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1008842 [2011] MRTA 178 (31 January 2011) DECISION RECORD APPLICANT: Mr Wenzhe ZhengMRT CASE NUMBER: 1008842DIAC REFERENCE(S): CLF2010/109820TRIBUNAL MEMBER: Phillippa WearneDATE: 31 January 2011PLACE OF DECISION: SydneyDECISION: The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 575 Non-Award Sector visa.


STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Citizenship to cancel the applicant’s Subclass 575 Non-Award Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The Department of Immigration and Citizenship granted the applicant his Subclass 575 Non-Award Sector visa on 11 May 2009. The applicant was notified that a delegate of the Minister was considering cancelling his Subclass 575 visa and the decision to cancel the visa was made on 5 October 2010. The applicant was notified of the decision and his review rights by letter dated 5 October 2010.

3. The delegate cancelled the applicant’s Subclass 575 visa under s.116(1)(b) on the basis that the applicant had breached condition 8202 of his student visa, and the delegate was satisfied that the non-compliance was not due to exceptional circumstances beyond his control. The particulars of the breach are that the University of New South Wales (UNSW) on 18 August 2010 certified that the applicant had not achieved satisfactory course attendance in relation to the course, Foundation Year Certificate (Standard Plus).

4. The applicant applied to the Tribunal on 11 October 2010 for review of the delegate’s decision.

5. The Tribunal finds that the delegate’s decision is an MRT-reviewable decision under s.338(3) of the Act. The Tribunal finds that the applicant has made a valid application for review under s.347 of the Act.

RELEVANT LAW

6. Section 116(1)(b) gives the Minister power to cancel a visa where the visa holder has not complied with a condition of the visa. It relevantly states:

116. Power to cancel

(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

...

(b) its holder has not complied with a condition of the visa; or

...

(3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

7. Regulation 2.43 of the Migration Regulations 1994 (the Regulations) sets out the prescribed circumstances referred to in s.116(3). For Student visas which were in force on or after 8 October 2005, r.2.43(2) relevantly provides:

2.43 Grounds for cancellation of visa (Act, s116)

...

(2) For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:

...

(b) in the case of a Student (Temporary) (Class TU) visa:

(i) that the Minister is satisfied that the visa holder has not complied with conditions 8104 or 8105 (if the condition applies to the visa); or

(ii) that the Minister is satisfied that:

(A) the visa holder has not complied with condition 8202; and

(B) the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.

8. The effect of s.116(1)(b) and r.2.43(2)(b)(ii) is that the visa must be cancelled if the Tribunal is satisfied the visa holder has not complied with condition 8202, and that the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.

9. In broad terms, the questions that arise for consideration under r.2.43(2)(b)(ii) are (A) whether the applicant failed to comply with condition 8202; and if so (B) whether the non-compliance was due to exceptional circumstances beyond the applicant’s control.

Condition 8202

10. The applicant’s visa was cancelled for breach of condition 8202. Generally speaking, the relevant version of condition 8202 is the version that was applicable at the time of the visa grant: Pradhan v MIMA [1999] FCA 1240; (1999) 94 FCR 91 at [19].

11. However, in the case of a breach of condition 8202 that occurred on or after 1 July 2007, the relevant version of that condition is the one in force as at 1 July 2007: r.5 of the Migration Amendment Regulations 2007 (No.5).

12. Condition 8202 is found at Item 8202 of Schedule 8 to the Regulations. The relevant version of condition 8202 that applies in this case reads as follows:

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.

13. In relation to 8202(3), while the condition relates to course progress and attendance, it is the certification by the education provider as to breach of its course progress or attendance policies that constitutes the breach of condition, and not the unsatisfactory progress or attendance itself: Maan v MIAC [2009] FCAFC 150 at [44]- [45].

Exceptional circumstances beyond the visa holder’s control

14. If the Tribunal is satisfied that the applicant did not comply with condition 8202, the issue that arises under r.2.43(2)(b)(ii)(B) is whether it is satisfied that the non-compliance was not due to exceptional circumstances beyond the applicant’s control. This requires a positive state of mind on the part of the decision maker that there are no relevant exceptional circumstances: Khant v MIAC [2009] FCA 1247 at [70].

