Bui (Migration)

[2019] AATA 4171

Bui (Migration) [2019] AATA 4171 (2 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Mai Chi Bui

CASE NUMBER:  1833624

HOME AFFAIRS REFERENCE(S):           BCC2018/4026316

MEMBER:Mark Bishop

DATE:2 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 02 September 2019 at 11:23am

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 – pending Partner visa application – no compelling need to remain in Australia – significant period of breach – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2, cls 573.223, 573.231; Schedule 8, Condition 8516

CASES
Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 November 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 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant was no longer enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas. 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 2 September 2019 to give evidence and present arguments. Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The applicant provided a copy of the decision record to the Tribunal. The applicant was assisted by her Migration Agent.

5. The applicant and the husband of the applicant gave evidence to the Tribunal

6. The applicant advised the Tribunal she came to Australia in 2014. She advised she did not continue study in Australia after completion of some and ELICOS and VET courses because she got married in January 2018 and wished to look after her husband. The applicant advised she did not study after October 2016. She said her English was no good. At a later stage of the review hearing the applicant provided copies of completion of English language courses and Business courses in the VET sector in the period 2015 to 2017. See paragraph 26 hereunder.

7. 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

8. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   s.116(1)(b) - non-compliance with conditions

9. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 was attached to the applicant’s visa. This condition requires a visa holder continue to satisfy the primary or secondary criteria for the grant of a visa.

10. Condition 8516 requires that the applicant 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 respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

11. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant met cl.573.231 if they were not an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student.

12. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a bachelor’s degree, master’s degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. The relevant instrument specifying education providers as eligible education providers for this visa was IMMI 12/037.

13. To satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application. ‘Principal course’ is defined in r.1.40. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 12/037.

14. The delegate made the following findings:

    ·According to PRISMS the visa holder was no longer enrolled in  a bachelor’s degree or master’s degree course;

    ·According to PRISMS the visa holder was not enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister made under the relevant instrument;

    ·The visa holder no longer satisfied either subclauses 573.231 or 573.223(1A) and had not complied with condition 8516;

15. The delegate stated the applicant was notified of the intention to consider cancellation (NOICC) on 17 September 2018 and the notice invited the applicant to respond in writing. The applicant did not state whether she agreed or disagreed that there were grounds for cancellation.

16. On 15 November 2018 the Migration Agent (MA) for the applicant advised the Department in writing (Tf: 9) as follows:

    ·The applicant held an offer of enrolment of enrolment dated 12 September 2018 in a Bachelor of Business (Tf:12.) The offer of enrolment was not signed and there was no evidence any tuition fees had been paid. The offer of enrolment stated the particular course commenced on 22 October 2018. The offer of enrolment outlined the conditions of acceptance. There was no evidence before the Tribunal the applicant complied with the conditions of acceptance. In evidence before the Tribunal the applicant advised she did not accept this offer of enrolment;

    ·The applicant complied with all conditions attached to her 573 visa;

    ·She did not pay a deposit because her father was ill. This was beyond her control;

    ·Reasons for studying in Australia (western qualification is better, the proposed degree exposes the applicant to different industries, she wishes to advance her career)

17. In evidence the applicant advised the Tribunal she did not accept this offer of enrolment. She did not enrol in this degree. The applicant advised the Tribunal she had not been enrolled in any course of study since September/October 2016 because university was too difficult for her. He father was unable to pay her fees. She had not been enrolled in a course of study since late 2018.

18. The Tribunal asked the applicant to comment on the delegate’s decision record at the hearing and in particular to comment on her enrolment and circumstances related to her enrolment. The applicant advised the Tribunal as follows:

    ·She did not study because her father in Vietnam was ill, she got married in Australia and study in Australia was too difficult.

19. The Tribunal has considered the information outlined above. In particular the Tribunal has considered the written submission provided by the MA for the applicant and her responses to questions arising from this information.

20. Based on the information above, the Tribunal finds that the applicant, while holding a subclass 573 student visa, did not continue to satisfy cl.573.231 or cl.573.223(1A) and therefore did not continue to be a person who would satisfy the primary criteria for the grant of the visa. There was no evidence before the Tribunal to indicate that the applicant satisfied the secondary criteria for the grant of the visa. The Tribunal finds therefore that she breached condition 8516 attached to his student visa.

