melissa McAdam
    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.