1809892 (Migration)

[2019] AATA 6898

1809892 (Migration) [2019] AATA 6898 (20 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1809892

MEMBER:Michael Biviano

DATE:20 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 20 September 2019 at 4:29pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of visa not fulfilled – substantial period of non-enrolment – circumstances giving rise to non-compliance – not beyond the applicant’s control – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 March 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that she had not been enrolled in a registered course of study from 6 April 2017 and she was not compliant with condition 8202 of the visa. The delegate went on to consider the factors in favour of cancellation outweighed those against cancellation.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 13 June 2019 to give evidence and present arguments.

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:

   ·must be enrolled in a full-time registered course: 8202(2)(a)

   ·must maintain enrolment in a registered course that once completed will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted: 8202(2)(b)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c).

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 since 6 April 2017.

9. The decision record of the delegate of the Department of Home Affairs dated 28 March 2018, which was provided to the Tribunal by the applicant, confirms that the Department cancelled the Student (Temporary) (Class TU) (Subclass 500) visa which was granted on 30 August 2016 and the reasons for the cancellation of the visa (Decision Record).

10. The applicant gave evidence that she arrived in Australia in June 2016 with a friend from Malaysia as a tourist. The applicant had previously studied a [Qualification 1] in Malaysia and had worked as a part-time [Occupation 1] and [Occupation 2] and had partnered with [other businesses] in projects. The applicant claims that she required leadership skills to help improve her business. While visiting Australia and after consulting with a friend’s brother, she decided to apply for a student visa to pursue leadership and management courses.

11. The Decision Record confirms that the applicant was granted a Student TU (Subclass 500) visa on 30 August 2016 to study until 3 July 2019. The applicant had enrolled in [Education Provider 1] to obtain a Certificate IV, Diploma and Advanced Diploma of Leadership and Management at [Education Provider 1]. The applicant was scheduled to complete those courses in or around June 2019.

12. The applicant gave evidence between September 2016 and March 2017 she studied a Certificate IV in Leadership and Management at [Education Provider 1]. She passed the course and the Certificate was issued [in] March 2017.

13. The applicant gave evidence that she was dissatisfied with tuition at [Education Provider 1] in particular:-

    a.The lecturers changed at the college;

    b.The change in lecturers resulted in her having to lodge assessments for units on short notice;

    c.In some classes, the lecturers would not attend;

    d.Lecturers were not approachable and available after class to discuss course queries;

    e.Where the applicant was offered to correct her work and re-lodge assessments she was asked to submit a $200 fee for each assessment, and she was charged $1000 in additional assessment fees, which were waived in part to the extent that she was required to pay $200.

14. The applicant decided to reconsider her position at [Education Provider 1] and explore other education providers who may offer those courses. She gave evidence that in March 2017 she met with the receptionist at [Education Provider 1] for approximately half an hour and told her that she wanted to be released from [Education Provider 1] and that she wanted to look at other options to study a Diploma and Advanced Diploma in Leadership and Management. She claims that she asked the receptionist is there a period within which she had to enrol and the receptionist said no. The applicant gave evidence that she did not know the rules associated with her visa. However when questioned about her visa, she admitted that she had roughly read her visa and knew that she had to study and be enrolled in a course of study as a condition of her visa.

15. The applicant gave evidence that she asked the receptionist whether there were any documents she was required to submit to the new college. The receptionist told her that she should wait for the Certificate IV to be issued and start selecting a college using the Certificate IV qualification and compare them, and select which college to go to. She claims that she asked the receptionist how long before she had to enrol and the receptionist told her that it was not necessary to rush to find another school. But she conceded that the receptionist did not tell her that she did not have to enrol.

16. The applicant confirms that she did not seek advice from a migration agent or speak to any other person about her visa and not being enrolled.

17. The applicant gave evidence that she was not enrolled from 6 April 2017, when her enrolment with [Education Provider 1] ceased. She claims that she researched colleges to continue her studies on Google and speaking to friends.

18. On 7 March 2018, the Department provided her with a Notice of Intention to Consider Cancellation of the Visa (NOICC) because she had not been enrolled since 6 April 2017, being a period of 11 months.

19. The applicant by her representative at the time, [named], made detailed written submissions dated 13 March 2018 with supporting documents in response to the NOICC (Submissions).