21. 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 the power to cancel the visa should be exercised.

    Consideration of discretion

22. 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

23. The delegate outlined the applicant’s visa and immigration history as follows:

    ·The visa holder was granted a Student visa for Australia on the basis of her intention to study at the Higher Education level specifically, a Bachelor of Business with Cambridge International College.

    ·In her response to the Department, the visa holder stated she intended to remain in Australia to continue studying and gain a qualification to improve her future prospects for employment. At the time of the delegate’s decision according to PRISMS, the visa holder did not hold a confirmation of enrolment for her proposed course of study, Bachelor of Business.

    ·According to Departmental records on 27 June 2018, the visa holder lodged a valid application for a Partner visa, indicating that she now intends to remain in Australia permanently on the basis. The application is currently being processed. The applicant confirmed in evidence to the Tribunal this remained her current intention.

24. If the Tribunal affirms the decision of the delegate to cancel the visa, the visa holder will be able to apply for a Bridging Visa E to allow her to lawfully remain in Australia while her Partner visa application continues to be processed. If I cancel the visa this will not affect her ability to be granted the visa, provided she can meet all relevant criteria.

25. The Tribunal gives a little weight to this consideration in the visa holder’s favour.

26. The applicant advised she came to Australia to improve her English language skill and study. She completed an English course at Certificate IV level in May 2015 and two courses in Business in 2016/2017. The applicant advises she had not completed any courses since that time. Her student visa was cancelled so she stopped attending school. Her father got cancer and passed away in 2019. She is now married. The applicant advised she wished to remain in Australia because she was married. The applicant advised she did not have any children. The applicant advised she was not working in Australia. The applicant advised she did not own any assets in Australia.

27. The applicant advised she did not have any other reason compelling or otherwise excluding her marital status and concern for her husband’s health for remaining in Australia.

28. The applicant advised she could not provide a copy of her marriage certificate to the Tribunal. The applicant advises she applied for a partner visa in August 2018. The delegate made a finding this application was made in June 2018. The applicant’s husband also gave evidence. He advised the Tribunal he could not remember their wedding date. He thought it might have been in the February 2018 or December of 2017. He thought it was in the summer because it was hot.

29. The Tribunal is concerned as to this evidence. The Tribunal is concerned the applicant was unable to provide proof of her marriage. The Tribunal is concerned the principal witness of the applicant, said to be her husband could not remember his marriage date. The Tribunal is uncertain as to whether the applicant and her alleged husband have actually gotten married. The Tribunal does not make a finding on this point.

30. On many occasions the Tribunal gave the applicant the opportunity to outline compelling reasons whether as to whether she has a compelling need to travel to or remain in Australia. The applicant advised she wished to remain in Australia to look after her husband. Asked why this was compelling the applicant advised her husband suffered from a medical complaint, possibly diabetes and had high blood pressure. The applicant’s husband sat in the public gallery of the review hearing room throughout the hearing and heard all the evidence of the applicant. She said needed to supervise his diet. In evidence the applicant’s husband advised the Tribunal he had a diabetes problem in the past but his was no longer an issue. He had changed his died and was eating in a more healthy manner and has stopped drinking soft drinks. He advised his health was satisfactory and was no longer reviving any medical treatment.

31. The Tribunal has considered all this information. It is clear the applicant and Mr Paino care for each other. They may well be married.  It is natural that each of the parties wishes to look after each other. It is natural that each of the parties wishes to stay with each other. This is usually considered a pre-condition of a successful marriage. It is a normal part of a marriage. It is generally the reason why a couple choose to get married and not enter into another form of a relationship. The applicant did not outline any reasons as to why her husband could not join her in her home country. The applicant did not outline any reasons for not returning to her home country.  The Tribunal is of the view that entry into Australia to study at a particular level, non-study for a lengthy period of time, and later marriage do not amount either individually or in aggregate as a compelling need to travel to or remain in Australia.

