FATIMA (Migration)

[2019] AATA 5445

FATIMA (Migration) [2019] AATA 5445 (26 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss RIDA FATIMA

CASE NUMBER:  1924094

HOME AFFAIRS REFERENCE(S):          BCC2019/2604842

MEMBER:Peter Booth

DATE:26 November 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 26 November 2019 at 1:24pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – circumstances giving rise to non-compliance – mother’s health condition – depression – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 August 2019 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).

2. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study. 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 25 November 2019 to give evidence and present arguments.

4. The applicant was represented in relation to the review by her registered migration agent.

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 full time registered course: 8202(2)(a)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

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 found that the applicant had not been enrolled in a registered course of study since 2 August 2018. The applicant affirmed the correctness of this finding in the hearing on 25 November 2019. 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 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’.

11. The Tribunal turns to consideration of any relevant factors, including matters raised by the applicant and the Departmental guidelines which cover matters as follows.

    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

12. The applicant gave evidence that she arrived in Australia on 26 July 2017 as the holder of a student (Subclass 500) visa with the intention of studying a Master’s degree in information technology. She gave no evidence as to whether she had a compelling need to travel to or remain in Australia.

    The extent of compliance with visa conditions

13. The applicant confirmed that she had not been enrolled in a registered course of study since 2 August 2018.

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

14. The applicant gave no evidence regarding any degree of financial, psychological, emotional or any other hardship which may be caused by the cancellation of the visa. However, the Tribunal accepts that cancellation of the applicant’s visa will cause some degree of financial hardship in the form of lost tuition fees, or emotional hardship, in the form of disappointment or embarrassment in not completing the course. The Tribunal gives this factor little weight.

    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

15. The applicant gave evidence that she did not commence the Master’s degree in information technology, which was due to start on 25 July 2017. Indeed she said that she did not attend any classes. The Tribunal enquired why she did not commence the course to which she said, “when I arrived my mother was sick, she had heart problems, I could not contact her, I was told she was in hospital, I was depressed, my mother is a single parent, I could not go to uni”. In answer to a question from the Tribunal she said that her mother did not have heart problems prior to the applicant arriving in Australia. She added, “when I was in flight she was admitted to hospital”. In answer to a question from the Tribunal she said that her mother was in hospital for “one-month” but that she “is still alive”. She did not elaborate. In answer to a question from the Tribunal she said that she did not defer her course. She did not elaborate. In answer to a question from the Tribunal she said that she had no medical evidence regarding the assertion of depression. She did not elaborate.

16. The applicant enrolled in another course of study on 2 March 2018, an advanced diploma of leadership and management. In answer to a question from the Tribunal she said that she “did nothing” between 26 July 2017 and 2 March 2018. In answer to a question from the Tribunal she said that she had “started a job” but that she “could not continue”. She did not elaborate.

17. The Tribunal enquired why she had decided to enrolled in a course in March 2018 to which she said, “because of my financial issue”. She added, “my mother is the only one who can help me, she had no finance left”. She did not elaborate. Apparently the applicant’s mother had used significant financial resources to pay for her medical treatment. In answer to a question from the Tribunal the applicant said that during this period she was “supported by family friend”. The Tribunal enquired why the applicant had not obtained employment and funded the course herself to which she said, “I was depressed and I could not continue the job after one-month”. The nature of the employment was apparently as an “assistant chef” but the applicant, apparently, abandoned this employment “after two months”. In answer to a question from the Tribunal she said that she had never obtained or sought any medical assistance or psychiatric assistance in respect of the alleged depression. The applicant was invited to add anything else to her application, in particular, why she was not enrolled in the relevant period. The applicant said, “my mother was facing a lot of crises because of Kashmir dispute with India”. The Tribunal enquired as to the relevance of the dispute in Kashmir, to which the applicant said, “I live in Kashmir, it is in Pakistan. My mother has a business there which was “down” because of the dispute. She did not elaborate.

18. The applicant appeared to rely on two reasons why she did not continue with her enrolment or indeed why she did not commence the course at all. The first reason was that her mother was ill and hospitalised for approximately one month. This appears to have taken place at about the same time as the applicant arrived in Australia. This appeared to cause two problems. The applicant’s mother was providing financial support for the applicant. However, other than some vague answers to the Tribunal’s questions, the applicant gave no compelling reason why she could not obtain employment herself and fund her education. It may reasonably be expected that a change in financial circumstances would provide a compelling basis to obtain employment. Indeed the applicant did obtain employment as an “assistant chef” but this was short lived due to, apparently, depression. This leads to the second consequence of the applicant’s mother’s illness, namely an assertion of “depression” on the part of the applicant. However the applicant admitted she did not obtain any treatment for this alleged condition. The Tribunal gives these assertions little weight. The Tribunal does not accept the reasons advanced by the applicant as to why she did not commence studies, attempt to defer her studies, obtain meaningful employment, or seek appropriate medical or psychological assistance. Accordingly the Tribunal is not convinced and does not accept that the applicant’s failure to maintain enrolment in a registered course of study was beyond the applicant’s control.

    Past and present behaviour of the visa holder towards the Department

19. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    Whether there would be consequential cancellations under s.140

20. The Tribunal was provided with no evidence on this point and gives it little weight.

    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

21. The Tribunal accepts that there may be legal consequences as a result of the cancellation. However, these consequences were intended by the Parliament when enacting the relevant legislation. The Tribunal gives them little weight.

    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

22. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

23. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    Any other relevant matters

24. There was no evidence of any other matters and the Tribunal gives this factor no weight.

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

    DECISION

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

    Peter Booth
    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.