1835768 (Migration)

1835768 (Migration) [2020] AATA 1187 (16 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1835768
MEMBER:Elizabeth Tueno
DATE:16 January 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 16 January 2020 at 1:58pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered course ceased – limited academic progress – tuition fees not paid – criminal proceedings against ex-partner – new relationship in Australia – options to move within Italy or the European Union – decision under review affirmed
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8202
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 20 November 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).
The delegate cancelled the visa on the basis that the applicant had not complied with condition 8202(2)(a) in that she was not enrolled in a registered course from 1 May 2018. The delegate was not satisfied that the grounds for cancelling the visa were outweighed by the grounds for not cancelling it. 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 25 November 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Italian and English languages by telephone. The applicant was represented in relation to the review by her registered migration agent.
On 10 December 2019, pursuant to s.359A the Tribunal invited the applicant to provide information about the following matters:
·Whether the applicant can return to Italy to another region or town other than her home town and if not why not?
·As a citizen of a member country in the European Union, why the applicant has not moved to another country within the EU to live, work and or study?
On 27 December 2019, the applicant provided a written response to the above questions.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.
Did the applicant comply with Condition 8202?
Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
·be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
The applicant accepted that she had breached condition 8202 as she is not currently enrolled in a course and has not been enrolled since 1 May 2018 when she was last enrolled in a Certificate III in [Subject 1]. She was also enrolled in a Certificate IV but could not go onto complete this as she did not complete the Certificate III.
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 purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The applicant is [an age] year old woman from Italy. The applicant’s evidence is that she came to Australia [in] September 2015 having left Italy because of an “ugly” situation at home. Criminal proceedings had been commenced against her ex-partner involving allegations of violence, sexual abuse and stalking where she was the victim.
She said that she originally came to Australia on a working holiday visa and then she decided to improve herself and “a part of herself that had died”. She said she could have gone anywhere but decided on Australia because it was the furthest country away from Italy. She said that she also wanted to learn English here.
She said that the situation in Italy remains unresolved. Her ex-partner was found guilty at first instances in relation to the allegation of one incident involving violence against her but not guilty of the stalking or sexual abuse. The matter has been appealed by her lawyer in Italy and while the appeal remains under consideration her ex-partner is permitted to reside in the community and not in custody.
She said that that her ex-partner has made a threat to kill her, that he will find a way to eliminate her. She said it would not be a pleasant situation for her if she has to return to Italy.
In an undated statement written by the applicant, she describes her arrival in Australia as follows:
In one of those moments doing research I happened to read about the Australian Working Holiday Visa. That could have been my salvation. Escape far away from my whole life, looking at a better future.
I arrived in Australia in 2015.
I was still the same person, my trauma had not left, I was still very fragile. After several years I can say all the ghosts are still with me.
Nonetheless with the support of my family it seemed that my mental and psychological health status were improving slightly.
I was trying my best to lay some grounds for a better future here or elsewhere and it was almost working. Starting to build some trust on the outside world. I even started a romantic relationship and being welcomed by my partner’s family as I was a family member has been greatly beneficial to my overall attitude toward my illness.
I was starting a life from scratch and as such I thought that step one of my new life would have been improving my knowledge. I din [sic] not finish high school in Italy, where I come from work comes first. Here I wanted to improve my English language as I could speak not even a work [sic] when I arrived in Australia[1].
Then I would get the skills in an occupation where I could put myself to the others’ service. I am the kind of person who loves to help others. One day, if allowed, I would love to study as [an occupation] just like my [family member].
So I started my process to study in Australia with the assistance of a student agency that a friend of mine recommended. My course required several payments and I was requested to pay the agent every time a payment was due.
Everything was going as planned until my college informed me that my payment was overdue.
[1] The Tribunal under stands this to mean that the applicant could not speak a word of English when she arrived in Australia
In her written response provided on 27 December 2019, the applicant stated, inter alia, that because her ex-partner is not currently in custody and there is no ban on him approaching her, she “will not be safe anywhere that is reachable by him or other people he may instruct to hurt me”. She goes on to state that:
Italy is a small country and it’s very easy to travel from one place to another. Changing city or region would not make any difference in terms of danger to my safety. As a European citizen I know I have the freedom to travel, live and work in other European cities, however with the same reasoning I make for other Italian cities, all cities in Europe are within reach. In a couple of hours by plane you can be anywhere in Europe and nowadays this can be done at the cost of a few Euros. Further, realistically, the only European countries where one could establish without excessive issues given by the different language would be England and Ireland. Not even considering the general difficulties in settling there, the latest “Brexit” represents a big question mark in the possibility to freely establish there. I would not feel safe anyway so close to home, I would never be confident to walk on the street without having to watch my back constantly. I would not feel safe if not locked inside 24/7/ that is not the type of life I wish to live.
Australia represents the safest country among the others.
Easy to integrate with its people, the English language is the easiest to learn among foreign languages. I see the visa system as an extra protection for me as not everyone is allowed access especially if not of good character and this may keep that person away. The extreme remoteness from everywhere gives me way more confidence that it is unlikely (although not impossible) that someone may reach me here to hurt me. The certainty of the law which I did not find in my home country here seems to be much different.
These have been the reasons that brought me to Australia a few years ago. I had the idea of building a new life but the priority number one was getting away from home and him obviously.
She goes on to state that since arriving in Australia, she has met an Australian man named [name] and that he and his family have provided her emotional and financial support. She said, “He is my everything now from over two years and I can’t imagine waking up the morning without him on my side. I have established some roots and I feel very lucky to have found such a caring bunch of people in my messy life. I would have given up by now if it wasn’t for them and their constant support and I call them family.”
The Tribunal considers that the applicant’s primary purpose in coming to Australia was to leave behind a difficult situation in Italy rather than for study. She came to Australia on a working holiday and it was only once she had arrived in Australia that she decided to study. The Tribunal has considered her explanation that she also wanted to learn English in an English speaking country, however it finds that for her this did not necessarily involve a language course. It was not until she arrived in Australia that she decided to study courses. Since then, it is apparent that she is motivated to stay in Australia with her partner and his family and to avoid returning to Italy and the issues going on there with her ex-partner.
In written submissions prepared by the applicant’s migration agent, it was submitted that the her situation in Italy in relation to the criminal matters currently on appeal “justified compelling reasons not to have the visa cancelled” and to not send the applicant home where she would probably face a hard life at the very least. It was the migration agent’s view that the applicant’s traumatic events well constitute compassionate reasons and alone enough grounds to reconsider the cancellation of the student visa.
While the Tribunal has sympathy for the applicant’s difficulties involving her ex-partner, the Tribunal does not accept the applicant’s reasons for not being able to move to another region in Italy or to another country in the European Union. The applicant is fearful that her ex-partner (or someone else on his behalf) will harm her. However, other than in her undated statement where she stated “he was given a restraining order but he just didn’t care. I could see him everywhere I was”, there was no evidence presented that her ex-partner has ever attempted to harm her since the trial pending the appeal. While geographically, Italy is smaller in size than Australia, the Italian population far exceeds that of Australia. Given that the applicant did not speak a word of English before arriving in Australia, she was not limited to English speaking countries.
The applicant has not applied for a protection visa or any other type of Australian visa. She has used the student visa as a means to escape her problems in her home country. As noted above, the applicant stated that one day she wants to study [Occupation 1 course] like her [family member] did. There is no evidence that the applicant has enrolled in [an Occupation 1] course in Australia. The only courses she has enrolled in while in Australia are English language courses and [Subject 1] courses.
As noted above, the purpose of her travel and stay in Australia was to leave behind her problems and escape her ex-partner. And while the Tribunal accepts that an applicant’s purpose in coming to Australia can change over time, at the time when she came to Australia it was not for the purpose of study. While the applicant has stated she would like to study [Occupation 1 subject], the Tribunal considers she does not currently hold an intention to study [Occupation 1 course] since she has made no attempt to enrol in [an Occupation 1] course. Since studying in Australia, she has studied English and [Subject 1] courses. Other than relying on her circumstances in Italy with her ex-partner, the applicant has not explained why she needs or wants to remain in Australia to study English and [Subject 1] courses. The Tribunal is not convinced that the applicant has a compelling need to remain in Australia when taking all the evidence into account. As a citizen of member country of the European Union, she has the means to move to and live lawfully in another country. Australia is not her only option.
Accordingly, the Tribunal gives a little weight in favour of cancelling the visa.
The circumstances in which ground of cancellation arose
The applicant explained that the reason why her enrolment was cancelled was because her tuition fees were not paid. She said that her migration agent had told her to pay the tuition fees directly to him and he would pay the college. She paid him cash for the fees as this is what he required. He said that his Eftpos machine did not work. She asked him for receipts and he promised to provide her with them but never did. She said that she would go directly to the bank and withdraw money over the counter rather than by ATM.
When asked if she had any bank statements that would show the cash withdrawals, she claimed that it there would not be any written record of the cash withdrawals. She explained that she would withdraw the cash bit by bit to pay for the tuition fees because she could not withdraw more than $1000.00 per day. She would withdraw $300 or $400 each transaction. When she reached the amount required for tuition she would pay the migration agent.
She said that when she went to the college, she was advised they had not received her fees. She called her agent in front of the school secretary. He told her not to worry and that he would send an email to say she had paid him the tuition fees. However, he never sent the email.
The applicant said that she did not have good people to assist her and explain what she could do. Since May 2018, she has tried contacted the migration agent but he has not replied. She did not know what to do.
Since then, she has been working almost 20 hours per week as she had no one to explain what to do or how to enrol in another course.
She suffered from depression and her doctor gave her some medication for this and for panic attacks. However, this was two or three years ago, prior to her visa being cancelled and the issue of non-payment of her tuition fees. She did not provide any medical report to support this claim, however the Tribunal accepts that she has suffered from depression and panic attacks, although not in relation to the visa cancellation given she last saw her doctor prior to this occurring.
The partner that she met in Australia has since returned to Italy. She said that it was not that she does not want to return to Italy, but she cannot. She has been in Sydney for 4 years and has never left.
When asked if contact had been made with the agent by her current representative, she said she believed the agent was still in operation but she and her current representative had not been in contact with him because they wanted to gather evidence in support of the applicant. The Tribunal has difficulty accepting this explanation. Given that the applicant is laying the blame at this agent’s feet, it would be an obvious place to start gathering evidence from him, such as emails either to or from this agent in relation to the missing funds.
Similarly, the Tribunal has difficulty accepting that there is no bank record or statement that can show the withdrawals made by the applicant to put together the tuition fees. Attached to the written submissions was an email sent by the education provider to the applicant showing the tuition fee she owed was $1,690.00. The applicant should have been able to show in bank statements the $300 or $400 withdrawals that she used to make up the total amount paid to the migration agent.
The only evidence provided by the applicant in support of her claim that she paid the tuition fees to her agent who had not passed this on to the college are two emails she sent to the college. On 1 March 2018, the applicant wrote:
I have paid the school tax always your school has forbidden me to attend the lessons… I paid the instalment while you said that I have not paid but I have paid, you have not made me still continue the lessons…and not only the teacher of my class cannot teach and not only did not help the pupils understand what exams or tests we had to face so I could not come to school to attend classes…and I would like school fees to come given thanks again…why do I have to pay for a school that does not allow me to attend classes?
Thank you very much for stealing money from people who want to study and continue their studies.
On 1 May 2018, the college sent the applicant the following email:
According to our records your fees for Term 1 2018 have not been paid. The only payment made was for material fees, no tuition fee payment was made. The due date for payment of Term 1 2018 fees was 27 December 2017 as stated on our Letter of Offer (attached). This letter of offer states on page 6: Non Payment Fee Consequences – Access to classes and final certification may be refused until all fees due are paid.
When you were asked to provide proof of your payment, you asked us to contact your agency, which the College performed. The college has asked your agency on at least 2 occasions to send proof of payment, to which they did not provide.
The College has also sent yourself and your agency follow up emails on 26/2/2018 and 5/04/2018. You did not respond to any of these…
The applicant replied to this email on 2 May 2018 stating, “I would like to know how much this fee is spent and how much does it cost??? because one says $1765 and another says $1200… send me correctly what are the payments … because I want to take the diploma/certificate”.
While the Tribunal accepts that these documents show there was an issue between the college, agent and the applicant about the tuition fees not having been paid, it does not accept that they prove the applicant had paid the tuition fees to her migration agent. Without any proof such as bank statements showing the withdrawal of amounts, it is difficult to accept the word alone of the applicant that she made the payment. Accordingly, the Tribunal does not accept the applicant’s explanation about the circumstances in which the ground for cancellation arose.

The applicant said that she had no one to help her enrol in another course. But it does not appear that since her enrolment was cancelled, she has made any attempt to re-enrol in the same course and to pay the college herself directly. Rather than doing this, she has continued working and living in Australia rather than returning home to Italy. The Tribunal considers that since her course enrolment was cancelled in May 2018, the applicant’s reasons for remaining in Australia while not studying have been to avoid returning to Italy rather than an intention to study and to continue with her relationship with the Australian man she met since arriving in Australia.
In light of the above circumstances, the Tribunal gives this significant weight in favour of cancelling the visa.
The extent of compliance with visa conditions
Aside from not complying with condition 8202, there is no evidence to suggest that the applicant has not complied with any other condition of his visa. Accordingly some weight is given in favour of not cancelling the visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
When asked what hardship might be caused if her visa were to be cancelled, the applicant said that she would be upset and disappointed because she made a mistake. She said she would also suffer economic hardship because she has dedicated herself to her school and improving herself to get a better job. She said she is not here for fun. If her visa were to be cancelled, she said she would not be able to return to Italy as it is not a pleasant situation there for her. Her ex-partner promised to kill and will find a way to eliminate her.
The Tribunal also takes into account the evidence that the applicant has suffered from depression and has been medicated for this and for panic attacks.
Furthermore, the Tribunal also takes into account that the applicant would be required to leave behind her Australian partner and his family.
The Tribunal accepts that the applicant will suffer some hardship if she has to return to her home country in terms of financial, emotional, psychological and physical hardship. Accordingly, the Tribunal gives this some weight against cancelling the visa.
Past and present behaviour of the visa holder towards the department
As noted above, aside from not complying with condition 8202 there is no evidence to suggest that the applicant has not complied with any other condition of his visa. Nor is there any evidence to suggest that the applicant has not engaged appropriately with the department. Accordingly the Tribunal gives this some weight against cancelling the visa.
Whether there would be consequential cancellations under s.140
This is not applicable.
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
The applicant gave no evidence about any legal consequences for her, nor did she make any submissions about this.
There are a number of mandatory consequences as a result of the cancellation of the applicant’s visa. While the applicant could make another student visa applicant offshore, she would not be permitted (with exceptions) to make an onshore visa application as a result of the cancellation.
If the visa is cancelled, a legal consequence would be that the applicant would not be able to apply for another student visa. Subject to any appeal rights he may exercise, if the applicant chooses to remain in Australia unlawfully, he could be liable for removal and detention. The applicant could also be precluded from being granted a further visa for a period of three years as a result of Public Interest Criterion 4013. The Tribunal is satisfied that those consequences are intended lawful consequences of the legislation and, in the applicant’s case, do not mean that the visa should not be cancelled.
The Tribunal gives no weight against cancelling the visa under this consideration.
Australia’s international obligations
There is nothing before the Tribunal to suggest that the cancellation of the applicant’s visa would breach any international obligations. The applicant confirmed in her evidence that she has no children. The applicant has not made an application for a protection visa, or any other type of Australian visa. Nor has the applicant or her representative raised any concern about any barriers that would prevent her from applying for another type of Australian visa. Accordingly, the Tribunal finds this consideration neutral and does not weigh in support or against cancelling the visa.
Any other relevant matters
The applicant did not give evidence about any other matter that would be relevant to the review of the cancelation of his student visa.
Considering the circumstances as a whole, the Tribunal finds that the factors that weigh in favour of cancelling the visa outweigh the factors against cancelling the visa. In reaching this conclusion, the Tribunal has found that the applicant’s purpose and for travelling to and staying in Australia was not to study but rather to escape circumstances her home country, that she lack of a compelling need to remain in Australia and that her explanation for the circumstances in which the ground for cancellation arose were not accepted. Accordingly, the Tribunal finds that the visa should be cancelled.
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Elizabeth Tueno
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

[2020] AATA 1187

16 January 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction