Deletina (Migration)

[2019] AATA 1611

Deletina (Migration) [2019] AATA 1611 (15 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ma Cristina Deletina

CASE NUMBER:  1619919

HOME AFFAIRS REFERENCE(S):           3150828 BCC2016/3150828

MEMBER:Wendy Banfield

DATE:15 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 15 January 2019 at 1:20pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Bachelor of Nursing – did not maintain enrolment in registered course – – financial difficulties – English language studies – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116 ,140
Migration Regulations 1994 (Cth), Schedule 8, condition 8202, Public Interest Criterion 4013

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 November 2016 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(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant was not enrolled to study from 23 October 2015 to the date of cancellation on 21 November 2016. As a result the applicant was in breach of her visa condition that required her to maintain enrolment in a registered course. Prior to cancellation, the Department had sent the applicant a Notice of Intention to Consider Cancellation (NOICC) but had not received a response. 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 the Philippines and is currently 29 years old. She came to Australia on 11 September 2014 and studied an English course then enrolled in a Bachelor of Nursing. The applicant experienced financial problems in relation to the cost of the course she was studying. This was due to family problems including her studies having been arranged by the applicant’s sister, her father being unwell and her inability to find work. As a result of financial difficulties the applicant was unable to continue her enrolment and was hoping to pay for the course after a period of work.

4. The applicant appeared before the Tribunal on 19 December 2018 to give evidence and present arguments.

   Evidence of the visa applicant

5. The applicant submitted evidence in support of her application including a personal statement, evidence of her father’s employment and medical matters, evidence relating to the applicant’s studies in Australia, financial documents and bank statements and an offer of admission to the University of Newcastle dated 29 November 2016.

6. The applicant claims she came to Australia with the assistance of her sister who arranged for her to study. She had previously studied nursing in the Philippines but stated she wanted to gain qualifications overseas. According to the applicant she had to pay $3,000 for her studies initially which unbeknown to her, was only for her English course. After that the applicant had to pay $15,000 to begin her Nursing course. She claimed the total cost of the course would be $54,000. As the applicant had to study full-time she was unable to find part-time work and as a result she borrowed money from a friend to pay for her studies. This meant she had to then pay back the funds borrowed and also earn money to continue paying for her education.

7. On the applicant’s evidence she paid for and studied two semesters of her course but had been forced to reduce the units she took. In October 2015 she was unable to continue studying and could no longer access her education provider’s online portal. According to the applicant she had not known she was required to maintain enrolment and instead she had planned to work in order to save money and re-enrol. The applicant acknowledged she had made mistakes and undertook to do the right thing in future. She stated she is willing to leave Australia if the Tribunal agreed with the Department and her visa is cancelled. The applicant advised she has a partner who will support her financially but said she does not want to rely on applying for a Partner Visa in order to stay in Australia.

8. 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

9. 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?

10. 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).

11. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

12. The applicant commenced studying a Bachelor of Nursing degree but was unable to continue after the first year due to the cost of the course. The applicant’s discontinued her studies on 23 October 2015 and was not enrolled from that date until the Department cancelled her Student Visa on 21 November 2016. The applicant did not dispute that she had not been enrolled to study for the stated period as required by the conditions of her visa.   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 visa

13. 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

14. The applicant travelled to Australia as the holder of a student visa in order to study English followed by a Bachelor of Nursing. The applicant completed her language course and began her undergraduate degree. 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.

15. At the Tribunal hearing the applicant was asked whether she had a compelling need to remain in Australia. She said she still wanted to study at an Australian university and has started her life her. The applicant stated she has adapted to the culture and has a de facto partner. The Tribunal has carefully considered the evidence before it regarding the applicant’s need to remain in Australia. While the applicant may want to continue her studies, she has not demonstrated a powerful or convincing reason for doing so. The applicant gave evidence that she has a de facto partner but the Tribunal does not consider this to be sufficient reason for needing to remain in Australia as a student. Whether they travel to the Philippines together in order to continue the relationship is a matter for the applicant and her partner to decide. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

16. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal gives this aspect some weight in the applicant’s favour.

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

17. During the course of the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of her visa being cancelled. The applicant referred to having suffered financial hardship due to the cost of studying as an international student and her apparent misunderstanding about what her sister had arranged, including what had been paid for. She did not provide any satisfactory evidence of financial or psychological hardship that would result from her visa being cancelled.

18. The Tribunal acknowledges that the cancellation of the visa would mean the applicant would not be able to continue her studies in Australia and this may cause a degree of emotional hardship. The Tribunal does not place weight on this issue in favour of the applicant as she appears to have accepted and prepared for the likely outcome of her visa being cancelled due to the length of time she has not been enrolled to study.

19. 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 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

20. The applicant’s visa was cancelled because she was unable to pay the significant upfront fees required in order to continue her enrolment in a Bachelor of Nursing. The applicant explained she had allowed her sister to make her study arrangements in Australia and had thought fees towards her nursing degree had already been paid. It transpired that this was not the case and the fees paid were only to cover her initial English course.

21. According to the applicant she borrowed money from a friend in order to begin her degree but was then required to repay the funds as well as pay for the subsequent semesters of study and support herself. As a consequence, the applicant was forced to discontinue her studies after the first year. It was her evidence that she had not known she needed to maintain enrolment and she had planned to work and save money in order to re-enrol. The evidence weighs heavily against the applicant in this regard as it was her responsibility to comply with visa conditions, specifically to maintain enrolment in a course of study. This is the primary purpose of a student visa in Australia and it is not open to visa holders to discontinue their studies in order to work and accumulate the necessary funds to continue.

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

22. 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

23. 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

24. 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. However, those are the intended consequences of the legislation and are not 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

25. 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

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

    ·     any other relevant matters

27. There are no other relevant matters to be considered in the applicant’s case.

    Conclusion

28. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in her favour, on balance, the Tribunal is satisfied that the majority of considerations weigh heavily against the applicant. The Tribunal considers the length of time the applicant has spent in Australia having breached her visa conditions to be significant. The Tribunal is not satisfied the financial problems encountered by the applicant are sufficient reason for the visa not to be cancelled.

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

    DECISION

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

    Wendy Banfield
    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.