BOONLEE (Migration)

[2019] AATA 2978

BOONLEE (Migration) [2019] AATA 2978 (26 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms VASSANA BOONLEE

CASE NUMBER:  1702254

HOME AFFAIRS REFERENCE(S):          BCC2017/219043

MEMBER:Wendy Banfield

DATE:26 March 2019

PLACE OF DECISION:  Sydney

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 26 March 2019 at 10:41pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – continue satisfaction of primary criteria – maintain enrolment in the higher education sector – consideration of discretion – genuine student – continue academic progress – financial hardship – reasons for non-compliance – father’s ill health – marriage breakdown – reliance on former agent – credible witness – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 February 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 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not comply with a condition of the visa because they did not maintain enrolment in the higher education sector and as a result, did not continue to satisfy the criteria for the grant 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.

   Background

3. The applicant is a citizen of Thailand and is currently 31 years old. She was granted a Subclass 573 Student Visa on 19 February 2015 and arrived in Australia on 27 February that year. The applicant completed an ELICOS course from 2 March 2015 to 22 January 2016. The applicant was then enrolled to study a Diploma of Business Administration (Higher Education Sector Course) but did not maintain enrolment at that level. Instead she completed a Certificate IV and Diploma in Accounting.

4. The applicant appeared before the Tribunal on 12 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

5. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

6. 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

7. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8516 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 8516?

8. Condition 8516, as it applies in this case, states the visa holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In the present case, the visa was cancelled on the basis the applicant did not maintain enrolment in a course of study that is a principal course of a type specified for Student Higher Education Sector subclass 573 visas by the Minister in an instrument made under regulation 1.40A.

9. The applicant did not deny that she had failed to maintain enrolment in the higher education sector as required by the conditions of her Student Visa. Accordingly, the applicant has not complied with condition 8516 and the grounds for cancellation are made out.

   Consideration of discretion

10. 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

11. 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.

12. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. She advised that it was important for her to study English and having been a building manager for a Japanese company in her home country, she wanted to study in order to progress in her career. The Tribunal considered these reasons but does not give weight to the applicant having a particularly compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

13. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has given weight to the applicant in this regard.

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

14. During the course of the hearing the Tribunal discussed any hardship that may arise as a result of the visa being cancelled. It was submitted on behalf of the applicant that she was unable to cope with higher education at the relevant time due to her divorce and father’s ill health. According to the evidence, the applicant is nonetheless a genuine student and Australian qualifications would allow the applicant to support her family in Thailand. The Tribunal accepts that if the applicant is unable to continue the courses she is now enrolled in, she would suffer financial hardship as a result. The Tribunal places some weight in the applicant’s favour in this regard.

15. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not of themselves, reasons why the visa should not be cancelled.

    ·     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

16. The applicant’s visa was cancelled because she did not comply with condition 8516 attached to her visa. On arrival the applicant completed an English course but while she was waiting for the Accounting course to start, she had difficulties in her marriage. As a result, the applicant said she contacted the Department and withdrew her husband from her visa. In May 2016 her father became very ill with kidney failure and was hospitalised. The applicant claimed that this was why she did not study for a period of time.

17. The Tribunal accepts the applicant was dealing with personal problems at the relevant time; in particular, her father’s ill health and her marriage breakdown for which the applicant provided written evidence in the form of hospital records and divorce papers. The Tribunal places weight on these factors in the applicant’s favour due to their effect on her ability to go on to a higher education course following her English studies or to take steps to change her visa class. According to her evidence, because of the issues in her personal life, including her marriage breakdown, the applicant relied on her former agent to assist her following notification of possible cancellation by the Department but the matter was not dealt with appropriately.

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

18. 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

19. 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

20. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. As those are the intended consequences of the legislation, they are not of themselves sufficient reason for the applicant’s visa to not be cancelled.

    ·     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

21. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.

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

22. The Subclass 573 Student Visa is not a permanent visa.

    ·     any other relevant matters

23. The Tribunal has taken into account the fact that the applicant understands she should have ensured she applied to change her visa class before ceasing her studies at the higher education level. The Tribunal found her evidence to be straightforward and credible and accepts that her conduct was affected by the issues she was facing at the time.  The Tribunal has also placed weight on the applicant having continued to study up to and including the time of the Tribunal hearing.

    Conclusion

24. The Tribunal has considered the applicant’s circumstances individually and cumulatively. While there are some aspects in the applicant’s case that weigh against her, on balance, the Tribunal is satisfied that the majority of considerations weigh in favour of the applicant. The Tribunal accepts the issues encountered by the applicant together with the nature of the breach and her continued study is sufficient reason for the visa not to be cancelled.

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

    DECISION

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

    Wendy Banfield
    Member