1704042 (Migration)

[2019] AATA 983

1704042 (Migration) [2019] AATA 983 (10 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1704042

MEMBER:Margie Bourke

DATE:10 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 10 January 2019 at 1:18pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – not enrolled in a registered course of study – financial, psychological and emotional hardship – cessation of financial support from family – decision under review set aside and substituted

LEGISLATION
Migration Act 1958 (Cth), s 116
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 27 February 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that at the time of decision in February 2017 the applicant had not been enrolled in a course of study since 22 December 2016, and after assessing the relevant factors the delegate decided to cancel 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. The applicant appeared before the Tribunal on 7 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence a friend of the [applicant]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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?

7. 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).

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. Based on the evidence before me, including the Confirmation of Enrolment and transcripts of results in 2016, and the applicant’s oral evidence, I am satisfied the applicant arrived in Australia in September 2014 as the holder of a Subclass 573 student visa. The applicant undertook two English courses at the [School 1] English Language Centre between September 2014 and July 2015.  The applicant then was enrolled in and studied commercial [cookery] at the [School 1] Business College in July 2015.  The applicant did not like this course, she found it too hard and was not good at it. When she was able she transferred to another course at another college.

9. Based on the transcript of result, I am satisfied the applicant the applicant enrolled in [accounting] at [School 2]. The course completion date is 22 December 2016. The applicant’s result’s record she achieved competency in only one subject.

10. The applicant stated she did not complete the accounting course of study and did not enrol in another course of study after the accounting course. I am satisfied the applicant was not enrolled in a course of study after the [certificate] in accounting at [School 2]. I am satisfied the applicant was not enrolled in a course of study after 22 December 2016.

11. The applicant provided the tribunal with a copy of the Department’s decision record.  I have noted the Department’s decision record is incorrectly dated 6 February 2017. The notification of the decision is dated 27 February 2017.  The applicant was notified of the intention to consider cancellation of her visa by letter dated 17 February 2017.  The Department, the applicant and her representative all accept the Department decision record is incorrectly dated, and for the purposes of this review the correct date of the Department’s decision is 27 February 2017.

12. On the evidence before the Tribunal, the applicant was not enrolled in a registered course from 22 December 2016, and was not enrolled in a registered course of study in February 2017.  Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

13. 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’.

14. Purpose of the applicant’s travel and stay in Australia – the applicant came to Australia to study and to obtain a certificate to assist her to obtain employment or establish a business at home in Vietnam.  The applicant stated she did not complete high school in Vietnam so for the purposes of obtaining employment or establishing a business, she “has nothing”.   The applicant stated she had hoped to set up a ‘hot spot BBQ/restaurant at home.  She stated after doing the commercial cookery course which she did not like and was not good at, she thought she should obtain a certificate in business management rather than cookery skills. 

15. The applicant stated her parents had worked, (and her mother still works), buying and selling [products].  The applicant stated her father has died, and she has responsibility to help support her younger brother. The applicant stated that she would be ashamed to return to Vietnam without a certificate.  She stated her mother has supported her financially now for four years, and she wishes to have a certificate that she completed a relevant course of study to show she achieved from her mother’s support.  The applicant stated that when her father was dying, he had wanted her to remain in Australia and obtain her certificate.

16. I give all this evidence significant weight as compelling reasons for the applicant to continue to travel and stay in Australia for the purpose of studying. 

17. I have also considered that the evidence at the hearing is not consistent with the applicant’s choice not to complete the commercial cookery course [certificate] because it was too hard and she did not like it.  I have taken into account the applicant’s age when she made the decision not to complete the commercial cookery course, which meant she did not achieve a certificate for completing a course.  Overall I accept the applicant has a compelling need to remain in Australia to obtain a certificate of completion of a course of study, and I give this significant weight in favour of the applicant.

18. The extent of compliance with the visa conditions -  there is no evidence that the applicant did not comply her visa conditions from September 2014 until December 2016 when she was not enrolled in another registered course of study.  I give this limited weight in favour of the applicant.

19. Degree of hardship that may be caused to the applicant – I accept there would be substantial hardship to the applicant if the visa is cancelled.  The applicant has not completed high school in Vietnam, and states she came to Australia to obtain a certificate to assist her to obtain employment or to establish a business in Vietnam.  The applicant claims she “has nothing” if she does not have a certificate when she returns home. I accept the applicant’s father asked her to remain in Australia and obtain this certificate when he was terminally ill, which adds psychological pressure to the applicant.

20. I have considered the evidence of the applicant and her representative that the applicant did not return home to Vietnam when her father was dying, or for his funeral because she was advised by her representative that the terms of her bridging visa prevented her from returning to Australia if she departed. The applicant and her representative did not apply to the department for permission for the applicant to return to Vietnam to visit her father or to attend the funeral. The applicant provided the tribunal with a copy of her birth certificate, her father’s medical reports and insurance letters, and her father’s death certificate; I am satisfied the applicant’s father died [in] May 2017 after an illness.  I accept that the applicant now realises that she wasted time ascertaining the right course for her to study.  I find that the applicant could have applied herself and completed the commercial cookery course even if she did not like it and it was hard. These matters are important in the circumstances where the applicant did not return home to see her father when he was ill, or to attend his funeral, and when he has asked her to come back to support the family after she has obtained her certificate. I accept that the applicant is committed to completing a course of study so she can assist to provide financially for her younger brother and mother.

21. I accept there would be financial, psychological and emotional hardship for the applicant if the visa is cancelled, and she is unable to complete a registered course of study, and I give this significant weight in favour of the applicant.

22. The circumstances in which the cancellation arose – the applicant provided written and oral evidence that in 2016 her parents separated in volatile circumstances which led to the cessation of her financial support. The applicant’s friend gave evidence that in October 2016 the applicant moved in with her, and she financially supported the applicant by not charging her any board and providing all food. The witness stated she was aware of the applicant’s parents’ separation, of the applicant’s financial distress, and of the applicant’s father’s illness, and then death in May 2017.  The witness stated the applicant was quite distressed during the time they lived together.

23. I accept that the applicant’s parents provided a financial guarantee with their support for the visa, but I have considered their circumstances changed dramatically, where the parents separated in volatile circumstances, the father then drank excessively, and became terminally ill.  The applicant attempted to provide accommodation and support herself, but she was affected financially and emotionally by her parents’ situation. I accept that the applicant could not maintain her studies or cover the cost of tuition fees.

24. I give the circumstances in which the cancellation arose significant weight in the applicant’s favour, and accept to some extent these circumstances were beyond the control of the applicant.

25. Past and present behaviour of the the applicant towards the Department – there is no evidence that the applicant has been unco-operative with the Department at any time, and I give this some weight in favour of the applicant.

26. Consequential cancellations – there is no evidence that any other visa holder would be affected by the cancellation of the applicant’s visa.  I give this no weight.

27. Mandatory legal consequences – the cancellation would have some legal consequences for the applicant, including limitations on the applicant in applying for further visas, and the applicant would be unlawful which may have consequences.  I give these factors some weight in the applicant’s favour.

28. International obligations –there is no evidence that Australia’s international obligations would be breached if the applicant’s visa is cancelled.

29. I have considered all the circumstances relevant to whether the applicant’s visa should be cancelled. After assessing all the circumstances as a whole, the tribunal concludes that the visa should not be cancelled.

    DECISION

30. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Margie Bourke
    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.