1700870 (Migration)

[2018] AATA 5004

1700870 (Migration) [2018] AATA 5004 (5 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1700870

MEMBER:Jason Pennell

DATE:5 October 2018

PLACE OF DECISION:  Melbourne

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

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 5 October 2018 at 10.58am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) – Subclass 572 (Vocational Education and Training Sector) – breach of enrolment conditions – multiple subclass 572 visas – completed courses – skills to achieve career goals – use of visa program to maintain residency – decision affirmed

Secondary applicants – automatic visa cancellation – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 8 condition 8202

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision dated 9 January 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2.The delegate cancelled the visa on the basis that the applicant had not complied with a condition of the visa. 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.For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.

4.The applicants appeared before the Tribunal on 21 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

5.The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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.

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

Did the applicant comply with Condition 8202?

9.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).

10.The applicant is a citizen of the republic of India. She was born in Hyderabad, India on [date]. Her parents continue to live in Hyderabad. She has three brothers and one sister. Her eldest brother lives in Australia while the rest of her siblings continue to live in India. The applicant attended school in Hyderabad until intermediate level[1] and was married to husband, [Mr A] in 2006. 

[1] Applicants MRT Submission dated 7 February 2018

11.The applicant’s movement records indicate that the applicant was initially granted a Vocational Education and Training Sector visa (subclass 572) on 23 July 2009 and arrived in Australia with her husband on 4 September 2009. She was subsequently granted two further Vocational Education and Training Sector visas (subclass 572) on 16 August 2011 and 18 March 2014 respectively.

12.Relevantly, the Provider Registration and International Student Management System (PRISMS) records that initially the applicant enrolled in a Certificate III in Printing and Graphic Arts and Multimedia course commencing on 6 July 2009. The applicant returned to India for treatment of a tooth ache from October 2009 to December 2009.[2] On 3 February 2010 the applicant was granted a deferment/ suspension of her course for compassionate reasons due to her pregnancy. On 23 July 2010 the applicant ceased her studies in the course. The applicant did not complete the course. The applicant says that despite having submitted all her assignments she was not able to attend all the classes due to being pregnant at the time. As a result the applicant says that the education provider would not provide her with a completion certificate.[3] 

[2]    Applicants MRT Submission dated 7 February 2018

[3]    Ibid

13.The applicant then enrolled in a Certificate IV in Business and Diploma of Business commencing on 7 March 2011.  On 9 March 2011 the applicant was granted a deferment of the course due to the fact that she was pregnant. The applicant returned to India to have her baby.  On 28 November 2011 the applicant complete the Certificate IV in Business. On 30 September 2012 the applicant completed a Diploma in Business. 

14.On 15 August 29012 the applicant enrolled in a Diploma of Interactive Digital Media but cancelled her enrolment in the course on 17 December 2012.

15.On 15 October 2012 the applicant enrolled in a Certificate III in Hospitality (Commercial Cookery), Certificate IV in Hospitality (Commercial Cookery) and Diploma of Hospitality. The applicant completed the courses on 20 March 2015. On 22 October 2014 the applicant was granted a deferment of her studies to return to India due to the death of her father in law.

16.On 25 May 2015 the applicant commenced an Advanced Diploma of Hospitality. The applicant was granted a deferral of studies from 31 July 2015 to 20 August 2015 during which she returned to India to due to her mother in law becoming ill and subsequently dying.  However, the applicant did not re commerce her studies after the deferral period. As a result her last day of study was 20 July 2015.

17.The applicant’s enrolment was cancelled on 5 April 2016 and her visa was cancelled on 9 January 2017.

18.Condition 8202(2)(a) states that the visa holder meets the visa requirements if the visa holder is enrolled in a registered course. Based on the evidence available to the Tribunal, including PRISMS and the applicants submissions dated 7 February 2018, it finds that the applicant has not been enrolled in a registered course of study since 5 April 2016, in breach of her visa conditions.  

19.On 22 November 2016 the applicant was sent a notice of intention to consider cancellation of Student (Temporary)(class TU) Vocational Education and Training Sector (subclass572) visa under s.116 of the Migration Act 1958 (‘the NOICC’). In her response[4] to the NIOCC the applicant conceded that there were grounds for cancelling her visa but stated that it should not be cancelled because:

(a)It was her dream to study in Australia and that she has already completed the certificate III, certificate IV and Diploma of Hospitality.

(b)Her husband was depressed as both parents passed away last year and that she was also very disturbed by their passing.

