1923924 (Migration)

[2020] AATA 5281

1923924 (Migration) [2020] AATA 5281 (23 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1923924

MEMBER:Wendy Banfield

DATE:23 September 2020

PLACE OF DECISION:  Sydney

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

Statement made on 23 September 2020 at 11:49am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course ceased – financial hardship – no plans to return to home country – 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

1. This is an application for review of a decision dated 20 August 2019 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 the applicant did not maintain enrolment in a course of study for a period of nearly 12 months, in breach of visa conditions. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

3. The applicant is a citizen of Papua New Guinea and is currently [age] years old. She came to Australia in 2015 to undertake secondary school studies. The applicant completed [specified grades] of high school before enrolling to undertake a bachelor’s degree at [University 1]. The applicant’s enrolment at [University 1] was cancelled for financial reasons.

4. The applicant appeared before the Tribunal on 10 August 2020 to give evidence and present arguments.

5. The applicant was represented in relation to the review by her registered migration agent. Prior to the hearing the applicant submitted evidence in support of her application for review which has been taken into account in this decision.

   The hearing

6. The applicant confirmed she came to Australia in 2015 to study secondary school in [City]. The applicant completed Years 11 and 12 then enrolled in a Bachelor of [Subject 1] but transferred to [Subject 2]. The applicant’s parents had been supporting her financially, however her father lost his job and was unable to continue. The applicant stated her cousin was going to pay the education fees however, he only paid half of the required amount. According to the applicant her education provider contacted her prior to her enrolment being cancelled but due to non-payment of fees, it was cancelled. The applicant said she understood the reason for the enrolment cancellation that occurred in July 2018.

7. The applicant said she then applied to [College 1] to study a certificate or diploma course, but her applications were refused because, she said, she provided contradictory information. She submitted this was due her application being for courses unrelated to her previous studies. The applicant stated that thereafter she “worked for a while” and has now applied for a Protection visa. The applicant explained that she currently holds a Bridging Visa E that allows her to study and work and if her student visa is cancelled she will be required to reapply for work and study rights.

8. The Tribunal asked the applicant why she still wanted a Student visa. She indicated that she did not want to go through the process of applying for work and study rights again in connection with another Bridging visa. The Tribunal put to the applicant that a Student visa is a temporary visa and visa holders are meant to have the intention to return to their home countries. The applicant advised she is not planning to return to Papua New Guinea.

9. The applicant said she is currently studying a diploma course that finishes in 2021. The Tribunal asked why the applicant had not applied to study elsewhere when she was unsuccessful enrolling at [College 1]. The applicant referred again to financial and study difficulties she had until she was able to arrange her current enrolment. The applicant indicated she accepts there were grounds to cancel her Student visa.

10. The Tribunal accepted the applicant had arrived in Australia with the intention of studying and invited her to make submissions regarding any compelling need to remain in Australia. The applicant referred to her inability to maintain enrolment or study for financial reasons but claimed if she is able to continue studying, she will be able to make something of herself. According to the applicant she is still planning to attend university once arrangements are made for her sister’s studies. The applicant was asked why she is not able to study in her home country and she claimed it is difficult to gain entry to university or find employment. The applicant said she will do better for herself in Australia with Australian qualifications.

11. The applicant said her parents remain in Papua New Guinea however, they have “cut her off”. The applicant stated she is now acting as guardian for her sister in Australia. The applicant stated she has complied with all other conditions related to the student visa in Australia. Regarding any hardship that would be caused by the Student visa being cancelled, the applicant said she would be unable to support herself and her sister. The Tribunal put to the applicant that she had been granted work and study rights before and she agreed, however, the applicant was concerned that she would have to reapply for those rights and there would be a delay. The applicant indicated she was unsure about the current status of her Protection visa application.

12. The applicant was invited to make any further submissions regarding the circumstances in which the student visa was cancelled. The applicant reiterated the financial difficulties she experienced and her cousin’s failure to assist. The applicant explained that her cousin had a family obligation to help financially but had not done so. The applicant confirmed there were no consequential cancellations as a result of her visa being cancelled. She also said she understands the legal consequences of her student visa being cancelled. The applicant indicated she was not aware of Australia having any international obligations in relation to her case.

13. 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

14. 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?

15. 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 full time registered course: 8202(2)(a)

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

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

16. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course.

17. The applicant was not enrolled in a full-time registered course of study from 26 July 2018 to 16 July 2019 when the Department issued a Notice of Intention to Consider Cancellation (NOICC). Therefore, the applicant did not comply with the requirements of subclause (2)(a) of condition 8202 attached to the Student visa. The applicant did not dispute there were grounds to cancel her Student visa.

