1716013 (Migration)

[2020] AATA 1508

1716013 (Migration) [2020] AATA 1508 (19 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1716013

MEMBER:Peter Newton

DATE:19 March 2020

PLACE OF DECISION:  Sydney

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 19 March 2020 at 6:14pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – discretion to cancel visa – unplanned pregnancy – breakdown of relationship – abortion – physical and mental health – re-enrolment and continuing study – decision under review set aside

LEGISLATION

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

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)

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 17 July 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 (Act).

2.    The delegate cancelled the visa on the basis that the applicant did not comply with condition 8202 of Schedule 8 to the Migration Regulations 1994 (Regulations) which was imposed on the applicant’s visa because the applicant was not enrolled in a registered course of study from 8 September 2016 to 25 June 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 20 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], the applicant’s partner.   

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

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 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 of study.

9.    The applicant accepted that she was not enrolled in a registered course of study from 8 September 2016 to 25 June 2017.  Accordingly, the applicant has not complied with condition 8202(2).

Consideration of the discretion to cancel the visa

1. 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 considered all of the documents provided by the applicant to  the Department and Tribunal, all of the evidence given at the hearing, the submissions, and had regard to the matters raised by the applicant and matters in the Department’s Procedural Instruction ‘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

1. The applicant was born in [Country].  The Decision records that the applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa or the purpose of study. She arrived in Australia on 16 February 2015.  During the period from 7 December 2015 and 25 December 2015 she undertook and completed a General English (Beginner to Advanced) course.

2. The Decision records that the applicant received a Notice of Intention to Consider Cancellation of her visa on 21 June 2017 and she responded on 27 June 2017.  She obtained an Overseas Student Confirmation of Enrolment (CoE) with [Education provider] for a [specified] course commencing on 26 June 2017 with a course end date of 21 June 2020. The applicant’s visa was cancelled on 17 July 2017.  The applicant says her enrolment with [Education provider] was cancelled shortly thereafter.  She said she was informed by [Education provider] that he enrolment was cancelled because her visa had been cancelled.  She indicated that she unsuccessfully attempted to re-enrol with [Education provider] and unsuccessfully attempted to enrol in the same or similar courses with other education providers but was not been accepted because her visa is cancelled.

3. The applicant says she wants to study a [specified] course.  She said she in an only daughter.  She indicated that her father owns and operates his own business and the knowledge to be acquired from studying a [specified] course would enable her to assist her father in his business.  She indicated that upon completion of a [specified] course in Australia, she intends to return to her home country and work with and assist her father in his business.

4. As stated, the applicant’s visa was granted to the applicant for the purpose of study.   I am satisfied that the applicant has a compelling need to remain in Australia to continue with her studies. I attach some weight to this consideration in the applicant’s favour.

• The  extent of compliance with visa conditions

1. Condition 8202 is a mandatory condition applied to student visas which obliges visa holders to remain enrolled in a course of study and, depending on the course, either meet attendance requirements or meet academic progress requirements.

2. Student visas (subclass 570-574) are granted for the purpose of studying towards, and achieving, an educational qualification in Australia.  The student visa program provides an avenue to allow non-citizens and non-permanent residents to study in Australia.  In order to be granted a student visa, the visa holder’s primary intention must be to study, maintain enrolment, attendance and course progress, in a Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) registered course.

3. The applicant arrived in Australia on 16 February 2015.  As stated, during the period from 7 December 2015 and 25 December 2015 she undertook and completed a General English (Beginner to Advanced) course.   She was enrolled in a [Diploma] course and a [Bachelor] course.   The applicant accepts her enrolment was cancelled and she was not enrolled in a registered course of study from 8 September 2016 to 25 June 2017.  I have set out below the circumstances leading to the cancellation of her enrolment which caused her to breach the condition 8202 imposed on her student visa.  I accept there are unfortunate mitigating circumstances leading to the applicant not being enrolled in a course of study.  Nevertheless, I give some weight against the applicant for the breach of condition 8202(2) by not being enrolled in a registered course of study. 

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

1. If the Tribunal affirms the decision to cancel the applicant’s visa, the applicant will be an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if she does not voluntarily depart from Australia. Additionally, the applicant will be subject to section 48 of the Act which means that she will have limited options to apply for further visas in Australia. She will also be subject to Public Interest Criterion 4013.