(c)After she became pregnant she felt terribly weak, suffering for vomiting, nausea and dizziness. The applicant stated that she was calling her mother for help.

(d)The applicant wanted to finish her course and have a certificate.

[4] Applicants response to the NOICC was dated 29 November 2016; Decision record dated 9 January 2017; Department File No [deleted]

20.The applicant provided the Tribunal with the following documentation prior to the hearing on 21 September 2018:

(a)Applicants MRT Submissions dated 7 February 2018.

(b)Republic of India Passport [number deleted]of[Child 1], DOB[deleted].

(c)Republic of India Passport [number deleted]of [Child 2], DOB [deleted].

(d)Republic of India Passport [number deleted]of [Child 3], DOB[deleted].

(e)Republic of India Passport [number deleted]of [Child 4], DOB[deleted].

(f)Republic of India Passport [number deleted]of [the applicant]DOB [deleted].

(g)Republic of India Passport [number deleted]of [Mr A], DOB [deleted].

(h)Letter of Offer from [Educational Institution 1] dated 6 February 2018.

(i)Acceptance of Agreement [Educational Institution 1].

(j)Letter by [Educational Institution 2]dated 11 June 2013.

(k)Statement of Academic results [Educational Institution 3] dated 10 June 2011.

(l)Statement of Results, Certificate IV in Business, [Educational Institution 4], dated 22 March 2013.

(m)Statement of Results Diploma of Business, [Educational Institution 4], dated 22 March 2013.

(n)Completion Letter for Diploma of Hospitality, [Educational Institution 5].

(o)Completion Letter for Certificate IV in Hospitality (Commercial Cookery), [Educational Institution 5].

(p)Antenatel Record Curewell Hospital.

(q)Radar medical Imaging Report dated 11 May 2010.

(r)Medical Report of [a doctor].

(s)Medical Report [Dr B] dated 19 October 2015.

(t)Medical Report [Dr B] dated 13 April 2016.

(u)Medical Report [Dr B] dated 24 November 2016.

(v)Medical Report [Dr B] dated 27 January 2017.

(w)Medical Report [Dr B] dated 29 January 2018.

(x)Birth certificate of [Child 5] dated [deleted].

(y)Letter from [Educational Institution 3] dated 24 November 2009.

(z)Letter from [Educational Institution 3] dated 19 January 2010.

(aa)[Educational Institution 3] Complaint Form signed by applicant.

(bb)[Educational Institution 3] request for withdrawal signed by applicant dated 21 July 2010.

(cc)[Educational Institution 4] Student Deferral Form dated 1 September 2010.

(dd)[Educational Institution 4] Student Deferral Form dated 1 September 2010.

(ee)[Educational Institution 4] Student Deferral Form dated 23 August 2010.

21.The Tribunal has considered all the documentation provided by the applicant in making its decision.

Consideration of the discretion to cancel the visa

22.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’

Applicants purpose of traveling and staying in Australia.

23.During the course of the hearing the applicant confirmed that her intended purpose was to remain in Australia and study an Advanced Diploma of Business.

24.The Tribunal is satisfied that the applicant’s intention at the time of the visa application does not constitute a reason not to cancel her visa. The applicant did not maintain her enrolment in a registered course in accordance with her visa conditions. The applicants conceded to the Tribunal that she had breached condition 8202(2)(a) by failing to be enrolled in a course from 5 April 2016. The applicant failed to maintain her enrolment in a registered course until the cancellation of her visa on 9 January 2017, a period of approximately 9 months, while remaining in Australia on a visa granted for the purpose of study.

25.Accordingly, the Tribunal gives little weight to the applicant’s statement that the purpose of her traveling and staying in Australia was to study

Compliance with visa conditions

26.The applicant was not enrolled in a registered course from 5 April 2016. The applicant visa was cancelled on 9 January 2017. As such she had remained in Australia without having complied with the conditions of her visa, a period of approximately 9 months. The Tribunal considers the period of non-compliance to be significant.

27.The Tribunal considers that applicant’s non-compliance with his visa conditions is significant and as such gives little weight in favour of the applicant in considering this factor.

The degree of hardship that may be caused to the Applicant. 

28.The applicant evidence was that she wanted to complete an Advanced Diploma of Business so that she could return to India and obtain a better position in the hospitality industry or open her own business. Her evidence was that she in the event her visa was cancelled she would be prevented from completing her studies and therefore would not be able to obtain better employment or pursue her wish to open her own business.   

