1708825 (Migration)

1708825 (Migration) [2018] AATA 5910 (28 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1708825
MEMBER:Helen Kroger
DATE:28 February 2018
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 28 February 2019 at 2:02pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – family health issues – financial hardship – no deferral of studies sought – decision under review affirmed
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, 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

This is an application for review of a decision dated 7 April 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The applicant, [named], an Indian national, was granted a visa on 29 September 2015 for the purpose of studying in Australia.
On the 7 April 2017, [the applicant] was sent a Notice of Intention to Consider Cancellation of her student visa inviting her to comment on a potential breach of condition 8202 which was imposed on her visa. The applicant did not respond to the delegate’s invitation.
The delegate cancelled the visa on the basis that that the applicant has not maintained enrolment in a registered course and the grounds for cancelling the visa outweighed the grounds for not cancelling 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.
The applicant provided a copy of the delegate’s decision to the Tribunal and appeared before the Tribunal on 11 February 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
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
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?
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant was invited to respond to the NOICC on the 7 April 2017 and did not provide comment. The applicant submitted a written explanatory statement to the Tribunal on 4 February 2019 that outlines the circumstances after her arrival in Australia. At the hearing, the alleged breach (as discussed by the delegate in his/her decision), was put to the applicant and reference was made to the delegate’s decision record that she had not been enrolled in a registered course of study since 12 July 2016. This was not disputed by the applicant during the hearing who provided a reason as to why she didn’t continue her studies.
On the evidence before the Tribunal, namely the applicant’s admission during the hearing and the explanatory statement sent to the Tribunal, dated 4 February 2019, the Tribunal finds that 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
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’.
The Tribunal has considered the applicant’s evidence provided at the hearing along with the written documentation provided to the Tribunal on the 4 February 2019, including the applicant’s explanatory statement, mobile phone records and a course assignment the applicant had completed.
The information provided to the Tribunal at the hearing has been considered by the tribunal in its exercise of discretion as outlined below.
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The applicant is [age] years of age, an Indian national who travelled to Australia in 2015, for the purpose of studying [two courses] at the [specified college]. She claims that her parents paid $8000 up front for the College fees and that they also gave her $1500 towards living costs, with the intention that this would enable her to settle in Australia for a period of time. The applicant explained to the Tribunal that she studied for 4 months, and that during this time, she faced a number of challenging circumstances, including financial and extended family issues that emotionally affected her.
The applicant submitted at hearing that she came to Australia to study after completing her Year [number] equivalent as she had many friends who had pursued higher studies in different countries, claiming that it is an opportunity to provide greater scope for employment. She claimed that she initially lived with a relative of a former teacher, who took all her money and requested that she provide a mobile phone for her, an account that she was liable for the associated payments, payments that she made for over 12 months.
At the same time, she claims that she was emotionally upset with her brother’s health issues and the death of her [Relative A] that occurred in February 2016 and July 2016 respectively. She explained it was these circumstances that led her to drop out of her studies. She confirmed at hearing that she did not seek to defer her enrolment or return home to deal with her families personal circumstances. She claims that she telephoned her education provider in December 2016 to discuss her problems but there is no documentation before the Tribunal to indicate that she submitted a claim for compassionate and compelling circumstances and she told the Tribunal that she did not seek to defer. In her written explanatory statement to the Tribunal she said:
I thought my enrolment and COE still maintained. I visited my college in January 2017. I came to know my CoE had been cancelled. I did argue with staff that college never approached me and I have not received any correspondence from college side. I talked with a student support officer. Then college is provided me a CoE cancellation letter.
The applicant explained at hearing and in her explanatory statement to the Tribunal, dated the 4 February 2019, that she had moved residence and hadn’t been able to update her personal details:
After that I visited to education consultant: [Company 1] for a new CoE on 14 February 2017. As I was waiting for my new admission (Proof attached), after few days I got a call from Department of Immigration and officer asked about my new address because I couldn't update my new address and my contact number anywhere. After that I got the notice of consider cancellation from the Department of Immigration. Again I visited back to [Company 1] to discuss about that matter. Staff from [Company 1] didn't give me a right advice. I visited other agents as well but I was not well aware about these things and visas and visas conditions. Apart from answer back to Immigration Department in regards of Notice to Cancellation, [Company 1] advised me to apply for another visa (which visa I did not know- but I came to know later, agent applied my tourist visa to get me back on track) Later they withdrawal my tourist visa application as after cancellation of my study visa on 07 April 2017. My brain was totally stuck and I didn't have enough money because I spent too much money to consult with different agents.
The Tribunal accepts that the applicant commenced her course upon her arrival in Australia and that she dropped her studies after facing difficulties as outlined above, and that she has not been enrolled in a registered course of study since 12 July 2016, notwithstanding the condition 8202 attached to her student visa. The Tribunal has regard to the applicant’s submission as outlined above, and accepts that she visited the College in January 2017 when she was advised that her COE was cancelled and she endeavoured to apply for another COE. The Tribunal has considered her claim that she was unaware of the status of her enrolment and has considered the responsibility attached to the COE and visa that requires a visa holder to notify various parties of changes to personal contact details. The Tribunal does not consider it unreasonable to expect the applicant to advise the education provider and Department of address changes and any other changes to contact details, to enable effective communication, and accordingly gives little weight to the applicant’s claims in relation to communications with the education provider and greater weight to considerations in favour of cancelling the visa.
Given the significance of the breach in which she was not enrolled, her admission to the Tribunal that she studied for a period of only four months, and that she did not advise her education provider or the Department of her changed circumstances, seek to defer her course or consider returning home to address the personal circumstances, the Tribunal finds that these circumstances outweigh any weight given in favour of not cancelling the applicant’s visa.
Circumstances in which the ground for cancellation arose
The applicant explained to the Tribunal the circumstances that were imposed upon her from her first landlord after her arrival in Australia, the subsequent difficulty she experienced in coping with the knowledge of her brother’s kidney problems and the later death of her [Relative A]. In the written explanatory submission to the Tribunal, dated 4 February 2019, she expands upon these individual occurrences in her written explanatory statement which is extracted below:
l got my student visa on 29th September, 2015. I came in Melbourne [in] October 2015. I didn't have any relatives in Melbourne. So the real sister of my IELTS coaching teacher ([named]) picked me up from the Melbourne airport. When I came here I realised that the whole environment was totally different as compare to my own country (INDIA). I was feeling very alone, I got only $1500 from my parents. After 3-4 days the relative of my teacher, who picked me from the airport, asked for $1000 and that she wilt return me after few days. I was little bit nervous because I didn't have much money at that time. I had no job and had not any another place to stay. Therefore I gave $1000 to her. I didn't have any friends who could help me. There were 8 people living in that house and it was two bedroom house. I used to face lots of difficulties in that house. I slept on a small sofa every single night because they didn't provide me a bed or room. It was very difficult time for me. I didn't eat food for some days then I became sick. Being from a well settled family in India and here living was so hard that it was very hard to cooperate. Due to cultural shock I missed my country and my family very badly. Later when I ran out of money, I asked from same lady to give my money back because I had to see the doctor as I was suffering from high fever and stomach infection because of poor diet. I visited doctor in November 2015. I didn't got my medical insurance card yet but I had my health insurance with me and I went to see doctor but they said that I have to claim money later but I didn't have money to pay at that time. The lady what was happened with me in this house. But being new in the country I could not leave that house and at the same time she was literally begging for a phone. Because she told me that her phone was broken. She wanted a new phone on my ID and under my name. I was against that thing but She keep telling to me like I will pay the bills on time while at the same time period I thought if I did not buy a phone for her she will get upset and I was worried she will kick me out of the house. I bought her l-phone_6 on plan from Optus mobile number- [Number 1] (Proof attached). She also got another shared sim card of Vodafone mobile number- [Number 2]. I was using mobile number of vodafone- [Number 3]. I met with a boy name [name] in January 2016 who used to live with a same family in 2014. He also told me everything about her. He explained, she (lady) is very cruel and money minded and always use a person for her good. I was totally shocked because I already bought phone for her. I start thinking about that matter. After some days I talked with my family and my brother. But my brother told me about his kidney problem.
His right kidney stopped working, he was crying over the phone. Then my father told to me they already visited too many doctors and they said to see kidney specialist because the condition of my brother was deteriorating day by day. He is only brother of mine and I am very close to him. I wanted to go back but I couldn't because of my classes and financial conditions. It happened in February 2016. I was very upset and worried about my brother's medical conditions.
At that time I moved to [another town]. Because I got a job over there in 2016. Suddenly my brother's condition became very serious. Then he admitted in [a specified] hospital on 16 March 2016. Doctor said we have to operate of my brother kidney as soon as possible. The doctor said we do not have any another alternate because he was in serious condition. My parents called me and they told me about all of this. His operation took more than 8 hours. Those days my heart totally sank in depression. I totally forgot about my study and my job. I was thinking about my family and the money which I earned from my job I was paid to debt companies. Because lady did not pay off phone bills and I got letters from debt recovery agencies. 0
My brother was in painful condition till 3-4 months. My [Relative A] got heart attack because of my brother condition and she died on [a date in] July 2016. It was a very very bad phase of my life. Everything was happened in a short period of time. I was suffering from anxiety because of my brother disease and after death of my [Relative A] with whom I was so close. She was a big support system of my family and when she passed away we all were shattered. I stopped going to my college and work.
The Tribunal has sympathy for the circumstances as described by the applicant, the financial circumstances imposed upon her by her first landlord, the shared bedding arrangements and cultural shock, that necessitated her move to different residential accommodation in February 2016 and accepts that this first landlord caused financial difficulty with ongoing phone bills that the applicant paid till early 2017 and the emotional difficulty she would endure, when facing these circumstances, when she was away from home for the first time. The applicant submitted to the Tribunal that she told her parents about these difficulties and they encouraged her to provide the payments demanded of her from the landlord and encouraged her continued stay in Australia to study. It is not unreasonable to expect that the applicant would face some initial adjustment in moving to Australia and has regard to the support she indicated that she received from her parents and accordingly places little weight on this claim.
In both the written explanatory statement as indicated above and the oral evidence, the applicant outlined her distress on hearing about her brother’s medical condition and the need for kidney surgery. She indicated the emotional distress this caused that was compounded by the death of her [Relative A] later in July of the same year, and claims that it was at this stage that she stopped studying. In the hearing she indicated that she had attended classes for a period of four months. Whilst there is inconsistent evidence before the Tribunal in regard to the period of time the applicant attended classes, the Tribunal has regard to the cumulative nature of the disruptive events at that time, and gives little weight to the inconsistency of this evidence.
The Tribunal has sympathy with the various family circumstances in India that directly affected the emotional state of the applicant, has regard to the circumstance where it was the applicant’s first time away from her family and her inexperience in coping with changed cultural conditions. The applicant claims that her parents were encouraging her to stay in Australia to complete her studies and indicated that she remains in constant contact with them. The Tribunal has sympathy with these circumstances and gives some weight to this claim.
The applicant indicated that she did not seek to defer her studies or notify the Department of the changed circumstances, and sought advice from a migration agent following the receipt of the NOICC on 7 April 2017. The applicant provided no indication to the Tribunal that she considered returning home at any stage, or sought any advice from the education provider or Department, until early 2017, as to the process or her options so that she could deal with her personal circumstances, in order to maintain her visa compliance. The Tribunal has carefully considered the evidence given at hearing in relation to this aspect and the limited nature of the submission in respect to the applicant’s efforts to comply with condition 8202 attached to her visa and finds that these considerations outweigh any weight given in not cancelling the applicant’s visa.
The Tribunal has carefully considered the body of evidence before it and has some sympathy with the circumstances that contributed to the applicant dropping out of her studies. However the Tribunal has considered the length of time of the breach, that the applicant has not been enrolled in a registered course of study since 12 July 2016, a period of nine months, at the time the NOICC was issued, which is significant in the context of the total period of the course, and that she didn’t attempt to either defer or advise the Department of her changed circumstances, or choose to return home to India to deal with the changed family circumstances. Accordingly, the Tribunal finds that these circumstances significantly outweigh any weight given against cancelling the applicant’s visa.
The extent of compliance with visa conditions
There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal is mindful of the significance of the breach. As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

The applicant explained at hearing that her parents paid her College fees up front and that they gave her $1500 to cover her initial stay in Australia, whilst she established herself. She provided a detailed account of the activities of her first landlord, her request for a significant part of her cash and her demand for a mobile phone and the fees associated with that phone, that the applicant was responsible for. The applicant found the shared living arrangements difficult and later moved into other shared residential accommodation.
Notwithstanding the support provided by her parents, she explained the difficulties in adjusting to the different cultural circumstances that was exacerbated in February when she was advised of her brother’s poor health. In her explanatory statement she indicates that she attempted to speak with her education provider in December 2016, and contacted a migration agent following receipt of the NOICC in April 2017. Her explanation for this period is extracted below:
As I was waiting for my new admission (Proof attached), after few days I got a call from Department of Immigration and officer asked about my new address because I couldn't update my new address and my contact number anywhere. After that I got the notice of consider cancellation from the Department of Immigration. Again I visited back to [Company 1] to discuss about that matter. Staff from [Company 1] didn't give me a right advice. I visited other agents as well but I was not well aware about these things and visas and visas conditions. Apart from answer back to Immigration Department in regards of Notice to Cancellation, [Company 1] advised me to apply for another visa (which visa I did not know- but I came to know later, agent applied my tourist visa to get me back on track) Later they withdrawal my tourist visa application as after cancellation of my study visa on 07 April 2017. My brain was totally stuck and I didn't have enough money because I spent too much money to consult with different agents.
The Tribunal has regard to the explanation provided and her engagement with a migration agent as indicated above, following the issuant of the NOICC. The Tribunal has considered the applicant’s explanation, that she was provided poor advice and was not aware about visas and the conditions attached them. The Tribunal has had regard to this submission and does not consider it unreasonable for the applicant to be aware of the conditions attached to the student visa she was granted on 29 September 2015.
The applicant was provided the opportunity at hearing to comment on any potential hardship should her visa be cancelled. She indicated that she if her visa was cancelled, that “her dream to study would finish”. She indicated that her parents have encouraged her throughout her time in Australia to remain so that she can study. She explained that her parents had spent a lot of money and that she needed to finish her studies. She indicated that she wanted to get a job in the travel and tourism sector, with a wish to get a job perhaps in a travel agency. The applicant told the Tribunal that she was engaged to a student living in Australia in April 2017.
The Tribunal has regard to the evidence submitted by the applicant and her claim that she will only be able to study if she stays in Australia, the money that her parents have paid to date for her to study in Australia and her wish to study so that she can return home and get a job in the hospitality sector.
Whilst the Tribunal has sympathy with the applicant’s wish to stay in Australia to resume her studies and the cost incurred by her parents to date, along with her disappointment if this opportunity was not available to her, the Tribunal has regard for possible studies that would be available to the applicant in India that would give her an opportunity to pursue her interest in the tourism sector, and that the potential cancellation of her visa in Australia does not exclude her from other studies either at home or consideration of other international considerations. The Tribunal accepts that the applicant would be disappointed if her visa was cancelled and that it would cause some emotional stress and has regard to the consistent financial support her parents have provided. There is no evidence before the Tribunal to indicate that her parents support, either financially or emotionally, would not continue and accordingly, gives these reasons little weight compared to the weight given in favour of cancelling the applicant’s visa.
The Tribunal has given consideration to the circumstances outlined above and is not unsympathetic with the situation the applicant found herself in upon arriving in Australia, and has considered the applicant’s actions in not contacting the Department to advise the delegate of the changed circumstances and her contact with the migration agent after the issuant of the NOICC in April 2017, to consider her visa issues, a period of some12 months after the applicant was enrolled in a registered course. Given these circumstances, the Tribunal gives limited weight to these reasons provided by the applicant and more weight to the significant period of the breach in which the applicant was not enrolled in a registered course of study.
Past and present behaviour of the visa holder towards the department
There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
It is unlikely that the visa applicant would be detained but rather provided with a time limited period in which he can leave the country or apply for review of the decision.
Whether any international obligations would be reached as a result of a cancellation
There is nothing before the Tribunal to indicate there are international obligations to consider.
Any other relevant matters
The Tribunal has considered the explanatory statement, documents submitted to the Tribunal along with the applicant’s oral evidence provided at hearing, that she would like to re-enrol in a course that was in the tourism or travel sector, so that she could return home and get a job in that area. The applicant advised the Tribunal that she was interested in undertaking the same or similar course that she was previously enrolled in and indicated that she had not made any inquiries about course options or what the associated fee costs of enrolment would be. The applicant indicated that she had a fiancée, that she was engaged in April 2017 and did not indicate any concerns for this relationship, should her student visa be cancelled.
The Tribunal has considered the applicant’s statements however the breach is significant. As a visa holder who is bound by the conditions on the visa, she made no attempt to inform the Department, and only made contact with the education provider in December 2016, some 5-6 months after the cancellation of the COE, and did not seek to rectify the situation during this time, and accordingly, the Tribunal places significant weight on the length of the breach. As such the Tribunal accords more weight to the length and significance of the breach than the applicant’s explanations.
The Tribunal has considered all factors listed above both individually and cumulatively in the context of the breach. The Tribunal finds that the breach of 12 months is significant in the context of a student’s study period and the fact that she would be aware of the expectations placed upon her, along with the fact that she made no attempt to contact the Department and made no attempt to return home. As such, considering the circumstances as outlined by the applicant during the hearing, the Tribunal concludes that the visa should be cancelled.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Helen Kroger
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.

[2018] AATA 5910

28 February 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction