ETULLE (Migration)

ETULLE (Migration) [2019] AATA 6330 (19 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Michelle Etulle
CASE NUMBER:  1823068
HOME AFFAIRS REFERENCE(S):           BCC2018/1316072
MEMBER:Michael Biviano
DATE:19 November 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 19 November 2019 at 10:26am
CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa –not a genuine student –not enrolled in a registered course of study – breached condition 8202 – financial position– non-payment of tuition fees –decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 189,198
Migration Regulations 1994 (Cth), Schedule 4, Schedule 8
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 2 August 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had not been enrolled in a registered course of study from 2 October 2017 and she was not compliant with condition 8202 of her visa. The Delegate went on to consider whether the factors in favour of cancellation outweighed those against cancellation. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 31 October 2019 to give evidence and present arguments.
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
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?
Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
·must be enrolled in a full-time registered course: 8202(2)(a),
·must maintain enrolment in a registered course that once completed will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted: 8202(2)(b),
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
The decision record of the Delegate of the Department of Home Affairs dated 2 August 2018, which was provided to the Tribunal by the applicant confirms that the Department cancelled the applicant’s Student (Temporary) (Class TU) (Subclass 500) visa which was granted on 14 February 2017 and the reasons for the cancellation of the visa (Decision Record).
Prior to coming to Australia, in 2001 the applicant completed a Bachelor of Science (Computing & Engineering) at AMA Computer College, in Cebu City, in the Philippines. After obtaining the degree, she worked in quality control at an electronic components manufacturer in Taiwan for three years. In 2004, she returned home to care for her grandmother who was very ill and she was her primary carer for one-and-a-half years.
In 2006, the applicant had the opportunity to either return to Taiwan to work or to come to Australia to study.
In July 2006, the applicant arrived in Australia pursuant to a student visa to study. She initially enrolled in a Diploma of Nursing, but she did not complete the course.
In or about 2008, she completed a Diploma of Community & Welfare Work at Central TAFE in Perth. In 2009 she received a graduate visa and she worked as a carer and care supervisor in a low care nursing home facility course in Perth. She remained in Australia until November 2012.
In November 2012, she returned home to the Philippines to undertake volunteer community work with the disabled.
In July 2013 she returned to Australia having obtained a TU 573 visa to study a Diploma of Nursing at O’Connor College of TAFE in Northern Perth. The applicant did not complete all units in her first semester of that course. She claims that she ceased her studies in the Diploma of Nursing due to her age, background, wanting to change career and because she wanted to do an engineering course. The change in course from nursing to engineering represented a substantial change in career path.
In 2014, the applicant enrolled in a Diploma of Electronics and Communications Engineering (DECE) at Challenger TAFE Freemantle, which was initially a one-and-a-half year course but she extended it to two years.
On 24 May 2015, the applicant was granted a TU573 visa to continue studying the DECE. She completed the DECE in July 2016. She wanted to continue her studies and obtain a Bachelor of Electronics & Communications Engineering from Edith Cowan University, but she was unable to enrol in the bachelor’s degree until semester 1 in 2017.
In 2016 she worked part time at Marlago as an assistant technician initially as a volunteer to gain experience with her DECE qualification and she also continued working casually at the nursing home. She confirmed that she worked five days per week when she was not studying.
The applicant gave evidence that in mid 2016 she enrolled in a Certificate III in Business from the World College in Perth which she completed.
On 14 February 2017, the applicant was granted a Student (Class TU)(Subclass 500) Student visa to study the Bachelor of Electronics & Communications Engineering from Edith Cowan University, which is the visa the subject of the cancellation.
In the first semester of 2017, the applicant studied four units of the bachelor’s degree and successfully completed three of four units. She applied to enrol in a few units in semester two but she could only afford to pay $4,000 of the $13,000 in tuition fees for that semester. She claims that she applied to defer her studies, which was refused unless she paid the entire fee for the second semester.
The Decision Record confirms that the applicant was not enrolled in a registered course of study from 2 October 2017 to 2 August 2018.
The applicant gave evidence that she was not enrolled due to a number personal struggles being:-
a.The applicant’s mother became ill and was hospitalised due to high cholesterol and blood pressure and she was in and out of hospital over a year;
b.Her mother’s condition and hospitalisation caused financial constraints on her family who were supporting her in her studies; and
c.Her mother’s condition was such that it caused her to worry and she was mentally affected and unable to focus and continue with her studies.
When questioned about what happened as to why she was not enrolled and why she could not focus on her studies:-
a.The applicant conceded that her mother’s condition originated in 2016 and took effect over a year, while she was studying the Certificate III in Business and the first semester of the degree. The matters relating to her mother’s condition do not coincide with the time she was not enrolled and do not provide a plausible explanation considering that she was continuing to study during the time of her mother’s illness;
b.Further the applicant stated that from 2016 to March 2018, she continued to work in responsible jobs and was able to focus, function and perform her tasks, without concerns about her mother’s condition. Again the evidence is such that she was able to function in important jobs at the time her mother was ill; and
c.The applicant did not tender any medical or psychological evidence stating that she was unable to undertake her studies or to enrol and defer her studies due to her condition.
Based on the applicant’s evidence, the Tribunal finds that the primary cause of the applicant’s inability to be enrolled in a registered course of study, related to her financial position, which was her responsibility.
The applicant received the Notice of Intention to Consider Cancellation of the visa dated 11 July 2018 (NOICC) from the Department because she had not been enrolled since 2 October 2017 being a period of more than nine months and the applicant sent a response to the NOICC by email to the Department dated 25 July 2018 (Response).
The Response stated (omitting formalities):-
I would like to make an appeal to you to please consider my circumstance at this stage. I am earnestly asking a chance to pursue my studies here in Australia. Please give me a chance to complete my studies on Higher Degree Education here in Australia as I would like to complete at this point of my life.
This have been my second time here in Australia on travel and stay here in Australia on purpose to study and I have been compliant with the Immigration’s regulations.
These past months, I have had gone through personal struggles that have had affected my studies. At this stage, I am fully able to continue with my studies.
My apology for not informing the Immigration on my personal circumstances on this matter as I was at complete lost on what to do on my personal struggles. I sincerely ask a second chance to complete my Higher Degree Education studies here in Australia at this stage.
I am sincerely hoping for your kind consideration on my circumstance.
The Response did not address what were the applicant’s issues and why they lead to her enrolment ceasing and the visa being cancelled.
The applicant readily conceded in evidence, that she was not enrolled in a registered course of study from 2 October 2017 until the date of the visa cancellation on 2 August 2018.
On the evidence before the Tribunal the applicant was not enrolled in a registered course between 2 October 2017 and 2 August 2018. Accordingly the applicant has not complied with condition 8202(2) of her visa. As this was a condition which was attached to her visa, the applicant therefore breached a condition of her visa and the visa is liable to cancellation under s.116(1)(b).
Consideration of the discretion to cancel the visa
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 or to remain in Australia
The applicant gave evidence that she came to Australia initially in July 2006 and then in July 2013, she has studied a number of courses and worked in furtherance of her qualifications.
As discussed above since being in Australia she has completed successfully the following courses:-
a.Diploma of Community & Welfare Work;
b.Diploma of Electronics and Communications Engineering; and
c.Certificate III in Business.
The applicant in evidence at the hearing, as set out above, claimed that there were a number of reasons for her non-enrolment on 2 October 2017. However as set out above the Tribunal finds that the reason for her non-enrolment was because she was unable to meet the tuition fees for the second semester of 2017 and her enrolment was cancelled.
Further she was unable to enrol in a registered course of study during 2018 due to her financial position.
The period of non-enrolment from 2 October 2017 until the cancellation of the visa on 2 August 2018 is a period of 10 months which is a long period of time not to be enrolled and studying in Australia which creates doubts as to whether the applicant is staying in Australia for the purposes of study.
The applicant has given evidence that if possible she intends to remain in Australia to study a Master’s of Science in Sustainable Systems, which is course that will take a further one- and-a-half years to complete. The course is available at University of New South Wales.
The applicant was questioned about her ability to pay for that course. She claimed that the master’s course would cost some $48,000, being $16,000 per semester and she would have to borrow from her family and aunt to meet the tuition fees. The applicant did not produce any corroborating evidence that her family could or would meet the tuition costs.
Based on the applicant’s own evidence, the Tribunal is not satisfied that even if the cancellation of the visa were set aside that the applicant would be able to pay her tuition fees for that course.
Having regard to the applicant’s evidence the Tribunal accepts that the applicant may have travelled to Australia intending to study and that she does intend studying in the future but given her conduct in Australia as set out above and her inability to be enrolled from 2 October 2017 until the cancellation of the visa and her failure to pay the tuition fees, the Tribunal gives these matters only marginal weight towards the visa not being cancelled.
The extent of compliance with visa conditions
The applicant gave evidence that she was not enrolled in a course of study from 2 October 2017 until the cancellation of the visa on 2 August 2018 being a period of ten months which is a long period of time. Therefore the applicant has not complied with condition 8202(2) for a long period of time. The non-compliance with condition 8202(2) for such a long period of time may weigh towards cancelling the visa unless the Tribunal accepts her reasons for non-enrolment or finds she was not responsible for the reason of non-enrolment.
The applicant in evidence confirmed the reasons as to why she was not enrolled during that period of time of ten months, which are set out above. The Tribunal does not find those reasons compelling in circumstances where the applicant was responsible for the non-payment of tuition fees, which was the cause of the non-enrolment and breach of the visa.
The applicant has given evidence that she has undertaken private studies, while her visa has been cancelled in sustainable systems.
The applicant in the Response and in evidence raised issues of loss of focus and inability to study due to her mother’s ill health as part of the reasons that contributed to her not being enrolled in a registered course of study. However based on the applicant’s evidence that her mother’s condition occurred in 2016 for a one year period and she was able to continue studying and working during this time and she has not provided any medical or psychological evidence relating to the applicant’s condition, the Tribunal does not accept those reasons were the basis for the non-enrolment.
The Tribunal finds that the reason for the non-enrolment was the non-payment of tuition fees, which was the responsibility of the applicant.
Having regard to the substantial period of non-enrolment and the duration of the breach, the Tribunal gives it some weight towards the visa being cancelled.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal asked the applicant if she or other members of her family would suffer hardship if the visa was cancelled.
The applicant gave evidence that her family would suffer hardship as a result of the cancellation of the visa for the funds that they had advanced for her to undertake her studies. She claimed that they would also suffer psychological and emotional hardship, but she was unable to articulate how they would suffer such hardship.
The applicant has completed several qualifications in Australia and she does not intend to complete the bachelor’s degree and those tuition fees advanced by her family have been expended and will not be recouped regardless of whether the visa is cancelled.
The applicant claims that she has family in Australia, including her younger brother, her aunt a first cousin and a second cousin, and she is currently sharing a house with her second cousin and the cancellation will disrupt her living arrangements with her second cousin. The applicant also considered that Australia was her second home and the cancellation would cause her hardship if she could not return for a period of three years.
Further she claimed in evidence the visa cancellation would cause her a significant degree of hardship in that she would not be able to study and complete the Masters of Science in Sustainable Systems, because she did not think she would be able to study this course in the Philippines. However, it was unclear from the applicant’s evidence, what if any similar courses she could study in the Philippines. The applicant gave evidence that if her visa was cancelled she would return to the Philippines and gain employment in the communications and electronics industry.
The Tribunal finds that these matters may be the consequences of the visa cancellation, but they are not matters which would constitute an overwhelming degree of hardship sufficient to weigh against cancelling the visa.
The Tribunal considers that the above matters give some weight towards the visa not being cancelled.
Circumstances in which ground of cancellation arose
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.
The applicant gave evidence as to the circumstances that led to the cancellation of the visa as set out above.
Ultimately the responsibility regarding enrolment rests with the student and the Tribunal is not persuaded by her reasons for non-enrolment.
The applicant knew and was aware that by not being enrolled in a registered course of study she would have been in breach of condition 8202 and that her visa may be cancelled.
The primary purpose of the applicant under the visa is to undertake a registered course at a level appropriate to her visa and the applicant was not enrolled for a period of ten months which is a long period to be in breach of the visa.
The Tribunal has considered the applicant’s explanation for why she was not enrolled for this long period and therefore in breach of condition 8202(2). The Tribunal does not accept the circumstances were beyond her control or that the circumstances indicate reasonable explanations for not being enrolled for such a period of time. The Tribunal gives this matter substantial weight towards the visa being cancelled.
Past and present behaviour of the visa holder towards the Department
According to the Decision Record, the applicant had responded to the NOICC as set out above. Further there was no information before the Department indicating any specific matters of relevance regarding the applicant’s behaviour towards the Department. The Tribunal gives this factor marginal weight towards the visa not being cancelled.
Whether there would be consequential cancellations under s.140
As the cancellation of the visa does not affect the visa of any other person, this matter is not relevant in this application and the Tribunal gives this no weight towards the visa not being cancelled.
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

If the Tribunal decides to affirm the decision to cancel the visa under these grounds, then the applicant will become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act if she does not voluntarily depart Australia. Further pursuant to s.48 of the Act the applicant will have limited options to apply for further visas in Australia, so she would need to depart Australia and apply from overseas for most types of further visas.
Further, if the Tribunal decides to affirm the decision to cancel the TU500 student visa under these grounds, then the cancellation will come within the identified risk factors to make the applicant meet Public Interest Criterion 4013 of Schedule 4 to the Regulations, so if the applicant decides to apply for a new visa from overseas if she has to depart Australia, then that application may not be approved within the next three years.
However, these consequences are the intended consequences of the legislation when a visa is cancelled under these grounds.
The applicant gave evidence that if the visa remained cancelled she would return to the Philippines and therefore there is no indication that she would become unlawful or be subject to detention.
Accordingly the Tribunal gives this factor marginal weight towards the visa not being 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
This matter does not appear relevant in this application as the applicant gave evidence that if the visa remained cancelled she would return to the Philippines and she did not give any reasons as to why she could not return to the Philippines and she has not made any claims that relate to this consideration. Accordingly the Tribunal gives this factor no weight towards the visa not being cancelled.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
This matter is not relevant in this application as the cancelled visa is a temporary visa and the Tribunal gives this factor no weight towards the visa not being cancelled.
Any other relevant matters
The Tribunal is not aware of any other relevant matter in relation to the decision whether the visa ought to be cancelled.
Conclusion
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Michael Biviano
Member

ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(1) The holder must be enrolled in a full time course of study or training if the holder is:
(a)a Defence student; or
(b)a Foreign Affairs student; or
(c)a secondary exchange student.
(2) A holder not covered by subclause (1):
(a)must be enrolled in a full time registered course; and
(b)subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
(c)must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:
(i)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3) A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a) is enrolled in a course at the Australian Qualifications Framework level 10; and
(b) changes their enrolment to a course at the Australian Qualifications Framework level 9.

[2019] AATA 6330

19 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction