1709009 (Migration)

[2019] AATA 5186

1709009 (Migration) [2019] AATA 5186 (20 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1709009

MEMBER:Frank Russo

DATE:20 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 20 June 2019 at 4:22pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – not enrolled in registered course – lack of evidence applicant sought re-enrolment – criminal charge – case dismissed – purpose of applicant’s stay not primarily for study – no compelling reason to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 189
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202
Crimes (Sentencing & Procedure) Act 1999 (NSW), s 10(1)(a)

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 18 April 2017 made by a delegate of the Minister for Immigration and Border Protection 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 delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study from 6 January 2017 until the date of the delegate’s decision on 18 April 2017. 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 23 May 2019 to give evidence and present arguments.

4. The applicant was represented in relation to the review by her registered migration agent, although her agent did not attend the hearing.

5. 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

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. The applicant provided a copy of the delegate’s decision with her application for review.

9. The applicant is a [Indian] national. At the hearing she gave evidence that she arrived in Australia [in] July 2015 on a Student visa for the purpose of undertaking an Advanced Diploma of [Subject 1] at [College 1].

10. The applicant gave evidence that prior to arriving in Australia she obtained a Master in [Subject 2] specialising in [Subject 3], in India, which she completed in 2013. She then obtained an Advanced Diploma in [Subject 1] from [College 2] in India. She told the Tribunal that although she had studied [Subject 3], she always had a love for [Field 1], which is why she undertook an initial course in [Subject 1] in India, prior to applying for the Advanced Diploma of [Subject 1] at [College 1], which she described as one of the best institutions for studying [Field 1] in the world.

11. The applicant told the Tribunal that she did well in her studies at [College 1] and that while she was enrolled there she completed a Certificate III in [Subject 1]. She confirmed that her enrolment in the Advanced Diploma of [Subject 1] at [College 1] was cancelled in January 2017 following an incident in December 2016 where she was charged by [Police] for [a specified offence]. The applicant provided evidence that she pleaded guilty to the charge and on appeal to the District Court the offence was proven, but dismissed. These circumstances are addressed further in the Tribunal’s decision below.

12. The applicant confirmed that she is not currently enrolled in any course and has not been enrolled in any other courses in Australia, other than at [College 1].

13. The applicant provided the Tribunal with the following additional documents:

    ·Copy of email from the applicant to [Ms A] of [College 1], dated 16 December 2016 and a response from [Mr B], a Director of [College 1] to the applicant, dated 18 December 2016;

    ·Copy of email from [Mr C], [named law firm], to the applicant, dated 20 April 2017;

    ·Copy of email from the applicant to the Department, dated 13 April 2017;

    ·Undated reference from [Ms D]; and

    ·Undated reference from [Mr E] and [Ms F], addressed to ‘The Presiding Magistrate, [Named] Court’.

14. The Tribunal has read and had regard to these documents in making its decision. The Tribunal also notes and has regard to the documents contained within the Tribunal file and on the Department’s file.

15. The decision of the delegate noted that the applicant agreed in her response to the Department’s Notice of intention to cancel her visa, that there was non-compliance with the conditions of her Student visa. The delegate was accordingly satisfied that there were grounds for cancellation of the applicant’s visa under s.116(1)(b), in particular due to breach of condition 8202.

16. At the hearing the Tribunal asked the applicant to confirm whether she agreed that there are grounds for cancellation of her visa. The applicant stated that she did not believe there are grounds for the cancellation. She explained to the Tribunal that her Confirmation of enrolment was cancelled by [College 1] in January 2017 as a result of an incident which had occurred in December 2016. She gave evidence of difficulties in communication which she experienced with [College 1] over the December 2016-January 2017 period as a result of the Christmas shut-down of the institution and various staff members being on leave over this period. She stated that things happened very quickly during this period and she did not have an opportunity to discuss things properly with the staff.

