Heeroo (Migration)

[2018] AATA 2346

Heeroo (Migration) [2018] AATA 2346 (22 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ayushka Heeroo
Mr Diviumlall Basant Roi

CASE NUMBER:  1703540

DIBP REFERENCE(S):  BCC2016/3078702

MEMBER:Nicola Findson

DATE:22 May 2018

PLACE OF DECISION:  Perth

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 secondary applicant.

Statement made on 22 May 2018 at 11:20am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education) – Whether grounds for cancellation exist – Applicant not enrolled in a registered course – Whether the visa should be cancelled – Purpose for which the visa was granted - Significant time spent not enrolled – Applicant’s child born with a medical condition requiring care – Child’s medical condition does not explain the length of non-enrolment – Degree of hardship does not outweigh grounds for cancellation – Decision affirmed

Practice and Procedure – Consequential cancellation does not involve a reviewable decision – Tribunal does not have jurisdiction to review a consequential cancellation

LEGISLATION
Migration Act 1958 (Cth), ss 78,116(1)(b), 140, 348
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202(2)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 February 2017 made by a delegate of the Minister for Immigration to cancel the first named applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. 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 first named applicant (hereinafter referred to as the applicant) requested a review of the cancellation decision by this Tribunal. A copy of the delegate’s Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. 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 visa was 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 applicant.

5. The applicant appeared before the Tribunal on 10 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the second named applicant.  

6. The applicant was represented in relation to the review by her registered migration agent. However, the migration agent did not attend the Tribunal hearing.

7. 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

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.

11. The delegate’s decision record states that the applicant was granted a student visa on 11 July 2013.  Further, she was sent a Notice of Intention to Consider Cancellation (NOICC) of her student visa on 7 February 2017.  In summary, that NOICC set out the statutory basis for the consideration of the cancellation of the applicant’s student visa and also that the Provider Registration and International Student Management System (PRISMS)  indicated that the applicant had not been enrolled in a registered course of study since 15 February 2015.

12. The applicant responded to the NOICC, through her registered migration agent, on 20 February 2017. She did not dispute that the grounds for cancellation existed and she provided the following information:

    ·She gave birth to a son in 2014 with a severe ear defect (no ear canal) following a complicated pregnancy.  In particular, she suffered from gestational diabetes.  Her son was required to attend hospital for testing and treatment, in 2014 and throughout 2015 in respect of his condition.

    ·Her son’s medical issues deeply impacted her.  Her husband tried to shift the focus off her studies to enable her to look after her son.  In 2016, her husband (the second named applicant) applied for a subclass 457 skilled visa.

    ·However, currently she is feeling confident about her son’s medical progress and would like to study full time again.  She has made arrangements to have her husband spend more time at home to care for their son.  To that end, he intends withdrawing his 457 visa application.  She has enrolled in to a Certificate IV in Project Management Practice, which she believes will help her in her future aspirations of setting up a consulting practice to counsel parents of sick children as well as to get involved with Health Ministry projects in Mauritius.  Once she has attained her Certificate IV, she intends completing a business related degree at a University in Australia.

13. The Tribunal notes that documentary evidence was provided to it by the applicant to corroborate her claims that she suffered gestational diabetes and that her son was born without an auditory canal in his left ear. 

14. At her hearing, the applicant confirmed that the health issues she endured during her pregnancy as well as having to deal with the health issues her baby was born with, had made it difficult for her to focus on her studies since the end of 2013, and that she was not in a registered course of study.

15. On the evidence before it, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 15 February 2015.  The Tribunal finds that she breached condition 8202(2)(a) of her visa.

    Consideration of the discretion to cancel the visa

16. 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.

17. 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).

    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  

18. The applicant came to Australia to study in July 2013, after completing nursing assistant studies as well as a brief work placement in Mauritius.  She came to study a Certificate III in Early Education and Care, a Certificate IV in School Age Education and Care, a Diploma of Early Childhood Education and Care and a Bachelor of Education (Early Childhood Studies).    She claims to have commenced her Certificate course and to have sat exams just before Christmas in 2013.  She told the Tribunal however, that her exam results were not good, because by that time she was very unwell because of her pregnancy.  

19. The Tribunal notes that the applicant has provided an updated certificate of enrolment in relation to a Certificate IV in Project Management Practice at the Keystone College as evidence of her genuine intention to study.

20. The applicant told the Tribunal that she wants to continue studying in Australia. 

21. During her hearing, the applicant indicated to the Tribunal that she had received recent medical advice that her now 3 year old son will require surgery on his ear when he is old enough - in another few years - and she would like this surgery to be performed in Australia. 

22. Having regard to the applicant’s evidence, the Tribunal accepts that she may have travelled to Australia intending to study.  It has also taken into consideration that she would like her son to have any surgery to his ear carried out in Australia.  The Tribunal gives this some weight in favour of the applicant’s visa not being cancelled.

    The extent of compliance with visa conditions

23. The applicant conceded that she had not been enrolled in a registered course after 15 February 2015 up until her visa was cancelled on 22 February 2017, a period of about two years.

