1807401 (Migration)

1807401 (Migration) [2019] AATA 4144 (7 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1807401
MEMBER:Mark O'Loughlin
DATE:7 August 2019
PLACE OF DECISION: Adelaide
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 07 August 2019 at 2:35pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – circumstances giving rise to non-compliance – victim of domestic violence – mother’s illness – beyond applicant’s control – mental health condition – impact of cancellation on Partner visa application – decision under review set aside
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

This is an application for review of a decision dated 6 March 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had breached the condition of her visa that required her to be enrolled in a registered course and further that the grounds for cancelling the visa outweighed the reasons for not cancelling. 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 appeared before the Tribunal on 6 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, [Mr A] and a social worker [Ms B].
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
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.
In reaching the decision in this matter the Tribunal has had regard to the following documentation provided by the applicant prior to the hearing:
a.Copy of the decision of the delegate dated 6 March 2018;
b.Emails from the applicant seeking further time to respond to the Notice of Intention to Consider Cancellation (NOICC);
c.Part email in response to the NOICC dated 17 March 2018;
d.Copy of screenshot of message from applicant to [Ms C] dated 5 July 2017;
e.Copies of email from that applicant to [Ms C] and her reply both dated 21 July 2017;
f.Copy of GP’s referral of applicant to psychologist [Ms D] dated 22 April 2017;
g.Copy of letter from Commissioner for Victims’ Rights to the applicant dated 18 April 2017;
The Tribunal has also had regard to the following items that were provided at the hearing:
a.Confirmation of enrolment for [Qualification 1] at [Institute 1];
b.Statement of service, [Employer 1];
c.Bridging Visa C notification dated 6 May 2019;
d.Final intervention order re defendant [Mr E] dated [in] December 2017;
e.Copy message from applicant to [Ms F] dated Tuesday 14 August 2015 and her reply;
f.Copy message from applicant to [Ms G] dated 10 April 2015;
g.Copy birth certificate [Child H] DOB [date]; and
h.Certificate of Marriage of applicant to [Mr A] dated [in] February 2019.
The Tribunal has not had regard to the other documents on file in coming to its decision as no other relevant documents were on the file. In particular the movement records were not relied on by the Tribunal as the relevant matters to which they related were the subject of oral evidence from the applicant and the tribunal relies on that evidence rather than the movement records.
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant agreed that her enrolment was cancelled and the Tribunal accepts her evidence about this.
On the evidence before the Tribunal, 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 applicant gave evidence that she came to Australia [in January] 2015 to study [Discipline 1]. She was proposing to do a pathway course at [Institute 2] and then proceed to a bachelor degree at [Institute 3].
She said, and the Tribunal accepts, that when she came to Australia she had few contacts and she started living at shared house.
Her first roommate, [Mr E], subjected her to a sexual assault in April 2015 which upset her and she sought help from the counsellor at [Institute 2], [Ms G], who the applicant understands has since retired.
She decided not to go to the police as she was unsettled and unused to the Australian system. She said that she was unsure about what would happen to her or to [Mr E] and she was confused. She said that she was young and did not think properly.
She also said that her studies suffered and that she needed extra help from her teacher. She moved out of that house to try to get away from [Mr E], but he pursued her and ultimately, by preying on her vulnerability, manipulated her into a relationship with him.
In October the applicant received news that her mother was ill and indeed was bedridden for some time, which the applicant found even more stressful because her mother had been meeting her university fees.
The applicant said that she had just started working at [Employer 1], and that she hoped to ease some of the load on her mother by earning enough to contribute to her study costs.
She said, and the Tribunal accepts, that [Mr E] resented her working and sought to control her. This manifested when he came to her work and made a disturbance in the reception area which caused them to terminate her employment.
The problems that she faced meeting her university fees meant that she had trouble studying which in turn caused her performance to drop. The applicant said that [Institute 2] would not release her results meaning she was compromised in her promotion to the next part of her course.
Her relationship with [Mr E] became increasingly troubled but the applicant said, and the Tribunal accepts, that she did not realise how controlling and possessive of her he had become until the beginning of 2017.
In Easter 2017 he assaulted her in public and a witness called the police, who took him away. He was placed on an order that prevented him from approaching her, but as soon as he was released he breached the order and returned to her house. He then left for about 2 weeks before moving back in.
The applicant called the police and they took him away again. The applicant says, and the Tribunal accepts, that after that she was scared when she had to leave the house.
She had still been trying to study but her mental state was poor. She went to her GP who assessed her as possibly having and anxiety disorder and recommending [therapy] with a psychologist. The GP organised an appointment but the sessions were too expensive and the applicant did not attend.
The applicant did try to engage the school, both in relation to her progress and, more problematically, her fees. She communicated with the [education provider] but in July 2017 her enrolment was cancelled.
By that stage she had recovered from what she describes as her depression and was both fit and keen to return to study but her enrolment was cancelled.
In the meantime she had started to see her now husband, [Mr A] and by about September 2017 they became a couple.
The applicant said that she was no longer bothered by [Mr E] after she formed a relationship with [Mr A].
In April 2018, when she got pregnant, she moved in with [Mr A].
[Mr A] is an Australian citizen.
They were married [in] February 2019.
The applicant told the Tribunal, and the Tribunal accepts, that she has applied for a subclass 820 Partner visa and holds some hope of obtaining it. Despite that she still wishes to study and, given the uncertainty of the partner visa process, still seeks a review of the cancellation of her student visa.
She also said that at the moment she is on a Bridging Visa C which does not carry any work rights and so if she could get some work rights, even with the usual restrictions of a student visa of 40 hours per fortnight, she could make a financial contribution to the household.
The applicant asked the Tribunal to take evidence from a social worker, [Ms B] and from [Mr A], the applicant’s husband. Both witnesses gave evidence by telephone.
[Ms B]’s evidence largely corroborated that of the applicant. She explained that she works for a women’s safety program which takes referrals from OARS when they deal with men who have been to them for domestic violence.
[Ms B] advised that the applicant received support from 16 June 2017 to 21 December 2017. She said that during this time she became aware that the applicant complained that [Mr E] was very physical, manipulating and controlling. She said that she was aware that there had been an incident in April 2017 and that [Mr E] had been charged with various offences and [in] December he was convicted of 2 counts of aggravated assault, one of property damage and one of breach of an intervention order.
[Ms B] advised that her support finished after that.
The tribunal accepts her evidence on these matters.
[Mr A] advised that he had known the applicant before they actually started dating but that their relationship started in September 2017. He said that she was in a share house but that her visa conditions changed and she could not work so she came to live with him after about 6 months.
[Mr A] also supported the evidence about the birth of their child and the date of their marriage.
The Tribunal is directed to have regard to the Departmental guidelines set out in the procedural manual PAM 3.
In relation to the applicant’s travel to and stay in Australia, she said that her parents were keen for her to study overseas and that she knew of someone who was already here. She did some research and preferred Australia to her other options. She said that she had no reason to come here other than for study and that, until she embarked on her current relationship, there was no reason other than study that caused her to stay.
The applicant acknowledges that she has now made an application for a partner visa and her reasons for wanting to stay in Australia are now dominated by her husband and child but that she does intend to return to study as soon as she can afford to.
She provided the Tribunal with a copy of a letter from the Department of Home Affairs which shows that she has made an application for a subclass 820 Partner visa and been granted a Bridging C visa with a “no work” condition.
As regards the extent of compliance with the conditions of her Student visa, the applicant acknowledges that her enrolment had been cancelled about 6 months before her visa was cancelled.
She has otherwise tried to comply with visa conditions although in the circumstances her study progress had started to drop.
The applicant also acknowledged that there was a period between the cancellation of her visa on 6 March 2018 and the granting of her Bridging Visa C that she did not in fact have a visa. She said, and the Tribunal accepts, that she understood she would be granted a bridging visa when she applied for a review of the decision to cancel her student visa. She did not learn that this had not happened until she applied for a partner visa and she sought to remedy this by getting a bridging visa as soon as possible.
The Tribunal accepts the applicant’s evidence in relation to this unusual situation.
Presumably, because her Student visa had been cancelled at the time of her application for a subclass 820 Partner visa, she was granted a Bridging visa C. If the cancellation of her student visa is not overturned, she will probably need to satisfy the relevant Schedule 3 criteria which may hinder her application for a Subclass 820 visa
In relation to the question of hardship to the applicant and her family, and without speculating on the possible outcome of the applicant’s Partner Visa application, the applicant advised that she would experience hardship if she does not have her student visa reinstated because she does not currently have working rights and the family needs some financial contribution from her.
She also said that she wants to be in a position to return to study as soon as she can because her family in Kenya, particularly her mother, are disappointed that she has not been able to complete her study.
The Tribunal accepts that the circumstances that gave rise to the breach of the applicant’s visa condition were outside of her control and that the extenuating circumstances of the violent behaviour of her then partner and her mother’s illness were matters that caused the breach and were outside of her control. The Tribunal accords this consideration substantial weight.
There have been some irregularities in the applicant’s dealing with the department but the Tribunal accepts her explanations as set out above and does not find that she has been other than truthful or co-operative in her dealings..
The applicant’s son is an Australian citizen. There is no one whose visa would be imperilled by the cancellation of the applicant’s student visa.
The cancellation of the applicant’s student visa could conceivably affect the interests of her son, particularly if the continuation of restrictions on her ability to work means that he suffers by reason of her reduced income.
If the applicant’s Partner visa application is compromised by the fact of the cancellation of her student visa there is the possibility of further hardship by reason of that.
There is no suggestion of breach of Australia’s international obligations, including non refoulement, if her visa is cancelled.
No other relevant matters were raised by the applicant.
The Tribunal finds that the circumstances in which the grounds for cancellation of the applicant’s visa arose were beyond her control. The Tribunal notes that this information was not available to the delegate of the Minster when she made her decision.
The Tribunal considers that it is appropriate that the applicant have her application for a Partner visa considered without the impediment of a cancelled student visa.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
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.
Mark O'Loughlin
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.

[2019] AATA 4144

7 August 2019

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Remedies

Statutory Construction