Jondi (Migration)

[2020] AATA 3416

Jondi (Migration) [2020] AATA 3416 (20 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Riu Kuria Jondi

CASE NUMBER:  2003053

HOME AFFAIRS REFERENCE(S):          BCC2019/5316092

MEMBER:Michael Biviano

DATE:20 August 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 20 August 2020 at 5:15pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – study history – enrolments cancelled for various reasons – attempts to re-enrol – sufficient funds – father’s financial difficulty – discretion to cancel visa – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 2, cls 573.223(1A), 573.231, Schedule 8, conditions 8202(2)(a), 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 February 2020 made by a delegate of the Minister for Home Affairs 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 delegate cancelled the visa on the basis that the applicant had not complied with subclause (2)(a) of condition 8202 of her visa as she 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 23 July 2020 to give evidence and present arguments.

4. 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

5. 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?

6. 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).

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course for the period from 19 December 2018 until the cancellation of the visa on 11 February 2020.

8. The Decision Record of the delegate of the Department of Home Affairs on 11 February 2020, which was provided to the Tribunal by the applicant, confirms the Department cancelled the Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa which was granted on 24 May 2016 and the reasons for the cancellation of the visa (Decision Record).

9. The applicant came to Australia in 2016 pursuant to a Student (Subclass TU 573) visa to undertake a course package including Bachelor of Nursing at Queensland University of Technology, which was scheduled to commence on 22 June 2016 and to conclude on 30 June 2020. The visa was granted until 31 August 2020.

10. The Decision Record confirms that the courses in the course package were cancelled and recorded in PRISMS that they were terminated for various reasons. Those reasons included unsatisfactory attendance, unsatisfactory course progress, cessation of studies, non- payment of fees and non-commencement of studies.

11. The applicant gave evidence at the hearing that prior to coming to Australia the applicant had obtained a Certificate IV in Accounting and Finance in Papua New Guinea. She came to Australia to undertake a foundation course, and a Bachelor of Nursing.

12. The applicant gave evidence that she failed 3 of 12 subjects she studied in the foundation course. She had concluded her studies in the foundation course in mid-2017 and due to her results, she was unable to enrol in the Bachelor of Nursing. She decided to change her courses and decided to complete English courses at Southbank TAFE and undertake the IELTS examination to gain enrolment in a Diploma of Nursing.

13. The applicant claimed that she did not get the requisite results in the IELTS course needing a minimum score of 7.0 in each subject, which she failed to achieve in one subject. She had enrolled in a Diploma of Nursing at Southbank TAFE but could not commence those studies due to her results.

14. The applicant claimed that she then studied the TAFE English Language Program which she completed in the second half of 2018.

15. The applicant was devastated that she could not gain entry into nursing. The applicant was enrolled in a TAFE English Language Program. The Decision Record confirms that the course was cancelled for unsatisfactory attendance on 19 December 2018. The applicant concedes that was when she was last enrolled.

16. The applicant claims after losing entry into nursing she decided to change career pathways and undertake a Diploma of Business which would build on the Certificate IV in Finance and Business she obtained from Papua New Guinea, so that she could gain work in an accounting firm, bank or a role in business student governance.

17. The applicant claimed that she applied to the Russo Business School and Griffiths University in January 2019 to undertake a Diploma of Business. The application to Russo Business School had a pathway to obtain enrolment in a Bachelor of Business at James Cook University. The applicant did not receive a response from Griffiths University, but was informed by Russo Business School (RBS) that the intake for first semester was full.

18. The applicant claimed that she also applied to Queensland TAFE to do a Diploma of Business, but they informed her that they could not accept her.

19. The applicant returned home to Papua New Guinea in February 2019 and stayed there until August 2019, when she returned to Australia. The applicant made further enquiries with the education institutions.

20. The applicant obtained a letter of offer from RBS dated 5 November 2019 to study a Diploma of Business with a commencement date of 11 November 2019 and it was expected to conclude on 30 October 2020. The letter stated that the estimated cost of tuition was $18,000. However the applicant gave evidence that she could not enrol in the course as she had inadequate funds to pay for the course. She claimed that her father who had paid for her tuition in Australia, did not have the funds to enable her to enrol and meet the November 2019 intake at RBS. The applicant claimed her father had financial problems, and did not volunteer any further information. When questioned about why her father was struggling financially, the applicant conceded that her father had continued to remain in employment in a government role during this time, but he had 6 children and he was meeting tuition fees for the applicant and her sister who were both studying tertiary courses and her mother was not working.

21. When questioned about whether she could meet tuition fees to now study in Australia, she claimed that she had now found a sponsor to fund her tuition but she will need to obtain a job. It is unclear why the applicant would have sought to enrol at RBS if she could not meet the tuition fees.

22. On 23 January 2020, the applicant received a Notice of Intention to Consider Cancellation (NOICC) of her visa.

23. On 30 January 2020, the applicant provided a response to the NOICC, within the time required for her provide a response (Response). The Response stated:-

    This is in reply to an email received on the 23 of January 2020 in regard to the intention to cancel my Student VISA.

    I have last year October 2019 applied to study Diploma of Business at the Russo Business College, pathway to Bachelor of Business (Accounting) at James Cook University (JCU)  Brisbane Campus for the November 2019 intake.

    Upon receiving my Offer Letter my father was not able to pay for my tuition fee.

    I then asked in an email to JCU if I could postpone my study to this year 2020 March intake. Unfortunately I was told by JCU that was not possible.

    I am now in the process of re-applying to James Cook University to study the same course (Diploma in Business) for the March 2020 intake.

    If my application is successful, I will have my tuition fee paid by my father and will commence class in March of this year.

    I have spoken to my father in regard to my tuition fee payment and he is now financially fit to cater for it.

    If my Student Visa is cancelled and I return to my home country of Papua New Guinea I will have a very slim chance of ever attaining a Diploma in Business (Accounting) as there is not enough Tertiary Institutes and Universities to cater for the large number of students wanting to continue their education in the Higher Education Sector.

    I therefore kindly ask that you read and understand my letter.

    Attached are supporting documents. If there are any other documents or proofs needed please let me know.

    Thank-you for your understanding.

24. The Response did not address why the applicant was not enrolled in a course of study from 19 December 2018 until November 2019, when she  got the letter of offer for the Diploma of Business.

25. The applicant conceded in evidence that she was not enrolled in a registered course from 19 December 2018 to the cancellation of the visa on 11 February 2020, being a period of more than 13 months. By reason of not being enrolled in a registered course for that period of time, she did not meet condition 8202(2)(a) of her visa.

26. On the evidence before the Tribunal, the applicant did not maintain enrolment in a registered course of study for the period from 19 December 2018 to 11 February 2020. Accordingly, the applicant has not complied with condition 8202(2) of her visa. As this was a condition that 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) of the Act.

    Consideration of the discretion to cancel the visa

27. 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, and whether the visa holder has a compelling need to travel or to remain in Australia

28. The applicant gave evidence that she came to Australia to study and undertake the courses as discussed above.

29. As discussed above, the applicant was enrolled until 19 December 2018.

30. There is no doubt she came to Australia for the purpose of studying in Australia and has studied while in Australia. However her academic record is patchy at best and she has not undertaken the course of study that she came to Australia to complete, the Bachelor of Nursing, or the Diploma of Nursing that she sought as an alternative qualification, when she could not gain entry into the Bachelor of Nursing.

31. As discussed above, she was not enrolled from 19 December 2018 and while on the applicant’s evidence she applied to gain an enrolment in the Diploma of Business at RBS and Griffiths University, and when presented with the opportunity to enrol at RBS in November 2019, she did not take up that opportunity.  

32. The applicant lost her enrolment in the TAFE English Language Program course on 19 December 2018, while seeking to obtain enrolment in a Diploma of Business. The applicant claims that she made attempts to enrol at RBS and Griffiths University, which were unsuccessful. The applicant went off-shore and returned home from February 2019 to August 2019, for a period of 5 months. The applicant returned to Australia in August 2019 and did not resume studies, even though she was offered an enrolment at RBS in November 2019. She claims that she was unable to complete an enrolment for financial reasons, primarily her father’s financial position. Such an explanation is remarkable in light of the applicant’s evidence:-

    a.Her father continued in employment in a senior position with the government of Papua New Guinea during this period;

    b.The applicant would have been aware of the cost of the diploma before applying for an enrolment, and it would not have been surprising;

    c.It is the responsibility of the applicant to ensure she has adequate finances before applying to enrol in a course;

    d.The cost of the diploma for the entire year was $18,000 and the explanation given by the applicant did not provide a fulsome explanation.

33. While the applicant claims she was seeking an enrolment for the period of more than 13 months for which she was not enrolled, the applicant could have taken steps to gain an enrolment and study or alternatively defer the commencement date for her studies to commence in 2020. The applicant in the Response claims that she made attempts with James Cook University to enrol in a course commencing in March 2020, but she did not tender any corroborating evidence or documents supporting those claims.

34. The applicant was in Australia for a period of at least 8 months of the 13 months for which she was not enrolled, and in breach of the visa. The Tribunal is not satisfied that the applicant had made a serious attempt to gain enrolment when on her evidence she only applied to 2 or 3 education institutions to undertake a Diploma of Business, when there are other institutions she could have applied to. She appears to have been very selective. The applicant could have also sought enrolment in other business related courses to improve her education and employment prospects.

35. The Tribunal finds that the applicant’s motivations for not studying and not being enrolled for a period of more than 13 months was inconsistent with the purpose of obtaining her visa.

36. The Tribunal finds that during the applicant’s stay in Australia over the period of non-enrolment, that by her conduct, the purpose of stay was not to study and inconsistent with the purpose of her visa.

37. The applicant has given evidence that she wishes to gain enrolment in RBS in the Diploma of Business and then obtain an enrolment at James Cook University in a Bachelor of Business. The applicant did not submit any documentation supporting that she had obtained an enrolment or made an application for that enrolment. However the Tribunal does accept from the applicant’s evidence that she does intend to study in the future in Australia.

38. Having regard to the applicant’s evidence and her conduct during her stay in Australia, and the long duration for which she was not enrolled in excess of 13 months, the Tribunal accepts that the applicant has travelled to Australia for the purpose of studying and she intends to study in the future, but her period of non-enrolment reveals that she has not stayed here for the purpose of undertaking her studies.

39. For these reasons, the Tribunal gives these matters some weight towards the visa being cancelled.

    The extent of compliance with visa conditions

40. The applicant was not enrolled in a registered course for the period from 19 December 2018 to 11 February 2020. Therefore, the applicant has not complied with condition 8202(2)(a) for a long period of time. The non-compliance with condition 8202(2)(a) 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.

41. As discussed above, the applicant’s non-compliance with the visa condition relates to her failure to gain enrolment in a nursing degree and then a Diploma of Nursing and then seeking to change her career pathway to a Diploma of Business.

42. The applicant in evidence confirmed that she knew that she would be in breach of her visa if she was not enrolled in a registered course of study and not enrolled in a course at the appropriate level.

43. As discussed above the Tribunal understands the applicant’s reasons for not being compliant with the visa, where the applicant was aware that she would be in breach of her visa by not enrolling in a course of study.

44. It is also important to note that the applicant was also required by condition 8516 of her visa to maintain the primary and secondary criteria of her visa. Clauses 573.223(1A) and 573.231 require that the applicant must satisfy:-

    a.the applicant has sufficient funds to meet the costs and expenses required to support the applicant during her proposed stay in Australia; and

    b.the applicant maintains an enrolment or has a current offer of enrolment in an advanced diploma, bachelor’s degree or master’s by coursework.

45. The applicant has not maintained that enrolment and not met those conditions as to funds based on her evidence. The Decision Record confirms that the applicant has not been enrolled in the Bachelor of Nursing since 9 November 2016 or a course at the appropriate level for more than 25 months before she was found to be not enrolled in any studies at all on 19 December 2018. The Decision Record indicates that the visa holder was not compliant with condition 8516.

46. Further the applicant was required to maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework (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 pursuant to condition 8202(2)(b). The applicant had enrolled in a Bachelor of Nursing at level 7 of the AQF and did not maintain that enrolment and level of the AQF since 9 November 2016.

47. Further, the applicant was also in breach of condition 8202, indicating multiple breaches of her visa.

48. The Tribunal finds that apart from the above matters before this Tribunal, there are no other matters raised about the applicant not being compliant with her visa.

49. Visa holders who hold a student visa are aware that one of the main conditions of the visa is that they must be enrolled in a registered course of study at the appropriate level and that they are responsible for ensuring they are enrolled in a registered course of study at that level. The applicant was required to be enrolled in a course at the appropriate level and she did not maintain that the enrolment.

50. The Tribunal finds that the reasons for not being enrolled in a course were the responsibility of the applicant. The applicant was very selective in the course which she wished to study and does not appear to have been too concerned with not being compliant with her visa, and she did not on her evidence have sufficient financial capacity to enrol in the Diploma of Business at RBS in November 2019, when offered the position, which was again her responsibility.

51. Having regard to the long period of the breach and the reasons for not being enrolled in a registered course, the Tribunal gives these matters substantial weight towards the visa being cancelled.

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

52. The Tribunal asked the applicant if she or other members of her family would suffer hardship if the visa was cancelled.

53. The applicant gave evidence that if her visa was cancelled, it would cause her and her family a substantial degree of hardship as:

    a.It would mean that she would return home without a qualification, which would make it difficult to get a job;

    b.It would be difficult for her to obtain qualification in Papua New Guinea as there is substantial competition to get an enrolment, but she did concede that if she could gain entry to either PAU or the University of Papua New Guinea, she could undertake a Bachelor of Business;

    c.The qualifications from Papua New Guinea are not as recognised as those in Australia and it would be difficult for her to obtain employment in an accounting firm, bank or in governance;

    d.The cancellation would be hard on her father and relatives especially having regard to the funds invested in educating the applicant without a qualification;

    e.The living conditions in Papua New Guinea are not as favourable as those in Australia;

    f.The cancellation of the visa would restrict the applicant from completing her studies but also visiting her sister, aunty and cousins who have all lived in Australia for at least 3 years; and

    g.The cancellation of the visa would prevent her from visiting her partner with whom she has been in a relationship for 4 years and with whom she has been living for 1 year. The applicant claimed she wanted to make an application for a partnership visa, which is an application that the applicant would not be prevented from pursuing if the visa is cancelled.

1. The Tribunal notes that the applicant has not completed any courses outside of language courses and she will return home to Papua New Guinea without a qualification if the visa is cancelled. Further, the Tribunal accepts that there will be some financial hardship caused to the applicant and her family if the visa is cancelled, in the cost of tuition fees that have been paid for the last 4 years, but they are predominantly lost whether she undertakes any further study in Australia or not.

2. The Tribunal also finds on the applicant’s evidence that there is nothing preventing the applicant studying back at home.

3. While the cancellation would prevent the applicant visiting her family members and staying with her partner in Australia, there is nothing before the Tribunal to suggest that it would prevent them from visiting her in Papua New Guinea and the applicant’s partner from staying with her in Papua New Guinea, which is her partner’s country of birth.

4. In any event, the Tribunal finds that these matters may be the consequences of the visa cancellation, but they are not matters that would on their own constitute an overwhelming degree of hardship sufficient to weigh against cancelling the visa.

5. The Tribunal considers that the above matters give some weight towards the visa not being cancelled.

   Circumstances in which ground of cancellation arose

6. 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.

7. The applicant gave evidence as to the circumstances that led to the cancellation of the visa as set out above.

8. Ultimately, the responsibility regarding enrolment rests with the student.

9. The applicant knew and was aware that by not being enrolled in a registered course of study and at the appropriate level, she would be in breach of condition 8202(2)(a) and that her visa may be cancelled.

10. The primary responsibility of the applicant under the visa is to be enrolled and undertake a registered course at a level appropriate to her visa. The applicant was not enrolled in a registered course for a period of more than 13 months, which is a long period of time to be in breach of the visa.

11. The Tribunal has considered the applicant’s explanations for why she was not enrolled in a registered course for such a long period of time and therefore in breach of condition 8202(2)(a). The Tribunal does not accept those circumstances were beyond her control, or circumstances that provided a reasonable explanation for not being enrolled at the appropriate level of course for such a long 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

12. According to the Decision Record, the applicant responded to the NOICC. 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

13. The cancellation of the visa will not affect the visa of any other persons, should the visa be cancelled.

14. In the circumstances, 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

15. If the Tribunal decides to affirm the decision to cancel the visa on 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 visa.

16. Further, if the Tribunal decides to affirm the decision to cancel the Student (Temporary) (Class TU) visa on these grounds, then the cancellation will come within the identified risk factors to make the applicant meet public interest criterion 4013, 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 3 years.

17. However, these are the intended consequences of the legislation when a visa is cancelled on these grounds.

18. The applicant foreshadowed bringing an application for a partner visa, but that application would not be prevented from being pursued by the cancellation, as it would be an application for a permanent visa.

19. The applicant gave evidence that if the visa remained cancelled, she would return to Papua New Guinea, and therefore there is no indication that she would become unlawful or be subject to detention.

20. 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

21. This matter is not relevant to this application.

22. 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

23. 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

24. As there are no other relevant matters identified, the Tribunal gives this factor no weight towards the visa not being cancelled.

    Conclusion

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.

    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.