Harjinder Kaur (Migration)

[2018] AATA 5865

Harjinder Kaur (Migration) [2018] AATA 5865 (23 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms  Harjinder Kaur

CASE NUMBER:  1703109

HOME AFFAIRS REFERENCE(S):           BCC2016/4205452

MEMBER:Helen Kroger

DATE:23 October 2018

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 23 October 2018 at 4:55pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – not enrolled in registered course – nursing studies – course change – business studies – financial issues – divorce – circumstances that lead to breach outside of applicant’s control – decision under review set aside

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 February 2017 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 applicant, Ms Kaur, an Indian national, was granted a visa on 20 October 2014, to study in Australia.

3. On the 16 January 2017, Ms Kaur was sent a Notice of Intention to Consider Cancellation of her student visa inviting her to comment on a potential breach of condition 8202 which was imposed on her visa. The delegate received a response from Ms Kaur on the 31 January 2017.

4. The delegate cancelled the visa on the basis that the applicant has not maintained enrolment in a registered course and the grounds for cancelling the visa outweighed the grounds for not cancelling the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant seeks review of the delegate’s decision and for that purpose provided a copy of the primary decision to it.

6. The applicant appeared before the Tribunal on 16 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant did not have an appointed representative present.

7. 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

8. 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?

9. 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).

10. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant was invited to respond to the NOICC on the 16 January and the delegate received a response on the 31 January 2017 providing reasons why the visa should not be cancelled. At the hearing, the alleged breach (as discussed by the delegate in his/her decision), was put to the applicant and reference was made to the delegate’s decision record that indicated that she had not been enrolled in a registered course since 16 July 2016, a period of six months before the NOICC was issued. The applicant confirmed during the hearing that this was correct and that she had not been enrolled in a registered course of study since that time.

11. On the evidence before the Tribunal, namely the applicant’s admission during the hearing along with the written submission by the applicant in response to the NOICC, the Tribunal finds that 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

12. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

13. 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’.

14. The Tribunal has considered the applicant’s submission she provided to the delegate and the evidence submitted during the hearing to support her claims.

15. The information provided to the Tribunal at the hearing has been considered by the tribunal in its exercise of discretion as outlined below.

    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

16. The applicant, Ms Kaur, is an Indian national who is 33 years of age. She first travelled to Australia in 2014 with the intent to study nursing and further develop her nursing qualifications. She travelled to Australia with her husband (secondary visa holder) who she had been married to since 2009. She had previously undertaken a three and a half year Diploma course in nursing in India that followed with four years of general practice.  She enrolled in a Bachelor of Nursing at Queensland University that was to be funded by her father-in-law.

17. Ms Kaur successfully completed the English for Academic Purposes Two (EAP 2) which commenced on 26 February 2015 at Queensland University with the intent to continue on to study for a Bachelor of Nursing. She indicated that she travelled alone to Brisbane to study whilst her husband had moved to Mildura, after spending only two weeks with her on arrival in Australia. She claims that her father-in-law, who was paying for her studies (and was based in India), requested that she change the course she was registered in to one that wasn’t so expensive.  Accordingly, she notified the Queensland University of her cancellation and enrolled in a Diploma of Business course on 15 July 2016 with the intention of then studying for a Bachelor of Hospitality and Management.

18. The decision to change courses and the rationale for it was discussed at length during the hearing. Ms Kaur claims that the decision to change courses was based on the demands of her father-in-law and his wish for her to be enrolled in a cheaper course. The applicant’s disappointment with this request was apparent in her candid response to questions, and it was apparent in her explanation, the underlying influence of traditional culture, the role of family, her responsibility and behaviour as a dutiful daughter-in-law, and the expectations on her accordingly. The cultural nuances impacting on women in India was apparent in the respectful way she described her (ex) husband’s family demands even though her personal wish was to further her nursing qualifications so that she could return to India with greater employment opportunities as a result of her degree. This “duty to family” is apparent in her original written submission that was forwarded to the Department on the 31 January 2017 in response to the NOICC.

19. The applicant completed a Diploma of Business in July 2016 with the intent of continuing with a bachelor of Tourism and Hospitality. The father-in-law did not pay the fees at this time, when he was hospitalised for medical treatment. The applicant’s parents were not in a position to assist financially at that time.

20. The applicant’s (then) husband formally separated from her immediately after the visa cancellation and filed for divorce, the dissolution of the marriage taking effect on the 23 April 2018, and she provided the Tribunal with a copy of the Divorce Order.  During the hearing, the applicant explained that she had limited contact with him since she had been in Australia, a circumstance that clearly had upset her, and that he had lived permanently in Mildura following their arrival to Australia.

