1511165 (Migration)

[2016] AATA 3855

1511165 (Migration) [2016] AATA 3855 (5 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Michelle Lee Ann Ting

CASE NUMBER:  1511165

DIBP REFERENCE(S):  CLF2013/30259

MEMBER:David McCulloch

DATE:5 May 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 05 May 2016 at 1:54pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 August 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant is a national of Malaysia born on 26 April 1987. The visa the subject of cancellation was granted on 3 July 2014 and was subject to condition 8202.

3. On 5 August 2015 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of her visa, as she ceased to be enrolled in a registered course since May 2015. The applicant provided a response to the NOICC which is recorded in the decision to cancel.  On 8 August 2015, the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of her visa. The applicant seeks review of the delegate’s decision.

4. 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 issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 26 April 2016 at 9am to give evidence and present arguments.  The response to hearing invitation had indicated that the applicant’s adviser was to attend the hearing. The adviser was not in attendance at the hearing and the applicant indicated in the hearing that her adviser was expected.  No request for an adjournment was made. The Tribunal indicated to the applicant that, in the circumstances, it intended to continue with the hearing and provide an opportunity following the hearing for the applicant’s adviser to review the recording of the hearing and provide any written submissions on issues identified by the Tribunal as adverse to the applicant. No submission was provided in the one week time frame provided by the Tribunal for submissions.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

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

   ·be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

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

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

10. In relation to the applicant ceasing to be enrolled, the NOICC, and the decision cancelling the visa, which were provided by the applicant to the Tribunal, variously referred to the applicant not being enrolled in a registered course in December 2014 and May 2015.

11. Records from the Provider Registration and International Student Management System (PRISMS), which the Tribunal has access to, indicate that the applicant’s enrolment in a Diploma of Accounting, due to commence on 12 January 2015 was cancelled on 1 May 2015 for non-commencement of studies.

12. In the Tribunal hearing, the applicant acknowledged that she had ceased to be enrolled in a registered course.

13. There is nothing before the Tribunal to suggest that the applicant was a holder of a subclass 560 or 571 (School Sector) visa as a secondary exchange student, thus the applicant’s obligation under condition 8202(2) is to be enrolled in a registered course.

14. On the evidence before the Tribunal, the applicant was not enrolled in a registered course from 1 May 2015.  Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

15. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

16. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; 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 - whether there are extenuating circumstances beyond the visa holder’s control; the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (ie. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulment obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non-refoulement obligations; and any other relevant matters.

17. The decision by the delegate to cancel the visa records the explanations provided by the applicant for the breach. The applicant indicates that her agent referred her to Australian College of Management & Technology (ACMT)in Sydney and that they wanted school fees but failed to teach her. She was also working at a restaurant in Sydney which made more it difficult for her to attend school.

18. The decision records the applicant asking if she can be given another chance to study in Australia. She indicates that she would like to study childcare, if possible. The applicant indicates that her purpose in travelling to and staying in Australia has been to study and make a change to her life. The applicant indicates that if the visa is cancelled it would affect her life and that she does not want to return to Malaysia due to family issues. She indicates that she only keeps in touch with one brother in Malaysia and does not speak to her parents.  The decision records that the applicant was cooperative when interviewed by Departmental officers.

19. A Statutory Declaration by the applicant dated 20 April 2016 was provided to the Tribunal, together with a written submission by the applicant’s adviser.

20. The applicant’s Statutory Declaration indicates that she initially planned to study an Advanced Diploma of Hospitality but found that it was too difficult for her.  She changed to a Certificate IV in Business in a package with a Diploma of Business at Abbey College. She realised that an accounting degree may be of more benefit for her future career. In around April 2014, the applicant decided to undertake a Certificate IV in Accounting in a package comprising Diploma of Accounting at ACMT.  The applicant finished the Certificate IV and subsequently undertook a Diploma of Accounting.

21. During the Certificate IV, the applicant realised that ACMT was not a competent education provider. Teachers barely taught the course, and few students attended class. On the first day of classes, only one student attended. No assessments were given. The applicant thought that students should study and research on their own. The applicant completed this course at the end of 2014.

22. The applicant recalled receiving a phone call from ACMT warning that all students should be in class on 10 September 2014 because officers of the Department were visiting. On that day, the applicant finally saw all the students attending. The teacher wrote the course name on the whiteboard to enable the students to correctly answer the name of the course they were enrolled in.

23. Once, when the applicant was in class, a teacher played on the computer and did not give a lecture or assessment. The applicant thought it was a waste of time to stay in the class. At that time, the applicant considered changing her education provider.

24. The applicant married her husband on 17 May 2015.

25. An officer of ACMT constantly requested payment from the applicant. She was told that if she paid the money, she did not need to attend classes or do assessments. The applicant recalled that she paid tuition fees on 1 April 2015. However, at that time the applicant had already considered changing education providers. ACMT requested more money, which the applicant refused. ACMT indicated that they would report the applicant if the money was not paid. The applicant then received a notification to cancel her Confirmation of Enrolment and ended up receiving a notice to cancel the visa.

26. The applicant believes it is unfair as she paid the tuition fees and learnt nothing in the Diploma of Accounting. She indicates that the education provider should be penalised. The applicant asks to be given an opportunity to finish her Diploma of Accounting.

27. The applicant’s adviser submits that the failure to enrol was due to exceptional circumstances beyond the applicant’s control.  It is indicated that after the incident on 10 September 2014, the applicant considered the need to change to a new provider. It is indicated that ACMT was referred by the applicant’s agent and the applicant no longer trusted the agent’s advice.   It took time to look for a suitable school. Additionally, she was occupied with the wedding to her husband. It is submitted that payment receipts dated 30 December 2014 and 1 April 2015 to ACMT demonstrate that the applicant wanted to use this period of time to look for another education provider. She then failed to pay extra money. The failure of the applicant to enrol in a registered course was because she wanted to find a good education provider and be a good student. Her failure to enrol was due to exceptional circumstances.

28. In the Tribunal hearing, the applicant indicated that she did not undertake any study as part of the Diploma of Accounting. This is contrary to earlier written evidence in which the applicant said that she commenced this course but learnt nothing.  In the hearing, the applicant indicated that she did not make arrangements to enrol in another course because she was busy, particularly organising her wedding. The Tribunal asked the applicant about her indication to the Department that she was busy with a job in a restaurant. The applicant said this was not correct as she was only working weekends at that point in time.

29. The Tribunal pointed out to the applicant that it would not be inclined to consider that being busy due to preparing a wedding would be considered an extenuating factor beyond the applicant’s control for the failure to study in the first half of 2015 or to be enrolled. The applicant said that she was appearing before the Tribunal because she wanted to highlight the poor teaching provided by ACMT.  The Tribunal noted to the applicant that she had been dissatisfied with the teaching quality at ACMT soon after her commencement there in April 2014. Yet, she had pursued her (minimal) studies there and had paid further fees. Given that she had claimed there was a promise that the payment of fees would alleviate the need to actually study, it might be thought that the applicant was happy with an arrangement where she could strictly maintain her obligations yet not have to undertake study. Further, the applicant had many months from her becoming dissatisfied with the courses at ACMT to enrol in another course which offered a better teaching product.

30. The Tribunal considers the Departmental PAM-3 factors.

31. In terms of the purpose of the applicant’s travel to and stay in Australia, the applicant arrived in Australia in early 2013. Her first Student visa was granted in March 2013. The purpose of the applicant being in Australia whilst holding her Student visas has been to study. The applicant gave evidence in the hearing that she studied an Advanced Diploma of Hospitality for about a year from March 2013, but passed no units in this course. This raises questions about the effort that the applicant was putting into this course. The Tribunal acknowledges the applicant’s evidence that the course was difficult, but nevertheless finds it surprising that she managed to pass not one unit.  

32. The Tribunal accepts that the applicant passed the Certificate IV in Accounting but, on the applicant’s own evidence, she was required to put minimal effort into this course. The applicant engaged in no study in the first half of 2015, or beyond. The Tribunal is not satisfied that the applicant having to prepare for a wedding justifies her not studying during this period. It is the applicant’s claim that she was not taught appropriately at ACMT.  Whilst the Tribunal makes no finding concerning the quality of the education services provided by ACMT, it seems that the applicant took no steps to make alternative arrangements, in spite of her unhappiness with the quality of teaching at ACMT. Indeed she paid further fees.  If the Tribunal were to accept that the applicant was required to do little or no work as part of the Certificate IV and the Diploma of Accounting, she made no effort to re-enrol in another more suitable course. Instead, she simply waited for the Diploma of Accounting to be cancelled, some 13 months after commencing studies at ACMT.

33. In all of the circumstances, the Tribunal considers that the applicant has put little effort into her studies since her arrival in Australia, and no effort at all in 2015 up until the cancellation of her Student visa in August 2015. The Tribunal considers that the applicant’s study record prior to 2015 has been marginal at best and has been unsatisfactory from early 2015.  The applicant, therefore, has not been fulfilling the purpose of her stay in Australia, at least since early 2015 until the cancellation of the Student visa.