15. The term ‘exceptional circumstances’ in this context is not defined in the legislation. However, it has been the subject of judicial consideration. In Maan v MIAC [2009] FCAFC 150 the Full Federal Court referred to the following comments of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as being of assistance:

We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

16. The expression ‘exceptional circumstances’ also appears in s.137L(1)(b) of the Act which permits a decision-maker to revoke the automatic cancellation of Student visas for breach of condition 8202 if satisfied that the breach was due to ‘exceptional circumstances beyond the non-citizen’s control’. In that context, Walters FM in Wang v MIMIA [2005] FMCA 918 cited with approval the following comments of Kiefel J in Hatcher v Cohn [2004] FCA 1548;(2004) 139 FCR 425 at [49]- [50]:

‘Exceptional’ circumstances, in general terms, are those circumstances, which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances... The words ‘exceptional circumstances’ may apply to a variety of circumstances and no definition which limits their application should be adopted, unless the limitation appears from the relevant statutory provision.

17. In Chen v MIMIA [2005] FCA 229; (2005) 142 FCR 257, Lander J stated at [111], also in the context of s.137L, that ‘any circumstances that are exceptional, in the sense that they are unusual and not of the applicant’s own making, but beyond the applicant’s control, may provide a reason for the Minister revoking the cancellation’.

18. Although the comments in these cases were not made in the context of r.2.43, the Tribunal considers them relevant to the issue presently before it.

19. As to whether the Tribunal is satisfied that a breach of condition 8202 was not due to exceptional circumstances beyond the applicant’s control, it is necessary to have regard to Direction No.38, Guidelines for considering cancellation of student visas for non-compliance with student visa condition 8202 (or for the review of such cancellation decisions) and for considering revocation of automatic cancellation of student visas (or for the review of decisions not to revoke such cancellations) made pursuant to s.499 of the Act. This document is intended to give decision makers directions about the performance of powers and functions under r.2.43(2)(b)(ii)(B) of the Regulations in relation to non-compliance with condition 8202 (as amended on and from 1 July 2007).

20. Direction No.38 requires the Tribunal, when considering whether the non-compliance with condition 8202 was not due to exceptional circumstances beyond the applicant’s control, to have due regard to the following matters:

· policy advice from the Department’s Director of Compliance Operational Support Section to give due regard to a political upheaval or natural disaster in a particular country. This requires the Tribunal to consider whether that country is the student’s home country, and whether the particular political upheaval or natural disaster has affected the student’s ability to comply with condition 8202;

· written advice from the Department of Education, Employment and Workplace Relations (previously the Department of Education Science and Training) or an education provider that they have concerns about errors and/or inappropriate actions or omissions in the process leading to the non-compliance and subsequent reporting, including concerns in relation to monitoring of the student, the complaints handling and appeals process and/or the certification and reporting process. In particular, the Tribunal should give due regard, undertaking further inquiries if appropriate, to whether the education provider has failed to accurately monitor the student’s course progress or attendance, and whether the education provider has failed to give the student access to a complaints handling and appeals process as required under Standard 8 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (the National Code).

21. The above considerations are not intended to be exhaustive. Rather, the Tribunal is required to consider ‘all of the facts of a case in total’ and come to its own view as to whether it is satisfied that the non-compliance was not due to exceptional circumstances beyond the applicant’s control.

22. If the Tribunal is satisfied that the applicant did not comply with condition 8202, but is not satisfied that it was not due to exceptional circumstances beyond the applicant’s control, the prescribed circumstances under which the visa must be cancelled under s.116(3) do not exist. The absence of prescribed circumstances leaves intact the power in s.116(1), under which the Tribunal may cancel the visa. This requires the Tribunal to decide whether to cancel the visa having regard to all the circumstances.

CLAIMS AND EVIDENCE

23. The Tribunal has before it the Department's case file CLF2010/109820 and the Tribunal's case file 1008842 relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate's decision and Departmental movement records.

24. The applicant was born in China on 22 October 1990. He is currently 20 years old.

25. Departmental records indicate that the applicant entered Australia on a Student Subclass 575 (Non-award Sector) visa on 23 May 2009. This visa was subject to condition 8202 and was due to cease on 15 March 2011.

26. On 18 August 2010 UNSW issued the applicant with a Non-Compliance Notification (the Notice under s.20 of the Education Services for Overseas Students Act 2000 (ESOS Act). Contained in that Notice was a "Certification for the purposes of subclause 8202(3) of Schedule 8 of the Migration Regulations 1994" stating that ANC, "on 18 August 2010 certified [the applicant] for the course, Foundation Year Certificate (Standard Plus) as not achieving satisfactory course attendance for section 19 of the [ESOS Act] and standard 11 of the [National Code]".