17. The Tribunal sought confirmation from the applicant that her Confirmation of enrolment in the Advanced Diploma of [Subject 1] was cancelled by [College 1] in January 2017. The applicant confirmed that this was in fact the case, and that she has not been enrolled in a registered course of study since 6 January 2017.

18. Whilst the Tribunal notes that the applicant raised reasons why the cancellation of her enrolment may have been affected by the timing of events and their coincidence with the Christmas 2016 holiday period, these are matters for consideration in the exercise of the discretion to cancel the visa. On the applicant’s own evidence and on the documents before the Tribunal, the Tribunal is satisfied that the applicant was not enrolled in a registered course from 6 January 2017 until 18 April 2017 and therefore the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

19. 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 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

20. The applicant gave evidence that the purpose of her travel and stay in Australia is to study at [College 1]. She described her love of [Field 1] and her desire to work in this field, which she said was supported by the studies she undertook in India in [Subject 1] immediately prior to arriving in Australia. She told the Tribunal that she did these initial [Subject 1] studies to assist her at [College 1]. She explained that she has obtained the Certificate III in [Subject 1] from [College 1] and was half-way through the Certificate IV in [Subject 1] when her enrolment was cancelled. Half of her fees for the Certificate IV have been paid to [College 1] and she would like the chance to complete her studies. She also stated that her only reason for remaining in Australia is to re-enrol at [College 1] in order to obtain the Advanced Diploma of [Subject 1].

21. As noted above, the applicant confirmed that following [College 1]’s cancellation of her enrolment on 6 January 2019, she has not been enrolled in a registered course. The Tribunal questioned the applicant as to whether she has been in contact with [College 1] following the hearing of the appeal relating to her criminal charges in April 2017. The applicant gave only general responses about her attempts to contact [College 1] following the outcome of her criminal appeal.

22. Relevant to this, the applicant provided the Tribunal with three documents. The applicant provided the Tribunal with a copy of an email she sent to the Department on 13 April 2017, which is also referenced in the delegate’s reasons for decision. In that email the applicant stated as follows:

    I had a mail conversation with one of the person of the administration department of my college as I was requesting them to forgive me … he replied that it depends on the court decision whatever it would be on that result only they can revoke my termination. And than I will complete my studies as I have paid my fees and everything to the college …

23. The applicant also provided a copy of an email from [Mr B] of [College 1], sent on 18 December 2019 in response to an email from the applicant. In his email, [Mr B] stated:

    There is really nothing that I or [College 1] can do in this situation given that you have admitted to the Police that you committed the offence. Only a Court finding you not guilty would give us the ability to revoke the termination of your enrolment.

24. The applicant also provided the Tribunal with a copy of an email from her legal representative in relation to the criminal charges, [Mr C] from [named law firm]. In this email, dated 20 April 2019, Mr [C] confirmed that he had appeared on behalf of the applicant at [District] Court. Mr [C] also confirmed that the District Court allowed the appeal in relation to the applicant’s earlier conviction in the Magistrates Court, the orders of the Magistrate were set aside and that ‘in lieu thereof, the offence is proven but dismissed and you are discharged pursuant to section 10(1)(a) of the Crimes (Sentencing & Procedure) Act 1999.’

25. In light of the above three documents, the Tribunal questioned the applicant as to whether she had been in contact with [College 1] following the notification she received from Mr [C] of the outcome of her appeal in April 2017. The applicant stated that she tried to send an email to the college and that she had also told [College 1] that the criminal matter had been dismissed.

26. The Tribunal also questioned the applicant as to whether she had approached any other colleges in relation to enrolment. She stated that she had not, because of the fees she would have to pay. She noted that the Advanced Diploma of [Subject 1] at [College 1] is not cheap, and that she had paid over [specified amount] in fees for the Certificate IV in [Subject 1].

