Bhullar (Migration)

[2019] AATA 1269

Bhullar (Migration) [2019] AATA 1269 (8 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Davinder Kaur Bhullar

CASE NUMBER:  1731819

HOME AFFAIRS REFERENCE(S):           BCC2017/3623787

MEMBER:Michelle East

DATE:8 April 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 08 April 2019 at 12:01pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – not fulfilling purpose of stay in Australia – compelling circumstances beyond applicant's control – degree of hardship – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 December 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that there was a ground for cancellation for breach of condition 8202 of the Act, namely the applicant was not enrolled in a registered course of study from 15 March 2017. 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 provided a copy of the letter accompanying the delegate’s decision cancelling the visa dated 8 December 2017.  The applicant was provided with a copy of the delegate’s decision at the hearing and the contents of it were put to the applicant pursuant to section 359AA of the Act.  The applicant confirmed at hearing that she was aware of the contents of the delegate’s decision and did not require an adjournment.

4. The applicant appeared before the Tribunal on 5 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages although the applicant did not require the services of the interpreter.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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:

   ·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).

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

9. According to the delegate’s decision, information relied on from the Provider Registration and international Student Management System (PRISMS) indicated the applicant was not enrolled in a registered course of study from 15 March 2017.

10. In her response to the Notice of Intention to Consider Cancellation (NOICC) and at hearing, the applicant confirmed she had not been enrolled in a registered course of study from 15 March 2017.

11. On the evidence before the Tribunal including the applicant’s own submissions, the applicant was not enrolled in a registered course of study.  Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

12. 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’.

13. On 15 November 2017 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because she was not enrolled in a registered course of study and therefore failed to comply with condition 8202(2) of her visa.

14. The applicant responded on 20 November 2017 requesting an extension of time and provided a response on 30 November 2017.

15. In her response she stated the following:

    I am genuine student.  But strange and unacceptable things happened in my life.  I come here for Master course but before my main course I have 20 weeks elicos.  Which I failed three time.  It was too dispointed to me.  I am not null student I did my graution in first division but I was struggling to pass that. When third time I failed Elicos I was so confused whether should I again enrol myself for Eclicos or change the course and education provider where am egilble to enrol for direct degree course.  But I could not find any suitable course for me here.  So I decide to again join the English class or take Ielts test in order to fill full the requirement to enter in Master degree.  So I request The ECU for package study offer (10 weeks elicos).  They offered me. But I could not accept because that time my life was totally messed up. (sic)

16. The applicant goes on to discuss that she was depressed, ‘kicked out’ from the house from where she was living, her feet got injured and she was unable to walk.  She said ‘everything was going wrong in my life’.  She said she decided to take a break of at least six months.  The Tribunal asked whether she contacted the Department at this time to discuss her options.  The applicant said she had looked at the Department’s website which stated international students could defer their studies for up to 12 months.  She said she didn’t realise that she also needed to contact the Department and her education provider.  She admitted her own fault in not contacting the Department.  She said she got sick, depressed and not able to walk.  She said her friend took her to the doctor and her friend has her medical reports.  The applicant said she would provide them to the Department but did not do so prior to the delegate’s decision.  The Tribunal questioned whether she now had those medical reports and she said she did not.  She said her friend took her to a homeopathic practitioner and she’d paid a substantial sum of money to obtain her reports and nothing was provided.

17. The applicant gave evidence regarding her family’s situation in India.  She said that her brother was born disabled however in 2016 he and their father were involved in a car accident.  After the accident he required surgery which was expensive.  The applicant provided copies of the medical bills from the hospital.  Her brother passed away in December 2018 and prior to that time required full time care as well as a ventilator.

18. She said since her visa cancellation she had been working hard to improve her English.  The Tribunal acknowledges her fluency in English at the time of the hearing.  She said she was also undertaking further online courses from India in computers and web design.  She said her father and her prospective husband both supported her financially.

19. The applicant also stated in her response that she was told by her parents in India that they had found a ‘boy for me and they marry me with him when I come back home’.  She said she doesn’t want to get married to some ‘unknown guy’ and has no option but to stay in Australia. 

20. At the time of her response she said she was stable physically and mentally and really wanted to get back on track and continue with her study.  She acknowledged that she knew not attending class was a non-genuine student activity.

21. On 8 December 2017 the delegate made its decision cancelling the visa.

22. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of any breach and any reasons for the breach.

    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

23. The purpose of the student visa is to enable the visa holder to undertake study in Australia.

24. As outlined above the applicant has not been enrolled in a registered course of study since 15 March 2017.

25. The Tribunal finds the applicant’s breach of condition 8202 of her visa to be significant because she was not engaged in study for which her visa was granted and was not fulfilling the purpose of her travel to and stay in Australia.

26. The Tribunal asked the applicant whether she had compelling reasons to remain in Australia.  The applicant in her response to the NOICC said that her parents had arranged for her to marry a man who she had not met and did not want to marry.  Despite this however, from the applicant’s evidence it appears that her prospective husband is supporting her financially.

27. The applicant’s non-engagement in study for which her visa was granted weighs in favour of cancellation.  The Tribunal accepts the applicant’s evidence that she may be forced into an arranged marriage if she had to return to India, however finds that this falls short of a compelling reason to remain in Australia.

28. The Tribunal finds this weighs against the applicant.

    The extent of compliance with visa conditions

29. The applicant was granted a Subclass 573 Higher Education Sector visa to undertake specified studies in Australia.  As noted in the delegate’s decision, the applicant has not been enrolled in a registered course of study since 15 March 2017.

30. The Tribunal considers the condition of her visa to be important because one of the primary reasons for holding a student visa is to be enrolled and to study and she has not done so for a significant period of time. 

31. The Tribunal considers this weighs against the applicant.

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

32. The applicant gave a statement in response to the NOICC issued by the Department.  In that document she gave a comprehensive response to why her visa should not be cancelled and the effect on her should the cancellation be affirmed.

33. The Tribunal asked the applicant to elaborate on this further at the hearing.  As noted above, the applicant’s circumstances, as described, were quite difficult for her at the time she was not studying.  She also gave further evidence regarding her family and how her parents have supported her in her studies and wish for her to be successful.  She said she now only has an older sister who ceased studying after school.  She said that she has a Bachelor’s degree but without the Masters qualification she is unable to work in her profession.  Her professional future and the education she needs to achieve that are clearly matters which are important to her.  The applicant’s evidence regarding the effect on her parents should her visa remain cancelled was also compelling.  She said the difficulties they have encountered with the passing of her brother meant that she had been unable to talk with them about her current situation.

34. The Tribunal accepts that the applicant would suffer significant emotional, psychological and financial hardship if she were to return to India without any qualifications and gives this substantial weight in her favour.

    Circumstances in which the ground of cancellation arose.  Were the circumstances beyond the visa holder’s control

35. After receipt of the NOICC the applicant provided an explanation as the circumstances in which the ground of cancellation arose.

36. The Tribunal explored this issue further with the applicant at hearing.

37. The Tribunal asked the applicant whether she thought about contacting the Department at the time she said she was going to take a break of at least 6 months and as noted above she said she looked on the Department’s website and did not think she needed to notify the Department as well.  The applicant accepts her error.

38. The Tribunal is prepared to accept that the situation she was in would have affected her ability to study and was beyond her control.  However, the applicant by her own admission did not contact her education provider or the Department to discuss ways of going forward and not being in breach of her visa conditions.

39. The Tribunal is satisfied that some of the circumstances in which the ground of cancellation arose were beyond the applicant’s control.  The Tribunal gives this some weight in the applicant’s favour.

    Past and present conduct of the visa holder towards the Department

40. Nothing adverse is known about the applicant’s past and present conduct towards the Department.  The Tribunal gives this some weight in the applicant’s favour.

    Whether there are mandatory legal consequences such as whether cancellation would result in the visa holder being unlawful and subject 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

41. The delegate’s decision indicates that if the applicant’s visa were to be cancelled she would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if she does not voluntarily depart Australia. Further, s.48 of the Act means that she will have limited options to apply for further visa in Australia.

42. The Tribunal acknowledges the difficulty this would cause the applicant however finds in itself to not be sufficient to weigh in the applicant’s favour.

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

43. The Tribunal has considered whether cancellation of the applicant’s visa would be in breach of Australia’s international obligations, including non-refoulement obligations.

44. There is nothing to indicate that Australia would be in breach of any international obligations and gives this no weight in the applicant’s favour.

45. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant breached condition 8202 of her visa.  The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant is not fulfilling the purpose of her travel to and stay in Australia as she is not undertaking study for which her visa was granted.  The Tribunal has found there are compelling circumstances in this case and that the breach occurred in circumstances to some degree beyond the applicant’s control.  The cancellation will not affect any other person’s visa.  It will not be in breach of Australia’s international obligations.  The Tribunal is prepared to accept that significant hardship may be caused by the cancellation and that nothing adverse is known about the applicant’s past and present conduct towards the Department.

46. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

47. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Michelle East
    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.