Kaur Bali Selvarajah (Migration)

[2018] AATA 1196

Kaur Bali Selvarajah (Migration) [2018] AATA 1196 (16 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Viyverra Kaur Bali Selvarajah

CASE NUMBER:  1701309

DIBP REFERENCE(S):  BCC2016/3220261

MEMBER:Christine Kannis

DATE:16 March 2018

PLACE OF DECISION:  Perth

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

Statement made on 16 March 2018 at 7:55am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Whether the applicant is enrolled in a registered course – Applicant not enrolled – Grounds for cancellation exist – Consideration of discretion – Extended time spent not enrolled – Limited evidence of attempts to reenrol

LEGISLATION
Migration Act 1958, ss 116(1)(b), 198, 359AA
Migration Regulations 1994, Schedule 8, Condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 January 2017 made by a delegate of the Minister for Immigration 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 issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. On 12 March 2018 the Tribunal conducted a telephone hearing during which the applicant   gave evidence and presented arguments in support of her application for review. 

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevant to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

7. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since 18 August 2015. Her enrolment in a Bachelor of Science was cancelled on 18 August 2015. The reason for cancellation was stated to be unsatisfactory course progress.

8. Having regard to the information in the PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 18 August 2015. The Tribunal finds that she breached condition8202(2)(a) of her visa.

9. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

   Consideration of the discretion to cancel the visa

10. 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).

11. On  23 December 2016 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because she had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of her visa. 

12. On 16 January 2017 the applicant’s migration agent responded to the NOICC and provided the following information and documentation:

    ·The applicant initially came to Australia to study a Bachelor of Forensics in Forensic Biology and Toxicology and she maintained her studies without any gap.

    ·She subsequently changed her enrolment to a Bachelor of Science course which she commenced in March 2015.

    ·During Semester 1, 2015 she kept up with her studies however family issues back home resulted in distraction of her studies which created an unfortunate occurrence of not choosing her units in time for Semester 2, 2015. This created an issue for the university who in turn cancelled her enrolment and blocked her access to her academic records without giving her the chance to re-enrol. The applicant asked the university to allow her to re-enrol but this was refused and she was asked to re-apply in a different course. She had completed the majority of her course and stood her ground seeking continuation in the same course.

    ·She gave up the fight with the university and consulted with her parents about a  change of course that would benefit her career progression. After undergoing thorough research the applicant decided to pursue business studies which will benefit her when she returns home.

    ·A Letter of Offer dated 30 September 2016 to the applicant from TAFE for a place in   Diploma of Business and Associate Degree of Business courses to commence on 13 February 2017. 

13. The applicant told the Tribunal that her visa was cancelled because she was not enrolled in her course. She said she was not enrolled because of family problems in Malaysia. Her parents were experiencing marital problems however they have not divorced. She said these family problems caused her to be mentally unwell which in turn resulted in her failing two units in Semester 1, 2015.

14. The applicant said at the end of July 2015 she attended the Student Centre offices at Murdoch University (Murdoch) to discuss what led to her failing two units. She had also missed the enrolment date for Semester 2, 2015 because she was depressed over family problems. She said by the end of July 2015 Murdoch had suspended her enrolment and she was unable to re-enrol.

15. The applicant told the Tribunal that she tried to fix her enrolment but no-one at Murdoch helped her. Murdoch told her that she could not re-enrol in her Science course but she could enrol in another course however she did not want to enrol in another course at Murdoch. The applicant said Murdoch was rude and aggressive towards her.

16. The applicant told the Tribunal that after Murdoch did not allow her to re-enrol she contacted the University of Western Australia (UWA) and Edith Cowan University (ECU) in late August 2015 to enquire about enrolling. She said UWA and ECU were the only education providers that offered Forensics courses. The applicant said UWA and ECU told her she could not enrol with them unless she received a Release Letter from Murdoch.  At the end of August 2015 she attended Murdoch and asked for a Release Letter. Murdoch advised her that she had been reported to the Department and that she would not be able to study until she sorted out her visa status.

17. The applicant initially said she telephoned the Department and then said she attended the Department on at least two occasions in August 2015. She said she attended the Department in the Perth CBD and explained her circumstances. She said she was told she would not have work rights, travel rights or study rights until her visa was sorted out.  

18. The Tribunal noted from the applicant’s Movement Records that she departed Australia on 23 November 2015 and returned on 13 January 2016; that she departed Australia on 20 May 2016 and returned on 23 May 2016; that she departed Australia on 25 June 2016 and returned on 25 July 2016 and departed Australia on 6 December 2016 and returned on 15 December 2016. The Tribunal put this information to the applicant pursuant to s.359AA of the Act. The Tribunal informed the applicant that subject to her comment or response, the information would be the reason or part of the reason for it affirming the decision under review.

19. In response the applicant said she travelled back to Malaysia to see her family a number of times in 2016.

20. The applicant told the Tribunal that her second choice of study was Business and so she tried to enrol in a Business course. The Tribunal noted the TAFE Letter of Offer was dated 30 September 2016, some 13 months after her enrolment had been cancelled. She said she didn’t try and enrol in another course during that period because she was depressed. She did not seek medical assistance because she would not have been comfortable talking to a counsellor or a psychologist about her family problems and preferred to deal with them by herself. She said she was unable to enrol in Business studies at TAFE because TAFE advised that her Higher Education Sector visa did not allow her to study at a lower course level.

21. The applicant’s attendance at the Department in August 2015 is not referred to in the delegate’s decision. Further the Tribunal noted that the applicant said the Department informed her that she would not have travel rights or study rights until her visa was sorted out.  The applicant however travelled a number of times in 2016 and attempted to enrol in study in September 2016. If the applicant attended the Department in August 2015 it is likely that she would have been told that she needed to re-enrol/enrol to ensure that her visa would not be cancelled. Her evidence was that after August 2015 she did not attempt to enrol for over 13 months due to her depression.

22. The Tribunal put to the applicant that she would have known she was in breach of a condition of her visa following cancellation of her enrolment. She said she delayed enrolling because she was depressed. She felt better by September 2016 and so she tried to enrol in Business studies. She was unable to enrol at TAFE and the NOICC was issued three months later. The applicant did not contend that she attempted to enrol in any Higher Education Sector course following TAFE’s refusal. She did not act on Murdoch’s suggestion in July 2015 that she enrol in another course at Murdoch.

23. Regarding the potential hardship which would result from the cancellation of her visa, the applicant said her parents have invested a lot of money in her education in Australia. She wants to complete her course and obtain employment in Australia, possibly with the Police Force, and use the qualification.

    Conclusion

24. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of the breach and reasons for the breach as set out in the applicant’s oral evidence at the hearing.

25. The purpose of the student visa is to enable the visa holder to undertake study in Australia. The applicant has not been enrolled in a registered course since 18 August 2015 and 16 months elapsed from that date until the NOICC was issued.  

26. Given the central importance of enrolment to a student visa, the Tribunal finds the applicant’s breach of condition 8202 of her visa to be significant because she was not engaging in study for which her visa was granted and was not fulfilling the purpose of her travel to and stay in Australia.

27. The applicant did not dispute that she was aware that she was in breach of a condition of her visa following cancellation of her enrolment. She said she was unable to obtain a Release Letter from Murdoch to enable her to enrol at UWA or ECU. No evidence was provided to substantiate this contention and there was no evidence that she sought to appeal Murdoch’s decision. When she did attempt to enrol it was 13 months after her enrolment was cancelled and she said it was in a course at a lower study level than was required by her visa.

28. The applicant contended that her failure to enrol or attempt to enrol from 18 August 2015 until 30 September 2016 was due to depression arising from her parents’ marital problems. No documentary evidence was provided to substantiate the applicant’s depression or her parents’ marital problems.

29. The applicant said she was feeling better by September 2016 however there was no evidence that she attempted to resolve her enrolment after TAFE advised her that she was unable to enrol in Business studies and before the NOICC was issued three months later.

30. Having considered all the matters raised by the applicant at hearing the Tribunal finds that it is positively satisfied that the applicant’s non-compliance with the visa condition was not due to exceptional circumstances beyond her control.

31. The Tribunal finds that there are no extenuating or compassionate circumstances in this case.

32. The Tribunal acknowledges that the cancellation of the applicant’s visa will be disappointing to the applicant and her family.  However, the Tribunal is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

33. The Tribunal has no evidence before it that the applicant’s past and present behaviour towards the Department has been untruthful or unco-operative.  It considers this is a consideration that is in her favour and it has taken this into account.

34. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice pertaining to his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion.

35. There are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

36. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

37. The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Christine Kannis
    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.