20. The applicant gave evidence that in March 2018 she enrolled in Diploma and Advanced Diploma of Leadership and Management courses at [Education Provider 2] which were to commence on 26 March 2018 and conclude 20 March 2020. The applicant provided Confirmation of Enrolment Certificates (COE) for those courses and those COE for those courses were created on 9 March 2018, confirming that she enrolled in those courses after receiving the NOICC. Apart from commencing the Diploma, she was required to cease her studies after her visa was cancelled.

21. The applicant as a visa holder is responsible for being aware of the visa conditions that apply to her visa and knowing what her visa conditions mean. The applicant as a visa holder is obliged to comply with her visa conditions during her prescribed period of stay and be aware of the consequences of not complying with her visa conditions. Based upon the applicant’s history in Australia and the information available to her, she either knew or ought to have been aware that she was in breach of visa condition 8202 in not being enrolled in a course of study for a period of 11 months.

22. On the evidence before the Tribunal, it finds the applicant was not enrolled in a registered course for the 11-month period between 6 April 2017 and 9 March 2018. Accordingly, the applicant has not complied with condition 8202(2). As this was a condition which attached to her visa, the applicant has therefore breached a condition of her visa and the visa is liable to cancellation under s.116(1)(b).

    Consideration of the discretion to cancel the visa

23. 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

24. The applicant gave evidence that she came to Australia as a tourist in June 2016 and after having stayed in Australia for a number of weeks, she decided that she wanted to study in Australia and she decided to apply for a student visa which was granted on 30 August 2016 in which she was to study a suite of courses in Leadership and Management. She did not travel to Australia for the purpose of study but changed her purpose of study once she arrived and applied for the student visa.

25. The applicant completed the Certificate IV in Leadership and Management at [Education Provider 1], and was released on 6 April 2017 but did not re-enrol until 9 March 2018.

26. On the evidence before the Tribunal, the applicant has been in Australia since June 2016, being 3 years and 3 months and she has only completed the Certificate IV course, but she was not enrolled for a period of 11 months between 6 April 2017 and 9 March 2018. The long gap of not being enrolled is inconsistent with an intention to study.

27. The applicant has given evidence that if possible she intends to remain in Australia and complete the courses she intended to study being both the Diploma and the Advanced Diploma of Leadership and Management which would take a further 2 years to complete. The applicant gave evidence that her current de facto partner, [Mr A], is from [Country 1] and he arrived in Australia approximately 8 years ago as a refugee and is on a Subclass 785 Temporary Protection visa.

28. The applicant gave evidence that if her visa was cancelled and she returned to Malaysia, her de facto partner would have difficulties leaving Australia to join her in Malaysia because of his visa status. There was no corroborating evidence of what difficulties her de facto partner would have leaving Australia to visit her in Malaysia.

29. Having regard to the applicant’s evidence, the Tribunal accepts that the applicant has travelled to Australia as a tourist but she changed her intentions in obtaining the student visa and completing a Certificate IV which revealed an intention to study. However the 11-month gap in her studies is inconsistent with an intention to study. Further there are real concerns about whether the applicant’s future intentions are to study in Australia or to remain in Australia solely for the purposes of remaining here with her de facto partner. In light of her evidence and given her conduct in Australia as set out above, the Tribunal gives this factor marginal weight towards the visa not being cancelled.

    The extent of compliance with visa conditions

30. The applicant was not enrolled for a period of 11 months and 3 days between 6 April 2017 and 9 March 2018 which is a substantial period of time. Therefore, the applicant has not complied with condition 8202(2) for a substantial period of time. The non-compliance with condition 8202(2) for such a substantial duration of time may weigh towards cancelling the visa unless the Tribunal accepts her reasons for non-enrolment or accepts the reasons were beyond her control.

31. The applicant in evidence gave a number of reasons why she was not enrolled during that time and they reflect the matters contained in the Submissions.

32. Firstly she claims as set out above that she wanted to change educational institutions because she was dissatisfied with [Education Provider 1]. She was released from [Education Provider 1] and claims that she was misled by the receptionist at [Education Provider 1] who did not tell her that she had to enrol as a matter of urgency. Based on the applicant’s evidence, the Tribunal is not satisfied that the receptionist at [Education Provider 1], which she was dissatisfied with and wishing to depart, is the correct person to give advice on these matters. Further the statements made by the receptionist were correct and may have been taken out of context by the applicant. The applicant’s evidence was that the receptionist told her not to rush her decision, to consider her options and use the Certificate IV she was to receive to make such application. She did not tell the applicant she was not required to re-enrol or that she should take 11 months to get enrolled in the course. The applicant was aware of her visa conditions and of the requirement to be enrolled. Accordingly the Tribunal finds that the applicant was responsible for her period of non-enrolment and it was not as a result of any incorrect advice given by the receptionist.