27. The Tribunal questioned the applicant as to her current visa status. She stated that she currently holds a Bridging [visa]. When the Tribunal asked the applicant what conditions are attached to this visa, she volunteered that under the terms of the visa she is able to study, as well as to work part-time 40 hours per fortnight. The applicant told the Tribunal that [College 1] is strict about its enrolments, implying that she is unable to re-enrol there while she is on a Bridging visa, and that she is waiting for the outcome of her hearing before this Tribunal. The applicant has however provided no documentary evidence of enquiries she has made to [College 1] in relation to her re-enrolment after the hearing of the appeal in her criminal matter, or the results of such enquiries, whether they are favourable or unfavourable.

28. The Tribunal is concerned that over two years has elapsed since the applicant’s criminal conviction was dismissed on appeal by the District Court. During this time it was open to the applicant to make formal enquiries of [College 1] about re-enrolment or to make enquiries of other colleges about new enrolments. The Tribunal is not satisfied that the applicant has made genuine attempts to contact [College 1] since April 2017, or is concerned that the applicant is otherwise unwilling to disclose to the Tribunal the outcome of such communications.

29. The Tribunal notes in particular the statements which the applicant made to the Department in an email dated 13 April 2017, in which she stated that she had an email conversation with administrative staff of [College 1], who indicated that her enrolment depended on the outcome of the court case for the criminal matter. The fact that this criminal matter was resolved by 20 April 2017, just after her email to the Department, leads the Tribunal to question why the applicant has not provided evidence of contact with [College 1] in writing after 20 April 2017 to seek re-enrolment. The Tribunal considers that such a step would have been reasonable, given the applicant’s communications with [College 1] at the time of the cancellation of her enrolment were by email. The applicant has provided no documentary evidence in support of her having taken such action, nor any evidence that [College 1] will entertain her re-enrolment given the outcome from her criminal matter. The lack of evidence of a response from [College 1] is of particular concern given the statement in [Mr B]’s email, supplied by the applicant, that [College 1] would only consider revoking the cancellation of the applicant’s enrolment if she obtained a court finding of not guilty. The Tribunal notes that the outcome of her criminal matter was that the offence was proven but dismissed.

30. The Tribunal considers that contact with [College 1] in writing following the hearing of her criminal appeal should have been a priority for the applicant if her primary purpose for remaining in Australia is her stated one of completing the Advanced Diploma of [Subject 1]. The lack of any documentary evidence of such efforts or of the outcome of any communications, leads the Tribunal to consider that the purpose for the applicant’s stay in Australia may not be primarily for the completion of her studies.

31. The Tribunal finds that while the applicant’s original purpose for travel to Australia was to undertake the Advanced Diploma of [Subject 1], there is little to suggest that this remains a priority for her or that she has a compelling reason for remaining in Australia. I therefore give this weight in favour of cancelling the visa.

    The extent of compliance with visa conditions

32. As noted above, the applicant did not comply with condition 8202(2) following the cancellation of her enrolment on [January] 2017, until the time of the delegate’s decision on 18 April 2017. The applicant conceded that her enrolment was terminated as a result of disciplinary action taken by [College 1].

33. It is clear from the statements which the applicant made to the college and to the Department that she is aware that she broke the [law] , which is also a breach of a condition of her Student visa.

34. The email from Mr [C] to the applicant notes that her criminal conviction in the Magistrates Court was set aside in the District Court and that the offence was proven, but dismissed under s.10(1)(a) of the Crimes (Sentencing & Procedure) Act 1999 (NSW). The Tribunal notes that this section allows a court that finds a person guilty of an offence to make an order directing that the relevant charge be dismissed.

35. The applicant told the Tribunal that she regretted the action which resulted in her being charged and she had since [attempted to rectify the situation]. The Tribunal notes that the outcome of the applicant’s appeal in relation to her criminal matter resulted in a dismissal of charges, although she was nonetheless found guilty of an offence. This guilty finding, together with the applicant’s own admissions to the Department and at hearing may support a finding of a further breach of the conditions of her visa, however the Tribunal has taken into consideration the dismissal of the charges by the District Court and therefore does not give weight to it either way in considering the applicant’s overall compliance with her visa conditions.

36. The applicant gave evidence at hearing that other than her non-enrolment, she has otherwise complied with the conditions of her visa. The Tribunal gives this matter some weight against cancelling the visa.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

37. When asked about the hardship which may be caused by the cancellation of her visa, the applicant stated that the main thing is she has not seen her family for four years. She stated that she had applied for her mother and father to visit her in Australia, but their visa applications were rejected, possibly as a result of the cancellation of her visa. The applicant stated that she has been unable to visit sick relatives, including her father, who was hospitalised a couple of months ago, and her grandmother, who passed away last Christmas. She indicated that as a result of the cancellation of her visa she also experienced a very bad period with her partner.

38. The applicant also stated that because of one small mistake she made, her life has now been ruined. She stated that she believes that in the past she may have had the opportunity to open her own [business] in Australia, but since the cancellation of her visa she can’t do anything. She also stated that because of the Department’s decision she is only able to work 20 hours per week, whereas if none of this had happened she may have been able to apply for other visas.

39. When prompted further about any hardship she may experience, the applicant noted that she would not be able to complete the Certificate IV in [Subject 1], which is what she came to Australia for. She stated that whilst she has obtained the Certificate III, this will only allow her to get [jobs] at a certain level. The applicant also noted that if the visa is cancelled it may restrict her opportunities to travel to other countries.

40. In the course of the hearing the applicant mentioned other potential hardships, which the Tribunal has also taken into account, including losing the fees which she has paid up-front for the Certificate IV in [Subject 1], which were over [a specified amount]. The applicant also told the Tribunal about the embarrassment she will experience as a result of her parents finding out that her visa has been cancelled. She told the Tribunal that they have not yet been informed. The applicant also stated that she married three years ago in Australia, to a man who is also a temporary resident. She stated that the marriage was at a registry office and would not be considered official in India as the traditional ceremonies have not been performed. She also told the Tribunal that her parents in India are unaware of this marriage. The Tribunal has also considered this as part of the hardship which may be caused.

1. The Tribunal is satisfied that the applicant may experience some hardship as a result of her visa being cancelled and gives this some weight against cancelling the visa.

   Circumstances in which the ground of cancellation arose. Are there any extenuating circumstances beyond the visa holder’s control that led to the grounds existing?

2. The applicant gave evidence that in December 2016 she [committed a criminal offence]. [Details deleted].

3. The applicant stated that she became aware that she had been caught when she received an email from [College 1] over the Christmas 2016 break. [College 1] contacted the Police and the applicant was shown some photographs, which showed her [committing the offence]. The Police indicated that they also had video footage, but she was not shown this footage. The applicant told the Tribunal that she didn’t raise any arguments with the police or the college as she knew what she had done was wrong. She [attempted to make amends] through her education provider and she attempted to apologise.

4. As noted above, the applicant provided a copy of an email sent to [College 1] on 16 December 2017, where she noted she had made a mistake and offered to apologise to the [victim]. The applicant also provided the response, from [Mr B], on 18 December 2017, which indicated that the matter was outside [College 1]’s hands as it was a criminal matter.

5. The applicant gave evidence at the hearing of her attempts to contact [College 1] over the Christmas 2016 period, but she was unable to get in contact with certain people because they were on leave and the institution was closed for part of the period.

6. The applicant told the Tribunal that she knows she made a mistake. She stated that she doesn’t know what had gone through her mind at the time of the incident, that she had otherwise been a good student and the teachers at [College 1] had liked her. She also stated that at the time of this incident [she] was feeling helpless. She stated that at the time she was working [in] [Suburb 1].

