Devendra (Migration)

[2017] AATA 509

Devendra (Migration) [2017] AATA 509 (27 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Neyomali Devendra

CASE NUMBER:  1614292

DIBP REFERENCE(S):  BCC2016/2753289

MEMBER:Magda Wysocka

DATE:27 March 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 27 March 2017 at 2:45pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector visa – Applicant’s course enrolment ceased – Employment finished – Financial difficulties – Commitment to studying early childhood studies

LEGISLATION

Migration Act 1958, ss 48, 116(1)(b)

Migration Regulation 1994, Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 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 a ground for cancellation under s116(1)(b) of the Act existed because the applicant breached condition 8202 of her subclass 573 visa as she was not enrolled in a registered course. The applicant provided a copy of the delegate’s decision was provided with the application for review. 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 3 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, Remo Angelone.

4. 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

5. 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?

6. 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).

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

8. The delegate’s decision record provided by the applicant to the tribunal states that the applicant was granted a subclass 573 visa on 16 July 2013 and that her last enrolment in a registered course of study ceased on 29 March 2016. The applicant conceded that her enrolment (in a Bachelor of Early Childhood Education) ceased on 29 March 2016 and confirmed that she had not enrolled in another registered course after this, up until the time that her student visa was cancelled.

9. 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 the visa

10. 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.

11. 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).

12. In considering whether to exercise its discretion to cancel the applicant’s visa, the tribunal has considered the applicant’s 25 August 2016 response to the department’s notice of its intention to consider cancellation of her visa, her evidence to the tribunal at a hearing as well as the evidence provided by her partner, Mr Angelone, at that hearing.

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

13. The applicant gave evidence to the tribunal that she first travelled to Australia in 2010 in order to study an advanced level Foundation Course at Central Queensland University (CQU) in Melbourne. The tribunal sighted a certificate of completion in this course (completed on 15 November 2010). The applicant advised that she had completed her advanced levels in Sri Lanka and initially wanted to study interior design but later decided to embark on early childcare studies. She provided copies of certificates of completion in a certificate III in children’s services (issued in July 2011) and a diploma of children’s services (early childhood education and care) issued in December 2012.

14. The applicant further gave evidence to the tribunal that she had intended to apply for a temporary work visa but was told that the organisation she had applied to for a skills assessment could not assess her skills because she only had vocational education and training qualifications and not tertiary qualifications. Following this, the applicant applied for a tourist visa in order to remain in Australia, during which time she decided to study a bachelor in early childhood studies.

15. Her last student visa (which was the subject of cancellation) was granted on 16 July 2013, and on which the applicant completed a certificate IV in business (a certificate of complete issued in December 2013 was provided to the tribunal). The applicant advised that she completed the certificate IV in business because it would be useful if she were to open her own childcare centre and spoke about her goal of being an early childhood educator in Australia. She started her bachelor studies in early childhood studies at Holmesglen in July 2014, after having returned to Sri Lanka for three months to undertake an IELTS test.  

16. The tribunal accepts on the applicant’s evidence that the purpose of her travel and remain in Australia was to study, in particular childhood education and gives this weight in favour of not cancelling her visa.

    The circumstances in which the ground for cancellation arose

17. The applicant set out the circumstances that led to her enrolment being cancelled in her NOICC response and elaborated on these circumstances in her evidence at the tribunal hearing.

18. According to that evidence, the applicant started her bachelor studies in mid 2014, completed two semesters in 2015 and studied in February-March 2016. However, her enrolment was cancelled on 29 March 2016 because she could not pay the $8000 in course fees.

19. The applicant advised that up until January 2015, she was living with her brothers who met her living expenses and also sometimes helped her with paying for her studies. The applicant gave evidence that she paid the majority of her course fees from money she earned by working 20 hours a week. If she was really struggling, she would apply for a payment plan from her course provider but, as this came with added costs, she would usually borrow money from her brother. 