21. The applicant has discussed the situation with her own family, in particular with her father and brother. She indicated that they hold a parcel of land in India for her which they have offered to sell to finance future studies in Australia, if that was a possibility.

22. The Tribunal has given careful consideration to the evidence before it and given particular regard to the applicant’s testimony at hearing that it found was particularly persuasive. The Tribunal gives some weight in favour of the applicant, given her previous nursing qualification and experience in India, that whilst she initially applied to study nursing, she completed a Diploma of Business.  The applicant was enrolled in a registered course of study from October 2014 to mid-2016 and subsequently, and not enrolled for a period in excess of five months. Given the length of time studying and the mitigating circumstances that impacted on the applicant’s intent to study, the Tribunal finds that these considerations outweigh any weight given in favour of cancelling the applicant’s visa.

    The extent of compliance with visa conditions

23. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal is mindful of the significance of the breach.  As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

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

24. The applicant at hearing submitted that she is 33 years of age, recently divorced at the initiation of her now ex-husband and wishes to establish her future economic independence by completing her studies. She has ascertained the financial support of her own immediate family to support this endeavour, by selling land owned in India on her behalf. Given the cultural nuances that impact on unwed women of this age, she indicated her wish to complete these studies so that she may return to India with qualifications that will enable her to fulfil this independence. She claims that a Bachelor of Hospitality and Management will enable her to seek management level positions in the health sector, a sector that she has worked in and the area where her interests remain. She has no family in Australia and has indicated her interest in returning to her home to continue her life.

25. During the hearing she explained that she has a supportive family who are prepared to make the necessary steps to finance this endeavour. Whilst she did not claim any personal emotional hardship should she return to India, the Tribunal has given careful consideration to the cultural and traditional role of women in Indian society and the cultural consideration that may be afforded to separated or divorced  women. The evidentiary basis for this consideration is contained in the Tribunal’s audio recording.

26. The Tribunal appreciates that a cancellation would cause significant hardship to the applicant in establishing her economic independence in India should her visa be cancelled, and the impact this would potentially have in her exercising her capacity to access all employment opportunities in India. Accordingly the Tribunal gives more weight to the significance of the hardship she would experience on her return to India than the significance of the period of time of the breach.

    Circumstances in which ground of cancellation arose

27. As outlined above, the applicant changed her enrolment from studying nursing to business, upon the request from her father-in-law. He didn’t pay the necessary fees for the enrolled course and subsequently her enrolment in a registered course lapsed in mid-2016. At this time her own family were not in a position to support her financially.

28. Following her response to the NOICC on the 31 January 2017, her visa was cancelled. Upon this notification, her then husband advised that he would formally separate from her and commenced proceedings upon which they were later divorced in April 2018.

29. The applicant’s husband was a secondary visa holder on her student visa that they travelled to Australia under. The Tribunal has carefully considered these circumstances, the father-in-law’s request for her to change courses to one that was cheaper than the Bachelor of Nursing for which she was originally enrolled for, and her then husband’s decision to move to Mildura after staying with her for a period of two weeks after their arrival in Australia.

30. The Tribunal has considered the submission provided at hearing by the applicant, the cultural nuances particular to the cultural values and norms peculiar to women Indian nationals and accordingly the respect and deference afforded to the parents of husbands.

31. Given the circumstances as outlined above, the Tribunal gives significant weight to the reasons why the applicant was not enrolled in a registered course of study and finds that these reasons outweigh any weight given to the period of time of the breach.

    Past and present behaviour of the visa holder towards the department

32. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in her dealings.

    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

33. It is unlikely that the visa applicant would be detained but rather provided with a time limited period in which he can leave the country or apply for review of the decision.

    Whether any international obligations would be reached as a result of a cancellation

34. There is nothing before the Tribunal to indicate there are international obligations to consider.

    Any other relevant matters

35. The Tribunal notes that the applicant responded to  the NOICC issued by the Department efficiently, requesting that her visa not be cancelled, seeking the opportunity to complete a qualification in Australia. The circumstances in which this submission was made have been considered and the influence the then husband’s family continued to exercise in the applicant’s life. This submission varies in some part with the candid and consistent submission provided at hearing, and the Tribunal has had regard to the variance and the circumstances that have attributed to it.

36. The Tribunal has considered all factors listed above both individually and cumulatively in the context of the breach. Whilst the Tribunal finds the breach of just over five months significant, the Tribunal places greater weight on the circumstances that lead to the breach, and that they were circumstances outside the control of the applicant. As such, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Helen Kroger
    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.