BUNDHOO (Migration)

[2018] AATA 5477

BUNDHOO (Migration) [2018] AATA 5477 (13 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Krishila Bundhoo

CASE NUMBER:  1701582

HOME AFFAIRS REFERENCE(S):           BCC2016/3271416

MEMBER:Stephen Conwell

DATE:13 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 13 November 2018 at 4:42pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Vocational Education and Training Sector – Subclass 572 – not enrolled in registered course – non-payment of fees – financial difficulties – health problems – emotional issues – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 189, 140
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 18 January 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 delegate cancelled the visa on the basis that the applicant had breached condition 8202(2)(a) – enrolment. 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 22 October 2018 to give evidence and present arguments.

4. The applicant was represented in relation to the review by her registered migration agents, who attended the hearing.  

5. 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

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 that the applicant was not enrolled in a registered course.

9. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 19 March 2015. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 21 December 2016, the applicant was advised that information on the Provider Registration and International Student Management System (PRISMS) indicated she had not been enrolled in a registered course of study since 19 December 2015. It therefore appeared that she had not met the requirement of condition 8202(2)(a); and that her visa may be cancelled under section 116(1)(b) of the Act.

10. The applicant replied to the NOICC by email of 28 December 2016 where she confirmed that cancellation of her enrolment, “was due to non-payment of fees as I was facing a bad financial difficulty where my parents could not send me money.  However, I continued to attend classes.”

11. The applicant was sent a further NOICC of that visa, dated 9 January 2017, which was identical to the earlier NOICC save that it mentioned that the applicant had not been enrolled in a registered course of study between 19 December 2015 and 20 December 2016. It therefore appeared that she had not met the requirement of condition 8202(2)(a); and that her visa may be cancelled under section 116(1)(b) of the Act.

12. The applicant replied to the     second NOICC by email of 16 January 2017 in which she repeated and expanded upon the explanation and comments in her previous email of 28 December 2016.  The applicant states:

    I understand you have in your record that I was not enrolled from 20 December 2015 to 20 December 2016 and the reason was solely because of the non-payment of fee.  Kindly note that, I delayed in real enrolling in my course as I had to use the money sent to me for my course to pay for shelter I was much in arrears in my rent and I was served with notice to vacate and to be taken to VCAT if the amount was not paid.  Having no money to pay for bond for another place, I had to use the money that my parents sent for my course to pay for my outstanding rent.  (please find attached the emails and notices received from my property manager)

13. That being said, the applicant at the Tribunal hearing sought to argue that she did not learn of her non-enrolment until several months later and therefore, at worst, she claims she was not enrolled for perhaps six months, not the 12 months as indicated by her PRISMS record.

14. The Tribunal is not persuaded by the applicant’s oral evidence. On the evidence before the Tribunal, including her written responses to the Department, the Tribunal finds that 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

15. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). 

16. Regarding the purpose of the applicant’s travel to and stay in Australia, during the visa application process the applicant said (and confirmed at hearing) that she intended to travel to and stay in Australia for the purposes of study.

17. Regarding the circumstances in which the ground for cancellation arose, the applicant lodged submissions and supporting documentation with the Tribunal prior to the hearing.  At hearing the Tribunal granted the applicant a further 14 days in which to provide further supporting evidence.  In response the applicant provided a further submission and supporting evidence. In summary her evidence states:

    ·       She completed a Bachelor’s degree in English from her home country of Mauritius in 2012.

    ·       Her mother has been a long-time employee at a tourist souvenir store, where the applicant has also worked part-time during her school holidays.  As a result of this long-standing relationship, her mother’s employer encouraged the applicant to travel and study overseas in business and marketing subjects so that she may return and join his employment and further develop the business.

    ·       The applicant formed a close relationship with a fellow student from Mauritius (Mr Puranand Fokeerah and became pregnant to him in mid-2013, however she decided to terminate the pregnancy. 

    ·       A letter of 28 June 2013 from Dr. Marie Stopes International Clinic confirms that the applicant attended the clinic that day and after assessment and counselling she proceeded to terminate her pregnancy at 6 weeks gestation on 28 June 2013. She did not tell her parents of this.