27. From documents held on the Department file, it appears that the applicant attended an office of the Department on 20 August 2010 where he was issued with a Notice of Intention to Consider Cancellation (NOICC) (Department file, folios 8-12). The particulars of the breach were identified. He was invited to provide written comment on the grounds of the cancellation and to give reasons as to why his visa should not be cancelled.

28. In response the applicant sent the Department an email on 28 August 2010. He attached a statement in which he stated that:

· He apologised for his less than 80% attendance during the course.

· He caught a cold in May 2010 which became worse. He attended the course and saw several doctors. He did not get better. His lungs were not so comfortable. He was afraid that he had lung cancer. He was very scared. The doctor suggested that he have a chest x-ray. He became increasingly scared and felt bad mental pressure. He developed a fever. The doctor suggested that he take a break from his studies. It took a long time to recover and he missed most of the courses and did not sit the final exam. He was sad about this but could not help it.

· After going through all this period of time, he took the medical certificates to the UNSW student centre but he was informed that he had already been reported to the Department.

· In semester 2 even though he still had not completely recovered he continued his classes.

· He realises now that that he should have told UNSW that he was sick and given them the reasons for his absences. It is his fault. He should have informed the education provider in the first place.

· He cherishes the chance to study at UNSW. He loves Australia. He wants to complete a degree course here. He is applying for a course in Tasmania.

29. He also attached a Certificate of Attendance (80.26%) and a Certificate of Achievement (63%) in regard to the Intensive English Course at Kaplan International College in Sydney.

30. He attached medical certificates from Dr Lau (31 May 2010 until 1 June 2010) in regard to an upper respiratory tract infection; Dr Michael Wong (17 June 2010 until 18 June 2010 for viral infection and infection and Bronchitis; Dr Cecilia Fong 24 June 2010 for Level B surgery and prescriptions for Amoxycillin capsules; Dr Lee-Shoy from 5 July 2010 until 11 July 2010 for respiratory infection.

31. Other documents held on the Department file include the following:

· A copy of the identification pages of the applicant's Chinese passport

· PRISMS records that indicate that the applicant completed an English Language (Beginner to Advanced) from 25 May 2009 until 18 December 2009; and a cancelled CoE in regard to the Foundation Year Certificate (Standard Plus) was due to start on 20 January 2010 and end on 19 August 2010.

· A copy of the s. 20 Notice.

· An individual attendance report issued by the UNSW in regard to the applicant. For the period 25 January 2010 until 5 February the applicant’s attendance was 92.86%; from 8 February 2010 until 26 February 2010 it was 68.18%; from 1 March 2010 until 12 March 2010 it was 60.94% ; from 15 March 2010 until 2 April 2010 it was 58.7%; from 26 April 2010 until 14 May 2010 it was 57.98%; from 17 May 2010 until 28 May 2010 it was 59.42%; from 31 may 2010 until 11 June 2010 it was 57.59; from 14 June 2010 until 25 June 2010 it was 51.7%; from 28 June 2010 until 9 July 2010 it was 49.94 and from 2 August 2010 until 13 August 2010 is was 45.87%.

32. On 5 October 2010 the delegate decided to cancel the applicant's visa

Review by the Tribunal

33. The applicant applied to the Tribunal on 11 October 2010 for a review of the decision. He was represented in regard to the review by Han Bing SHEN from Haworth & Lexon Lawyers.

34. The Tribunal requested UNSW to supply information about the applicant's attendance and the certification, which it did.

35. By letter dated 13 December 2010, the Tribunal invited the applicant to comment or respond to the potentially adverse information that had been given to the Tribunal by UNSW. It also invited him to provide certain information. The relevant part of the letter is set out below:

In conducting its review, the Tribunal is required by the Migration Act to invite you to comment on or respond to certain information which the Tribunal considers would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

Please note, however, that the Tribunal has not made up its mind about the information.

The particulars of the information are:

· You arrived in Australia on 23 May 2009 on Subclass 575 (Non-Award Sector) visa that was issued on 11 May 2009. This visa was due to cease on 15 March 2011. It was subject to condition 8202.

· You enrolled [in] UNSW Foundation [studies] on 20 January 2010. On 18 August 2010 UNSW certified you as not achieving satisfactory course attendance for the course, Foundation Year Certificate (Standard Plus) UNSW has informed the Tribunal that you were an accepted student at the time this certification was made.

· The CRICOS website indicates that this is a registered course.

This information is relevant to the review of your case because it may indicate that you did not comply with condition 8202 of your visa. Where an education provider certifies you as not achieving satisfactory course attendance, you have not complied with this condition.

