Cheema (Migration)

[2017] AATA 169

Cheema (Migration) [2017] AATA 169 (2 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Selvi Cheema

CASE NUMBER:  1613486

DIBP REFERENCE(S):  BCC2016/2175315

MEMBER:Brendan Darcy

DATE:2 February 2017

PLACE OF DECISION:  Melbourne

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 02 February 2017 at 5:49pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Condition 8202 – Period not enrolled in a registered course – Genuine effort to remain enrolled – Education provider’s assurances – Pursuing alternative providers – Career and business plans – Unprofessional behaviour by the applicant’s representative

LEGISLATION

Migration Act 1958, ss 116(1)(b)
Migration Regulation 1994, Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 August 2016 made by a delegate of the Minister for Immigration 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 was not enrolled in a registered course of study and was not compliant with condition 8202 imposed on her 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 17 January 2017 to give evidence and present arguments. This hearing was adjourned as a number of critical documents had not been submitted to the Tribunal. The applicant appeared at a resumed hearing on 25 January 2017. 

4. The applicant was represented in relation to the review by her registered migration agent but the registered migration agent did not appear before either of the Tribunal’s scheduled hearings to support or present arguments on the applicant’s behalf.

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. The delegate’s decision submitted to the Tribunal indicates the applicant had been granted a Class TU Subclass 573 Higher Education Sector student visa on 19 February 2014 for a Bachelor of Health Sciences  and the visa was due to expire on 15 August 2016.  It also shows that Provider Registration and International Students Management System (PRISMS) records indicate the applicant was not enrolled in a registered course of study from 11 June 2015 until 15 August 2016 (when the decision to cancel was made).  The record decision for the visa cancellation shows that the applicant was enrolled a Bachelor of Health Sciences (Dermal Therapies) at Victoria University. The PRISMS record indicates that there was there non-payment of tuition fees recorded on 19 January 2015 and 11 June 2015.  

10. The decision record also states the applicant has not been granted another substantive visa with the effect of ceasing and replacing the 573 visa.

11. The departmental file states the applicant was contacted by a departmental official by email prior to issuing the Notice of Intention to Consider Cancellation (NOICC) on 19 July 2016. The NOICC was reissued on 4 August 2016 after a 2 August 2016 request for an extension by the applicant’s then representative. The successful request was based on the earlier NOICC  had printed in error that the last date of enrolment was 11 June 2016, not 11 June 2015.

12. A letter dated by 2 August 2016 by the applicant stated that she was not technically in breach of condition 8202 and that she had a letter of offer from Holmes Institute for a Bachelor of Business. No Certificate of Enrolment was attached.

13. The Department proceed to cancel the visa on 11 August 2016.

14. During the scheduled hearing, the applicant did not disagree with these facts.

15. On the evidence before the Tribunal, the applicant was not enrolled in a registered course study from 11 June 2015 right up to the date of the notification of cancellation on 11 August. On the evidence before the Tribunal, the applicant was not enrolled in a registered course for more than twelve months.

16. Accordingly, the applicant has not complied with condition 8202(2).

    CONSIDERATION OF THE DISCRETION TO CANCEL THE VISA

17. 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.

18. 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).

19. The applicant attended the first scheduled hearing. When it was brought to the Tribunal’s attention that considerable documentary evidence had not been submitted to it by the applicant’s representative, the hearing was adjourned and gave the applicant until 20 January to submit documents.

20. Prior to the hearing on 23 January the documents were submitted late in the afternoon. There was no legal submission by the representative attached. However there was a two page letter from the applicant.[1] During the scheduled hearing, the documentary evidence was explored with the applicant. Submitted were email exchanges, qualifications documents, printed letters and other documents. The relevant documents are cited below.

    [1] AAT Folio 142

21. The Tribunal notes that the applicant’s oral testimony was often emotionally delivered, chronologically incoherent and she received no support from her appointed representative who did not attend either hearing.

22. The applicant’s stated purpose for not having her visa cancelled was that she had been unlucky with various entities after her decision not to pay tuition fees; that she wanted to build a business around her qualifications in dermal therapies back in India and that the situation had been wasteful. She claimed she made many attempts to reinstate her enrolment and to re-enrol between the period her enrolment was cancelled and the cancellation of her visa.

23. No further submissions were required.

24. Overall the Tribunal found the applicant to have provided credible and plausible explanations with no considerable inconsistencies or discrepancies.

    The purpose of the visa holder’s travel to and stay in Australia

25. According to the decision, the delegate provided little weight on the purpose of the visa holder’s travel to and remain in Australia was to complete her studies. The delegate noted the substantial period of time in non-compliance with condition 820 and she did not respond to the NOICC in any relevant or detail way. The Tribunal accepts these reasons as factual.

26. However the Tribunal gave the applicant the opportunity to provide persuasive evidence that she was a genuine student who would comply with the conditions on her visa if were not cancelled.  As the email on 16 June 2015, the applicant was aware of her enrolment being cancelled and that she asked the education provider that did not want to waste time she had spent and sought reinstatement.  The applicant provided extensive emails to indicate that she had received mix messages about her enrolment in the six month from the beginning of 2015. This included email correspondence that the applicant complaint about not the need to pay tuition fees for semester one and for her enrolment to be reinstated on 1 July 2015; that the applicant submitted an enquiry to re-enrol on 19 October 2015; and that the applicant received an email on 14 December that the education provider was considering the application and that ‘everything seems to be in order and is under process’.[2]

    [2] AAT Folio 74-139

27. The submitted documents also indicate that education provider wrote to the applicant on 2 February that she did not satisfy their enrolment requirements;[3] and the applicant complained to the education provider’s ‘Student Matters Office’ with the undertaking to investigate the complaint in March 2016. This email was dated 4 March 2016.[4] There is also correspondence between the applicant and her education agent dated 9 March 2016 in which the agent indicated that the matter was in hand. The applicant claimed that she sought re-enrolment through another education agent in March but was let down by the agent and was not enrolled at the time of her NOICC was issued.

    [3] AAT Folio 58

    [4] AAT Folio 79

28. Based on this documentary evidence, the Tribunal accepts that the applicant did vainly try to reinstate and re-enrol in the same course at the same education provider. The applicant erred but not wilfully in seeking to pay some tuition fees and in preserving with education provider’s internal practices. She also erred in not seeking to enrol in a related course with a different education provider at a considerably earlier point in time.

29. However none of this indicates that the applicant was not a genuine student interested in and motivated to complete the specific course that is relevant to her chosen profession. The Tribunal places considerable weight in her efforts to re-enrol in the same institution as it supports her claim that she wanted to build on her earlier vocational achievement, to complete her bachelor studies and to progress a career or build a business around dermatological clinical practice back in India.   The Tribunal also places some weight that the applicant continues to have strong ties to her home country where her husband lives and works.

30. Having examined all the relevant documentary and oral evidence, the Tribunal places considerable weight on her credible desire to resume full time studies and on her credible motivation to complete those studies and that she will uphold the conditions imposed on her student visa as reasons in favour of the visa not being cancelled.

    The extent of compliance with visa conditions

31. The Tribunal accepts the applicant’s admission that she had breached a condition imposed on his visa other than condition 8202 to be the case. While the delegate decision does not detail any information about further non-compliance of visa conditions, the applicant was not enrolled in a registered course for about six months. The Tribunal finds the applicant’s non-compliance towards conditions imposed on his visa is a significant factor towards the visa being cancelled.

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

32. The delegate’s decision acknowledged that applicant will face a degree of difficulty if she is found to be unlawful non-citizen in Australia who is liable to be detained and/or deported. The Tribunal accepts the applicant will be very few migration options if her visa were to remain cancelled and that she may be subjected to a three year exclusion period for applying for a further visa. The Tribunal accepts that returning home may place some strain on her marriage because she had failed to complete her studies and it may affect her ambition to being a dermatological therapies clinic. However, the Tribunal notes that the applicant will not face financial hardship as she claimed that she and her husband are wealthy. The Tribunal places some weight on the emotional hardship as well as the negative impact on her studies and career prospects in cancelling her visa.  Considering the impact cumulatively, however, the Tribunal is not satisfied that the applicant had demonstrated that the hardship caused by the cancellation of her student would amount to significant hardship.  Based on these findings, the Tribunal gives these factors some but not considerable weight towards the visa not being cancelled.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