29.The Tribunal accepts that by not completing an Advanced Diploma of Business the applicant may be restricted from obtaining a better position, including a management position, in the hospitality business industry in the event that she returns to India.  However, the applicant has already completed a Certificate IV in Business and a Diploma in Business together with a Certificate III and IV in Commercial Cooking and a Diploma of Hospitality. The hospitality courses are generally designed to train students in kitchen management, finance management and team management to enable them to become a qualified cook, commis chef, kitchen manager or owner operator of a hospitality business. Presumably the business courses will assist the applicant in her desire to own or operate a hospitality business in India as claimed.  Therefore, it appears that the applicant has already received the necessary training to achieve her goal of being qualified to find better employment or to establish her own business.

30.The Tribunal notes that in the event that the applicant’s visa is cancelled, under s.48 of the Act she may have limited options available to her if applying for further visa in Australia. In addition she will be subject to Public Interest Criterion 4013 which means that she may not be granted a temporary visa for three years from the date of cancellation.

31.Nevertheless, the Tribunal acknowledges that if the applicant’s visa is cancelled she will suffer some hardship by having to return India without an Advanced Diploma of Business and as such has given some weight to hardship the applicant may suffer in the event that her visa is cancelled in making its decision.

The circumstances in which the grounds for cancellation arose

32.The applicant conceded to the Tribunal and in her response to the NIOCC[5]  that there were grounds for the cancelation of her visa. However, she stated that her visa should not be cancelled by reason that:

(a)It was her dream to study in Australia. The applicant referred to the fact that she had already completed the Certificate III & Certificate IV in Commercial Cooking, a Diploma of Hospitality as well as a Certificate IV in Business and a Diploma in Business and wanted to complete an Advanced Diploma of Business before returning to India.

(b)The applicant and her husband had suffered from depression as a result of his parents having away.

(c)The applicant had suffered from extreme tiredness, vomiting, nausea and dizziness during her pregnancy causing her to be unable to study or attend classes.

[5] Applicants response to the NOICC was dated 29 November 2016; Decision record dated 9 January 2017; Department File No [deleted]

33.In relation to it being the applicants dream to study in Australia, the Tribunal accepts that initially it was her intention to obtain a qualification in Australia that would enable her to obtain a better position.  The applicant arrived in Australia with her husband and eldest daughter in 2009 during which time she has completed a Certificate III & Certificate IV in Commercial Cooking, a Diploma of Hospitality as well as a Certificate IV in Business and a Diploma in Business. In addition, since arriving in Australia the applicant has had three children. While the applicant maintains that it is her desire complete an Advanced Diploma of Business and return to India, her actions indicate that her true intention is to make a life for her and her family in Australia. The applicant has not displayed an intention of traveling to Australia on a temporary basis for the purposes of engaging in a particular field of study. Rather, the applicant has engaged in a number of unrelated fields of study and deferred courses she has been enrolled causing her stay in Australia to be continually extended for the purposes of permanent migration rather than to studying on a temporary basis. The renewal of student visa’s sought and obtained by the applicant has allowed her and her family to remain in Australia on what is effectively become a permanent basis.

34.Therefore, even if the applicant was able to maintain the conditions of her visa and commence and complete the Advanced Diploma of Business as she claims, the Tribunal does not accept that the applicant is a genuine student. It does not accept that she has a genuine desire to complete an Advanced Diploma of Business for the purposes of owning or operating a hospitality business in India as claimed and finds that the purpose of the visa is for migration purposes rather than as a genuine student.

35.The applicants claim that she had suffered depression and anxiety as a result of her in-laws passing away in or about 2015. However, contrary to the applicant’s evidence, her husband’s evidence was that his father had passed away in 2013 with his mother passing away in 2015. The Tribunal accepts the evidence of the applicant’s husband and finds that the applicant’s father-in-law passed away in or about 2013 and the applicant’s mother-in-law passed away in or about 2015.  The Tribunal notes that the applicant was able to comply with the conditions of her visa at and around the time of her father in-laws death in 2013 and the birth of her son, [Child 2] on [date].

36.The applicant husband’s evidence was that he did not return immediately to India upon his mother’s death but rather returned in early 2016 to finalise the settlement of her estate. Therefore, despite his grief, the applicant’s husband made a conscious decision not to travel to India immediately upon his mother’s death but rather to defer his return for the settlement of his family’s affairs.

37.Therefore, while the Tribunal accepts that both the applicant and her husband would have been upset by the death of each of the applicants in-laws, in the absence of any independent evidence as to the applicants condition resulting from their passing, it does not accept that the applicant suffered from such depression and/or grief over the death of her in-laws such that she was not able to comply with the conditions of her visa. 

38.Finally, it was the applicant’s evidence that that she suffered from extreme tiredness, vomiting, nausea and dizziness during her pregnancy causing her to be unable to study or attend classes. The applicant finished a Diploma of Hospitality on 20 March 2015 and commenced an Advanced Diploma on 25 May 2015. On 31 July 2015 the applicant was granted a deferral of her studies from 20 July 2015 to 20 August 2015. The applicant’s evidence was that she deferred her enrolment in Advanced Diploma of Business due to her pregnancy. However, the applicant failed to commence any course after the deferral period and claims that she had not commenced any course of study due to complications she was suffering as a result of her pregnancy, in particular vomiting nausea and dizziness.

39.The applicant provided the Tribunal with copies of medical reports from  [Dr B]. The Tribunal has considered [Dr B] reports and notes that they generally describe the applicant’s condition in broad terms and fail to provide specific details as to extent and severity of her condition how it would prevent her from complying with the conditions of her visa. In particular, the report dated 19 October 2015 estimates the date of the baby’s birth to be [date]. The report states that she attended the clinic with ‘early pregnancy complications’ and that she is ‘extremely week and tired.’ However, the report fails to identify precisely the complications experienced by the applicant and fails to detail any consultations or examinations that had been performed to determine the extent and severity of her condition. Finally, the report fails to detail how her condition would affect her studies, her ability to attend classes or advise the department of her circumstances.

40.The applicant did not provide any specialist evidence that she would not be able to comply with the conditions of her visa. That is, being enrolled in a registered course.

41.While the Tribunal accepts that during her pregnancy the applicant suffered complications including pain and discomfort in her lower abdomen, it notes that the applicant had been pregnant on at least two previous occasions while she had been studying in Australia. It was the applicant’s evidence that on each occasion she had suffered similar complications of severe pain, nausea and tiredness. Her evidence was that on both occasions she had deferred her studies as a result of her pregnancy. Despite having suffered from similar complications during each of her previous pregnancies, she had been able to maintain her enrolment in a registered course in accordance with her visa conditions. [Dr B]’s reports states how the applicant’s condition was different from her previous pregnancies to the extent that she was not able comply with the conditions of her visa.

42.Therefore, in circumstances where the applicant was aware of her visa conditions and had maintained her enrolment in a registered course during two previous pregnancies in 2010 and 2013, the Tribunal does not accept the applicant evidence that that she had not been enrolled in a registered course from 22 July 2016 by reason of complications she had experienced (severe pain, nausea and tiredness) as a result of her pregnancy.

43.Accordingly, the Tribunal gives no weight to the applicant’s statement that she breached the conditions of the visa due to complications with her pregnancy and birth of her child in April 2016. Accordingly, the Tribunal places no weight on this consideration in the applicants favour.

Past and present behaviour of the applicant

44.The applicant has been cooperative and courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight is given to him in consideration of this factor.

Persons in Australia whose visa would be cancelled under s.140.

45.The following people whose visas will be cancelled under s.140 of the Migration Act 1958 (‘the Act”) as a result of the applicants visa being cancelled are:

(a)[Mr A]

(b)[Child 4]

(c)[Child 2]

(d)[Child 3]

(e)[Child 1]

46.In this case the applicant’s husband and children were granted visa’s solely on the basis of being a member of the family unit of the applicant. As a result, the cancellation of the applicant’s visa would mean the consequential cancellation of her husband and children’s visas. 

47.The Tribunal has considered the Convention of the rights of the Child (CROC) and whether the cancellation would not be in the best interests of the applicant’s children. There is no evidence to suggest that cancellation of the applicant’s visa will result in the separation of the applicant and her children. Accordingly the Tribunal is satisfied that the potential consequences of cancellation of the applicant’s husband and her children’s visas will not provide significant reasons not to cancel the visa.

48.Accordingly, the Tribunal places no weight on this consideration in the applicants favour.

Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled.

49.The circumstances of this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision. 

Other relevant factors

50.Having considered the evidence presented by the applicant and her husband at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case. 

51.Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

52.The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa.

53.The Tribunal has no jurisdiction with respect to the other applicants.

Jason Pennell

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.