Kaur (Migration)

Kaur (Migration) [2021] AATA 1447 (16 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Baldeep Kaur
CASE NUMBER:  1923278
HOME AFFAIRS REFERENCE(S):          BCC2017/129949
MEMBER:Michael Ison
DATE:16 April 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 16 April 2021 at 5:01pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Federal Circuit Court remittal – not enrolled in registered course – discretion to cancel visa – visa and study history – one completed course and thirteen cancellations of enrolment – non-commencement and non-payment of fees – physical health and treatment – mental health – no approaches to education providers or agent – delay in applying for bridging visa after student visa cancelled – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 359(2), 359A
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 6 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).
Background
The applicant is Ms Baldeep Kaur, who is a 27-year-old Indian national. Ms Kaur is referred to in these reasons as the applicant. The Tribunal discussed the applicant’s immigration history in Australia which may be summarised as follows.
The applicant first arrived in Australia on 30 January 2014 as the holder of a Student (Subclass 573 Higher Education Sector) visa.
On 6 February 2017 the applicant’s Student visa was cancelled.
On 9 August 2018 the applicant was granted a Bridging E (Subclass 050) visa that was valid to 4 October 2019 with visa conditions 8101 (No Work), 8207 (No Study), 8506 (Notify New Address) and 8401 (Report as Directed) from Schedule 8 of the Migration Regulations 1994 (the Regulations) attached.
On 4 October 2019 the applicant was granted a second Bridging E visa which has conditions 8104 (Work Limitation), 8207 (No Study) and 8506 (Notify New Address) attached. The applicant continues to hold that Bridging E visa at the time of this decision.
The primary decision of a delegate of the Minister
The applicant provided the Tribunal with a copy of the primary decision.
The applicant’s Student visa was cancelled under s.116(1)(b) of the Act because a delegate of the Minister found the applicant had not been enrolled a registered course since 26 April 2016 and therefore had breached condition 8202(2)(a) from Schedule 8 of the Regulations attached to that visa.
Previous review by the Tribunal (differently constituted)
On 15 February 2017 the applicant lodged a review application with the Tribunal in relation to the cancellation of her Student visa. That review, known as Tribunal file number 1702655 was conducted by the Tribunal, differently constituted. The Tribunal held a hearing at which the applicant gave evidence and presented arguments to the Tribunal on 23 April 2018.
On 6 July 2018 the Tribunal affirmed the decision of the delegate to cancel the applicant’s Student visa and provided the applicant with written reasons for that decision.
Federal Circuit Court remittal
On 6 July 2018 the applicant sought juridical review by the Federal Circuit Court of the decision made by the Tribunal on that same day.
On 12 August 2019 the Federal Circuit Court ordered, with the consent of the applicant and the Minister, that the review be remitted back to the Tribunal to be decided according to law.
This order was made on the basis that the Tribunal as previously constituted had not disclosed to the applicant information that would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate that was under review. The relevant information that was not disclosed to the applicant was information obtained from the applicant’s file in the Provider Registration and International Student Management System (PRISMS) database maintained by the Department.
Tribunal hearing
The applicant appeared before the Tribunal on 29 January 2021 to give evidence and present arguments by video. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages and the interpreter also participated in the hearing by video.
The applicant was represented in relation to the review by her registered migration agent who also participated in the Tribunal hearing by video. The applicant’s registered migration agent is referred to in these reasons as the applicant’s representative or the representative.
The Tribunal exercised its discretion to hold the hearing by video conferencing. The hearing was held during the COVID-19 global pandemic. The Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant, her representative, the interpreter and the Tribunal could see and hear each other throughout the hearing. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal.
At the commencement of the Tribunal hearing the Tribunal explained the determinative issues before the Tribunal, explained the Tribunal’s role and how the hearing would proceed including explaining that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the interpreter as an aid to communication during the hearing and afforded the applicant an opportunity to object to the particular interpreter engaged by the Tribunal. The applicant did not object. The Tribunal also explained the role of the applicant’s representative during the hearing. The Tribunal informed the applicant that it would allow the applicant and her representative to address the Tribunal towards the end of the hearing on any matter they felt was relevant to the applicant’s review.
Pre-hearing submissions
On 4 April 2018 the applicant provided an undated 4-page hand-written submission to the Tribunal as previously constituted.
On 24 December 2020 the applicant provided a seven-page typed response to a letter from the Tribunal sent under ss.359A and 359(2) of the Act dated 10 December 2020.