If the Tribunal relies on this information in making its decision, it may be satisfied that you have not complied with condition 8202. If this is the case, and the Tribunal also decides that non-compliance was not due to exceptional circumstances beyond your control, it must affirm the Department's decision to cancel your visa.

· UNSW has informed the Tribunal that you were not able to achieve satisfactory attendance by mid-June 2010. UNSW informed the Tribunal that you were issued with a warning letter on 12 March [2010] when your attendance first dropped below 80%. You were issued with a letter dated 22 March 2010 when your attendance fell to 61%. You were interviewed and counselled on 23 March 2010. You claimed to have missed class because you were looking for a flat. You also claimed to have been sick but you did not submit any documents in support. You signed and acknowledged that you understood that your enrolment could be cancelled and you could be reported to DIAC. You were counselled by International Student Advisers on 3 occasions regarding a variety of issue[s] including attendance, academic and health issues. You were phoned on several occasions to find out if you were “ok”. You were issued with a letter dated 26 May 2010 which was a formal warning that your attendance was currently 58%.

· UNSW sent you an “At Risk of failing to achieve satisfactory attendance” notice dated 8 July 2010.

· UNSW has informed the Tribunal that it received no medical certificates from you until 2 August 2010 when you submitted “a large number all at once despite the requirement to submit them within 7 days of absence.” UNSW sent you an Intention to Report to DIAC letter on 8 July 2010 together with a copy of the Complaints and Appeals procedure. You were reported to PRISMS after 20 working days.

· The Tribunal asked UNSW to consider whether it failed to accurately monitor your course attendance, and whether UNSW failed to give you access to a complaints handling and appeals process as required under Standard 8 of the National Code. UNSW’s response indicated that they had no such concerns.

(A copy of all the material received from UNSW is attached.)

This information is relevant because it indicates that UNSW considers that it accurately monitored your attendance and that they complied with the National Code in regard to you. In view of all the letters sent by UNSW warning you about the consequences of your unsatisfactory attendance, the counseling you received and because you were informed about the right of appeal, the Tribunal may decide that there were no errors or inappropriate actions or omissions in the process leading to the non-compliance and subsequent reporting of you. If the Tribunal relies on this information in making its decision, it may conclude that UNSW complied with the National Code.

This information is also relevant because it indicates you were given several opportunities to discuss your situation and provide supporting documentation to explain your unsatisfactory course attendance. You claimed to have been looking for a flat and that you were sick. However, you did not provide any contemporaneous medical certificates. UNSW informed the Tribunal that you did not provide any medical certificates until 2 August 2010. You did not appeal the decision to report you. If the Tribunal relies on this information in making its decision, it may be satisfied that you have not complied with condition 8202, and that non-compliance was not due to exceptional circumstances beyond your control. If this happens it must affirm the Department's decision to cancel your visa.You are invited to give comments on the above information in writing.

Invitation to provide information

You are also invited to provide the following information in writing:

· Details why you believe the ground for cancellation does not exist.

· Any evidence which you believe would indicate that any non-compliance with condition 8202, if established, was due to exceptional circumstances beyond your control.

If the Tribunal finds that you have breached condition 8202 and the Tribunal is satisfied that the breach was due to exceptional circumstances beyond your control, the Tribunal will consider whether or not to cancel your visa. As a matter of policy, the following matters are regarded as relevant in the exercise of the discretion to cancel a temporary visa, such as a Student visa:

· The purpose of your travel to and stay in Australia.

· The extent of non-compliance with any conditions subject to which the visa was granted.

· The degree of hardship which may be caused to you and any family members.

· Whether the cancellation of the visa in your case would lead to removal in breach of Australia’s non-refoulement obligations.

· The circumstances in which the ground for cancellation arose.

· Your behaviour in relation to the Department, now and on previous occasions.

· Any other relevant matters that you may wish to raise.

[The timeframe for responding and the consequences of not doing so were set out.]

36. The applicant’s representative requested an extension of time, which the Tribunal granted.

37. The applicant’s representative responded by facsimile received at the Tribunal on 29 December 2010. A statement made by the applicant was attached. In it he claimed:

· He was interested to study Architecture Design at UNSW. He enrolled in the UNSW Foundation Studies course. In the first two weeks, his attendance was 92%.

· He had been sharing rental premises with a friend since July 2009. In February 2010 this friend moved out to share another place with his girlfriend. He did not give the applicant any notice, and although he paid for his share of the next two weeks’ rent, the applicant was left then to pay the full rental amount of $540 a week.

· It was peak season for rental accommodation and it was very difficult for the applicant to find share accommodation. It was time consuming and he had to skip some classes to meet with real estate agents and inspect premises and interview with potential flatmates. It took a long time because he was an international student without a part-time job. It was hard to get references. He missed many classes but tried to attend the Design and English classes because they were important to his proposed study.

· On 23 March 2010 he received a letter from UNSW about his poor attendance and he had an interview with UNSW staff.

· In early April 2010 he and his friend, Jinying Huang moved into a place together in Mascot. Another couple and their three year old son lived there too. The applicant and Ms Huang shared a very small bedroom. She worked on her projects late into the night. He lost sleep. He could not move out because he had committed to at least three months there.

· He started to live with another friend in Rockdale. He still lives there.

· In early May 2010 he caught a cold that developed into an upper respiratory tract infection. Throughout May it got worse. He thought that it would go away. He consulted a number of doctors.

· On 17 June 2010 Dr Wong told him that he thought that the applicant had a problem with his lungs because he smoked 20 cigarettes a day. On 21 June 2010 the applicant had an x-ray of his chest. He later attended a number of other medical appointments. He was issued with scripts for dispensing.

· During this time he did try and attend the Design classes.

· On 8 July 2010 he was asked to attend an interview at UNSW to explain his poor attendance. On 30 July 2010 he intended to submit his medical certificates.

· In early August he was asked to quit his studies because of unsatisfactory attendance. He was very upset because he knew that he had lost the opportunity to study at UNSW.

· He has subsequently received a conditional offer from RMIT for the Foundation Course for Architecture and Design. He is preparing for an IELTS to meet the language requirements for the course.

38. The applicant attached copies of the medical certificates that he had already submitted to the Department. He also submitted a copy of a Dr Lau’s prescriptions dated 1 June 2010 for Nasolex nasal spray and Amoxil capsules. He submitted a medical certificate issued by Dr Cecilia Fong on 24 June 2010 for the period 24 June 2010 until 25 June 2010. He submitted the results of a chest x-ray conducted on 21 June 2010. While noting that the applicant was a “chronic smoker” it notes that the results were normal. He submitted a medical certificate issued by Dr Law for 14 July 2010 until “-” for gastroenteritis and a script for Lomitol and medication for diarrhoea.

39. Shortly before the hearing commenced the applicant submitted a statutory declaration made on 27 January 2011. In it he stated that he had received an offer from Insearch Institute of the University of Technology, Sydney (UTS). He has been offered a place in the UTS Foundation Studies (standard) program. He stated that the Academic English Program 30-wek course of the Foundation Studies commenced on 8 February 2011. He explained that he had decided not to accept the offer from RMIT as it did not start until July 2011. The applicant attached the offer from UTS: Insearch.

40. The Tribunal also received written confirmation from Hurstville City Medical Centre that the medical certificates issued to the applicant (submitted to the Tribunal) were genuine.

The hearing

41. The applicant appeared before the Tribunal on 27 January 2011 to give evidence and present arguments. Mr Jang Sun appeared from the firm Haworth & Lexon Lawyers, as Mr Sheen was not available.

42. The Tribunal told the applicant that it would consider whether he failed to comply with condition 8202; and if so whether the non-compliance was due to exceptional circumstances beyond his control. The Tribunal informed the applicant that the visa must remain cancelled if it was satisfied the he had not complied with condition 8202, and that the non-compliance was not due to exceptional circumstances beyond his control.

43. The Tribunal noted that the applicant had not disputed the certification for unsatisfactory attendance at UNSW. Neither did he dispute that they complied with the National Code in regard to him. The applicant agreed that this was the case.

44. The applicant said that he did not wish to raise any matters at the beginning of the hearing before the Tribunal began to ask its questions.

45. The applicant said that he had medical certificates to cover the period from early June 2010. He said that he had intended to submit these to the education provider and explain what had happened to him. He was going to submit them in August when the new semester commenced.

46. The Tribunal noted that it would also have to consider the period between when the course started and when he claimed to have fallen ill. The applicant referred to his notes and agreed that the course started on 25 January 2010.

47. The applicant said that he started to get sick in around April or May 2010. He first thought that had a minor ailment, so he did not do anything about it. The Tribunal noted that in his letter to the Department he stated that he became ill in May 2010. The applicant said that it would have been in May 2010. It started as a cold and then it got worse. At first he did not seek medical attention. It got worse. He developed a fever. He went to see a doctor about it in mid-May 2010 but he did not know where he had put the medical certificate. He was not given a prescription at this time..

48. The applicant said that despite feeling ill he tried to attend the English classes and the design classes. The applicant said that he was ill over quite a long period of time. Sometimes he felt ok and could attend class. Other times he was not able to attend the classes. He had a fever and needed to rest. Sometimes when he went out he caught a cold again if the weather was bad and he felt worse.

49. The Tribunal noted that Tribunal officers had contacted the medical centres to confirm the relevant doctors had issued the medical certificates to the applicant. They were confirmed to have been genuine. The Tribunal noted that in considering the medical evidence that the applicant had now submitted, he could demonstrate that he had been ill from at least 31 April 2010 until towards the end of July 2010.

50. The Tribunal told the applicant that it found it very unusual that he had the medical certificates but had not submitted them to UNSW to explain his absences. The applicant said that he was to blame. He was not sure about the rules and regulations. He was going to submit them all in one go. He would explain what had happened.

51. The Tribunal explained that UNSW was in a position to gauge whether there were compelling or compassionate reasons for his absences. He should have taken the medical certificates to UNSW and explained his situation contemporaneously. The applicant agreed that he should have done this.

52. The Tribunal noted that he had been sent letters from UNSW explaining the serious consequences of his poor attendance. He should have responded and gone to see someone with the medical certificates. The applicant said that he had moved in early April 2010. He had not informed UNSW of his change of address. He had not received the letters. The applicant said it was his fault. He did not get the letter dated 8 July 2011, so he did not access the appeal process.

53. The Tribunal noted that it was the applicant’s responsibility to keep UNSW informed of his change of address. It was reckless not to have done so. The applicant agreed.

54. The Tribunal noted that he should have submitted the medical certificates in a timely way. The applicant agreed.

55. Later in the hearing the Tribunal referred to the Explanation of Absence submitted by the applicant. On it he had stated on it that he had been sick and had a fever and his lung had a kind of problem. He had submitted the medical certificates, but not until 2 August 2010. He said that he had intended to submit the medical certificates earlier. But then he decided that he would submit them in the beginning of the new semester.

56. The Tribunal explained that it wished to talk to him about the period from the start of the course until he became ill. The applicant said that he had a copy of his individual attendance report that had been issued by UNSW Foundation. He noted that the first week his attendance was 92.86%. The Tribunal noted that thereafter it had fallen. The applicant agreed.

57. The Tribunal noted that it had read his statutory declaration made on 29 December 2010. He had difficulty paying the rent after his friend expectantly left the Waterloo premises they had shared. He moved into cramped quarters in Mascot, where the person with whom he shared the same room worked into the night. He lost sleep. Things had been difficult for him until he found the place at Rockdale.

58. The Tribunal explained that many students may face difficulty finding suitable accommodation, and some may face difficulty paying the rent.

59. The applicant said that the rent for the Waterloo premises was $540 a week. When his friend left in early February 2010 he agreed to pay two weeks’ rent. The applicant said that he was unprepared for this and it was difficult to shoulder such a heavy responsibility. He was trying to find another tenant. But all his friends had their own accommodation and they did not want to move in. In March he started to look for alternate accommodation. The agents wanted references. It is difficult for overseas students to get references. It is very difficult to pay for the huge bond that the owners want. The applicant said that he spent a lot of time searching for accommodation. Most the time he could look was during the week days when he was meant to attend classes. He still tried to attend the English and Design classes.

60. The applicant said that he had been counselled about his poor attendance in late March 2010. He had undertaken to come to all the future classes. He said that after that he had become ill. (The Poor Attendance Warning noted that the applicant’s attendance was 61%. He is recorded as stating that he had been looking for a flat which had taken a lot of time, and that also he had been sick for about four days.)

61. The Tribunal referred to the UNSW Foundation Year statement of results. The applicant agreed that he had passed the Design subject. The applicant said that he achieved the “moderate pass” mark without sitting the exam.

62. The applicant said that he came to Australia to study. He had wanted to study a the Faculty of Architecture at UNSW. He said that he still wanted to study Architecture and Design. He said that he had otherwise complied with the visa conditions of his visa. He said that he had not worked since coming to Australia.

63. He had successfully completed study in 2009. He had complied with the attendance requirements,

64. The applicant said that if his visa remained cancelled it would be bad news and a great disappointment to the family. It would cause them stress. It would be bad for his career and his future life. He said that he wanted to finish study in Australia.

65. The applicant said that he was now in settled accommodation at Rockdale.

66. He said that his heath was better and he was in the process of quitting cigarettes. His smoking was under control.

67. The applicant said that there were no problems in China. There was no conflict or civil unrest.

68. The applicant said that he had been let down by his friend in regard to the Waterloo premises. It took him time to finds a suitable place and suitable flatmates. The applicant said that he had a fervent wish to remain in Australia and study.

The representative’s submissions

69. The representative said that the applicant is a genuine student.

70. He has had difficult personal circumstances. His flatmate let him down badly. He had not anticipated this difficulty. While the applicant tried to solve the problem he made his best effort to attend the classes.

71. The representative said that if the applicant had attended all the classes after May 2010, he would have met the attendance requirements. His illness was out of his control.

72. The applicant wants to study in Australia and enrol in another course. He wants to study Design and then do another Design course in China.

FINDINGS AND REASONS

73. The Tribunal considered the applicant to be a credible witness who gave consistent evidence to the Department and Tribunal about what had been affecting him during his studies in the Foundation Course at UNSW from January to August 2010. The very limited information that he gave UNSW was also consistent with his claims.

74. The Tribunal must first determine whether the ground for cancellation under s.116 identified by the delegate has been made out.

75. The applicant's visa was cancelled on the basis of a failure to comply with a condition of the visa: s.116(1)(b). The relevant condition was identified by the delegate as 8202. The delegate found that the applicant had not complied with condition 8202 because UNSW certified that the applicant had not achieved satisfactory course attendance.

76. For the following reasons, the Tribunal is satisfied that the applicant has not complied with a condition of the visa. Condition 8202(3)(b), as in force from 1 July 2007, specifies that a visa holder will meet the progress requirements unless the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving a satisfactory course attendance for s.19 of ESOS Act, and standard 11 of the National Code. On 18 August 2010 UNSW certified that the applicant had not achieved satisfactory course attendance in relation to the course, Foundation Year Certificate (Standard Plus). The CRICOS website indicated that this course was a registered course.[1] Accordingly, the Tribunal finds that the education provider has certified that the applicant has not achieved satisfactory course progress for s. 19 of the ESOS Act, and standard 11 of the National Code. The Tribunal therefore finds that the applicant has not complied with condition 8202(3)(b).

77. The Tribunal will next consider whether there were exceptional circumstances beyond the applicant's control being the reason for non-compliance with condition 8202.

78. As noted above, amongst other things, Direction No.38 requires the Tribunal to have due regard to written advice from the DEEWR or an education provider, that it has concerns about errors or inappropriate actions or omissions in the process leading to the non-compliance and subsequent reporting under the National Code. There is no relevant information from DEEWR on file. The Tribunal undertook enquiries in regard to the process followed by UNSW. UNSW informed the Tribunal that it sent the applicant warning letters about his unsatisfactory attendance dated 12 March 2010, 22 March 2010. He was interviewed and counselled on several occasions. He was sent a further warning letter dated 8 July 2010. He was provided access to UNSW’s complaints and appeal’s processes through the last letter that was sent to him but he did not access them. The applicant does not dispute that these steps were taken. He does not dispute UNSW’s claim that UNSW complied with the national Code in regard to him. The Tribunal has reviewed the information provided by UNSW. The Tribunal considers that UNSW accurately monitored the applicant’s attendance, and gave him access to a complaints handling and appeal process as required under standard 8 of the National Code.

79. UNSW was in a position to make an assessment of compelling and compassionate circumstances affecting non-compliance as part of its appropriate documented policies and procedures for monitoring attendance. The applicant is recorded to have informed UNSW staff on 23 March 2010 that he had taken time of his study to look for a flat. He also said that he had been sick for about four days but he did not provide any medical certificates to support his claims.

80. The Tribunal is at a loss to understand why the applicant did not keep UNSW informed of the reasons for his absences during May until the end of July. Certainly, from the end of May 2010 he had a series of medical certificates (verified by the Tribunal as genuine) which indicate that he had a lingering upper respiratory tract infection and bronchitis that required several courses of antibiotics. For reasons that the Tribunal has difficulty understanding, the applicant did not submit these medical certificates contemporaneously. Had he submitted them at the appropriate time, ie when he was sick, the applicant may well have not been in the situation he now finds himself.

81. The applicant claims that after a doctor warned him in mid-June 2010 that his heavy smoking had adversely affected his lungs, he became terrified that he had contracted lung cancer. The Tribunal accepts that the applicant was fearful and on the basis of the chest x-ray reports, accepts that he undertook examinations to determine if there was a problem. The reports disclosed nothing abnormal but the applicant’s health remained poor until towards the end of July.