32. Apart from her marital status and clear desire to look after her husband’s complaint the applicant was unable to provide any evidence of a compelling need to travel to or remain in Australia.

    The extent of compliance with visa conditions

33. 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)

34. The applicant advised if she returned to Vietnam her husband would have to join her in that country. The applicant advised her husband was sick. He had diabetics, kidney problems and high blood pressure. The applicant advised she was unable to provide any medical certificates or medical opinions to confirm her husband’s illness. The applicant’s husband Mr Paino advised the Tribunal the applicant assisted him to recover. The couple were married in December 2017 or February 2018.  It was some time in the summer at a long weekend. He could not remember the date. He suffered from diabetes. He is getting better. He is now recovered from his diabetes. He is in good condition. His kidneys and liver is better now. He has stopped eating and drinking sugary sweets.

35. The Tribunal accepts that a married couple wish to remain living together. However it is not unusual in the modern age for couples to be separate for lengthy periods. Some couples are separate because of reasons of work, other study and still others because of family obligations and commitments. These are choices that individuals and couples make very day of the week for a range reasons as outlined above.

36. The Tribunal accepts that it may be distressing for the applicant to be separated from her husband whilst her application for a partner visa is considered by the Department. The applicant did not provide any evidence of possible hardship financial, psychological, emotional or otherwise to the Tribunal. She did not provide any medical opinion, medical report or report of any kind from a psychiatrist, psychologist or counsellor that might lead to a conclusion she would suffer from hardship. There is insufficient evidence before the Tribunal to reach a conclusion that the applicant will suffer hardship if she returns to Vietnam.

    Circumstances in which ground of cancellation arose

37. The Tribunal has considered the grounds upon which the cancellation arose. They are outlined in detail in the delegate’s decision and summarised above. The Tribunal has reviewed the information provided on the Departmental and Tribunal files. The Tribunal has reviewed the submissions of the applicant to the Department. The Tribunal notes the applicant has completed courses in the ELICOS sector and the VET sector. There is no evidence she has been maintained enrolment or continued to study in the HE sector. The Tribunal notes the applicant has not provided an explanation as to why she did not adhere to conditions of enrolment in the HE sector as required by her student visa at the relevant times.

    Past and present behaviour of the visa holder towards the department

38. 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

39. If the Tribunal affirms the decision of the delegate to cancel the visa, the visa holder will be able to apply for a Bridging Visa E to allow her to lawfully remain in Australia while her Partner visa application continues to be processed. If the Tribunal affirms the decision of the delegate to cancel the visa this will not affect her ability to be granted the visa, provided she can meet all relevant criteria.

    Whether there would be consequential cancellations under s.140

40. 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

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

42. Any other relevant matters

43. At the conclusion of the hearing the applicant advises she wished to remain with her husband forever and look after him

44. The applicant’s husband Mr Robert Paino gave evidence on behalf of the applicant. He advised he was a mechanic. He met his future wife in 2016. He was run down and taking drugs. She assisted him to recover. The couple were married in December 2017 or February 2018.  It was some time in the summer at a long weekend. He could not remember the date. He suffers from diabetes. He is getting better. He is now recovered from his diabetes. He is in good condition. His kidneys and liver is better now. He has stopped eating and drinking sugary sweets. Mr Paino advised he wished the applicant to remain in Australia. Mr Paino advised his family wished the applicant to remain in Australia.

45. The Tribunal is not unsympathetic to the applicant’s wish to remain in Australia. The applicant advised the Tribunal she wished to remain with her husband and she had applied for a partner visa. The applicant advised she wished to remain permanently in Australia.  The Tribunal has given careful consideration to this aspect and has also considered the opportunities that may have been available to the applicant to mitigate these concerns. As a visa holder bound by the conditions of the visa, there is no supporting documentation to indicate she sought to advise the Department of her changing circumstances, or in fact, seek to change her visa class, in an endeavour to remain compliant with the conditions of her visa.

1. 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-573 visa  and that a breach in excess of 12 months is significant in the context of a student’s study period

2. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

   DECISION

3. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

   Mark Bishop
   Member