33. Secondly she had a relationship break-up with her husband who was living in [Country 2]. The applicant and her husband were married in January 2017, but were in a long distance relationship. Her husband had told her that he was prepared to wait for her while she was studying in Australia and he was based in [Country 2]. However they were having difficulties with their relationship and in mid-2017 he wanted her to return home to Malaysia. She gave evidence that in late July 2017, she went to [Country 2] [for] 10 days to meet up with her husband as she was confused about whether to go back to Malaysia or stay and continue studying in Australia. They had discussions about their future and they agreed to separate and divorce. The Submissions enclosed a translation of the Certificate of Divorce which was certified [in] November 2017.

34. The Submissions claim that the applicant had suffered emotional and mental instability as a result of her marital breakdown. However such submission is inconsistent with her evidence that the applicant commenced her relationship with her current de facto partner in June 2017, before the break up of her relationship with her husband. She gave evidence that she made the decision in her mind to divorce her husband in June 2017, which was inconsistent with her earlier evidence about going to [Country 2] in July 2017 and being confused about returning to Malaysia. The applicant tendered a letter from [Dr B] dated 9 March 2018, stating that the applicant had visited the clinic between 2013 and 2016 for facial seborrheic eczema, which is non-infectious and might be due to underlying stress. The letter confirms that the applicant had purchased topical steroid and synthetic detergent over the counter on 1 March 2017 and 30 September 2017 due to a facial eczema flare-up. The Tribunal finds that while the letter confirms that she was suffering from eczema, at different points of time over many years, the letter does not make any findings as to whether she could study and whether she was suffering from stress arising from the breakdown in her marriage, which prevented her from undertaking her studies. Other than the letter, the applicant did not tender any medical or psychological evidence as to her mental state at the time. In light of the lack of corroborating evidence about her mental state at the time and the commencement of her new relationship before her trip back to [Country 2] in July 2017 to bring her marriage to an end, the Tribunal does not find that the break-up in her marriage and her mental state prevented her from enrolling or were reasons beyond her control.

35. Thirdly the applicant claims that after returning from [Country 2] she was in pain due to a vaginal infection and claims that the pain levels were such that she could not walk for a short period of time and was in pain for around three months. She submitted patient health summary notes from [a] Medical Centre printed on 9 March 2018. The printed health summary notes confirm that she had visited the clinic for consultation with [Dr C] on 15 August 2017 and 22 August 2017, [Dr D] on 17 August 2017 and [Ms E] on 9 March 2018. The notes do not observe that she was in pain while walking and there is no medical report provided which confirms that such condition would impact on her ability to enrol or study. Apart from the medical consultations that she had in August 2017, there is no evidence of any other medical examinations and consultations about her condition at the time. The applicant claims that her medical condition was such that she was in discomfort for 3 months from July 2017. The medical evidence does not support her claims about the duration and severity of her condition and whether they would have impacted on her ability to enrol in a registered course of study and study. Further if there were medical issues, she could have enrolled in a course of study and sought to defer those studies.

36. Fourthly the applicant claims that her grandfather with whom she was close was sick between July 2017 and November 2017 and he passed away in March 2018. The Submissions claim that she was distressed by her inability to return to visit her ailing grandfather. The applicant gave evidence that she visited her grandfather in July 2017 during her visit to [Country 2] and again in November 2017, when she was in Malaysia. There is no medical evidence as to her condition and her ability to enrol in a registered course of study during this time. The Tribunal does not accept that this reason explains the 11-month period of non-enrolment.

37. The Tribunal does not find the above reasons compelling and convincing reasons as to why she was not enrolled in a registered course of study or that they were beyond her control.

38. The Tribunal finds that the applicant was responsible for not being enrolled and the substantial period of non-enrolment. By reason of the duration of the breach and the applicant’s responsibility for the breach the Tribunal gives this substantial weight towards the visa being cancelled.

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

39. The Tribunal asked the applicant if she or other members of her family would suffer hardship if the visa was cancelled.

40. The applicant gave evidence that the visa cancellation would cause her a substantial degree of hardship as her de facto partner is a refugee on a Subclass 785 Temporary Protection visa.

41. The applicant gave evidence that if her visa was cancelled and she returned to Malaysia, her de facto partner would have difficulties leaving Australia to join her in Malaysia because of his visa status. The applicant produced a relationship certificate dated [in] April 2018 registering their de facto relationship.

1. There was no corroborating evidence of what difficulties her de facto partner would have leaving Australia to visit her in Malaysia. No details were submitted as to his visa or visa conditions or why he would be prevented from going to Malaysia and returning to Australia.

2. The applicant gave evidence that if the cancellation was set aside she would finish her Diploma and Advanced Diploma of Leadership and Management, and then probably return to Malaysia to commence her business. It is unclear what would occur with her de facto partner in those circumstances.

3. The Tribunal finds that these matters may be the consequences of the visa cancellation, but they are not matters which would constitute a degree of hardship sufficient to weigh against cancelling the visa.

4. The Tribunal considers that the above matters give some weight towards the visa not being cancelled.

   Circumstances in which ground of cancellation arose. 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

5. The applicant gave evidence as to the circumstances that led to the cancellation of the visa as set out above.

6. Ultimately the responsibility regarding enrolment rests with the student and the Tribunal is not persuaded by her reasons for non-enrolment.

7. The applicant knew that by not being enrolled in a registered course of study she would have been in breach of condition 8202 and that her visa may be cancelled.

8. The primary purpose of the applicant under the visa is to undertake a registered course at a level appropriate to her visa and the applicant was not enrolled for the 11-month period which is a substantial period to be in breach of the visa.

9. The Tribunal has considered the applicant’s explanations for why she was not enrolled for this substantial period and therefore in breach of condition 8202(2). The Tribunal does not accept the circumstances were beyond her control or that the circumstances indicate reasonable explanations for not being enrolled for such a period of time. The Tribunal gives this matter very substantial weight towards the visa being cancelled.

   Past and present behaviour of the visa holder towards the Department

10. According to the Decision Record, the applicant had responded to the NOICC. Further there was no other evidence that the applicant had been uncooperative towards the Department. The Decision Record also confirmed that there is no evidence that she had been uncooperative with the Department or the Department’s staff. The Tribunal gives this factor little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

11. As the cancellation of the visa does not affect the visa of any other person, this matter is not relevant in this application and the Tribunal gives this no weight towards the visa not being 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

12. If the Tribunal decides to affirm the decision to cancel the visa under these grounds, then the applicant will become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act if she does not voluntarily depart Australia. Further pursuant to s.48 of the Act the applicant will have limited options to apply for further visas in Australia, so she would need to depart Australia and apply from overseas for most types of further visa applications.

13. Further, if the Tribunal decides to affirm the decision to cancel the TU500 student visa under these grounds this will come within the identified risk factors to make the applicant meet Public Interest Criterion 4013, so if the applicant decides to apply for a new visa from overseas if she has to depart Australia, then that application may not be approved within the next 3 years.

14. However these consequences are the intended consequences of the legislation when a visa is cancelled under these grounds.

15. The applicant gave evidence that if the visa remained cancelled she would return to Malaysia and therefore there is no indication that she would become unlawful or be subject to detention.

16. Accordingly the Tribunal gives this factor marginal weight towards the visa not being cancelled.

    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

17. This matter does not appear relevant in this application as the applicant gave evidence that if the visa remained cancelled she would return to Malaysia and she did not give any reasons as to why she could not return to Malaysia and she has not made any claims that relate to this consideration. Accordingly the Tribunal gives this factor no weight towards the visa not being cancelled.

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

18. This matter is not relevant in this application as the cancelled visa is a temporary visa and the Tribunal gives this factor no weight towards the visa not being cancelled.

    Any other relevant matters

19. The Tribunal is not aware of any other relevant matter in relation to the decision whether the visa ought to be cancelled.

    Conclusion

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

    DECISION

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

    Michael Biviano
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1) The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)a Foreign Affairs student; or

    (c)a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)must be enrolled in a full time registered course; and

    (b)subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3) A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)  is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b) changes their enrolment to a course at the Australian Qualifications Framework level 9.