Geetika (Migration)

Geetika (Migration) [2020] AATA 2570 (18 May 2020)
Corrigendum
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Geetika
Mr Mohan Lal
Master Swastik Bhagat
CASE NUMBER:  1931971
HOME AFFAIRS REFERENCE(S):          BCC2019/3200388
MEMBER:Wendy Banfield
DATE OF DECISION:  18 May 2020

DATE CORRIGENDUMSIGNED:             2 June 2020
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:
Paragraph 19, the wording ‘In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full-time registered course’ should be removed.
Paragraph 26, the words “at the required level” should be added to the second sentence as shown: ‘However, failure to maintain enrolment and engage in a course of study [at the required level] is a fundamental breach of a student visa and weighs against the applicant in this case’.

Wendy Banfield
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Geetika
Mr Mohan Lal
Master Swastik Bhagat
CASE NUMBER:  1931971
HOME AFFAIRS REFERENCE(S):          BCC2019/3200388
MEMBER:Wendy Banfield
DATE:18 May 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 18 May 2020 at 10:40am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) –enrolment at lower AQF level than visa condition – changes of education provider and enrolment at original level cancelled – enrolment in and completion of lower-level course in different subject area – husband’s medical emergency and surgery – pregnancies, miscarriage and childbirth – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 4 November 2019 made by a delegate of the Minister for Home Affairs to cancel the first named 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 did not comply with subclause (2)(b) of condition 8202 attached to her visa. The Student visa was granted in relation to the registered course Master of Business Administration (MBA) starting on 15 January 2018 and ending 13 December 2019, a Level 9 qualification from the Australian Qualifications Framework (AQF). At the time of cancellation, the highest enrolment the applicant held was for a Diploma of Early Childhood Education and Care at AQF Level 5. Therefore, the applicant did not comply with subclause (2)(b) of condition 8202 as she did not maintain enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which her visa was granted.
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
The applicant is a citizen of India and is currently 28 years old. Her husband and son (born in Australia in 2017) reside with her in Australia. She came to Australia in 2014 with her spouse to study an MBA. The applicant was granted the visa which is the subject of this review on 27 March 2018. At the time she was enrolled in an MBA, but her enrolment was cancelled and the course not completed. The applicant discontinued her studies in higher education and re-enrolled in certificate and diploma courses in childcare.
For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.
The following information was submitted in support of the application for review:
·     Confirmation of Enrolment certificate (CoE) for a Diploma of Early Childhood Education and Care from 7 October 2019 to 4 April 2021;
·     Medical certificates in relation to the applicant from Royal Prince Alfred Hospital in 2016;
·     Applicant’s medical documents regarding pregnancy and birth in 2017;
·     Marriage certificate dated 27 September 2013;
·     Birth certificate of the applicant’s son: date of birth October 2017;
·     2018 medical practitioner and imaging receipts in relation to the applicant’s husband;
·     Completion certificate and transcript for a Certificate III in Early Childhood dated 10 September 2019;
·     Conditional letter of offer dated 30 August 2019 for a Bachelor of Early Childhood Education and Care;
·     Representative’s submission dated 4 March 2020;
·     2015 medical documents in relation to the applicant’s husband’s treatment for appendicitis;
·     Confirmation of the applicant’s current enrolment in a Diploma of Early Childhood Education and Care dated 10 March 2020.
The applicant also provided a response to the Notice of Intention to Consider Cancellation (NOICC) with supporting evidence to the Department which has been considered as part of this decision.
The applicants appeared before the Tribunal on 11 March 2020 to give evidence and present arguments.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
The hearing
The applicant confirmed she came to Australia in 2014 with her spouse to study an MBA. This was based on the applicant holding a Bachelor of Arts and Education from her home country. She said her intention was to have her own business in India. According to the applicant in April 2015 her husband suffered a medical emergency and had to have surgery followed by bed rest for two months. She said she applied for leave from UNSW which was refused, possibly because she had been “struggling”. The applicant claimed her husband required further surgery after two to three months followed by additional bed rest which was mentally and emotionally draining.
The applicant decided to change education provider to Federation University and then changed again to GCE in 2016. The applicant said she became pregnant but suffered a miscarriage after eight weeks which caused her to be stressed and depressed. She said she had to attend hospital visits for two to three months afterwards for scans and a possible infection. Because of this the applicant said she could not complete her studies. In January 2017 she became pregnant with her first baby. The applicant claimed she sought a deferral of her studies, but the request was refused and her CoE was cancelled. Her evidence was she could not focus due to concerns about the earlier miscarriage. Although the applicant only had her husband with her in Australia, she said she did not consider returning to India. After the baby was born in October 2017, a new CoE was issued.
According to the applicant, it had taken six months to recover from the birth. She then sought advice from an agent who suggested she study at a lower level. The applicant decided a master’s course was too high level and difficult so she changed to a Certificate III in Childcare as it would suit her circumstances with a baby. The applicant claimed her agent did not tell her the consequences of changing to this course and she did not contact the Department. The applicant claimed she wants to complete her current studies up to a diploma and then take a bachelor’s degree in childcare. She said she is focussing on her education now and is sure she will complete it. Regarding their circumstances in Australia, the applicant said her husband works as a car detailer and she works in a pharmacy. The applicant said she could not undertake the same studies in India.
The applicant accepted she had breached the conditions of her student visa. As to any compelling need to remain in Australia, the applicant said her parents were against her marriage and she wanted to stand by herself to show her family she did the right thing. She denied having breached any other visa conditions during her residency in Australia. The Tribunal asked the applicant about any hardship that would result from her visa being cancelled. She said she would not be able to get a good job without completing her studies. It was put to her that she already had a bachelor’s degree, but she claimed she would not be able to get “any good jobs”. In addition, she said with childcare qualifications she can open her own business. The applicant advised her husband is not educated and cannot get a good job. It was also claimed the applicant will not be able to give her son a decent education without sound financials.
Regarding her study plans, the applicant said she would finish a bachelor’s degree in 2023. She agreed it was a long time to be a student but said the situation had not been in their hands. The applicant indicated that when her husband suffered cracked ribs, she had been able to continue studying. The applicant advised that if her dependents’ visas are cancelled as a consequence, it will be difficult as she needs their support. She acknowledged the legal consequences of visa cancellation but reiterated she wants to finish her studies.