33. The applicant claimed that the difficulties she had in remaining enrolled in a bachelor’s degree with her education provider and the difficulties in being re-enrolled in the same education provider were extenuating circumstances beyond her control. As discussed during the hearing, the events leading to the applicant’s non-enrolment cascaded from her decision not to pay tuition fees for the first semester and it was completely in her control to pay for that educational service in a timely way. Moreover the applicant claims there was no financial barrier to re-enrolment. The applicant was unenrolled for over a year and had ample opportunities to enrol with an educational provider. The Tribunal does not accept the applicant’s claim that her choice in education or migration agents were unlucky or beyond her control.  While the Tribunal finds that the applicant was not wilfully non-compliant, she did not undertake exhaustive measures to remedy her non-compliance. The Tribunal, accordingly, does not accept that she believe her re-enrolment with the same education provider amounts to circumstances beyond her control.

    Past and present conduct of the visa holder towards the Department

34. There is no evidence that the applicant had not been wilfully non-compliant towards other conditions on her visa.   While the applicant had been substantially non-compliant towards condition 8202 that was imposed on her visa, the Tribunal finds that that applicant had been more naive than recklessly wilful in her non-compliance. The Tribunal notes that the applicant did not respond to her NOICC and claimed to the Tribunal that she had difficulties with her then representative.  Taking all these matters into account, the Tribunal places some but not a considerable weight on the applicant’s past conduct with the Department favour of cancelling the applicant’s visa. 

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

35. Not relevant.

    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

36. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained. The Tribunal accepts the applicant will be very few migration options if her visa were to remain cancelled and that she may be subjected to a three year exclusion period for applying for a further visa.  The Tribunal gives these factors only little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

37. The applicant does not have any children and did not claim to have any whose interest could be affected by the cancellation of this visa.  Based on the all other evidence before it, s.140 not is relevant and it gives this factor no weight.

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

38. The applicant presented some evidence that her husband’s family had been targeted by a criminal who had now been imprisoned for a serious claim. The applicant did not claim she was a refugee and claims to have no children. There is no evidence before the Tribunal that is relevant whereby, if any international obligations would be breached as a result of the visa being cancelled, the applicant would be affected. For these reasons, it gives this factor no weight.

    Any other relevant matters

39. The Tribunal does find the unprofessional behaviour of the applicant’s representative relevant. By not providing critical documentary evidence prior to the initial hearing and by not attending either hearing to assist either the applicant whom paid for the migration assistance and advice, or the Tribunal, the representative caused undue distress upon the applicant who clearly had difficulties in articulating her case. During the second hearing, the applicant explained that her representative claimed appointed representative was not able to talk during the hearing. As mentioned during the hearing, this is not the case.

40. Nevertheless the Tribunal has not held this lack of professional conduct on the part of the applicant’s representative against her and it makes an overall finding that the applicant had provided credible oral evidence corroborated by credible documentary evidence.

    Consideration of the discretion to cancel the visa

41. The fact remains the most significant and serious factor in cancelling this class TU subclass 573 student visa is her breach of condition 8202 for such a considerable amount of time right up to the time of her visa was cancelled. While the Tribunal does not accept the applicant had any circumstances beyond her control, it notes that there was genuine effort to remain enrolled and to complete her higher education degree and that the genuine purpose to remain in Australia was study.  

42. After weighing up all the available evidence, the Tribunal has placed considerable weight, cumulatively considered, on the applicant’s overall credibility, the applicant’s familial circumstances where her husband resides in India indicating she has strong ties to her home country and the Tribunal’s finding that the applicant is a genuine student which the Tribunal accepts the applicant’s capacity and motivation to complete studies and uphold the conditions impose on this visa if it is not cancelled.

43. Accordingly, the Tribunal finds that the correct and preferable decision given the circumstances of this case is that the visa should not be cancelled.

44. The applicant should be aware that this decision was reached only marginally in her favour.

    DECISION

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

    Brendan Darcy
    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.