82. The Tribunal has carefully considered the applicant’s attendance reports. Although he started well, by the end of February 2010 his attendance had dropped down to 68.18%. At this time the Tribunal accepts that the applicant was experiencing accommodation difficulties. His friend had moved out of the Waterloo premises leaving the applicant to pay the substantial rent by himself. The applicant then had great difficulty finding a suitable replacement flatmate or suitable alternative accommodation at the peak time. He continued to pay the rent of the Waterloo premises. He did not have references and bonds were very high. In April 2010 he moved, and had an uncomfortable period sharing in cramped quarters where he got little sleep.

83. While the Tribunal accepts the applicant’s claims about his accommodation and financial difficulties, it does not consider that these by themselves amount to exceptional circumstances beyond his control. Many students face these types of problems while they are trying to study.

84. However, the Tribunal does accept that for about four days before 23 March 2010, and from the end of April 2010 until towards the end of July 2010 the applicant was ill and because he was ill he was not able to attend classes to the required level. It accepts that he attended classes when he could, particularly the Design classes, and at the other times he was not able to attend. It also accepts that from mid June 2010 until 21 June 2010 he was very frightened he had a lung disease. The Tribunal has considered Mr Sun’s submission that if the applicant had attended all the classes after May 2010, he would have met the attendance requirements. The Tribunal considers it likely that this would have been the case. The Tribunal considers his extended illness amounts to exceptional circumstances beyond his control being the reason for the certification for not complying with the attendance requirements.

85. For the reasons given above, the Tribunal is satisfied that the applicant has not complied with condition 8202 and that the ground for cancellation in s.116(1)(b) exists. However, as it has found that the non-compliance was due to exceptional circumstances beyond the visa holder's control, and is therefore not satisfied that the non-compliance was not due to such circumstances, prescribed circumstances requiring mandatory cancellation of the visa in accordance with s.116(3) do not exist.

86. Nevertheless, as the Tribunal has decided that a ground for cancellation exists it must still proceed to consider whether the power to cancel the visa under s.116(1) should be exercised, having regard to all the circumstances.

Consideration of discretion to cancel the visa

87. Having found that the applicant has not complied with condition 8202 of the visa and also that the non-compliance was due to exceptional circumstances beyond the applicant's control, the Tribunal must next consider whether to exercise its discretion under s.116(1) to cancel the visa.

88. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, the Tribunal has had regard to any matters raised by the visa holder as to why the visa should not be cancelled, and government policy guidelines contained in the Department's Procedures Advice Manual 3 (PAM3), relevantly:

· the purpose of the visa holder's travel to and stay in Australia

· if cancellation is being considered because of a breach of a visa condition (and cancellation is not mandatory) - the reasons for, and extent of, the breach

· the degree of hardship that may be caused to the visa holder and any family members

· the circumstances in which the ground for cancellation arose (for example, whether extenuating or compassionate circumstances outweigh the grounds for cancelling the visa)

· the visa holder's past and present behaviour towards the department (for example, whether they have been truthful in statements or applications to the department or have previously complied with visa conditions)

· whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, such as:

· if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, delegates are obliged to treat as a primary consideration the best interest of the children

· whether the cancellation would lead to removal in breach of Australia's non-refoulement obligations - that is, removing a person to a country where the person faces persecution, death, torture, cruel, inhuman or degrading treatment or punishment

· if a cancellation is being considered because a Student visa holder has breached Condition 8202 (that is, on the basis of circumstances set out in regulation 2.43(2)(b)) - delegates should consider whether the breach was due to exceptional circumstances beyond the visa holder's control

· any other matters raised by the visa holder.

89. The evidence indicates that the applicant has successfully completed a six month Intensive English course in Australia. He has expressed a wish to complete studies in Architecture and Design. He has a current offer of enrolment for an English course at UTS, and then UTS Foundation Studies. The Tribunal accepts that the applicant came to Australia with the intention of studying.

90. The Tribunal considers that the applicant was reckless in not keeping the UNSW staff informed about the reasons for his absences, and in not submitting the medical certificates that he had at the appropriate time. He has accepted responsibility for the consequences that followed. He states that his health is better and he is trying to quit smoking.

91. In all the circumstances, the Tribunal considers it appropriate that the applicant be given the opportunity to re-commence his studies in Australia and undertake the studies he plans. Accordingly, considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

DECISION

92. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 575 Non-Award Sector visa.