24. The applicant claimed she had a difficult pregnancy and subsequently her child was born with significant medical issues, and this impacted on her studies. 

25. The applicant stated, and the Tribunal accepts, that she did not breach any other conditions on her student visa.

26. As noted below, the Tribunal does not find the reasons for her breach of the enrolment condition to be convincing.  The Tribunal considers this condition to be important, because one of the primary reasons for holding a student visa is to be enrolled and to study, and the applicant has admitted to doing neither for an excessively long period of time.  When the Tribunal weighs her reasons, and its views on those reasons as set out below, against the long period of non-enrolment, the Tribunal has significant concerns about the period of breach which leads it to give this factor some weight towards the visa being cancelled.

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

27. The Tribunal was told that the applicant would have the support of her family if her visa was cancelled and she had to return home to Mauritius.  She said she would, however, like the opportunity to complete studies in the business area before she leaves Australia, to enable her to help her in-laws in the businesses they operate in Mauritius. 

28. As set out above, that applicant also told the Tribunal that her son would be required to have an operation on his left ear in another few years, when he is deemed old enough, and she would like him to have this surgery in Australia. 

29. The Tribunal has had regard to the claims of the applicant and accepts that the applicant would prefer to remain in Australia and that there may be some emotional consequences and hardship to the applicant and her family if the visa remains cancelled.  However, in the Tribunal’s view, the applicant does have employment prospects in Mauritius and there is nothing to prevent her from undertaking further studies and/or work experience with a business focus in her home country in order to help her in-laws in their business endeavours, if that is what she would like to do.   Further, while the Tribunal is prepared to accept that the applicant’s son is likely to require surgery when he is older in an attempt to improve his hearing condition; there is no medical evidence before the Tribunal to establish with greater certainty when this surgery ought to occur, nor that this surgery could not take place in Mauritius. After careful consideration, the Tribunal is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

    Circumstances in which the 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

30. The Tribunal was told that the applicant was very unwell during her pregnancy and sought to defer her studies from February to July 2014.  The applicant claims that after the birth of her son, she again applied to her course provider to defer her studies for a further period of time.  Documentary evidence before the Tribunal corroborates this. 

31. The applicant told the Tribunal, however, that she did not return to her studies before she was sent the NOICC by the Department.   

32. The Tribunal asked the applicant about what she had been doing in Australia, particularly since February 2015, given that she was the holder of a student visa and was obliged to be enrolled in a registered course. The applicant told the Tribunal that her sole priority and focus had been to care for her son.  She also indicated that she felt she was not mentally able to study after he was born.

33. The evidence before the Tribunal indicates that the applicant’s son was referred to a specialist in July 2014 after it was identified that he had moderate hearing loss in his right ear and profound loss in his left ear, due to not having any auditory canal.  As a consequence of that referral, he was fitted with a mini bone conduction aid in August 2014 and further referrals were made to support services and early intervention agencies (WAIDE and Telethon speech and hearing service). When asked about her son’s medical commitments since August 2014, the applicant told the Tribunal that he has had follow up hearing appointments about every three months and a total of three or four MRI’s. A medical report dated November 2017 before the Tribunal indicates that the applicant’s son still suffers conductive hearing loss and refers him to be considered for an implant or hearing device.  As already noted earlier in this decision record, the applicant claims she has received medical advice that her son is currently too young to be considered for an implant or hearing device.

34. The applicant told the Tribunal that she had not at any time consulted any medical professionals herself, in respect of any mental health issues, because she was solely focussed on her child. She indicated that she has now accepted her son’s condition and feels mentally stronger to undertake study.

35. The applicant told the Tribunal that she and her husband had had family members visit them in Australia from Mauritius to provide them with support after the birth of their son.  She said her mother-in-law spent three months in Perth in 2015 and also visited for shorter periods in 2016.  She indicated that her sister-in-law and her family also live in Perth.

36. The Tribunal discussed with the applicant its concerns about her remaining in Australia, in breach of her enrolment condition, for such a long period of time.  It indicated that her evidence of the support of her husband and extended family members as well as her evidence of infrequent medical appointments in relation to her son, may lead it to think that it would have been possible for her to maintain her enrolment, at least from the beginning of 2015.  By way of response, the applicant indicated to the Tribunal that she made the choice to remain at home with her son.  She said she did not want anyone else but her looking after him.  She said she did not consider returning to Mauritius during this time.

37. The applicant told the Tribunal that her husband made application for a subclass 457 visa, with the help of their migration agent, in late 2015.  Her husband clarified that this application was made in October 2015, however after about 12 months, when the Department indicated there were financial concerns with his business sponsor, he lodged a fresh application.   The applicant claims that when her husband’s subclass 457 application was lodged, it was her understanding that she became the holder of a bridging visa at this time, and so her student visa obligations ceased.  The applicant indicated to the Tribunal that while she did not have any direct contact with the Department about the issues she was facing, she said that their migrant agent was aware of her circumstances and as far as she knew, so was the Department.  The Tribunal discussed with the applicant that there was no material before it, on either the Departmental or Tribunal files, to corroborate her claim that she had taken steps to relinquish her student visa.  The Tribunal gave the applicant time following the hearing to speak with her migration agent and to provide any documentary evidence to support her claim.  However, to date the Tribunal has received no evidence in this regard.

38. The Tribunal was also told, and the documentary evidence confirms, that the applicant gave birth to another son, Master Omiall Basant Roi, on 23 February 2017.

39. The Tribunal has had regard to the applicant’s explanations and responses at hearing and the evidence provided.  The Tribunal has found above that the applicant was not enrolled in a registered course for a period of two years from February 2015 until her visa was cancelled on 22 February 2017.  While the Tribunal accepts the applicant’s circumstances, namely that after enduring a complicated pregnancy she then had to deal with caring for a baby born with a significant medical impediment, would have been difficult, it is not satisfied that these circumstances explain or justify the applicant being unenrolled for such a significant period of time.  The Tribunal considers that the applicant had the support of her husband, who had accompanied her to Australia as a dependent on her visa; the medical appointments in relation to her son were not onerous; she had extended family members visit from Mauritius to provide her with support, and therefore, the decision to not maintain her enrolment was a conscious one.  The Tribunal is also of the view that the fact that the applicant did not seek any help in relation to not being “mentally able to focus on her studies” after the birth of her baby suggests that she did not think she needed treatment or ongoing counselling or support, and accordingly her own health did not prevent her from maintaining an enrolment in a registered course.  The applicant was aware of the conditions imposed on her visa, and it was ultimately her obligation to comply with those conditions. As such, the Tribunal gives the circumstances surrounding the breach little weight towards the visa not being cancelled. 

    Past and present conduct of the visa holder towards the Department

40. According to the delegate’s decision record, there is no evidence that the applicant has been uncooperative towards the Department.  However, the significant period in which the applicant has not been enrolled in a registered course is a significant breach and far outweighs the weight the Tribunal gives to the visa not being cancelled because of the applicant’s conduct towards the Department.

    If breach relates to a breach of r.2.43(1)(1a) by a Subclass 457 visa holder – mitigating, compassionate and compelling factors

41. Not relevant.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

42. If the applicant’s visa remains cancelled, she would be required to obtain a bridging visa to ensure her remaining time in Australia was lawful while she made arrangements to depart.  Further, s.48 of the Act means that she will have limited options to apply for further visas in Australia, and she may also face a three year exclusion from applying for another visa to Australia. 

43. The applicant indicated that if the visa remained cancelled, she would return to Mauritius - where she has family support - with her husband and sons.  Given this, the Tribunal attributes little weight to this consideration in determining whether to cancel the visa.

    Whether there would be consequential cancellations under s.140

1. The Tribunal has considered that if the visa remains cancelled, this will result in the consequential cancellation of the visa of the applicant’s husband, who arrived in Australia (also in July 2013) as a dependent on the applicant’s student visa. 

2. The Tribunal has also considered that the cancellation will have implications for the applicant’s children, Master Heteshiall Basant Roi as well as Master Omiall Basant Roi, born in Australia on 6 May 2014 and 23 February 2017 respectively. The delegate’s decision record indicates that although these children are not listed as dependents in Departmental records, by virtue of s.78 of the Act a baby born onshore in Australia is entitled to hold the visa of its parent(s). Accordingly, if the applicant’s visa remains cancelled, this will result in the consequential cancellation of any visa held by the applicant’s sons.

3. The Tribunal notes that the applicant’s husband’s visa was granted on the basis of being a member of her family unit and it is the intended consequence of the legislation that members of the same family have the same visa status.

4. For these reasons, the Tribunal gives limited weight towards the visa not being cancelled.

   Whether any international obligations would be breached as a result of the cancellation

5. There is no evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations in this case.

6. The applicant also indicated to the Tribunal that there was no reason she cannot return to Mauritius and has not made any claims which would relate to this consideration.

   Any other relevant matters

7. The applicant told the Tribunal that she had come to Australia to study and that if her visa was reinstated she would like to continue her studies in the business field to enable her to help her in-laws in their business(es) on her return to Mauritius. The Tribunal has considered this evidence, but does not find it convincing, especially given the totality of the information before it and the applicant’s past behaviour.  The Tribunal notes that the applicant provided evidence that she arranged to re-enrol in a registered course, but this was only after her visa was cancelled by the Department.  In addition, the Tribunal observes that the applicant’s focus has very recently shifted from health and children towards wanting to pursue studies in the business area.  The Tribunal has had regard to her responses but finds, in light of its findings above, that this adds very little to her case and gives it only very little weight towards the visa not being cancelled.

8. The Tribunal has considered and weighed up all of the relevant evidence and circumstances in this case. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   Decision

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

10. The Tribunal has no jurisdiction with respect to the second named applicant.

    Nicola Findson
    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.