Andani (Migration)

[2019] AATA 6225

Andani (Migration) [2019] AATA 6225 (4 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ni Wayan Riski Andani

CASE NUMBER:  1716777

HOME AFFAIRS REFERENCE(S):          BCC2017/1581709

MEMBER:Mark Bishop

DATE:4 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 04 October 2019 at 11:50am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – not enrolled in registered course – discretion to cancel visa – factors for and against cancellation – pregnancy and return to home country for birth – ‘voluntarily cancelled’ enrolment before leaving – return to Australia for work, but employer did not lodge sponsorship application – no written records of work – inconsistent support child’s Australian citizen father, including assistance to gain Australian citizenship for child – no evidence of application for child’s citizenship – domestic violence by boyfriend (not the father of the child) – decision under review affirmed

LEGISLATION

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 July 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

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

3. The applicant appeared before the Tribunal on 4 October 2019.  

4. The applicant provided a copy of the decision record to the Tribunal.

5. On 9 September 2019 the Tribunal wrote to the Migration Agent (MA), the authorised recipient, for the applicant inviting her to appear before the AAT at 8.30am 0n 4 October 2019. The Tribunal received a bounce-back from this address advising that the company had closed all business operations. On 9 September 2019 the Tribunal contacted the applicant and advised her the time and date of the scheduled hearing. The Tribunal informed the applicant her 572 visa cancellation review was still pending with the Tribunal. The applicant advised the Tribunal she would forward he updated contact details. The Tribunal sent another copy of the hearing invitation to the applicant by post. The applicant did not further contact the Tribunal. The applicant did not provide updated contact details to the Tribunal.

6. On 25 September 2019 the Tribunal again sent an invitation to the hearing to the applicant. The Tribunal again received a ‘return to sender’. The Tribunal contacted the applicant and sought detail of her current email address. The applicant provided her email address. The Tribunal asked the applicant to fill out a change of contact details available on the AAT website. The Tribunal informed the applicant again of the details of the hearing. The Tribunal advised the applicant it would forward a further copy of the hearing invitation to the address provided by the applicant.

7. On 26 September the applicant provided her updated details to the Tribunal.

8. At 11.00 am on 26 September 2019 the Tribunal sent a reminder hearing to the applicant’s mobile phone number.

9. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

10. 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

11. 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?

12. 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).

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

14. The applicant was notified of the intention to consider cancellation (NOICC) on 16 June 2017 by email and the notice invited the applicant to respond in writing. On 13 June 2017 the applicant provided consent for the Department to send electronic communication via her (provided) email address. The NOICC was sent to this address. On 23 June the applicant appointed Migration Agent Matthew Rumley to represent her cancellation case.  An extension request and NOICC response was provided. On 3 July 2017 and 19 July 2017 the applicant provided an additional response to the NOICC. The applicant did not dispute there are grounds for cancellation. The applicant provided reasons why the visa should not be cancelled.

15. The delegate made a finding based on evidence available in PRISMS the applicant had not been enrolled in a registered course of study from 13 October 2016. The date of the decision record was 21 July 2017.

16. In evidence the applicant advised she had not been enrolled in a registered course since 13 October 2016.

17. Having regard to the information in the PRISMS as outlined in the decision record and confirmed as correct by the applicant in evidence, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 13 October 2016. The Tribunal finds that she breached condition 8202(2)(a) of her visa.

18. 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).

19. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

20. 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’

    Consideration of discretion

21. 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

22. The delegate made a finding that during the application process for this student visa the applicant stated that her intended purpose of travel to and stay in Australia was to study. In evidence the applicant advised the Tribunal she came to Australia to study and get a graduate qualification. She advised she returned to Bali in late 2016 to have her child. She advised she returned to Australia and has maintained residence in Australia since February 2017 for the purpose of work and income generation. She got pregnant in April 2016. The child was born in December 2016 in Indonesia. Her parents are raising the child.

23. Based on evidence available to the Tribunal in PRISMS as outlined in the decision record and confirmed by the applicant in evidence to the Tribunal the applicant has not been enrolled in a registered course of study since 13 October 2016. Therefore, it appears to the Tribunal the applicant does not meet the requirements of condition 8202(2) (a). The Tribunal therefore give little weight in her favour in considering this factor.

24. In her written response to the NOICC the applicant advised she returned to Australia in February 2017 at the request of World Way Group Pty Ltd to take up a full time managerial role within this company and under the agreement the employer would submit an application for sponsorship on behalf of the client. The applicant advised World Way Group Pty Ltd did not lodge the sponsorship “exposing [the applicant] to breaches of her visa condition” The applicant did not provide a copy of this agreement to the Tribunal. The applicant advised she commenced employment with World Way Group Pty Ltd and remained working with the company for two months. The employer told the applicant to take a break after two months as he wished to renovate the premises. In May 2017 the applicant became aware the employer had sold the business. The employer deducted around $1,200 from her salary to cover sponsorship costs.  The applicant advised the Tribunal she was unable to provide any documentation to the Tribunal concerning any employment agreement between herself and World Way Group Pty Ltd. She was paid in cash. She did not have any written records. She advised she had a picture dated June 2015 of her and her former employer. She provided a picture of two unidentified persons to the Tribunal.

25. In evidence to the Tribunal the applicant advised her original purpose in coming to Australia was to study. She was a high achiever in her studies in Indonesia. She advised she still had one year on her visa at the time of cancellation of her visa. She advised her primary reason for returning to Australia in February 2017 was to gain and maintain employment as she thought she had an offer of work in Australia. The applicant advised she remained in Australia until July 2017 because she still thought her boss had applied to sponsor her. She has never seen the sponsorship papers. She remained in Australia after July 2017 (date of visa cancellation) and has been working 20 hours per week. She advised she did not have any idea what type of visa her lawyer had applied for. She had not seen him since July 2017. She had remained in Australia since July 2017 to earn an income.

26. The Tribunal is satisfied that the applicants’ stated intention at the time of visa application does not constitute a reason not to cancel her visa.

27. The Tribunal finds the reasons the applicant returned to Australia after the birth of her child in February 2017 was to pursue an offer of employment and she has maintained residence continually in Australia since February 2017 for the purposes of employment and income generation.

28. The Tribunal is unable to give this consideration any weight in favour of the applicant.

    The extent of compliance with visa conditions

29. The delegate made a finding in the decision record that based on information before the Department the applicant had not been enrolled in a registered course of study since 13 October 2016.

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

31. The Tribunal therefore consider the extent of the applicant’s non-compliance to be significant. The Tribunal gives little weight in her favour in considering this factor.

32. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal finds the length of the breach significant in terms of the usual time period of study.  As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

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

33. The Tribunal asked the applicant to address any hardship that may be caused by cancellation of her visa. The applicant advised the Tribunal her child might suffer as she would have to remain in Bali as a single parent. The applicant advised the Tribunal her child lived with her parents in Bali and she remitted sums of money (sometimes $500, sometimes $1,000 subject to income as her Bridging visa E permits work of 20 hours per week) on a regular basis for the upkeep of her child. She maintained contact with the biological father of the child. Prior to the review hearing she provided a copy of a birth certificate to the Department that identified the child as Brendan Wolf Willenbrock. She advised the Tribunal the biological father of the child had refused to provide any child support and is not currently providing any child support. He has not visited Indonesia to see his child. The applicant provided a copy of a statutory declaration that outlined the natural father of the child has no future role in costs or expenses associated with the upbringing of his child.

34. She provided a copy of statutory declaration to the Tribunal signed by herself and Gregory Charles Hudson that outlined the following:

    ·She is the natural mother of  Brendan Wolf Willenbrock born in Indonesia 16 December 2016;

    ·She declared the natural father of the child was Gregory Charles Hudson an Australian citizen;

    ·She advised she had entered into a mutual agreement with the father of the child that she would be the sole legal guardian of the child;

    ·Gregory Charles Hudson advised he is the natural parent of the child and will assist his natural child to gain Australian citizenship;

    ·Gregory Charles Hudson advised he consented to sole custody and legal guardianship of the child to be awarded to the applicant. All expenses for the raising of the child are to be borne by the applicant;

35. The applicant advised she wished her son to have a better life. Her son would have a better life in Australia. She advised she remitted money to her parents, approximately $500 to $1,000 per month to assist in living expenses for the family in Indonesia and the raising of her child. Her Bridging visa E limited her ability to work. She could earn a much higher income in Australia.

36. In the NOICC response, the applicant advised that she is the natural parent of a [then] soon to become Australian citizen child. She advised the level of hardship that the cancellation imposed would create significant and substantial hardship due to the force separation of a natural mother and an Australian citizen child. The applicant advised her hardship related to the separation she experiences as her child is in Indonesia and she remains in Australia. She wished to remain in Australia permanently and get a better job.

37. The Tribunal has considered however the applicant’s response to the Department's NOICC. The applicant also that the father whom is an Australian citizen has deserted them. The applicant also advised that the Australian citizen father is happy to provide a Statutory Declaration declaring that the child is the child of an Australian citizen.  The Tribunal asked the applicant if she was able to provide a copy of the statutory declaration or proof of application for citizenship on behalf of the child. The applicant provided a statutory declaration as outlined in paragraph 34 above.

38. There was limited evidence provided to the Tribunal to show an application for citizenship has been made, or the signed declaration. The applicant was unsure if any application for citizenship had been made to the responsible agency of the Australian Government.  See paragraphs 58 and 59 below. She did not advise if she had retained a lawyer or other agent to pursue this matter. She did advise she had not seen her lawyer since July 2017. The Tribunal also finds the information conflicting due to the fact that a person is allegedly willing to sign a statutory declaration yet has apparently deserted the child of the relationship. The Tribunal is not aware if the natural father of a child is legally permitted to contract out of childcare or parental maintenance payments otherwise due for the raising of a child. The Tribunal is not aware of the legal status of the statutory declaration as outlined above in paragraph 34. The Tribunal is not aware if any of the clauses are severable. The applicant did not make any allegations as to duress in the signing of this statutory declaration. Therefore the Tribunal gives some minor weight to this consideration in favour of the applicant.

39. In her written response to the NOICC the applicant advised she returned to Australia in February 2017 at the request of World Way Group Pty Ltd to take up a full time managerial role within this company and under the agreement the employer would submit an application for sponsorship on behalf of the client. The applicant advised World Way Group Pty Ltd did not lodge the sponsorship “exposing [the applicant] to breaches of her visa condition” The applicant did not provide a copy of this agreement to the Tribunal. The applicant advised she worked with World Way Group Pty Ltd for two months.  In evidence the applicant advised she was unable to provide any documentation to the Tribunal concerning any employment agreement or undertaking of sponsorship between herself and World Way Group Pty Ltd.

40. The Tribunal has considered this claim. Since returning to Australia in February 2017 there is no evidence before the Tribunal to show the applicant applied for a new visa. The applicant advised she thought her lawyer may have applied for a student visa. She did not provide any supporting documentation to the Tribunal.  She did advise the Tribunal she had not seen her lawyer since July 2017. It is also reasonable to expect that the applicant would have also communicated more with the potential sponsor to assure that an application was lodged before arriving to Australia. Even if the applicant had made application for a new visa, she is not required retain her current TU 572 visa to await the outcome of the application. The Tribunal therefore give little weight to this consideration in her favour. It is reasonable to expect the applicant might have maintained contact with her lawyer after July 2017 or retained a new lawyer or migration agent if her former lawyer was no longer available to offer advice. The Tribunal therefore give little weight to this consideration in her favour.

41. The applicant has failed to hold approved enrolment is a registered course of study since 13 October 2016 having nonetheless chosen to remain normally resident in Australia on a visa (subject to departure from Australia in October 2016 and return to Australia in February 2017 as outlined in the delegate’s record) which solely exists for engagement in study. The Tribunal therefore considers that the applicant has not complied with her student visa conditions. The applicant made it quite clear in her evidence her purpose for maintaining residence in Australia was to obtain work, gain a higher income and remain in Australia permanently. The Tribunal gives this consideration no weight in favour of the applicant.

42. The Tribunal finds that reasons not to cancel the visa do not outweigh the reasons to cancel her visa.

43. Whilst The Tribunal acknowledges that some hardship may be caused to the applicant should she be required to depart Australia, the Tribunal notes that she may be eligible to apply for a Bridging Visa E which may allow her to remain lawfully in Australia so that she can finalise any outstanding matters.

1. If the visa is cancelled the applicant will become an unlawful non-citizen and may be liable for detention under Section 189 and removal under Section 198 of the Migration Act 1958 if she does not voluntarily depart Australia.

2. Additionally the applicant will be subject to Section 48 of the, Act which means that she will have limited options to apply for further visas in Australia. The applicant will also be subject to Public Interest Criterion 4013. The Tribunal gives little weight in her favour in considering this factor as these relate to the intended legislative consequences of cancellation.

   Circumstances in which ground of cancellation arose

3. The circumstances relating to cancellation of his visa arose are outlined at paragraphs 33 to 38 above.

4. The Tribunal acknowledges that international students may face many adjustments and challenges when studying and living in Australia. It is a reasonable expectation that an applicant understands the conditions of a student visa and seeks assistance from the Department if required.  There is no evidence before the Tribunal that the applicant ever contacted the Department in relation to her student visa and any issues she was facing.

5. The ground for cancellation arose when the applicant first ceased enrolment with a registered education provider and the applicant has been given an adequate amount of time to rectify her enrolment status. The Tribunal considers it reasonable to expect that the applicant was aware when she was granted the visa that it had condition 8202 imposed on it which includes that the visa holder is enrolled in a registered course. The Tribunal notes the applicant advised she voluntarily cancelled her COE prior to leaving Australia. There is no evidence of this “voluntary cancellation” before the Tribunal. Nonetheless the Tribunal considers the applicant would have been fully aware that she had indeed ceased enrolment with a registered education provider as she is a direct party to that enrolment. Therefore the Tribunal considers that she would reasonably have realised that this fact would have impacted on her eligibility to continue to hold her Student visa.

6. The fact remains that the applicant was not enrolled in a registered course of study from 13 October 2016 up to 27 July 2017. The Tribunal gives this consideration significant weight.

   Past and present behaviour of the visa holder towards the department

7. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach

   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

8. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained. It is noted the applicant may be barred from re-entering Australia for a period of three years. He has presented no specific evidence in relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

   Whether there would be consequential cancellations under s.140

9. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

   Whether any international obligations would be breached as a result of the cancellation

10. There is nothing before the Tribunal to indicate there are international obligations to consider.

11. Any other relevant matters

12. The Tribunal asked the applicant if she wished to make any further comment. The applicant advised she wished to study, get a better job, bring her son to Australia and remain in Australia on a permanent basis. Whilst it is natural for a mother to wish to have her child with her at all times that option can be satisfied if the applicant returned to her home country.  The current separation is a decision of the applicant based on a desire to gain permanent residence in Australia at some future time. There are many lawful ways to achieve this purpose. The Tribunal gives this consideration little weight in favour of the applicant.

13. The applicant provided a further document to the Tribunal headed “Statutory Declaration” In form it was a hand written note signed before a pharmacist and dated 1 October 2019. The statutory declaration outlined the following:

    ·She fell pregnant to an Australian citizen Gregory Charles Hudson. In early August 2016 she was the victim of domestic violence occasioned by her then boyfriend Glen Thomas Willenbrock. She outlined particulars. She provided a copy of a police report and final order concerning an AVO against  for twelve months from 25 August 2016 binding on Glen Thomas Willenbrock;

    ·This incident disturbed her exam preparation;

    ·Her parents hate the idea of her being a single mother and “forced’ her return to Australia to take up employment;

    ·After a short period of time in May 2017 her former employer sold his business;

    ·She requested cancellation of her then COE;

    ·She sought advice from an immigration lawyer. She resides in Australia as the holder of a Bridging visa E. There is no news concerning any application for Australian citizenship for her son.

14. In evidence the applicant advised she had re-connected with the natural father of the child and was in contact with him on a regular basis, at least weekly. The detail of that contact is outlined at paragraphs 34 and 38 above.

15. The applicant provided two copies of a form 118, Application for Australian citizenship by descent. The Tribunal reviewed the form 118.The form 118 was unsigned and undated. The form provides for responses to 35 items. The only responses related to the father in paragraph 21. The remainder of the form118 was not completed. It is not clear to the Tribunal that the applicant or any agent of hers has actually lodged any form 118 with the Department. The applicant did not advise of any repeated instances of domestic violence since 2016. The applicant’s PRISMS record  as outlined in the decision record showed she finished a Diploma of Travel and Tourism in September 2016 and her COE in an Advanced Diploma of Travel and Tourism was cancelled by the education provider on 13 October 2016 for reason of ”non-commencement of studies”

16. The Tribunal is concerned as to the lack of evidence as to an application for citizenship on the part of the applicant for her son. A form 118, basically blank, is not evidence of application. The Tribunal gives the matter of an application for citizenship little weight.

17. The Tribunal gives some weight to the matter of domestic violence as a contributory factor to the cancellation of her COE number 69C4EB24.

18. The Tribunal is not aware of any other relevant matters.

19. The Tribunal has considered all factors both individually and cumulatively in the context of the breach. The Tribunal finds that the applicant was not enrolled in a course of study that is the principal source of a type specified for the Subclass TU-572 visa and that a breach of almost twelve months is significant in the context of a student’s study period.

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 Subclass 572 Vocational Education and Training visa.

    Mark Bishop
    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.