2. The applicant has given evidence of depression. In addition to this, if the visa is cancelled and she returns to her home country she feels she will have let down her parents.  In my view, if the decision of the delegate is affirmed, the applicant is likely to suffer psychological and emotional hardship arising from the cancellation of her visa.  In these circumstances, I am of the view that a degree of hardship will be caused to the applicant if the Tribunal affirms the decision to cancel the applicant’s visa.  I give this factor some weight in the applicant’s favour.

• Circumstances in which ground of cancellation arose.  If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control  

1. In response to the Notice of Intention to Consider Cancellation of the applicant’s visa, the application sent to the Department of Immigration a letter dated 26 June 2017 setting out the circumstances in which the ground of cancellation arose.  The letter states:

   “I am writing this letter regarding my Student Visa. I Came to Australia to pursue my higher studies I was happy to continue my studies in one of the best education provider in Australia.

   As you already know I have not been enrolled in any course since September 2016 and I have messed up with my studies a lot I have no option than requesting you for my further studies here in Australia. As you already know I have not been enrolled in any course since September 2016 and I know it was really a wrong decision but I was mentally distracted so much that I was not able to study and ended up messing up with my studies. I was dating a guy for here and suddenly I got pregnant I did not knew for a while coz I was not familiar to same kind of issue but when I knew around September I was already 12 weeks pregnant after I told everything to the guy whom I was dating he just walked off without even helping me to find the solution. As I am from [an Asian Country] we have our own rule and regulation and the culture is totally different from what we can see here. In our country being pregnant without getting married is against our culture I was not able to share anything with my parents as well because they would never accept the fact that I was pregnant. There was no one who would support me in that stage so i decided to do abortion on my own. On the other hand I was not sure that is it legal to do abortion in Australia. After doing some research and finding where can I do the whole process. As my studies were financed by father for my studies I was not able to ask him any money for medical issue as I already have health insurance for my other health issue. I was mentally so down that I was not able to think what I should do because they already told me abortion case will not be coved by health insurance. Being a student I used to work only 20 hours which I used to spend on my food and living expenses but I had to save that money for my abortion process so after saving the total amount of money on 26 October 2016 I went for abortion.

   After the abortion I was physically and mentally so weak that I could not concentrate on anything. As it was after 1st trimester I got aborted so I was physically very week and even got depressed it took me so long to grab all the strength and get back to my studies.  I was unable to recover emotionally mentally and physically thus I failed to continue my studies. This was mistake on my behalf I should have continue my studies no matter what circumstance it is because that is what I had come to Australia for.

   However then I realized my mistake that I have to study as I am the only daughter in the family I am the only hope for my parents they actually have dream that I pursue the best education so they send me here I realized that i have to study hard and make my future in a proper way. Thus I decided to continue my studies in [a specified course] in [Education provider] and decided I am ready to tackle every situation I get on track. So I got my offer letter on 29 March 2017. As I was waiting for my Coe, I got my Coe on June 19, 2017.

   I acknowledge my mistake and I hope that you will understand my entire situation and give me chance to rectify the errors that I have made. I request you to assess my application and provide me the favorable response and allow me to pursue my dream of getting a globally accredited degree as that is what I came here for.”

2. During the hearing, the applicant gave evidence consistent with the above statement.  She provided corroborating medical records in relation to her abortion.  I am satisfied that the circumstances in which the grounds of cancellation arose provide reason not to cancel the visa. I give this factor some weight in favour of the applicant.

• Past and present behaviour of the visa holder towards the department

1. There is no information to indicate any specific matters of relevance regarding the applicant’s behaviour towards the Department of Immigration.  There is no evidence the applicant has been uncooperative with the Department of Immigration.  She promptly responded to the Notice of Intention to Consider Cancellation of the visa.  I give some weight in the applicant’s favour when considering this factor.

• Whether there would be consequential cancellations under s.140

1. There are no dependant visa holders.  Accordingly this factor is not relevant to the Tribunal’s consideration of whether the visa should be cancelled.

• 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

1. The Tribunal accepts that there will be some hardship to the applicant if it affirms the decision to cancel the applicant’s visa and gives some weight in the applicant’s favour when considering this factor.

• 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

1. The circumstances of this case are not such that would engage Australia’s International obligations and the cancellation if the visa would not lead to a breach of Australia’s international obligations.  I therefore place no weight on this consideration.

• If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

1. This factor is not relevant to the Tribunal’s consideration of whether the visa should be cancelled.

• Any other relevant matters.

1. I am not aware of any other relevant matters in relation to the Tribunal’s consideration of whether the visa should be cancelled.  

Conclusion

1. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Peter Newton
Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

1. (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.