7. The Tribunal accepts the applicant’s account of the circumstances in which the ground for cancellation arose, but finds that the circumstances were not beyond the applicant’s control. While the Tribunal accepts that the applicant may have been experiencing  [difficulties] at the time of the incident, this is not an excuse for the behaviour which resulted in her enrolment being cancelled.

8. Although the applicant has submitted evidence, in the form of [Mr B]’s email, which indicates that [College 1] would not consider revoking the termination of her enrolment unless a court were to find that she was not guilty, the Tribunal does not consider this to be circumstances beyond the applicant’s control. Rather, this action taken by her education provider, was a direct result of the applicant’s own behaviour and therefore well within the sphere of her control. The Tribunal is also not satisfied that the difficulties which the applicant claims she had in communicating with [College 1] over the Christmas shutdown period were beyond her control or played a significant part in the college’s decision to cancel the applicant’s enrolment. From the evidence provided by the applicant, [College 1]’s management considered the incident, and as it was a criminal matter, found that certain consequences automatically flowed pursuant to their policies, including involvement of the police and cancellation of the applicant’s enrolment. The Tribunal finds that there were no extenuating circumstances beyond the visa holder’s control, and in light of the circumstances, gives this significant weight in favour of cancelling the visa.

   Past and present behaviour of the visa holder towards the Department

9. The applicant stated at hearing that she has always been cooperative towards the Department. The Department’s decision indicates that the applicant has been cooperative in providing information relating to her current contact details, and from the Tribunal’s perusal of the Department’s file the applicant appears to have been cooperative with the Department. The Tribunal gives this some weight against cancelling the visa.

   Whether there would be consequential cancellations under s.140

10. The applicant stated at hearing that there are no persons in Australia whose visas would, or may, be cancelled under s.140. The Tribunal asked the applicant about her husband and whether his visa may be automatically cancelled. The applicant confirmed that her husband, who is also a temporary resident, had made a separate visa application and currently holds a separate Bridging visa. On the evidence before it, the Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.

    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

11. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice regarding her immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion.

12. The Tribunal has considered the difficulties this may pose to the applicant given her stated desire of continuing her studies at [College 1], which she has also partially paid for. The Tribunal notes however that the sanctions imposed by s.48 are standard legal consequences for the cancellation of a visa. In light of the circumstances in this case, including the lack of documentary evidence that the applicant has made a genuine attempt to contact [College 1] since the resolution of her criminal appeal over two years ago, as well as the lack of documentary evidence that [College 1]’s would entertain her re-enrolment at this point following the outcome in her criminal matter, the Tribunal has considered the mandatory legal consequences of the visa cancellation and finds that they do not provide weight against cancelling the visa.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

13. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements any international obligations, including non-refoulement and best interests of the children, would be breached as a result of the cancellation. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa

    Any other relevant matters

14. The applicant provided the Tribunal with copies of references from [Ms D], whom she stated is her boss at [her workplace] in [Suburb 1], and from [Mr E] and [Ms F], whom she stated are her landlords. The reference from Ms [D] attests to the applicant’s good character and trustworthiness, however the applicant told the Tribunal that Ms [D] is not aware of the incident which resulted in her enrolment being cancelled. The reference from Mr [E] and Ms [F] also attests to the applicant’s good character, to her interest in her studies and to her regret at committing an offence.

15. The Tribunal has considered these references, but gives them only little weight against cancelling the visa.

16. There are no other relevant matters which give weight against or in favour of cancelling the visa.

    Weighing discretionary considerations

17. After considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled. The Tribunal gives significant weight to the circumstances in which the ground for cancellation arose in favour of the visa being cancelled. The Tribunal also gives weight to the purpose of the visa holder’s travel and stay in Australia in favour of cancelling the visa, finding that there is little to suggest that her stated purpose of completing the Advanced Diploma of [Subject 1] remains a priority for her or that she has a compelling reason for remaining in Australia. The Tribunal finds that these considerations outweigh those considerations to which it has given some weight against cancelling the visa.

18. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Frank Russo
    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.