    ·       The following year (2014) the applicant injured her hip and was in pain and immobile for several days and did not leave her home for several weeks.  Not long afterwards her grandfather in Mauritius died; the applicant had a close relationship with him and felt his loss deeply.

    ·       At the time of her visa cancellation the applicant was enrolled in an approved Vocational Education level course of study, specifically a package including the following:

    o    Certificate IV in Business

    o    Diploma of Management

    o    Advanced Diploma of Management

    ·       Her study package was not classroom-based; the students were required to ‘self-learn’ and submit assignments.  This meant that the applicant had minimal regular face-to-face contact with her college.

    ·       The applicant claims that “the warning correspondence of the intention of cancellation of my COE was in December via text and I have(sic) got no other communication of the consequence .. I called my mother to ask about the non-payment, to then know that she was having some financial difficulty herself.”

    ·       The applicant’s written statement also explains her expectation that her COE would be reinstated upon payment of her fees, as had been the case on a previous occasion.  “However, to my dismay, the cancellation of my visa has demonstrated that each school has got different rules.  I had to wait for the next [in]take which would have been in January 2017.” 

    ·       In other written statements (AAT fol. 193) the applicant claims that her family initially kept from her grandfather’s death in August 2016 from her.  However when she learnt of his passing it “came in as a big blow”.  The applicant later states, “I left my part-time job, which soon put me in arrears for my rent and bills.  She was served with a notice to vacate her rental premises.  As she was not working, the applicant “used all the money I had to pay for shelter”.

    Conclusion

18. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of the breach and reasons for the breach as set out in the response to the NOICC and in the applicant’s oral evidence.

19. The Tribunal accepts that the applicant underwent a termination of pregnancy in mid-2013 and this would have confronted the applicant with a moral dilemma and emotional pain.  The Tribunal also accepts that the applicant’s grandfather passed away some time in 2016 which would have also been a sad event for her.  However the Tribunal is not persuaded that these two events were causative factors for the applicant’s non-payment of her college fees.

20. The applicant states that she quit her part-time job but does not explain her reasons for doing so.  Unsurprisingly this decision placed her under financial strain which was exacerbated by her mother also encountering financial difficulties at or around the same time.  When the applicant found it difficult to pay her rent and living costs, she felt she had to make a difficult decision between paying these costs and the costs of her enrolment.  She chose to pay her rent and living costs.

21. The Tribunal accepts that the applicant was experiencing financial difficulty in 2015-2016 and accepts the documentary evidence of the applicant’s difficulty in paying her rent during this period. However there was no evidence that the applicant sought any financial counselling or that she sought to notify her college of her predicament. The Tribunal considers a student in this circumstance would seek assistance at the time in which the financial hardship was, and is occurring, and perhaps seek to defer her studies in order to mitigate any subsequent impact on her academic progression. There is no evidence of the applicant having sought such assistance or counselling.

22. Furthermore the medical evidence does not demonstrate that the applicant’s termination of pregnancy in mid-2013 or her hip injury the following year impacted on her ability to undertake her study between December 2015 and December 2016.

23. The purpose of the student visa is to enable the visa holder to undertake study in Australia. The applicant was not enrolled in a registered course for 12 months from 19 December 2015 to 20 December 2016.

24. Based on the evidence, the Tribunal finds the applicant’s breach of condition 8202 of her visa to be significant because she was not engaging in study for which her visa was granted and was not fulfilling the purpose of her travel to and stay in Australia.

25. There was no evidence to indicate that the ground for cancellation arose due to extenuating circumstances beyond the applicant’s control.  

26. The Tribunal acknowledges that the cancellation of the applicant’s visa will be disappointing to the applicant because she wishes to remain onshore with Mr Fokeerah, who is expected to complete his studies in Australia in a few months’ time.  However, the Tribunal is satisfied that there is not a degree of hardship such that the visa should not be cancelled.

27. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice pertaining to her immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion.

28. There are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

29. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

30. The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Stephen Conwell
    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.