Kaur (Migration)

[2020] AATA 1169

Kaur (Migration) [2020] AATA 1169 (14 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Avneet Kaur

CASE NUMBER:  1826159

HOME AFFAIRS REFERENCE(S):          BCC2018/1695983

MEMBER:Joseph Lindsay

DATE:14 January 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 14 January 2020 at 2:04pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered Higher Education course ceased – limited academic progress – financial hardship – reasonable steps to maintain enrolment – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 August 2018 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 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 attended the Tribunal on 9 December 2019 for a hearing. She was not represented at the hearing and she did not require the assistance of an interpreter.

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:

   ·be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

8. In the hearing, the applicant indicated that she had read and understood the delegate’s decision record dated 29 August 2018. She indicated that the information in the delegate’s decision record dated 29 August 2018 was correct.

9. In the hearing the applicant agreed that she had not been enrolled in a registered course of study since 5 October 2017.

10. On the evidence before the Tribunal, the Tribunal finds that the applicant has not been enrolled in a registered course of study since 5 October 2017. Accordingly, the applicant was not enrolled in a registered course and the applicant has not complied with condition 8202(2)(a). The Tribunal finds that the ground for cancellation of the applicant’s student visa is established in respect to s.116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

11. 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 circumstances in which the ground for cancellation arose

12. The applicant indicated that the information in her response to the Department dated 23 August 2018 was still correct.

13. The applicant indicated that she had been studying a Bachelor of Nursing at Western Sydney University (WSU). She indicated that she passed two subjects but she also failed two subjects. She said she paid her course fees.

14. In respect to why she ceased to remain enrolled, she said:

    -Her new semester started and she could not see her results.

    -She called the university about her results.

    -She paid her fees.

    -She was failing in one subject, and then in the second semester she took two subjects.

    -In the second semester, she did not know what results she got.

    -She then got an email from the university that her COE was cancelled, because she failed two subjects.

    -She did not have money to enrol again because she could not tell her parents in India that she had failed her subjects.

    -Her parents still do not know that she has failed her exams.

    -Her parents think she is still studying.

    -She has told her parents she is still studying.

    -She failed the two subjects because she found study in Australia to be totally different to what it was like in India and there were a lot of new things for her.

15. She indicated that she failed the practical component of the course and she failed a subject in “Professional Communication.” When asked why she failed her subjects, she indicated that she struggled in adjusting to student life in Australia. She indicated that her oral commination skills were not as good as they needed to be. The Tribunal asked the applicant if she asked for assistance from WSU and she indicated that she did ask for assistance. She indicated that she initially attended classes to help her improve her skills. She indicated that she had a particular problem in paraphrasing, and as a result she failed her assignments and therefore she failed her exams.

16. She indicated that, at the same time, she was also struggling financially and therefore she had to go to work rather than attend the remedial classes.

17. She indicated that, despite her difficulties, she wanted to become a nurse because her father is optometrist and her mother is lab technician. She said her goal in India was to be a doctor, but she came to Australia to become a nurse.

18. She indicated that things started getting tough for her because she had to work as well as study, and she was struggling to pay her rent. She indicated that she did not tell WSU she was struggling financially.

19. She indicated that her parents are no longer paying for her. She indicated that she told them she is paying her own course fees, which is a lot of money. She indicated that she used to work in aged care, but the pay was not enough to pay for her course fees as an international student.

20. The Tribunal indicated to the applicant that if she was failing her exams, and she was struggling financially and she had to work, how she thought she would be able to study.

21. She responded that if she got a chance to study, she would tell her parents and they would send her the money. She said she now wanted to study and do nothing else.

22. The Tribunal put to the applicant that as part of getting a student visa, she was required to provide a financial guarantee that she could pay for her course fees and to support herself. In response she said she would tell her parents and they would help her financially.

23. The applicant then indicated she had a boyfriend in India to whom she had been sending money because he was getting treatment for drug dependency, but that now her boyfriend is not drug dependent.

24. The Tribunal spoke to the applicant about her financial situation. In response, she admitted she was struggling financially. She indicated that she was not working now and was living off her savings. She indicated she was no longer sending money to her boyfriend in India because he is no longer drug dependent.

25. The Tribunal asked the applicant if she spoke to the Department about the difficulties she had been experiencing at the time, and she said she did not.

26. The Tribunal put to the applicant that it was her choice to send money to her boyfriend in India rather than use the money to support her studies. In response, she said she sent her boyfriend money for drug treatment and not for taking drugs. She said that she wants to marry her boyfriend now because he is “drugs free.”

27. In respect of the above, the Tribunal makes the following findings.

28. The Tribunal accepts that:

    -The applicant failed two subjects in her Bachelor of Nursing course at WSU.

    -The applicant struggled in adjusting to student life in Australia.

    -The applicant’s oral commination skills and her written communication skills were not as good as they needed to be to allow her to successfully pass her subjects.

    -The applicant had struggled financially and she had to work.

    -The applicant had been sending money to her boyfriend in India to help him with treatment for his drug problem.

29. The Tribunal accepts that the applicant did experience the difficulties as detailed at paragraph 28 above and gives this some weight in her favour. However, the Tribunal finds that it was open to the applicant to undertake remedial classes to improve her substandard oral and written communication skills. As the applicant admitted, these remedial classes were available to her but she chose not to undertake these classes because she had to work to earn money to support herself and, as well, to send money back to India to provide support to her drug-affected boyfriend. Given that, as part of being granted a student visa, the applicant provided a financial guarantee that she could afford to cover the cost of her studies and support herself for the duration of her course, the Tribunal is not persuaded that the applicant took reasonable steps to manage her compliance with the conditions of her student visa, in particular condition 8202, where she was not able to pass her subjects because of her substandard oral and written communication skills and she was not able to financially support herself and to undertake her studies. Accordingly, the Tribunal gives the applicant some weight against her in respect to this information.

30. In particular, the Tribunal finds that the applicant failed to take reasonable steps to manage her compliance with the conditions of his student visa, in particular condition 8202, where she failed to notify the Department of her circumstances from the time she ceased enrolment on 5 October 2017 to the time she received the NOICC on 10 August 2018 – a period of approximately ten months. Accordingly, the Tribunal gives high weight against the applicant in respect to this information.

31. In all the circumstances as detailed above, the Tribunal does not accept that the applicant took reasonable steps to maintain compliance with her obligation to remain enrolled in a registered course of study under visa condition 8202. The Tribunal finds that these circumstances are not exceptional circumstances. Overall, the Tribunal places high weight on this information against the applicant.

    The purpose of the visa holder’s travel and stay in Australia; whether the visa holder has a compelling need to travel to or remain in Australia

32. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

33. The Tribunal finds that the applicant appears to have complied with her visa conditions apart from condition 8202. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

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

34. The applicant indicated that if she went back to India she feared that her whole life will be destroyed. She indicated that if she went back to India and told everything to her parents they would marry her to a guy she does not know and she would not study. She said she thought her life would be destroyed, and her parents’ lives would be destroyed.

35. When the Tribunal asked the applicant how she thought her life would be destroyed, and her parents’ lives would be destroyed, she said that all the people would say “oh your child came back because she got deported.” She said that her parents had spent “twenty lakhs” (twenty thousand rupees) on her. 

36. She said she could not study in India because there is an age limit to studying in India. When the Tribunal asked the applicant how old she was, she said she was 22 years of age but that in India people aged 22 years old are finished university and finished their Masters as well.  

37. The Tribunal indicated to the applicant that in India, there is no age barrier to a 22 year old person studying, to which she said “yeah I know.” Then she indicated she won’t be allowed to study in India because people would say that she didn’t study in Australia and how come her parents would pay for her studies in India – and tell her parents to fix her marriage and let her go.

38. The Tribunal accepts that the applicant, and her family, would face some personal disappointment as she indicated above if her visa was cancelled and gives this some weight in her favour. However, the Tribunal does not accept that there would be any prohibition from any tertiary provider in India against the applicant on the basis that she was too old to study.  

    Past and present behaviour of the applicant towards the Department

39. There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

40. The applicant does not have any dependents on her student visa who would be affected if his student visa was cancelled.

41. Accordingly, the Tribunal places no weight on this information in the applicant’s favour.

    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

42. The applicant indicated she is aware of the legal consequences of the cancellation of her student visa and she is aware of the three-year exclusion period as a consequence of her student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

43. The Tribunal accepts that the applicant will need to make her own arrangements to obtain a visa to lawfully remain onshore and that if she does not do so, she will be in Australia unlawfully and may be liable to detention and removal if she chooses not to return to India.

44. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of her student visa cancellation and that section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

45. The Tribunal places low weight on this information in the applicant’s favour.

    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

46. The Tribunal does not accept that there is any indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places low weight on this information in the applicant’s favour.

    Any other relevant matters

47. The applicant indicated she just wanted to study. The Tribunal accepts that the applicant just wants to study and gives this low weight in her favour. There are no other relevant matters for the Tribunal to consider.

    Conclusion

48. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

49. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Joseph Lindsay

    
    

    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.