The representative submitted the applicant does not have the support of her family back home and she needs to consider her child as well. It was submitted Australian qualifications are a privilege and will lead to a good job in India. He said the applicant has an offer of a bachelor’s degree after her diploma and if her visa is cancelled there will be a strong impact due to a sense of failure. The representative referred to the applicant having completed a certificate course with good marks and suggested the Tribunal should give her a second chance.
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:
·be enrolled in a full-time registered course: 8202(2)(a)
·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)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full-time registered course.
In the present case, the applicant’s visa was cancelled on the basis the applicant did not 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.
The evidence indicates the applicant discontinued her studies in a master’s degree, AQF level 9 which was the purpose of the applicant’s visa grant. She enrolled in vocational courses, the highest of which was AQF level 5 which does not meet the conditions of her student visa. It was claimed in the applicant’s response to the NOICC that because she had a letter of offer for a bachelor’s degree, the grounds for cancellation did not exist. This is not the case because the offer was conditional and would not lead to an AQF level 9 qualification. During the Tribunal hearing the applicant acknowledged she had not complied with her visa conditions. On the evidence before the Tribunal, the applicant did not maintain enrolment in a registered course that, once completed, will provide a qualification from the AQF that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted. Accordingly, the applicant has not complied with condition 8202(2)(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 Procedural Instruction ‘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
The applicant arrived in Australia as the holder of a student visa; she was enrolled in a Master of Business Administration and began studying the course. She discontinued studying in the higher education sector and instead enrolled in certificate and diploma courses. 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.
During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant explained that she had married against her parents’ wishes and wanted to prove to them she made the right decision. She did not make any specific claims regarding a compelling need to remain in Australia other than an assertion she would not be able to get a good job in her home country and would not be able to study the same courses there.
The Tribunal considered the applicant’s evidence and notes she arrived in Australia to study a master’s degree based on holding a bachelor’s degree from her home country. Although the applicant claims she is now planning to work in childcare, she has not demonstrated a powerful or convincing reason for needing to stay in Australia. 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
There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account. However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a student visa and weighs against the applicant in this case.
· degree of hardship that may be caused (financial, psychological, emotional or other hardship)
During the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of her visa being cancelled. The applicant claimed she would suffer hardship in not being able to get a good job in her home country. The Tribunal does not accept this is the case since the applicant already holds a degree in the field of education, and she is no longer planning to build on that qualification by completing an MBA. The applicant also claimed she plans to use her childcare qualifications to open her own business, her spouse is not educated and cannot get a good job and she will not be able to give her son a good education without being in a sound financial position. The Tribunal is unable to verify the applicant’s claims in this regard but is not satisfied they demonstrate hardship of such a degree that the Tribunal should exercise the discretion not to cancel the visa.
The representative’s submission to the Tribunal, the response to the NOICC, and the applicant’s statutory declaration of 4 September 2019 state the family suffered a series of hardships in a short period of time, from 2015 to 2018 due to the secondary applicant’s health issues, a miscarriage, the birth of a child and the stress these events caused. The Tribunal notes that these issues are said to be part of the reason why the applicant could not complete her MBA but are not hardships that would result from the visa being cancelled. As confirmed by the applicant in her statutory declaration of 4 September, she had spent four years in Australia attempting to complete her MBA before discontinuing. It was claimed the events outlined contributed to an inability to study but the Tribunal notes the applicant gave evidence at the hearing that she was already struggling with the course when her husband became ill. Since the applicant will have only completed a certificate course in Australia if her visa is cancelled rather than an MBA, the Tribunal accepts there will be a degree of hardship caused. However, the Tribunal is not satisfied the applicant has demonstrated a level of hardship that means the visa should not be cancelled.
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
The applicant’s visa was cancelled because she remained in Australia as the holder of a student visa but did not maintain enrolment at the required level, in breach of visa conditions. The applicant provided an explanation for her inability to study a master’s degree. In her written evidence and in-person submissions at the Tribunal hearing the applicant explained her studies were affected the year after she arrived first by her husband having health issues, then a miscarriage that she suffered and later, the birth to her first child. The representative’s written submission of 4 March 2020 sets out the issues the applicant faced, as explained during the hearing, and her enrolment and study history. The evidence indicates the applicant had re-enrolled to study an MBA on 15 January 2018 and was granted the Student visa which is the subject of this review on 27 March 2018. However, her enrolment was cancelled 25 September 2018.
The applicant’s evidence was that she found the MBA to be too high level and on the advice of an agent, decided to enrol in certificate and diploma courses in childcare. She considered this was better suited to her situation. The applicant began a Certificate III in Early Childhood Education and Care in August 2018 and completed it in August 2019. She then began a diploma and plans to go on to a bachelor’s degree. The applicant’s representative stated in his written submission that the applicant did not maintain enrolment in higher education for reasons that were beyond her control, and that she did not have knowledge of “immigration laws, rules and regulations”.
The Tribunal considered the applicant’s circumstances in which the grounds for cancellation arose. It appears the applicant was first enrolled in an MBA in 2014 and had re-enrolled at the time she applied for a further Student visa, in 2018. Although she had spent several years in Australia without completing the course she came to do, the applicant was granted a further opportunity to do so. However, she did not continue the master’s course and instead, enrolled in lower level, unrelated certificate and diploma programs. The Tribunal does not accept the applicant was not aware of the terms of her visa grant, which was to maintain enrolment in the higher education sector. She had come to Australia specifically to complete a post-graduate qualification and already held a tertiary qualification from her home country. There is no evidence the applicant sought to change her visa conditions to allow her to study at a lower level.

The applicant advised in her evidence that she did not have support in Australia other than her husband and had married against the wishes of her parents meaning she did not have family support in India. The Tribunal notes that most international students are in Australia independently, without their families. While the applicant’s own health issues and that of her husband is unfortunate, they do not account for the applicant’s lack of progress in her MBA program over the time she has spent in Australia, and her failure to study at the required level. It is accepted the applicant encountered some stressful events while studying as she described, but they are not adequate reasons for the applicant to remain in Australia while failing to comply with the conditions of her student visa.
The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, her response to her circumstances that led to failure to maintain enrolment at AQS level 9, in breach of visa conditions. Therefore, the Tribunal places limited weight on the circumstances in which the ground for cancellation occurred.
· past and present behaviour of the visa holder towards the department
There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given some weight in favour of the applicant in this regard.
· whether there would be consequential cancellations under s.140
The visas held by the applicant’s dependants, Mohan Lal and Swastik Bhagat would be cancelled under s.140 of the Act if the Student visa is cancelled. The cancellation would not result in the separation of the applicant’s family unit; however, the Tribunal places some weight in favour of the applicant in considering this criterion.
· 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
The cancellation of the visa means that the applicant and her dependents could potentially become unlawful non-citizens liable for detention and removal from Australia. The applicants would be subject to s.48 of the Migration Act which would limit their options for applying for a visa. In future the applicants 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 applicants’ visas 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
The Tribunal notes that in the response to the Department’s NOICC, the applicant submitted that her dependent child, Swastik Bhagat who was born in Australia in October 2017 will be impacted in violation of Article 3.1 of the UN Convention on the Rights of the Child.
The Tribunal does not place weight on this claim because the child lives with his parents and cancellation of the visa would not result in him being separated from them. This is because his and his father’s visas will be cancelled as a consequence of s.140 of the Act. It will not result in a situation where some members of the family unit are able to remain in Australia while others must depart. In addition, the child is a citizen of India and will be unable to remain with his parents as he will be eligible to apply for a Bridging Visa E to allow reasonable time to arrange to depart Australia.
There is no information before the Tribunal to indicate that visa cancellation would be in breach of Australia’s non-refoulement obligations, and the circumstances of this case would not engage Australia’s international obligations. I give this consideration little weight in favour of the applicant when considering whether to cancel the visa.
· if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The Subclass 500 Student Visa is not a permanent visa.
· any other relevant matters
There are no other relevant matters to be considered in the applicant’s case.
Conclusion
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 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 issues encountered by the applicant are sufficient reason for the visa not to be cancelled.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa. The Tribunal has no jurisdiction with respect to the other applicants.
Wendy Banfield
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.

[2020] AATA 2570

18 May 2020

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

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Intention