18. On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).

    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 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

20. The applicant travelled to Australia in 2015 and studied Years 11 and 12 at secondary school. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

21. During the Tribunal hearing the applicant was invited to make submissions regarding his any compelling need to remain in Australia. The applicant claimed studying in Australia will allow her to make something of herself. She claimed it is difficult to gain entry to university or find employment in Papua New Guinea. The representative’s submission of 23 March 2020 sets out the applicant’s financial difficulties that led to her being unable to continue studying at university and the steps she took to enrol at [College 1]. It was claimed this demonstrates the applicant’s willingness to comply with visa conditions. The Tribunal has taken account of the claims made but is not satisfied the applicant has no other options that undertaking studies in Australia. In addition, the applicant was primarily concerned with retaining a Student visa to avoid having to reapply for work and study rights if granted a new Bridging visa in connection with her Protection visa application. It was claimed this would affect her ability to support herself and her sister. The Tribunal finds the applicant has not demonstrated a powerful or convincing reason for needing to stay in Australia and for these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain.

    ·     the extent of compliance with visa conditions

22. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account. However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a student visa and weighs against the applicant in this case.

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

23. During the hearing the applicant claimed she would suffer hardship if her student visa is cancelled because she would not be able to support herself and her sister. However, the Tribunal notes it is most likely the applicant would be granted a new Bridging visa in relation to her Protection visa application and may have the option of applying for work and study rights.  The representative’s written submission states that if the applicant returns to Papua New Guinea she would face a degree of psychological, financial and emotional hardship. This was said to be due to an ongoing inter-family conflict with her brother’s in-laws. It was claimed this led to the applicant and two of her siblings applying for protection in Australia.

24. It was also claimed the applicant would suffer financial hardship if she returns to her home country and has experienced financial hardship in Australia due to debts, ongoing living expenses and the care of her sister. The Tribunal accepts that a degree of hardship will be caused to the applicant if her Student visa is cancelled and affords some weight in her favour in that regard. However, the Tribunal also considered that the applicant has applied for a Protection visa in Australia and will be able to have those claims assessed regardless of the status of her Student visa.

    ·     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

25. The applicant’s visa was cancelled because she remained in Australia as the holder of a student visa but did not maintain enrolment from for almost 12 months. It was submitted that in 2017 the applicant was granted a Subclass 500 Student visa to study a Bachelor of [Subject 1] at [University 1] but then transferred to [Subject 2]. In 2018 the applicant’s enrolment was cancelled due to non-payment of fees resulting from her father’s loss of employment and financial hardship. It was claimed the applicant’s cousin, who had a family obligation to assist financially was only able to cover payment for one semester in 2018 but not thereafter. The representative’s submission states the university was willing to support the applicant however her financial position did not permit her to continue.

26. During the hearing, and in written submissions it was claimed the applicant attempted to enrol at [College 1] to undertake a diploma level course but was not accepted. The evidence was that the applicant attempted several times to enrol at [College 1] including in [various diploma and certificate courses]. It was submitted there were concerns the applicant did not meet the relevant criteria and had also indicated an intention to return to her university studies in future.

27. The Tribunal accepts the applicant made some attempts to maintain enrolment, however, it is not open to Student visa holders to remain in Australia if they are unable to comply with visa conditions. It is a requirement for the grant of a Student visa that applicants have enough funds to support their studies in Australia. While it is unfortunate the applicant encountered financial difficulties, it is not adequate reason for the applicant to stay in Australia while failing to comply with the conditions of her student visa. Therefore, the Tribunal places limited weight on the circumstances in which the ground for cancellation occurred.

    ·     past and present behaviour of the visa holder towards the department

    There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.

    ·     whether there would be consequential cancellations under s.140

28. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

29. The applicant advised during the hearing that she understands the legal consequences of visa cancellation. It can mean that an applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. However, in the applicant’s case it is likely she will be granted a further Bridging visa in relation to her Protection visa application allowing her to remain in Australia while that matter is determined.

    ·     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

30. There is no evidence before the Tribunal that the cancellation of the applicant’s Student visa would result in Australia breaching any international obligations. The applicant has made claims regarding inter-family conflict and related issues in Papua New Guinea that she considers will cause difficulty if she returns. However, the applicant has made a Protection visa application which will allow her claims to be assessed in that context.

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

31. The Subclass 500 Student Visa is not a permanent visa.

    ·     any other relevant matters

32. The Tribunal considered the evidence submitted regarding an inter-family conflict in the applicant’s home country that has resulted in confrontations and complaints to police. The applicant submitted evidence in relation to this. The Tribunal understands these issues have led to the applicant and her siblings applying for protection in Australia. Student visas are temporary and visa holders should have an intention to return to their home countries. During the hearing the applicant stated she does not plan to return to Papua New Guinea. The applicant’s concerns about returning to her home country will be dealt with in the context of her Protection visa application and the applicant will be able to remain in Australia until that matter is determined.

    Conclusion

33. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in her favour, on balance, the Tribunal is satisfied that the majority of considerations weigh against the applicant. The Tribunal considers the length of time the applicant has spent in Australia having breached her visa conditions to be significant. The Tribunal is not satisfied the issues encountered by the applicant are sufficient reason for the visa not to be cancelled.

34. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

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

    Wendy Banfield
    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.