Bhutia (Migration)

[2020] AATA 5265

Bhutia (Migration) [2020] AATA 5265 (1 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Tenzing Kulsang Bhutia

CASE NUMBER:  1820959

HOME AFFAIRS REFERENCE(S):          BCC2018/1186793

MEMBER:Donna Petrovich

DATE:1 October 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 01 October 2020 at 4:19pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered Higher Education course frequently ceased – genuine student – parents withdrew financial support – accommodation issues – limited academic progress – applicant entered into a relationship – decision under review affirmed       

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 July 2018 made by a delegate of the Minister for Home Affairs 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 the applicant had not complied with a condition of the visa.  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 13 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Martin Bailey who claims to be in a relationship and living with the applicant. 

4. 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

5. 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.

   Background

6. The applicant is a 28 year old woman from India, who arrived in Australia on 31 July 2014. She has one cousin in Australia, but the remainder of her family, including her mother, father and sisters, live in India. The applicant told the Tribunal that she is estranged from her family. 

7. The delegate cancelled the visa on the basis that the applicant did not undertake any study in a registered course for more than eight months on two occasions between 13 October 2015 and 11 July 2016 and 12 July 2017 and 2 April 2018.  The applicant was also without any enrolment in an approved course of study for more than six months between 10 November 2015 and 24 May 2016 and for more than 5 months between 5 September 2017 and 28 February 2018.

8. The applicant has also not undertaken any study in a course at Bachelor or Masters Degree level appropriate to the Higher Education Sector Student Visa held by the applicant.  The applicant has been unable to maintain her enrolments and has only completed a Certificate III course and has not undertaken study at a higher education level and has noted periods of unenrolment.

9. The applicant told the Tribunal that she had worked to support herself in hospitality for the prescribed 20 hours per week as a kitchen hand and cook and was responsible for cooking at least half of the menu at her place of work.

10. The delegate cancelled the applicant’s visa on 17 July 2018 on the basis that the applicant was in breach of s.116(1)(fa) and may not be a genuine student, and that her primary intention was that of residing in Australia.

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

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

    Did the applicant comply with Condition 8202?

13. 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).

14. The Tribunal notes that enrolment in a registered course of study was at all times a condition of the applicant’s Subclass 573 (Temporary) (Class TU) Higher Education Sector visa.

15. In her response to the Notice of Intention to Consider Cancellation (NOICC) dated 15 June 2018, 22 June 2018 and 29 June 2018, the applicant did not dispute the grounds for cancellation. She acknowledged that she had not been enrolled for the significant periods of 13 October 2015 to 11 July 2016, 12 July 2017 to 2 April 2018, 10 November 2015 to 24 May 2016, and 5 September 2017 to 28 February, and was in breach of her visa conditions.

16. The applicant advised that she had not been able to attend or be enrolled on the basis that her mother and sister had been contacting the William Angliss Institute in an attempt to speak to her and that her parents had withdrawn financial support from her.

17. Therefore, 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

18. 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

19. The applicant told the Tribunal that she chose to come to Australia to study.  She also told the Tribunal that she was keen to get away from her home country, as she felt her family had betrayed her. The applicant explained that she had been assaulted by an uncle after her family home had burned down and she had been sent to live with him in India. When she reported this to her mother and sister’s they did not believe her or support her.  The applicant told the Tribunal that her family supported her initially, but they withdrew their financial support which made it difficult for her to continue to study. The Tribunal does not accept that the applicants primary purpose  was to travel and stay in Australia for the purpose of study, the applicant’s inability to maintain her enrolment, and the large gaps between re-enrolment indicate to the Tribunal that the applicant may not be a genuine student.

20. The applicant spoke of instability in her living arrangements and relying on others to provide her accommodation and providing for her living expenses indicates lack of financial capacity to support herself for travel, living expenses and tuition fees.

21. The Tribunal would expect that under these circumstances the applicant would leave Australia temporarily until her financial circumstances improve, rather than stay in Australia in breach of her visa conditions.   

22. The Tribunal in considering this gives no weight in favour of considering discretion not to cancel.  

    The extent of compliance with visa conditions

23. The applicant was not enrolled in a registered course during the nine month period of 13 October 2015 to 11 July 2016, the nine month period of 12 July 2017 to 2 April 2018, the six month period of 10 November 2015 to 24 May 2016, and the five month period of 5 September 2017 to 28 February 2018. While the applicant has since studied and completed part of a Diploma of Leadership Management, she has achieved just 2 units as demonstrated in her Certificate of Competency provided by Orange International College on 17 July 2018. The applicant arrived in Melbourne on 31 July 2014 and since this time she has been unable to maintain her enrolment status or complete a course of study. Her visa requires that she maintain enrolment in a registered course of study which she has been unable to achieve. The applicant’s breach is significant, and the Tribunal considers this a significant breach of visa conditions.

24. In relation to the applicant’s financial claim of withdrawal of financial support from her family, it is required at the grant of the visa that the applicant be able to financially support themselves for travel, living, fees and during their stay in Australia, and it would be expected that if this was not the case the applicant would return to her home country until her financial situation improves.

25. Rather, the applicant has remained in Australia without having complied with conditions of her visa.  As such the applicant’s non-compliance is significant and therefore, the Tribunal gives little weight when considering this factor.

    The Degree of hardship that may be caused to the Applicant

26. Whilst the applicant did not raise any specific matters of hardship at the hearing. The applicant is a young woman who told the Tribunal that there had been an incident involving her uncle with whom she was living in India after the family home had been burnt.  Whilst the applicant was not specific, she told the Tribunal that she had told her mother and sister and that they had not believed her, and she had felt betrayed by this.

27. The applicant also told the Tribunal that she had chosen to study in Australia to remove herself from her family, and that ultimately, they had withdrawn financial support for her and that is why she was unable to study.

28. The applicant told the Tribunal that she had lived with her cousin and had no other family in Australia. When her family had withdrawn financial support, that she had lived with a person called “Nathan” who had allowed her to live with him and his family and that she had then shared a room with a friend of Nathan’s until she met Martin Bailey with whom she had initially shared a house­­­, but with whom she was now in a relationship.  She told the Tribunal that she felt that she had nothing to return home to if the delegate’s decision was upheld.

29. The applicant had been supporting herself up until her visa was cancelled, working as a kitchen hand and cook for up to 20 hours per week earning $21 - $24 per hour. The applicant since losing her visa has been unable to work and is supported by Martin Bailey with whom she is in a relationship.

30. Whilst she initially enrolled in Bachelor of Tourism and Hospitality Management at the William Angliss Institute after her arrival in Melbourne on 31 July 2014, and subsequently a Certificate III in Hospitality, and was studying a Diploma of Leadership and Management until the cancellation of her visa on 17 July 2018, the Tribunal was not provided with any evidence by the applicant of her desire to continue her studies.

31. In considering the length of time the applicant has remained in Australia without maintaining enrolment, and on the basis that the applicant has not achieved any qualification with the exception of a Certificate of Attainment from Orange International College, for which the applicant provided documentation, the Tribunal is concerned that the applicant may not be a genuine student and in this case gives little weight in favour of the applicant.    

32. The Tribunal in considering the applicant’s submission acknowledges the difficulties faced by her in these circumstances, and whilst sympathetic appreciates that the applicant has gained valuable work experience whilst in Australia in hospitality, but has unfortunately not been able to achieve any qualifications in any of the courses that she has enrolled.

33. The Tribunal notes that in the event the applicant’s visa is cancelled some hardship; which may include financial hardship that will be caused to the applicant by having to depart Australia, the Tribunal notes that she will be eligible to apply for a bridging visa which may allow her to remain in Australia so that she can finalise any outstanding matters.

34. However, the Tribunal notes that in the event the applicant’s visa is cancelled under s.48 of the Act she may have limited options available to her if applying for further visa in Australia. In addition, she will be subject to Public Interest Criterion 4013 which means that she may not be granted a temporary visa for three yeas from the date of cancellation.

35. The Tribunal accepts that if the applicant’s visa is cancelled, she will suffer some hardship in having to return to India and gives some weight in the applicant’s favour.   

    The Circumstances in which the grounds for Cancellation arose

36. The applicant was granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 24 July 2014. She arrived in Australia on 31 July 2014 having enrolled in a registered course of study, namely Bachelor of Tourism and Hospitality Management at the William Angliss Institute.  The applicant provided the Tribunal with the Provider Registration and International Student Management System (PRISMS) records that detailed the applicant’s enrolment details.

37. A NOICC dated 15 June 2018 was sent to the applicant advising that she was in breach of a condition of her visa.  The applicant responded to the NOICC by email on 15 June 2018, 22 June 2018, 29 June 2018.  The applicant did not dispute that she was unenrolled for the period specified.

38. The applicant told the Tribunal that she had informed the college of her issues but had not put it in writing and had not contacted the Department about the problems with her enrolment. 

39. The applicant advised the delegate that she had not been enrolled as a result of her parents withdrawing financial support. She spoke of personal issues relating to physical abuse suffered in India, and her family’s refusal to support her and of her emotional state as a result of these difficulties.

40. The applicant did not provide any material to substantiate these claims, there were no financial statements, or letters from a medical practitioner or psychologist, or correspondence between her and her education provider.   

41. The delegate cancelled the applicant’s visa on 17 July 2018 on the basis that the applicant was in breach of condition 8202(2) of the grant of the visa by not being enrolled in a registered course of study from 13 October 2015 to 11 July 2016 for a period of nine months, 12 July 2017 to 2 April 2018 for a period of  nine months, 10 November 2015 to 24 May 2016 for a period of six months, and 5 September 2017 to 28 February 2018 for a period of five months. The Tribunal heard from the applicant at the hearing that her parents had withdrawn financial support from her.  When asked if she had spoken to the education provider or the Department of these circumstances, she told the Tribunal that she had not and was surprised that her parents had done this.  

42. The Tribunal has considered these circumstances but has been provided no evidence to support the applicant’s claim of her parents removal of financial support and therefore, the Tribunal views the period of time the applicant remained unenrolled and the lack of academic progress by her as a serious breach and gives no weight in the applicant’s favour.

    Past and present behaviour of the visa holder towards the Department

43. The applicant has been cooperative and courteous in all her dealings with the Tribunal.  No adverse information has been provided to the Tribunal and as such some weight is given to her in consideration of this factor.

    Persons in Australia whose visa would be cancelled under s.140

44. The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or might be, cancelled under s.140 of the Migration Act 1958. (“the Act”). Accordingly, the Tribunal places no weight on this consideration in the applicant’s favour.

    Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled.

45. The circumstances in this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision.

    Other relevant factors

46. Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case.

47. Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.  

    DECISION

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

    Donna Petrovich
    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.