34. The Tribunal has no evidence that the applicant has failed to abide by other visa conditions. The

35. In terms of a compelling need for the applicant to remain in Australia, or hardship if the visa remains cancelled, the applicant has indicated that she would like to continue with childcare studies. She indicated that she has married an Australian citizen and is waiting for an outcome on a Partner visa application, which she believes will take a couple of months to decide. The Tribunal noted that if she was in a genuine relationship then it would appear likely that the Partner visa would be granted. The applicant indicated she was not making a claim that the cancellation of the Student visa would impact adversely on the Partner visa decision. The Tribunal noted to the applicant that in an application for a 820 Partner visa, the cancellation of the Student visa would not be an issue adverse to the grant of that visa. The applicant was not clear if the particular visa was an 820 Partner visa. The Tribunal highlighted this is an issue that the applicant’s adviser may wish to provide submissions on in writing.

36. The applicant indicated that she had an unhappy childhood with a father who was a gambler and that she was a brought up by an aunt who resented having to care for her, and treated her badly. The Tribunal accepts this evidence. The applicant indicated that she was 28 years old and the Tribunal noted that she was now an adult and her childhood issues would be unlikely to impact her on return to Malaysia. Given that the hardship the applicant claims in Malaysia relates to her childhood, and that she is now an adult, the Tribunal is not satisfied that those issues constitute significant hardship for the applicant now if she were to return to Malaysia. In any event, it appears that the applicant is likely to be in a position to stay in Australia if her relationship is genuine resulting in the Partner visa being granted.

37. For the reasons outlined to the applicant in the hearing, the Tribunal is not inclined to accept that the applicant being busy having to prepare for her wedding constitutes extenuating circumstances out of her control for her failure to be enrolled in a registered course for a period of three months until the Student visa was cancelled. The applicant had an obligation to be enrolled and it was for her to fulfil this obligation, juggling her other personal commitments. On the applicant’s own evidence, she had many months from becoming aware of the claimed unsatisfactory education product offered by ACMT to make arrangements to enrol in a more suitable course.

38. The Tribunal does not consider that the claimed unsatisfactory education product offered by ACMT constitutes extenuating circumstances out of the applicant’s control for the failure to be enrolled, particularly given the lengthy time period the applicant had from being dissatisfied with the teaching quality to make arrangements to enrol in another course.

39. The Tribunal has no evidence that the applicant has engaged in an uncooperative manner towards the Department. The applicant indicated that there are no persons whose visas would be cancelled consequential upon the cancellation of the applicant’s visa.

40. Whilst, if the Student visa remains cancelled, the applicant could be an unlawful non-citizen and subject to mandatory detention, she would be eligible to apply for a Bridging visa which would make her status lawful.

41. The applicant indicated that she had no fear of serious or significant harm on return to Malaysia.

42. There is no evidence that the interests of children in Australia are affected by the cancellation of the visa.

43. The Tribunal considers all of these issues.  The Tribunal has doubts about the effort the applicant has put into all of her studies during her time in Australia. It certainly does not think that the applicant has been a genuine student since early 2015 until the Student visa was cancelled in August 2015. Whilst the fact of the applicant being a genuine student is not the basis of the ground of cancellation in this case, the Tribunal nevertheless considers this a relevant consideration in the exercise of its discretion. The Tribunal is not satisfied that the applicant’s explanation that she failed to be enrolled because she was busy preparing for a wedding constitutes an extenuating factor beyond her control. If the applicant was preparing for a wedding, she had an obligation to do that whilst fulfilling her commitment to study and be enrolled pursuant to her Student visa. The Tribunal does not think that the applicant’s claim that the education product provided by ACMT was unsatisfactory is extenuating or beyond her control, because she remained enrolled in the two respective courses for a period of 13 months without taking steps to enrol in another course. There is nothing extenuating or beyond the applicant’s control in her simply waiting for the Diploma of Accounting course to be cancelled. 

1. The Tribunal accepts that the applicant not being able to study in childcare if the Student visa remains cancelled is something of a hardship to the applicant, but gives this limited weight given the lack of progress or commitment of the applicant in relation to her past studies in Australia. The Tribunal accepts that the applicant has married an Australian citizen, but is not inclined to think that this creates a hardship to the applicant if the Student visa is cancelled given that the applicant has applied for a Partner visa which the Tribunal thinks would likely be granted if the relationship is genuine. This will enable her to stay in Australia. If the applicant is to return to Malaysia, the Tribunal does not think childhood problems will significantly affect the applicant in the future given that she is now well into adulthood.

2. In summary, the Tribunal is of the view that there are no extenuating factors beyond the applicant’s control for the breach. The breach has been reasonably significant, given three months of a failure to be enrolled whilst the applicant held the Student visa. The applicant has not been acting as a genuine student, at least since early 2015. The Tribunal is not satisfied that the hardship that the applicant would face if the Student visa remains cancelled or any other relevant factors in her favour, outweigh issues adverse to the applicant. Considering all factors, the Tribunal considers that the Student visa should remain cancelled.

3. The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

   David McCulloch

   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.