1609893 (Migration)

[2016] AATA 4841

1609893 (Migration) [2016] AATA 4841 (21 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Tashi Yangzom

CASE NUMBER:  1609893

DIBP REFERENCE(S):  BCC2016/1377272

MEMBER:Stuart Webb

DATE:21 December 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 21 December 2016 at 11:05am

CATCHWORDS

Migration – Cancellation – Higher Education Sector visa – Subclass 573 – Enrolment – Changed courses – Ceased study – Cancellation will not affect ex-spouse – No study plans or enrolment in any relevant course – No international obligations – 3 year exclusion

LEGISLATION

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

Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 June 2016 made by a delegate of the Minister for Immigration 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 delegate cancelled the visa on the basis that according to PRISMS records as included in the delegate’s decision the applicant had not been enrolled in a registered course from 13 January 2015 to the cancellation of the visa on 22 June 2016. 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 21 December 2016 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent who did not attend the hearing. The applicant provided a copy of the delegate’s decision to the Tribunal.

4. 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

5. 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)(b) of the Act, the visa may be cancelled.

   Did the applicant comply with Condition 8202?

6. 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).

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

8. The applicant provided a very limited submission to the Department in response to the Notice of Intention to Consider Cancellation (NOICC) of her visa. The applicant stated that she had decided to go back home to Bhutan and wanted some extra days to prepare.[1] After the visa had been cancelled the applicant again emailed the Department to advise that she would be leaving Australia, but wanted a Bridging Visa for some extra time. Her parents were not at home at the time and she wanted more time to tell them.  A Bridging Visa E was granted. The applicant did not go home but appealed to the AAT.

   [1] DIBP Folio 16

9. According to PRISMS records as included in the delegate’s decision the applicant had not been enrolled in a registered course from 13 January 2015 to the cancellation of the visa on 22 June 2016. The applicant confirmed this with the Tribunal.

10. 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

11. 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.

12. 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).

13. The Tribunal discussed the applicant’s study history. She completed her high school in Bhutan and came to Australia in February 2014, commencing her studies in that month. She commenced a media and arts course in Western Australia. However after 8 months she decided to stop studying that course. She stopped studying her Diploma course in October 2014. The applicant stated that she left Western Australia and came to Victoria to study psychology at Victoria University. However she was told she needed a release letter from Murdoch University, her principal course provider. The applicant stated that she sought this release but it was refused, with Murdoch stating that she had not studied 6 months with them. The Tribunal noted that the applicant had studied more than 6 months with MIT in the Diploma course. The applicant stated she discussed returning to Western Australia to study but that the course had commenced.

14. The Tribunal noted the information in the delegate’s decision that her enrolment had been cancelled at Murdoch in January 2015. The Tribunal questioned why the applicant had not enrolled after that time. The applicant stated that an education agency told her that she needed a release letter. The Tribunal noted that Murdoch had released her by cancelling her enrolment in January 2015. The applicant claimed to have found this out in May 2016. The Tribunal questioned this, noting that the applicant had failed to commence her degree course that commenced at the start of 2015. The Tribunal noted it was pretty clear that the applicant had stopped her studying in MIT and Murdoch some time ago.

15. The Tribunal asked what the applicant had been doing in the 17 months from the cancellation of the enrolment to the cancellation of her visa. The applicant stated she had been doing nothing, she had been staying at her cousin’s home. She had been supported financially by her parents during this time. The Tribunal noted that this was an extended period of the applicant doing nothing, given she was in Australia to study.

16. The Tribunal noted that the applicant had told the department she was going home. The applicant stated she had decided to go home, but then chose not to do so. She changed her mind because she wanted to get a qualification, her parents expect a lot from her. She had not told her parents about her not studying, her mother had been unwell but was now better.  The applicant also stated that she had not told her parents that she had separated from her husband, who was presently studying in Perth. This also happened around October 2014.

17. The applicant stated that she still wanted to study psychology, and wanted a chance. The Tribunal asked if the applicant had sought any offers of enrolment in any course. The applicant stated she had not. The Tribunal questioned what assistance her agent had provided her. The applicant stated he had submitted some documents to the Tribunal. The Tribunal noted that the only documents submitted were the application forms and accompanying documentation. The agent had also relayed the request for a hearing adjournment, which had been refused. No other submissions had been received.

18. The Tribunal asked what plans the applicant had on return to Bhutan. The applicant stated she was unsure. She confirmed she would return to live with her parents.

19. The Tribunal has considered the information before it. The applicant had enrolled in a course but found it was not to her liking. At the time her relationship with her husband was ending. The applicant came to Melbourne from Perth to pursue a different course. The applicant stopped studying in October 2014, and did not study again in Australia. The applicant had some administrative issues arising from leaving her course. However this does not explain the applicant failing to enrol in a registered course from January 2015 onwards, when Murdoch cancelled her higher degree enrolment. The applicant claims to have been ignorant of this cancellation, however the Tribunal noted that the applicant could have determined this from her failure to actually study the course when it commenced. The applicant did nothing further to resolve the administrative issues that had existed or enrol in a course of her choosing, which was available to her from January 2015. She did nothing in the intervening period until her visa was cancelled in June 2016, a 17 month period. The Tribunal explained that the purpose of the applicant being in Australia was to study, something she had not done since October 2014, with no enrolment since January 2015. The Tribunal explained that this was a significant issue.

20. The applicant has not told her parents about her circumstances, her study or relationship failures. The applicant stated that this was initially because her mother was unwell, though she is now recovered. They also have expectations of her, which is reasonable. The Tribunal notes that it has been the applicant’s own actions have led to the failed education outcome that has occurred. The Tribunal notes that the failure to gain a qualification will have an effect on the ability of the applicant to get future employment on return to Bhutan, the applicant stating she had not decided what work she would do on return. The Tribunal considers that it has been her own actions that have led to that outcome. The applicant also accepts that the applicant’s parents will be disappointed in the applicant’s failure to gain a qualification, seeing they have been funding her while in Australia. The Tribunal notes that the applicant stated that she would be able to stay with her parents on return to Bhutan.

21. The applicant has not presented any information to demonstrate that she has opportunities to study in the future, despite this being her stated aim. She has had an agent who does not appear to have assisted the applicant in presenting a case as to why her visa should be reinstated. The applicant provided no information about any courses she has investigated or received offers of enrolment should she have a student visa.

22. The applicant’s husband came to Australia with her, though they have separated. The applicant stated that he is studying in Perth. The Tribunal does not consider that the cancellation of the applicant’s visa would affect the applicant’s ex-husband unduly, given his present studies. The Tribunal places no weight on this consideration.

23. The Tribunal noted that there did not appear to be any international obligations evident in the circumstances. The Tribunal also noted that the applicant would be subject to a 3 year exclusion because of the cancellation of the visa.

24. The Tribunal has considered these matters. The applicant has been in Australia for an extended period, of which she has completed 8 months of studies. She has not studied since October 2014, or been enrolled in a registered course since January 2015, despite this being the reason she was permitted to remain in Australia. She has done nothing to rectify this situation, either enrolling or studying in the 17 months after her enrolment was cancelled, or investigating study options after her visa was cancelled in June 2016. The Tribunal does not accept that the applicant has plans to return to studies in Australia given her past history. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Stuart Webb
    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.