Post-hearing submissions
On 12 February 2021 the applicant, through her representative, provided a submission attaching documents which included:
·A medical certificate dated 4 February 2021 and receipts dated 27 October 2016 confirming the applicant had a medical procedure on 27 October 2016;
·Two receipts from Cambridge International College Australia (CICA) for payment of AUD1,000 and AUD2,000 in course fees on 4 May 2015 and 3 December 2015 respectively;
·A receipt from CICA for payment of AUD4,080 in course fees dated 10 February 2021;
·A certificate of completion for a Certificate III in Commercial Cookery dated 23 March 2016 from CICA;
·A letter from CICA dated 24 April 2016 confirming the applicant commenced the Certificate III in Commercial Cookery on 4 May 2015 and completed all requirements on 24 April 2016;
·An academic transcript for the applicant’s Certificate III in Commercial Cookery studies dated 9 February 2021 from CICA;
·A written reference dated 9 February 2021 from The Shoe Bar & Café in Perth stating the applicant has been employed since 23 January 2020 as a Cook Grade 2 and describing her employment duties; and
·A copy of the signature page from an employment agreement between the applicant and The Shoe Bar & Café.
The Tribunal has considered all the information before it, including the applicant’s oral evidence, the oral and written submissions made on behalf of the applicant and the information on the Tribunal’s file for file numbers 1923278 and 1702655 and the Tribunal’s copy of the Department’s file.
Tribunal decision
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(2)(a) of Schedule 8 to 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(2)(a)?
Condition 8202 is set out in the attachment to this decision. Condition 8202(2)(a) requires that the applicant to be enrolled in a registered course, or in limited cases, a full-time course of study or training.
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course between 26 April 2016 and the delegate’s decision to cancel the applicant’s Student visa on 6 February 2017.
The applicant acknowledged that she was not enrolled in a registered course of study between 26 April 2016 and 6 February 2017 and does not contest that there is a ground for the cancellation of her visa.
On the evidence before the Tribunal, the applicant was not enrolled in a registered course between 26 April 2016 and 6 February 2017. Accordingly, the applicant has not complied with condition 8202(2)(a) of her Student visa.
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 or not.
Consideration of the discretion to cancel the visa
Having found that the applicant has not complied with a condition of her 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 Tribunal has considered all of the applicant’s circumstances. The headings used below are taken from the Department’s Procedural Instructions and are used for convenience only.
The purpose of the applicant’s travel to and stay in Australia, including whether the applicant has a compelling need to or remain in Australia
The purpose of the applicant’s travel to and stay in Australia is to study. The applicant has not been able to study under the Bridging visas she has held since 9 August 2018.
In the applicant’s written submission dated 24 December 2020 the applicant stated she wishes to complete a Certificate III and IV in Commercial Cookery and a Diploma of Hospitality so that she can return to India as a qualified chef and become a successful entrepreneur. The applicant told the Tribunal she will work for a year or so in India to gain practical experience before opening her own restaurant with the support of her family.
The applicant told the Tribunal that she has not informed her family in India of the details of the difficulties she has faced in Australia but if she returns without completing her studies she will have to tell them the truth to explain what happened to her during the over seven years she has been in Australia. The applicant believes her family will disown her if they find out the truth of her circumstances in Australia and without Australian qualifications and as her family in India is her only support she will return to a pitiful life with no future.
A Student visa is a temporary visa and the Tribunal finds that the applicant wanting to stay in Australia to complete her study does not amount to the applicant having a compelling need to remain in Australia.
The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.
The extent of the applicant’s compliance with their visa conditions
The applicant arrived in Australia in January 2014 and gave evidence that she completed a 6-month Diploma of Management before completing a Certificate III in Commercial Cookery and then stopping her study in early 2016. The applicant expressed remorse for this breach to the Tribunal, blaming it on circumstances outside her control and her own immaturity at the time, being only 22 years of age.
The Tribunal considers the applicant’s non-compliance with condition 8202(2)(a) attached to her Student visa to be significant. The sole purpose of an applicant being granted a Student visa to travel to and stay in Australia is to study, obtain qualifications and then return home. The applicant was not studying but did not return to India and remained in Australia, knowingly in breach of this condition of her visa.
There is no information before the Tribunal to indicate that the applicant has breached any condition of the two Bridging E visas she has held.
The Tribunal finds that the applicant’s breach of condition 8202(2)(a) weighs in support of the cancellation of the applicant’s visa and the Tribunal gives this aspect of this consideration considerable weight given the duration and significant of that breach.
The Tribunal finds that the applicant’s compliance with the conditions attached to her two Bridging E visas weigh against the cancellation of her visa and the Tribunal gives this aspect of this consideration some weight.
The degree of hardship that cancellation may cause (financial, psychological, emotional or other hardship) to the applicant and any family members
The applicant told the Tribunal that her mother has always been very supportive of her and convinced her husband, the applicant’s father, to support the applicant to come to Australia to study. According to the applicant her mother does not have much formal education so the applicant travelling overseas to study was a big thing for her family.
The applicant told the Tribunal that her mother was not supported by her parents in wanting to achieve things in life so her mother has been very supportive of the applicant and wants her to get an education and be able to be independent.
The applicant told the Tribunal she doesn’t have anything to show her mother from her studies in Australia to date and if she returned to India without any Australian qualifications it would break her parents trust. The applicant said people in their local community in India have been asking her mother when will the applicant return, but if the applicant returns without any Australian qualifications it would be very hard for her mother to explain that.
The applicant gave evidence that her father, who works in a Council office, is 56 and would normally retire by 60 and her mother is in her late 40’s and it will be the applicant’s responsibility to support and care for her parents when she returns to India. The applicant told the Tribunal she has a 24-year-old brother in India who suffers from asthma and is sick quite a lot, not strong academically and not able to support their parents.
In the applicant’s written submission dated 24 December 2020, the applicant submitted:
As I have always mentioned in the past, I am so afraid to advise my family about my failures in Australia. I have not told them the truth of what happened. My father is a proud but humble man. He has always seen me as his favourite daughter and I would be so devastated if he ever finds out of my true circumstances in Australia. I think it would detrimentally affect his health and mental state if he knows the truth. He is now frail and old and will be retiring soon. I cannot think to return home after all these years without showing him some sort of positive achievements in terms of qualifications and the ability to earn a respectable income from my studies in Australia.
I come from a small family consisting of my parents, my younger brother and me. As I am the eldest daughter, I see it is my responsibility to take care of my parents in their old age. Therefore, I believe that I need to obtain valuable qualifications from Australia in order to successfully be employed in higher paying positions when I return home to India. If my Student visa is cancelled, I will have no way of being able to study again in Australia and this would totally ruin me. (sic)
The Tribunal accepts that the cancellation of the applicant’s visa would cause the applicant and her parents significant emotional hardship and could cause social embarrassment and hardship to the applicant and her parents in their local community in India.
The applicant provided the Tribunal with evidence of her ongoing employment as a cook at a local café in Perth. The Tribunal finds that if the applicant’s visa is cancelled she will lose this employment which will cause her some financial hardship, although this hardship is significantly ameliorated by the nature of the applicant’s visa being a temporary visa.
The Tribunal also accepts that the applicant’s parents have invested a significant amount of money in the applicant studying in Australia and the applicant returning to India without the qualifications she hoped to achieve, to the extent that will inhibit the applicant from being able to obtain a higher paying job, could be viewed as causing financial loss and even hardship to the applicant and her parents.
The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration significant weight.
The circumstances in which the ground for cancellation arose. Were there any extenuating circumstances beyond the applicant’s control that led to the ground for cancellation existing? As a general rule, a visa should not be cancelled if the circumstances in which the ground for cancellation arose were beyond the applicant’s control
Prior to the Tribunal hearing the Tribunal sent the applicant a letter in accordance with the procedure set out in s.359A of the Act in the following terms:
In conducting the review, we are required by the Migration Act 1958 (the Act) to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information.
Particulars of information
Enclosed is a copy of your redacted Provider Registration and International Student Management System (PRISMS) report obtained on 11 September 2020. Also enclosed is a copy of your movement records obtained on 19 August 2020.
PRISMS is a database maintained by the Department. Providers of education services to international students in Australia are required to inform the Government of all enrolments, course completions and course changes, including cancellations, by uploading that information to PRISMS.
The movement record is a report printed from the Government database that records the movement of all visa holders into and out of Australia.
What your movement record shows is:
·you arrived in Australia on 30 January 2014 as the holder of a Student (Subclass 573 Higher Education Sector) visa;
·you have not departed Australia since your arrival;
·on 9 August 2018 you were granted your first Bridging E (Subclass 050) visa;
·on 4 October 2019 you were granted your second Bridging E visa, which you
·continue to hold; and
·your first Bridging E visa was and your second Bridging E visa is subject to discretionary condition 8207 which provides the visa holder must not engage in any studies or training in Australia.
What your PRISMS report shows is:
·Since you arrived in Australia you have enrolled in 14 registered courses;
·Thirteen of your enrolments have been cancelled;
·Of those 13 enrolment cancellations seven have been for non-commencement of studies;
·Only one enrolment is recorded in PRISMS as “finished” – a Diploma of Management on 5 February 2015;
·“Finished” does not mean that you successfully completed the course, just that your enrolment finished without being cancelled;
·Your last enrolment, in a package of two courses being a Diploma of Hospitality that was to commence on 4 May 2015 and conclude on 7 May 2017 and a Bachelor of Business Management that was to commence on 29 May 2017 and conclude on 19 May 2019 were both cancelled on 26 April 2016 due to “non payment of fees” for the Diploma enrolment;
·You do not appear to have been enrolled in any registered course of study since 26 April 2016; and
·Of your 13 course enrolment cancellations, 10 cancellations occurred on four dates, indicating to the Tribunal that packages of courses were cancelled being –
o       25 May 2014 - a Diploma of Science and Bachelor of Information Technology;
o       23 October 2014 – a Certificate IV in Commercial Cookery and Diploma of Hospitality;
o       22 April 2015 – a Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery, Diploma of Hospitality and Bachelor of Business; and
o       26 April 2016 – a Diploma of Hospitality and a Bachelor of Business Management.
·The remaining three course cancellations occurred on 1 July 2014, 4 July 2014 and 5 November 2014.
This information is relevant to your review because the Tribunal could form the view that you have not progressed academically as a Student during your time in Australia, did not undertake any study in Australia between 26 April 2016 and 9 August 2018 when you had the opportunity to do so, do not have a compelling reason to remain in Australia, committed a significant breach of a condition of your visa that went to the very purpose of your visa and remained in breach of that condition for over two years and three months and your breach of the condition of your visa was not due to circumstances beyond your control.
One of the consequences of the Tribunal relying on this information in relation to your review is that the Tribunal could find that there is a ground for the cancellation of your Student visa under s.116(1)(b) of the Act. Section 116(1)(b) provides:
116(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: …
(b) its holder has not complied with a condition of the visa; …
Condition 8202 of Schedule 8 to the Migration Regulations 1994 provides:
(1) The holder … 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; …
The Tribunal could find that there is a ground for cancellation because from the information before the Tribunal you did not comply with condition 8202(2)(a) as you were not enrolled in a registered course between 26 April 2016, when your last enrolments were cancelled, and the grant of the Bridging E visa to you with the no study condition on 9 August 2018, a period of 835 days or just over 2 years and 3 months.
Another consequence of the Tribunal relying on this information in relation to your review is that the Tribunal could find that the discretionary considerations that weigh in support of the cancellation of your visa outweigh the discretionary considerations that weigh against the cancellation of your visa. This could cause the Tribunal to find that it should exercise the discretion whether to cancel your Student visa or not be cancelling your visa. Specifically, your failure to study and lack of academic progress in Australia, particularly in the context it appears you were not enrolled in a registered course for over two years and three months when you could have studied, could lead the Tribunal to find that the following discretionary consideration weigh in support of the cancellation of your visa:
·The purpose of the visa holder’s travel to and stay in Australia – because you do not appear to have studied in accordance with the purpose of your visa for over two years and three months when you had the opportunity to do so;
·The extent of compliance with visa conditions: your breach of condition 8202(2)(a) continued for over two years and three months, goes to the very purpose of the visa and it does not appear you made any attempt to rectify that breach; and
·The circumstances in which the ground for cancellation arose: the explanations you provided to the delegate for your failure to be enrolled up until the time of the delegate’s decision on 6 February 2017 do not reasonably explain why you continued to not be enrolled in a registered course for a further 549 days or 18 months after the delegate’s decision until the time you were granted your first Bridging E visa.
(emphasis in original)

The Tribunal also requested in the same letter, in accordance with the procedure set out in s.359(2) of the Act, that the applicant provide an update on her circumstances since the hearing of the Tribunal, differently constituted, on 23 Aril 2018.
The applicant responded to the Tribunal’s letter with a seven-page submission dated 24 December 2020. In relation to the applicant’s non-enrolment from 26 April 2016 the applicant responded:
During that time, I had just completed the Certificate III in Commercial Cookery, and then there was about one months' break before I had to continue to study the Certificate IV in Commercial Cookery. When I came back to the College to request for my Certificate III qualification, the College refused to provide it to me because they said that I still owed some tuition fees and that their policy was that I needed to clear payment owing before they can issue the qualification certiificate.
I was so disappointed in this as I really thought that I deserved to obtain the Cert III qualification since I had already passed all my assignments and exams. I understood that I needed to pay the fees owing but I had requested the College for a little bit more time as I needed to gather funds from my own savings as at that specific time, my parents were struggling financially and could not help me until a bit later on. Also, during that time, my personal savings were depleted as I had not worked much part-time due to my pre-existing medical condition of excruciating pains in my kidney area which made me double up with stomach pains every day. My actions of having to lift heavy pots and pans from my work-based training at the College had exacerbated my illness and I couldn't do anything about it but take painkillers to try to numb the pain. Unfortunately, the College showed no mercy as I found out later on that they cancelled my CoEs based on non-payment of tuition fees.
I would like to emphasize that I was a very good student in that I always attended my classes and completed all assignments on time and performed all tasks required of me competently. It never crossed my mind that I would ever find myself in the dilemma that I was going to be in. I had always intended to come to Australia temporarily to study and then would return home to live close to my parents since I am the only daughter and would take the responsibility to look after them in their old age.
From around April 2016, my life started to unravel very fast. I started to experience severe pains to my [body part] and one day I could not take it any more and I made an appointment to see a doctor. The doctor advised me not to get any stress and to rest. I thought that going to school was contributing to my stress so I thought I would just take a few days off to rest. It stretched into about 2 months and I went back to see the same doctor again. [Details deleted]
On 2^nd June 2016, [Dr A] performed a surgical [procedure]. It was complicated and very painful [detail deleted]. After this, I experienced [detail deleted] for many months. I could not do anything but lie in bed most days of the week. I wanted to go back to study, but could not face any of my classmates as I had missed out on too many classes and that had affected their study as well. I truly was not in a position to study anyway at that time as I was always in pain.
All this time, my boyfriend [provided] some support to me. His moral support gave me a little strength to regain my health back. I don't know what else to say to explain what happened further, other than the fact that at that time, I was extremely weak mentally and physically, and I was totally reliant on the support of my boyfriend. [Details deleted] (sic)
The Tribunal discussed these circumstances in detail with the applicant during the Tribunal hearing. The applicant’s evidence is she initially studied a Diploma of Management when she came to Australia in 2014, studying that course for six months and passing all of her units. The Tribunal accepts this evidence as PRISMS records the applicant studied a Diploma of Management from August 2014 to February 2015. There is no evidence before the Tribunal of the applicant completing any study between her arrival in Australia on 30 January 2014 until she commenced her Diploma of Management studies on 4 August 2015.
The applicant told the Tribunal she really wanted to study cookery but her agent told her she needed to study the Diploma, that was part of a package of enrolments leading to a Bachelor degree, for six months before she could transfer to a lower level of study.
The applicant told the Tribunal when she came to Australia she was enrolled in a package of courses leading to a Bachelor of Information Technology but she knew nothing about information technology and only enrolled in it because it was her family’s suggestion. The applicant said she initially found her study in Australia very difficult and sought help from her education provider but didn’t find the support they offered very helpful and she didn’t have many friends or anyone else she could ask for help and this was the main reason for her initial course cancellations in 2014 but that she was not aware of many of the cancellations because her agent took care of her enrolments.
The applicant told the Tribunal she commenced her Certificate III in Commercial Cookery in 2015 and completed that course but did not receive her certificate for it because she owed AUD4,000 in course fees and then the college in Perth closed down. The Tribunal discussed with the applicant her plan of redoing her Certificate III in Commercial Cookery, then studying a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management before returning to India to work and eventually open her own restaurant.
The Tribunal indicated to the applicant that if she had completed her Certificate III then her education provider, CICA, continued to operate in Melbourne and if she paid her arrears of fees she may be able to obtain her certification for completion of that course, potentially saving her over AUD10,000 and a further year in Australia compared to repeating the course and also potentially allowing the applicant to claim recognition for prior learning for her proposed Certificate IV and even Diploma studies should the cancellation of her Student visa be set aside.
After the Tribunal hearing the applicant paid her arrears of fees to CICA, providing the Tribunal with a receipt for the payment of AUD4,080 to CICA on 10 February 2021. CICA then provided the applicant with a Statement of Completion for the Certificate III dated 24 April 2016 and an academic transcript dated 9 February 2021 for those studies between February 2015 and April 2016. The Tribunal accepts that the applicant successfully completed a Certificate III in Commercial Cookery between February 2015 and April 2016.
The applicant told the Tribunal she could not pay her fees after the completion of her Certificate III because her younger brother in India got into trouble with the police and her father had to spend money on her brother and the applicant used the money she had from her father on the [surgical procedure]. The applicant provided documents to the Department confirming she had a surgical [procedure] on 2 June 2016 and the Tribunal accepts this evidence.
The applicant provided the Tribunal with receipts for payment for medical services confirming the applicant had a non-surgical [procedure] on 27 October 2016. The Tribunal accepts this evidence.
The applicant also told the Tribunal that she had a single vehicle accident in 2016 when she hit a tree and did not sustain any physical injuries but it added to her financial difficulties, stress, depression and sense of weakness and hopelessness. The applicant could not recall when in 2016 the car accident occurred but provided photos of the car accident to the Department and the Tribunal accepts the applicant’s evidence about her car accident.
As a result of these events the applicant gave evidence she was not able to complete any study after April 2016 and then in February 2017 her Student visa was cancelled and her agent told her she could not study anymore. The applicant appealed that decision to the Tribunal, differently constituted.
The applicant then did not hold any visa between the cancellation of her Student visa on 6 February 2017 until she was granted her first Bridging E visa on 9 August 2018, a period of approximately 18 months. The applicant told the Tribunal she relied totally on her agent at the time and he did not tell the applicant she needed to apply for a Bridging E visa.
The applicant said when the Tribunal, differently constituted, affirmed the cancellation of her Student visa on 6 July 2018, the applicant went to a migration lawyer who assisted her to – successfully – appeal that decision to the Federal Circuit Court and then also assisted the applicant to apply for a Bridging E visa. The Tribunal accepts this evidence. The applicant’s first Bridging E visa was granted with conditions attached that did not allow the applicant to work or study in Australia.
The applicant told the Tribunal she did not know she could apply for a Bridging E visa without the no work or no study conditions attached because her migration lawyer at the time did not tell her this. The Tribunal is aware of who the applicant’s migration lawyer was at the time. They are an experienced migration lawyer who has appeared before the Tribunal a number of times and demonstrated a thorough knowledge of bridging visas.
It is surprising to the Tribunal in these circumstances that when the applicant was granted a Bridging E visa with a no work and a no study condition attached that an application was not made at an earlier point of time for a Bridging E visa without those conditions attached.
The Federal Circuit Court remitted the applicant’s application for review to the Tribunal back to the Tribunal for redetermination on 12 August 2019.
The applicant was then granted a second Bridging E visa on 4 October 2019 which had a work limitation condition (40 hours per fortnight when classes are in session) rather than a no work condition attached, but still had a no study condition attached.
The Tribunal asked the applicant if she had applied for a Bridging E visa without the no study condition attached so that she could resume her studies. The applicant said no and that it was the applicant’s current migration agent who assisted her to apply for the second Bridging E visa.
The Tribunal asked the applicant’s representative why the applicant applied for a Bridging E visa without the no work condition attached but did not seek to have the no study condition removed. In the Tribunal’s view this could indicate at the time that the applicant’s intention was to seek work rights but not study rights, calling into question her commitment to her studies and genuineness as a student.
The applicant’s representative submitted that by late 2019 the applicant was in financial difficulties as the applicant had not worked for two years and her funds were depleted and so the applicant’s focus was on obtaining work rights so she did not have to continue to rely on family and friends for financial support to remain in Australia while waiting for the review of the cancellation of her Student visa. The representative submitted that in hindsight she should have pushed the applicant to also seek a Bridging E visa without the no study condition but said the focus at the time was on work rights so the applicant could earn money to be able to afford to live and study in Australia.
The applicant says in the last two to three years she has stabilised herself mentally, is stronger physically and is not seeing any doctors or taking any medication and is in a better position financially and is confident she will now be able to successfully complete her studies. The Tribunal notes this evidence without making any findings in relation to it.
The Tribunal finds that the applicant’s initial academic progress in Australia in 2014 was poor, with multiple and many unexplained course enrolments and cancellations. The Tribunal does not accept that the applicant’s evidence that these circumstances were outside her reasonable control because she relied totally on her agent at the time. It is incumbent on visa holders in Australia to understand the obligations and conditions their visa imposes on their stay in Australia, including obligations to study and to manage and comply with those obligations.
The Tribunal accepts that the applicant studied a Diploma of Management between August 2014 and February 2015 and then successfully completed a Certificate III in Commercial Cookery between February 2015 and April 2016. Thereafter, the applicant has not completed any further study in Australia, noting that from August 2018 the applicant has held Bridging E visas with a no study condition attached.
The Tribunal has a great deal of compassion for the applicant given the obviously traumatic experiences she has suffered, particularly in 2016, with the [two medical procedures]. The Tribunal accepts the applicant’s evidence of the toll these events took on her physical and mental health and wellbeing, even though there is no medical evidence before the Tribunal to support the applicant’s evidence in this regard.
For clarity, the Tribunal accepts the applicant’s evidence that the surgical [procedure] on 2 June 2016 and the non-surgical [procedure] on 27 October 2016, and the single vehicle accident the applicant had in 2016, significantly and adversely affected the applicant’s physical and mental health and wellbeing, financial position and her ability to study throughout and beyond 2016.
However, it is difficult for the Tribunal to find on the evidence before it that the two [procedures] and the impact of those and other events in the applicant’s life on her study in Australia, given her responses to those events, were extenuating circumstances beyond the applicant’s control.
The Tribunal understands that the applicant may have been feeling ashamed, confused and not sure what to do during these times but her sole purpose for being in Australia was to study. The applicant chose to cease studying in April 2019 but did not discuss this with her education provider or with her migration agent of the time. The Tribunal accepts the cultural implications of the applicant’s situation and her evidence of not feeling as though she could tell family or friends, but the Tribunal does not accept that not telling her education provider or her migration agent at the time were extenuating circumstance beyond the applicant’s control.
In the context of the applicant’s sole purpose for being in Australia being to study and the applicant having access at that time to advice about her study and visa obligations in Australia, her perceived inability to tell her education provider or her migration agent at the time was a decision and choice within her control. The choices she made not to tell her education provider and not to tell her migration agent deprived the applicant of potential advice about applying for a deferment of her studies on medical or compassionate grounds or applying for financial assistance in a timely manner that, if granted, may have avoided the cancellation of her visa. This finding is supported by the applicant’s evidence of being totally reliant upon her migration agent at the time for advice about her studies and visa obligations in Australia.
The applicant’s subsequent decision of not applying for a Bridging E visa without the no study condition attached did not contribute to the cancellation of her visa. While those circumstances may not reflect well on the applicant, even allowing for her representative’s candid reflection that she could have pushed the applicant more to seek reinstatement of her study rights, those circumstances occurred after the cancellation of the applicant’s visa and did not contribute to that cancellation. Therefore, the Tribunal makes no adverse findings or inferences against the applicant arising from those circumstances in relation to this consideration.
The Tribunal finds that this consideration supports the cancellation of the applicant’s visa and the Tribunal gives this consideration great weight.
The past and present behaviour of the applicant towards the Department (including whether they have been truthful and cooperative)
There is no evidence before the Tribunal that the applicant has been untruthful or uncooperative in her dealings with the Department.
The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.
Whether there are persons in Australia whose visas would, or may, be cancelled under s.140 of the Act
The information before the Tribunal is that no-one is dependent upon the applicant’s visa and cancellation of her visa will not cause the cancellation of any other visa.
The Tribunal finds that this consideration is neutral and neither weighs in support of nor against the cancellation of the applicant’s visa.
Whether there are mandatory legal consequences to a cancellation decision such as whether cancellation would result in the applicant becoming an unlawful non-citizen and liable to detention and removal or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention
The Tribunal explained the mandatory legal consequences of the cancellation of the applicant’s Student visa to the applicant during the Tribunal hearing in the following terms:
This is a technical but important consideration, so I am going to ask [your representative] about it on your behalf, but first I want to explain this consideration to you.
If your Student visa is cancelled you would become an unlawful non-citizen under s.189 of the Act and could be deported under s.190 of the Act. Cancellation of your Student visa would mean that s.48 of the Act applies to prevent you from applying for some visas while you remain in Australia.
Because your visa would be cancelled under s.116 of the Act it also means you become affected by what is known under the Migration Act as a “risk factor”. The effect of that is that you would be precluded under Public Interest Criteria 4013 from being able to apply for another visa to return to Australia for three years, unless there were relevant compassionate or compelling circumstances.
Do you understand that? Do you have any questions about that?
[Applicant’s representative], the Tribunal could find that for people in Ms Kaur’s circumstances, who have failed to fulfil the primary purpose of their visa, which is to study, it is an intended outcome of the migration law that their visa be cancelled. This could lead the Tribunal to find that this consideration weighs in support of the cancellation of Ms Kaur’s visa. Do you have any submissions about that?
Ms Kaur is there anything you want to tell the Tribunal about this consideration?
At the relevant times the applicant indicated she understood what the Tribunal had explained and did not have any questions or submissions for the Tribunal about this consideration.
The applicant’s representative submitted that the applicant had completed study in Australia, including a year of a Bachelor of Information Technology, six months of a Diploma of Management and year of a Certificate III in Commercial Cookery but had little to show for it by way of certificates. The Tribunal summarised its understanding of the submission as being that the applicant has completed two and half years of study in Australia and therefore the consequences of the cancellation of her visa are significant for her and should still weigh against the cancellation of her visa.
Given that the submission of the applicant’s representative was different to the evidence of the applicant in relation to the applicant completing a year of a Bachelor degree, the Tribunal requested the representative to confirm these submissions in writing. The applicant’s representative did not do so.

However, the Tribunal has accepted that the applicant completed six months of a Diploma of Management and successfully completed a Certificate III in Commercial Cookery. The Tribunal accepts the submissions of the applicant’s representative that in the applicant’s circumstances this consideration should weigh against the cancellation of the applicant’s visa.
The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives it some weight.
Whether Australia has obligations under relevant international agreements including non-refoulement obligations and the best interests of any children in Australia as a primary consideration, that would be breached as a result of the visa cancellation
The applicant does not have any children and does not claim that she cannot return to India or that Australia owes her an obligation of protection.
The Tribunal finds that this consideration is neutral and neither weighs in support of nor against the cancellation of the applicant’s visa.
If the applicant holds a permanent visa, whether the applicant has strong family, business or other ties in Australia
The applicant’s Student visa is a temporary visa.
The Tribunal finds that this consideration is neutral and neither weighs in support of nor against the cancellation of the applicant’s visa.
Any other relevant matter
In the applicant’s written submission dated 24 December 2020 the applicant submitted about the impact the COVID-19 global pandemic has had on her and her motivation to study:
Earlier this year, when the C0VID-19 pandemic swept across the world, it created a lot of fear and heartaches for so many people. I am so grateful to be living temporarily in Australia during this crisis, especially in Western Australia, where the government's strict rules have protected everyone from infections. My whole world-view changed in an instant as I realised how precious it is to be alive and that I needed to gather my strength and determination to decide for my life to be better than what it has been.
I have decided to refocus on what really matters and to take positive steps on getting stronger mentally and physically from my previous state of depression and weakness due to my life experiences from the recent past. I am now so compelled to change my life around for the better as I see that me, personally, being successful in not contracting the coronavirus disease is the same as surviving the COVID-19 pandemic. In other words, I could have died at any time, but I managed to dodge a bullet, like so many others around me.
I now fully understand that the only thing that would enable me to fully be empowered as a woman in this world is my education. The skills and knowledge that I obtain from my studies will enable me to develop a successful career for my future. I now know that I need to go back to study in order to be qualified, to be given recognition within society, and to be given a lifeline to earn money from my work. (sic)
The Tribunal has considered these submissions in these reasons for decision.
The applicant’s representative made the following closing submissions:
·The applicant has been in Australia for seven years at the time of the Tribunal’s hearing and we acknowledge we have not been able to provide any completion certificates for her study but she has completed study in Australia;
·The Tribunal has a discretion whether to cancel the applicant’s visa and when listening to her story it is a compelling story;
·The applicant is desperate to have the opportunity to study again for the benefit of not just herself, but also for her family back in India;
·The applicant left her country at a young age coming to a new country and has experienced circumstances, some of which were in her control, but not all of which were in her control;
·The applicant seeks one more chance for her and her family to get it right and understands it is her last chance;
·The applicant values and sees the benefit in getting an Australian education given the high standard of education that Australia offers;
·The applicant has ongoing employment and her employer is happy with her performance and the use of the knowledge and skills she has gained from her Certificate III in Commercial Cookery studies and believes the applicant, if she studies further, has the potential to be a very good chef; and
·The applicant being able to complete her study is vital to her future back in India and the applicant being able to stand on her own two feet and be an empowered woman who does not have to lean on any man.
The Tribunal has considered these submissions in these reasons for decision.
Conclusion

100. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
101. The discretionary considerations that weigh in support of the cancellation of the applicant’s Student visa are:
·The applicant does not have a compelling need to remain in Australia;
·The applicant’s breach of condition 8202(2)(a) of her visa; and
·The circumstances in which the ground for cancellation of the visa arose.

102. The discretionary considerations that weigh against the cancellation of the applicant’s Student visa are:
·The applicant’s compliance with the conditions of her Bridging E visa;
·The hardship that cancellation may cause the applicant and her parents in India;
·The past and present behaviour of the applicant towards the Department; and
·The mandatory legal consequences that would flow for the applicant from the cancellation of her Student visa.

103. The discretionary considerations that are neutral and weigh neither in support of nor against the cancellation of the applicant’s Student visa are:
·The fact that there would be no consequential cancellations under s.140 of the Act if the applicant’s Student visa is cancelled;
·Cancellation of the applicant’s Student visa would not cause Australia to breach any of its international obligations; and
·The applicant’s Student visa is a temporary rather than permanent visa.

104. In the applicant’s circumstances, after carefully weighing each of the discretionary considerations, the Tribunal has come to the view that those considerations that weigh in support of the cancellation of the applicant’s Student visa outweigh those considerations that weigh against the cancellation of the applicant’s Student visa.
DECISION
105. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Michael Ison
Senior 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.

[2021] AATA 1447

16 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Appeal

Remedies

Statutory Construction