20. However, in early 2015, she moved in with her current partner, Mr Angelone, whom she met in July 2014. Her family did not approve of the relationship and the applicant became estranged from her brothers in Australia and her mother in Sri Lanka. After they moved in together, Mr Angelone helped the applicant pay for her uni fees.

21. The applicant gave evidence that she worked at a fruit shop but her ability to work there was affected by placements she was required to do for her bachelor course. The fruit shop came under new management and they got a new staff member, eventually cutting the applicant’s hours. In January 2016, her employer told her that she could not work there anymore because he had no hours to give her. She was struggling to find a new job and her boss was behind paying her and still hasn’t paid her for some hours that she worked. She has followed this up a few times but he still has not paid her.

22. Furthermore, in 2015 Mr Angelone bought a house and a pizza shop in Frankston North and the couple moved house. This impacted on Mr Angelone’s ability to assist the applicant in paying her course fees. In his evidence, Mr Angelone told the tribunal that he could not afford paying the applicant’s university fees after one semester. He further advised that he was struggling with his pizza shop and with paying a mortgage.

23. In response to the tribunal’s questions about what attempts, if any, the applicant made to obtain funds to pay her course fees, the applicant advised that she applied for a bank loan in 2016 but was only given $1000. The applicant provided a document to the tribunal which indicated that the bank loan she was referring to was actually a credit card with a $1000 limit.

24. The applicant further advised that she did not contact Holmesglen in time to organise a payment plan because she was trying to get money from other sources –she could not ask her family because they had stopped talking to her at that time (she has some contact with her brothers now but she has not seen them). She asked a cousin but he could not give her money. She relied on assistance from her partner’s family but she was not able to collect the full $8000 needed for her fees.

25. Questioned as to how she had money to travel to Sri Lanka in July 2016, the applicant advised that she bought a one way ticket to Sri Lanka and her mum paid for her return flight. She went to Sri Lanka at that time because her mother was begging and crying because they had not spoken. She tried to ask for money from her mum but she did not have the courage. Her mother and brothers are not aware that she has stopped studying.

26. The tribunal accepts the applicant’s evidence that a variety of circumstances contributed to her having financial problems and being unable to pay her course fees in early 2016, which led her enrolment to be cancelled. The applicant’s evidence on these matters was supported by Mr Angelone’s evidence to the tribunal. The tribunal accepts that some of the circumstances that gave rise to the breach, namely the loss of the applicant’s job, were beyond her control. It gives the applicant’s circumstances weight in favour of not cancelling the applicant’s visa.

    The extent of compliance with visa conditions

27. The applicant was not enrolled in a course of study from 29 March 2016 until her visa was cancelled on 31 August 2016, a period of five months. This is not an insignificant period of time and the tribunal gives some weight to this towards cancelling the applicant’s visa.

28. There is no evidence before the tribunal indicating that the applicant has breached any other visa conditions. In her evidence, the applicant has stressed that she always worked according to the work limitations of her student visas and that her lack of enrolment due to financial hardship is the one breach of her visa conditions in her six years of studying in Australia. She has also maintained that she has not worked since her student visa was cancelled. There is no evidence before the tribunal to contradict the applicant’s statements and the tribunal gives weight to these factors as a reason why her student visa should not be cancelled.

    The degree of hardship that may be caused to the visa holder and any family members

29. As noted above, the applicant claims that she would not be able to utilise the skills and knowledge gained from her childhood education studies in Australia over the last six years because of the different curriculum rules and the focus of her studies on the Victorian context.

30. While noting that it was ultimately the applicant’s choice to embark on studies which had limited applicability in Sri Lanka with the knowledge that she was only in Australia on temporary visas, the tribunal accepts that the applicant will suffer a degree of hardship if her visa were cancelled, in that her qualifications will have limited applicability in Sri Lanka.

31. The tribunal also accepts that the applicant and her partner will suffer a degree of hardship due to their physical separation, at least temporarily. The applicant advised that she does not think that her partner would come to Sri Lanka if she had to return there because there is no way of them living together there, as she would live with her mother there. They have discussed marriage but her student visa issues have put consideration of marriage in the background.

32. While the tribunal accepts that the applicant and her partner will suffer emotional hardship if the applicant’s visa was cancelled and she had to leave Australia, this is mitigated by the option of the applicant to apply for a partner visa, either onshore or after she has left Australia, to reside in Australia. The applicant advised that she and her partner had gone to a solicitor to discuss this but they have put this option aside because of the high costs involved.

33. The tribunal also accepts the applicant’s evidence that her family will suffer a degree of hardship in the form of being disappointed that the applicant had stopped studying without informing them and that her visa had been cancelled. The tribunal gives this limited weight in favour of not cancelling the applicant’s visa. 

    The visa holder’s past and present behaviour towards the department

34. There is no evidence before the tribunal that the applicant has not been truthful or uncooperative in her dealings with the department and the tribunal gives this some weight in favour of not cancelling her visa. 

    Whether there are mandatory legal consequences to a cancellation decision.

35. Cancellation of the applicant’s visa would result in her being prevented from being granted a range of temporary visas, including student or visitor visas, for a period of three years by operation of condition 4013. It further notes that the applicant would be prevented from applying for many visas onshore apart from a limited range of visas, pursuant to s.48 of the Act. However, as discussed with the applicant at hearing, a partner visa is one of the visas that the applicant would not be prevented from applying for onshore by operation of s.48 (or by condition 4013).

36. The tribunal notes that the applicant is currently on a bridging visa that allows her to lawfully remain in Australia. If she were to remain in Australia after that visa ceased she would be subject to detention. There is no evidence before the tribunal to suggest that detention in such a hypothetical situation would be indefinite.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

37. No relevant obligations were raised by the applicant. Given that the applicant is in a de facto relationship with her Australian citizen partner, the tribunal has considered obligations arising out of the International Convention on Civil and Political Right (ICCPR), to which Australia is a signatory and which contains articles relating to family unity such as arts. 23.1, 17.1, 9 and 16. The tribunal has given some weight to these considerations but, as noted in the above section regarding hardship that visa cancellation may cause to the applicant and her partner, it is open for the applicant to apply for a partner visa onshore to remain in Australia with her partner.  Alternatively, it would be open for the applicant to apply for an offshore partner visa, in which case any separation with her partner would be temporary.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s140.

38. This is not relevant.

    Any other relevant matters.

39. The applicant, in her evidence, referred to being an honest and truthful student and that she had not breached any laws, did not have any criminal charges or complaints regarding her working with children. The tribunal gives some weight to her comments.

40. As discussed at the hearing, the student visa which is the subject of cancellation was due to cease on 31 August 2016. Therefore, if the decision to cancel her visa were set aside, it appears that the applicant would be required to apply for a new student visa by the department if she wished to continue her studies. When asked about whether she would be in a position to return to her studies now, the applicant initially spoke about the possibility of obtaining a working visa to get her finances back on track. When advised that this was not in the tribunal’s power, she stated that she will have to ask her mother for some of the money and that her partner could ask his parents for the rest. In his evidence, the applicant’s partner indicated that he would try to get a bank loan or ask his parents for the money to fund the applicant’s studies. 

41. The tribunal holds some concerns about the applicant’s future ability to fund her intended studies based on the above evidence. However, the tribunal finds that this is a matter that would be best determined by the department at the time of any future student visa application made by the applicant. Considering the applicant’s commitment to studying in the field of early childhood studies over six years in Australia, the circumstances in which her enrolment ceased, the hardship that she would face if her student visa were cancelled and the legal consequences of cancellation, the tribunal finds that the preferable decision is to set aside the decision to cancel the applicant’s student visa.

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

    DECISION

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

    Magda Wysocka
    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.