Kaur (Migration)

Kaur (Migration) [2019] AATA 6081 (20 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Sandeep Kaur
Mr Dilbaj Singh
Miss Avleen Kaur
CASE NUMBER:  1904382
HOME AFFAIRS REFERENCE(S):          BCC2016/4223473
MEMBER:Mark Bishop
DATE:20 December 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 20 December 2019 at 12:06pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Federal Circuit Court remittal – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – duty to inquire – medical grounds for not engaging in study – unplanned pregnancy – caesarean operation – breastfeeding – medical evidence – best interests of child – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202
CASES
Botha v Minister for Immigration and Border Protection [2017] FCA 362
MIAC v SZIAI (2009) 259 ALR 429
Nweke v MIAC [2012] FCA 266
Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 1 February 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant was no longer enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The delegate cancelled the visa on the basis that the applicant was not enrolled in a CRICOS registered course from 30 June 2016 until 18 January 2017. The applicant obtained further enrolment to study a Diploma of Nursing and a Bachelor of Nursing on 18 January 2017. The delegate said “… it appeared [the applicant] Sandeep Kaur did not register in a course of study of her own accord as the enrolments were obtained after the NOICC was sent on 12 January 2017”.
The applicant provided a copy of the decision record dated 1 February 2017 to the Tribunal.
Initial application for review
The applicant first applied to the Tribunal for review of the delegate’s cancellation on 7 February 2017. On 28 August 2018 the Tribunal, differently constituted, affirmed the decision of the delegate to cancel the applicant’s student visa.
On 15 February 2019 McNab J of the Federal Circuit Court of Australia issued a consent order that the decision of the Tribunal was affected by jurisdictional error in that it failed to consider a claim of the applicant. This claim, as set out in the applicant’s written submissions dated 5 February 2018, was that she attempted to re-enrol in July 2016 but was told that the enrolment could not be completed at that time because the subject in which she was required to enrol to complete her clinical placement was not available before January 2017, and that she had commenced the process of re-enrolment in January 2017 when she received the Notice of Intention to Consider Cancellation (NOICC) on 12 January 2017.
Following the issuing of this order, the applicant’s case was returned to the Tribunal.
The applicant appeared before the Tribunal on 12 September 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review by her registered migration agent and solicitors.
For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.
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 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?
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).
The background information to this matter insofar as it is relevant is as follows:
·The applicant stated that she enrolled in a Diploma of Nursing which commenced on 27 January 2015. She completed two semesters of nursing from February to December 2015.
·The applicant was granted a deferment in her course of study from 25 January 2016 until 30 June 2016 (Tf: 116).
·The applicant advised the Tribunal she was told enrolment could not be completed because the relevant clinical placement was not available before January 2017. At paragraph 30 of her written submission the applicant advised “…this period of non-enrolment [July 2016 until December2016/January 2017] coincided with the period of time in which Ms Kaur was advised by her education provider she could not re-enrol dud to the availability of course offerings organised by the education provider…” The Tribunal has considered this submission. The Tribunal notes that notwithstanding this assertion the education provider forwarded an application for enrolment in July 2016 for enrolment in a Diploma of Nursing and the applicant acknowledged receipt of same. The applicant did not complete this offer of enrolment. The Tribunal notes further the applicant had the opportunity at all relevant times to seek enrolment for a limited period or in a limited number of subjects relating to clinical placement at other institutions in the medical field. The Tribunal notes the applicant at all relevant times had the opportunity to progress her studies in other subjects that would be covered by later enrolment in a Diploma or Bachelor degree. The Tribunal gives minor weight to this assertion of the applicant.
·The applicant advised the Tribunal she attended her GP on 19 May 2016. The applicant provided a copy of a medical certificate dated 19 May 2016 that stated “[the applicant] is pregnant and awaiting to deliver her baby on 26/05/2016. She feels that mentally and physically she will not be able to start her studies by July and also she planning to exclusively breast feed her baby.” The Tribunal turns to consider this claim and consequent comment by the medical practitioner. The Tribunal notes the applicant advised her medical practitioner as early as May 2016 that she would not be able to start her studies by July 2016. The medical practitioner did not state she would not be able to start her studies. The medical practitioner repeated the comments of the applicant. The medical practitioner did not outline or confirm the applicant’s comments that she was “medically and physically” [unable] to start her studies by July. The medical certificate did not state the applicant would be unfit for any reason to commence her studies in July 2016. The Tribunal is unable to give this medical certificate much weight.
·The applicant gave birth to her child on 30 May 2016 following a caesarean section. She provided a medical certificate dated 6 February 2017 (Tf: 114). This medical certificate stated she had a caesarean section and wound infection and attended for care for this on 4 July [no year given]. The medical certificate stated this “made her recovery delayed-and prevented her from attending usual studies from July. She breast fed her child and couldn’t attend the study from July till December for the above reasons”. The Tribunal turns to consider this medical certificate. The medical practitioner does not provide his or her reasons as to why her recovery was delayed. The medical certificate does not draw a causal relationship between her attendance on 4 July and delayed recovery to such an extent that it prevented her from studying for a period of more than 6 months. The medical certificate is dated 6 February 2017 almost 7 months after the relevant appointment. This date in time is significant as it is not contemporaneous with the medical visit and does not refer to medical notes or file notes from the then treating medical practitioner stating she should or could not attend for studies in this period. The Tribunal notes the medical certificate provided by the applicant does not state the applicant would not be able to commence her studies in July 2016 because of her caesarean section and subsequent wound infection or for any other reason. The medical certificate did not outline the period of the “recovery delayed”. A medical certificate is generally based upon a patient’s medical history. The Tribunal expressly asked the applicant if she could provide any contemporaneous medical opinion or medical notes that advised the after effects of her operation might cause her to be unfit or unable to study in the second half of 2016. In evidence the applicant advised the Tribunal she could not. The documents provided by the applicant from Northern Hospital relating to her pre-birth, birth and post birth recommendations for treatment did not address an inability to study in the second half of 2016.
·The medical certificate of 6 February 2017 is not a contemporaneous document. It suffers from the shortcomings or deficiencies outlined immediately above. The Tribunal notes further at paragraph 34 below it has provided a summary of medical evidence provided pre-birth, at birth and post-birth and that this medical evidence was provided to Ms Kaur’s general practitioner on 6 June 2016. The records show that following her discharge, the applicant was visited by hospital staff on 3 June 2016 and 5 June 2016. Notes from these visits showed that the staff discussed a variety of matters relating to the health and welfare of the applicant and her child including ongoing education, treatment and care on matters such as pain relief, breastfeeding, diet and hygiene.
·This medical information does not record that Ms Kaur was advised to pause or cease her studies by hospital staff. The Tribunal is concerned the applicant has not provided a contemporaneous medical certificate issued between July 2016 and December 2016 relating to her caesarean section and subsequent wound infection that states she was unfit for study for a period of time up to seven months after the birth of her child.
·The Tribunal gives the medical certificate of 6 February 2017 some minor weight. It does this because it is not contemporaneous and not supported by other relevant medical evidence provided to the Tribunal by the applicant post the hearing.
·The applicant advised she applied for a second deferment on 25 May 2016 (Tf: 66) and followed up this application for deferment via email and phone on 28 June 2016. The applicant advised her second application for deferment was rejected on 5 July 2016 as she did not have a current valid enrolment. Her education provider advised it was her responsibility to contact the Department and advise them of this development (Tf: 34).
·The applicant followed up this advice by trying to contact her education provider (Tf: 68, 117-122, 130) on several occasions. The applicant provided a copy of an application form dated 15 July 2016 for enrolment in a Diploma of Nursing in February 2017 and a Bachelor of Nursing in January 2018 (Tf: 69). The applicant advised she received a letter of offer from her education provider in August 2016 but she “accidentally deleted it” (Tf: 130). Following the making of further inquiries by the Tribunal (see below at paragraphs 26 and 27) a letter of offer addressed to the applicant dated 9 August 2016 was provided to the Tribunal (Tf: 106-108). The letter of offer set out conditions related to acceptance of the offer of enrolment. The applicant did not comply with these conditions relating to acceptance of the offer. Hence there was no acceptance of the offer of enrolment.
·The Tribunal has considered the claim of the applicant that she attempted to enrol in July 2016 and continued this attempt in August/September 2016. See immediately below.
·The applicant advised she attempted to pay her fees in August/September 2016 but was told by education provider officials she was an existing student and did not have to worry, and to come back in January 2017 to pay the fees and get a new COE (Tf: 129). The Tribunal attempted to obtain a statement from the relevant education provider officials that might confirm this assertion of the applicant (see paragraphs 22 to 27 below). The education provided responded to the Tribunal request in writing and provided “…a record of Ms Kaur’s interactions and request for deferral of studies for 2016”. In addition the education provider attached relevant supporting documentation for the period 15 July 2016 until 29 March 2017 (see paragraph 27 below). This independent evidence provided to the Tribunal by the education provider did not substantiate the claims of the applicant. The applicant did not pay course fees and a new COE was not issued by the education provider. The applicant advised the Tribunal she was told by two education provider officials in September 2016 when she visited campus “was an existing student” (Tf: 129) and the same education provider wrote to her on 15 July 2016 and advised she did not have a “valid enrolment for 2016” (Tf: 34). The Tribunal has considered in detail these two applicant claims of being an “existing student” and not having a “valid enrolment for 2016”. The Tribunal wrote to the education provider on 11 September 2019 at the request of the applicant seeking confirmation of these matters. The education provider provided a “record of Ms Kaur’s interactions” and relevant supporting documentation. This material did not provide any material that addressed the applicant’s claims of being an existing student. The Tribunal is concerned at the failure of the education provider to provide any evidence that substantiates the claim of the applicant that she was an existing student.
·The Tribunal is satisfied the applicant attempted to some limited extent to pursue enrolment in the period 30 June 2016 until 18 January 2017. The applicant was not successful in those attempts.
·The Tribunal does not accept the applicant has provided sufficient proof of inability to study in the period July 2016 until December 2016. The Tribunal finds the applicant was not granted a deferment in her course of study from July 2016 until January 2017. The Tribunal finds the applicant was not enrolled in a course of study from July 2016 until January 2017.
During the review hearing the applicant advised the Tribunal that apart from the application form dated July 2016, she had not made attempts to enrol in any other course or at any other provider in the second half of 2016.
She advised that she attempted to contact the Department to seek advice in relation to her non-enrolment. She stated that she waited in the queue but would hang up before she was able to speak to anyone at the Department.
At the conclusion of the review hearing on 12 September 2019 the Tribunal asked the applicant to provide copies of any contemporaneous medical opinions, medical notes or further corroborating information that advised the after effects of the caesarean operation/wound infection caused the applicant to be unfit or unable to study in the second half of 2016. The applicant did not provide any such material to the Tribunal (see paragraphs 32 to 36 below).
The Tribunal now turns to consider the period 1 January 2017 until 18 January 2017. The applicant commenced enrolment processes on 4 January 2017 by seeking a CRN. The Department commenced NOICC processes on 6 January 2017 by seeking confirmation of address details. The applicant provided this detail on 11 January 2017. The education provider issued a letter of offer and COE on and from 18 January 2017. The Department issued the notice of cancellation on 1 February 2017.
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).
Consideration of the discretion to cancel the visa
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant provided a written submission that outlined the grounds of review as follows:
·The applicant’s non-study period post cancellation cannot be held against her as she has held a visa without study rights (Tf: 73 [12]-[13])
·When considering the applicant’s non-enrolment the fact that she was previously enrolled in a full-time course until she sought a deferment for medical reasons is a relevant factor (Tf: 73 [18])
·The following factors are relevant to considering cancellation according to Ministerial Direction No. 61 (Tf: 73 [19]):
a.The applicant’s education provider was accurately monitoring her course progress, was aware of her deferral and of her second deferral attempt;
b.The applicant received an offer in July 2016. The letter of offer was not accepted. The appropriate COE was not issued.
c.The applicant was issued with a letter of offer prior to receiving the NOICC;
d.Exceptional circumstances affected the applicant’s study, including an unplanned pregnancy, birth, infection and post-infection as well as post-natal depression. The Tribunal notes the applicant did not provide any contemporaneous medical opinions, advice or notes that confirmed she suffered from post-natal depression after the birth of her child. The Tribunal notes further that the material provided pursuant to a Freedom of Information (FOI) request and summarised at paragraph 35 below does not contain any reference to post-natal depression;
e.The applicant wishes to complete her studies in Australia.
·The Tribunal is able to consider any claims put forward by the applicant, is not bound by the Department’s Procedures Advice Manual and is able to go beyond these factors in the exercise of its discretion (Tf: 72 [21]-[22]).
Duty to inquire

In MIAC v SZIAI (2009) 259 ALR 429 the High Court of Australia (HCA) gave consideration to the duty of the Tribunal to make further inquiries. The HCA observed the Tribunal is under no general duty to obtain information and as a general principle it is difficult to see any basis upon which a failure to inquire could constitute a breach of procedural fairness, at: [25]-[26]. The Tribunal may ordinarily decide a review on what the applicant puts forward.
However a failure to make an obvious inquiry about a critical fact, the existence of which is readily ascertained, could in some circumstances, constitute a failure to review and give rise to jurisdictional error: SZIAI at [25].
In this review application the applicant stated she spoke with certain named officers of the education provider in October/November 2016. She claimed she was told to come back and enrol in January 2017. The applicant failed to provide any independent evidence of these conversations.
This fact is critical to the review as the applicant’s central claim put forward for her failure to enrol was that her education provider was aware of her non-enrolment and advised her not to enrol until January 2017. The applicant stated that the education provider refused to give her written material and stated they, the education provider, would only respond to the Tribunal. The applicant requested the Tribunal contact Ms Sandra Barboza who worked at the education provider (Tf: 129) and provided relevant contact email details of Ms Barboza to the Tribunal (see Tf: 95-97).
Accordingly on 11 September 2019 the Tribunal wrote to Ms Barboza and two other named officers of Holmesglen (the relevant education provider) seeking information relating to detailed submissions made by the applicant to the Tribunal dated 6 February 2018 and 6 June 2018 concerning multiple attempts to contact Holmesglen (see document numbers 6236746, 6243685, 6248478, 6334977) in person, by phone and by email.
On 23 September 2019 Ms Barboza from Holmesglen responded to the Tribunal’s request for information. She provided “a record of Ms Kaur’s interactions and request for deferral of studies for 2016”. She attached relevant supporting documentation for the period 15 July 2016 until 29 March 2017 (see document 6301004).
On 30 September 2019 the Tribunal forwarded a copy of the correspondence referred to in paragraphs 26 and 27 above to the solicitors for the applicants (see document 6334977).
Adverse information
Arising out of the response outlined in paragraph 27 above, on 4 October 2019 the Tribunal wrote to the applicants under s.359A inviting them to comment on or respond to the above information. The notice invited the applicant to respond to information “which we consider would, subject to your comments or response, be the reason, or part of the reason, for affirming the decision under review”. The Tribunal explained the information was provided by Ms Sandra Barboza from Holmesglen. The Tribunal included particulars of the information, explained its relevance and advised if the Tribunal was to prefer this evidence from Holmesglen to the applicant’s evidence, it may lead to the making of a finding of fact with respect to a matter relevant to consideration of the discretion to cancel the applicant’s visa which weighs towards the cancellation of the visa.
The Tribunal advised that if it relies on this information in making its decision this would be a reason or part of the reason for affirming the decision under review. It may find, after considering all relevant factors, that the applicant’s visa should be cancelled.
The Tribunal invited the applicant to give comments on or respond to the above information in writing. A response was due by 18 October 2019.
On 18 October 2019 solicitors for the applicant provided a written response and attachments to the Tribunal. The written submission outlined the following:
·The applicant disagreed with Holmesglen’s response to the Tribunal dated 23 September 2019 that they had provided “a record of Ms Kaur’s interactions with Holmesglen”. The applicant provided reasons for disagreeing with this assessment;
·The applicant had lodged an FOI request expressed in terms to provide “Emails, file notes, notes, memos, or other records of communication sent by or to Holmesglen staff Christiane Wharley and Trudy Wheeler during the period July to December 2016, inclusive. The applicant had not yet received a response to this FOI request;
·On the basis of information currently before the Tribunal the applicant submitted that any decision to affirm the decision before the Tribunal for consideration in this matter will amount to jurisdictional error. The applicant further submitted that should a decision be made against the applicant on the basis of what information is before the Tribunal currently, this will be an illogical decision made contrary to evidence before the Tribunal.
·The applicant acknowledged that it was possible Holmesglen have not kept relevant records. But stated that until they receive the results of the FOI request with Holmesglen, they could not comment further on this point. The applicant requested that the Tribunal issue no decision until the results of the FOI request with Holmesglen are received.
Attached to the submission outlined in paragraph 32 above the applicant provided copies of the material received as the outcome of the FOI request made to Northern Hospital. The applicant did not provide a summary of the material. The applicant did not provide a submission to the Tribunal that addressed the material.
The Tribunal summarises that material as follows:
·The applicant provided the Tribunal with over 100 documents obtained from a FOI request to Northern Hospital. The voluminous material includes records of the applicant’s calls to the hospital prior to being admitted, admission and pre-admission paperwork, the results of investigative testing, the monitoring of medical information in hospital, details of the operation performed, information on medications prescribed and discharge summaries. The material ranges in dates from 18 May 2016 to 6 June 2016.
·Overall the material is consistent with the applicant’s claims of being admitted to Northern Hospital on 29 May 2016 for a caesarean section and being discharged on 2 June 2016. Discharge notes from the hospital record that the applicant gave birth via an emergency caesarean section and that her birth including a variety of conditions, including:
oobstructed labour
oabnormal CTG
onon reassuring CTG
odeceleration – variable
ofoetal distress
omeconium liquor – unspecified
oPph – postpartum haemorrhage
osevere variable deceleration
oprimary post-partum haemorrhage
·The records show that following her discharge, the applicant was visited by hospital staff on 3 June 2016 and 5 June 2016. Notes from these visits showed that the staff discussed a variety of matters relating to the health and welfare of the applicant and her child including ongoing education, treatment and care on matters such as pain relief, breastfeeding, diet and hygiene.
·The material does not record that Ms Kaur was advised to pause or cease her studies by hospital staff. The details of hospitalisation and follow-up were provided to Ms Kaur’s general practitioner on 6 June 2016.
On 11 November 2019 the Tribunal wrote to the applicant inquiring as to the status of the FOI request made by the applicant to Holmesglen.
On 11 November 2019 the applicant responded to the Tribunal by providing a further written submission and documentation as outlined below:
·Copy of email thread from Holmesglen that advised of little or no access to emails prior to 2018 is available due to a system move;
·Copies of 4 further pieces of documentation provided by Holmesglen, none of which relate to communication between the applicant and the education provider during the period July to December 2016:
oFile note relating to the applicant’s study progress in 2015;
oEmail from the applicant to Ms Trudy Wheeler at Holmesglen dated 12 November 2015 requesting access to information;
oFile note relating to the applicant’s study progress in 2016;
oFile note relating to failed clinical placement at Epworth Eastern and further review by the Head of Department.
·The applicant stated that it appeared that Holmesglen have either not kept or not archived emails between her and Holmesglen during the relevant period of time. In any event, those emails have not been provided to her.
·The applicant stated that this meant that Holmesglen cannot provide “a record of Ms Kaur’s interactions with Holmesglen” from the relevant period of time and as such no reliance could be given to this statement.
·The applicant stated that any decision to affirm the decision before the Tribunal would be illogical and contrary to evidence before the Tribunal.
The purpose of the visa holder’s travel to and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The submission from the applicant’s solicitors and prior submissions to the Department advised that the applicant’s purpose of travel to and study in Australia was as follows:
·She was intending to obtain skills to find employment back in India (Tf: 72 [23])
·She intends to “complete her studies and then work in the industry in Australia or back home…” (Tf: 109)
·She intends to finish her qualifications and seek employment in a large specialised hospital (Tf: 72 [24]).
·The applicant’s husband (secondary visa applicant) owns a gym in India and he intends to return to India to run it with his business partner in India (Tf: 72 [26]).
38. The Tribunal is satisfied that the applicant’s purpose of travelling to Australia was for the purpose of study. The Tribunal notes the applicant advised the Tribunal she wishes to remain in Australia and complete her studies in Australia. The Tribunal is concerned by the failure of the applicant to enrol in a course of study in the period July 2016 until January 2017. The Tribunal is aware of the totality of the applicant’s circumstances inclusive of the birth of her child, her decision to breast feed and the need to look after her newborn child. The Tribunal notes that it is not unusual for women to continue their studies after having given birth and while breast feeding their child. While the Tribunal accepts that breast feeding a child while studying could be difficult, the medical reports do not provide any reason as why she was prevented from continuing her studies from July to December 2016 due to the fact that she breast fed her child. The Tribunal is troubled by the lack of contemporaneous medical evidence that the applicant could not or should not study in the period July 2016 until January 2017 (see paragraph 14 above). The Tribunal is concerned by the fact the applicant was aware as early as 5 July 2016 (see paragraph 14 above) that her application for deferment was rejected by her education provider. The Tribunal is troubled by the failure of the applicant to achieve enrolment in a course of study in the second half of 2016. The applicant clearly understood the necessity and importance of enrolment as she had applied for deferment in the first half of 2016 and had indicated as early as May 2016 she might not be able to engage in study in the second half of 2016. The Tribunal is troubled by the lack of corroborative evidence from the relevant education provider. The Tribunal is troubled by the failure of the applicant (as outlined in her evidence) to obtain advice from the Department. The Tribunal is troubled by the failure of the applicant to seek a COE from an alternate education provider. The Tribunal acknowledges the advice from the education provider that there is “…little or no access to emails prior to 2018…due to a system move”. This may well be correct. The Tribunal gives this statement some weight. It does not explain the lack of other evidence (such as confirmation of meetings with education provider officials as asserted by the applicant, diary notes maintained by relevant education provider officials or other file notes maintained in the system by the education provider that would confirm the assertions of the applicant in whole or in part). In this context the Tribunal notes the education provider was able to provide significant other documents dating back to 2015 and 2016 relating to the applicant’s academic and study progress. The Tribunal gives these matters some weight against the applicant.
The Tribunal is aware the applicant has not been able to engage in study since the delegate’s decision because of conditions attached to her visa and makes no adverse finding because of this lack of study and lack of enrolment in a course of study during this period.
The Tribunal is not satisfied there were sufficient or adequate medical reasons to explain the applicant’s decision not to engage in study in the period July 2016 to January 2017. The Tribunal is satisfied the applicant made some desultory attempts to enrol in a course of study in this period. Student visas are granted for the purpose of studying towards, and achieving, an educational qualification in Australia. The student visa program provides an avenue to allow non-citizens and non-permanent residents to study in Australia. In order to be granted a student visa, the visa holder’s primary intention must be to study, maintain enrolment, attendance and course progress, in a Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) registered course.
The obligation at all times is for a visa holder to enrol and maintain enrolment in a course of study. The Tribunal is troubled by the lack of corroborating evidence of an inability to study in this period. The Tribunal is troubled by the lack of successful contact with the Department to attempt to resolve issues relating to the period of non-enrolment. The applicant had the option at all times of departing Australia during this period of non-study and making an application to return based upon enrolment in a course of study after January 2017.
The Tribunal has considered the applicant’s claims with respect to gain skills to find employment in her home country and finish her qualifications and seek employment in a large specialised hospital in India (see paragraph 37 above). The Tribunal acknowledges the applicant has been unable to study in Australia since the date of the delegate’s decision of February 2017. In that time the applicant has maintained residence in Australia. It is correct to observe that the migration legislation contemplates an applicant remaining in Australia on a bridging visa whilst awaiting the outcome of a review. It is also correct to observe the migration legislation contemplates an applicant departing and returning to Australia during the same period of review. The Tribunal finds the applicant does not have a compelling need to remain in Australia for the purpose of study. In addition the Tribunal has considered the applicant’s claims as outlined in paragraph 37 above. The applicant has only provided a generalised statement as to seeking work or working in a large specialised hospital in her home country. She has not provided any particulars as to the type or location of hospital or the availability of work. She has advised the Department she holds a Diploma of Nursing and worked as a nurse in India prior to coming to Australia. The Tribunal finds the applicant does not have a compelling need to remain in Australia for the purpose of study.
The extent of compliance with visa conditions
There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa. The Tribunal is aware the applicant engaged in study for a year prior to being granted deferment in January/February of 2016. The Tribunal finds the period of the breach of six months significant. This breach was not incidental or minor. It was not occasioned by annual school close-downs that often occur in December or January of a given year. As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The submission from the applicant’s solicitors addressed hardship as follows:
·The applicant will suffer financial hardship as a result of being unable to study while awaiting review of her application (Tf: 71 [35])
·The cancellation/review caused emotional hardship in addition to that relating to the unplanned birth of her child and subsequent complications (Tf: 71 [41])
·The applicant will face an uncertain future on return to India and will be deeply ashamed (Tf: 71 [42])
·The applicant suffered financial loss in the form of non-refundable course fees and loss of potential earnings as a result of not graduating in 2019. Her career has been delayed by three years (Tf: 71 [44]-[45]).
The Tribunal has considered the matters outlined in paragraph 44 above. The Tribunal notes the following:
·The Tribunal accepts that the applicant has not engaged in paid employment since the date of the delegate’s decision.
·The applicant advised the Tribunal she paid an amount of $4,000 towards the course fees for her Diploma of Nursing and a further $3,000 towards the course fees for her Bachelor of Nursing prior to the cancellation. The applicant asserted in a written submission to the Tribunal dated 5 September 2019 “…as such monies cannot be refunded we submit that she has suffered pecuniary loss as a result of the cancellation” (Tf: 70-74).
- The applicant advised the Tribunal on 5 September 2019 at paragraphs 43 to 46 of her written submission that “…such monies were not refunded”.
·The applicant provided the website address of Holmesglen and course details relating to nursing studies to the Department and Tribunal. The website for Holmesglen provided detail relating to “Withdrawals, Refunds and Credits” and the processes to be followed by students seeking refunds.
·On 23 September 2019 Holmesglen advised the Tribunal in writing that “on 10 March 2017, Ms Kaur applied to claim a refund of tuition paid towards semester 1, 2017 once she was aware that her student visa was cancelled. Holmesglen refunded Ms Kaur’s tuition paid towards semester 1, 2017 on 29 March 2017 (Attachment 9)”.
·Attachment 9 was an “International student – Fees and Charges Request” lodged by the applicant on 10 March 2017. Attached to this request was a copy of a transaction receipt showing the amount of $7,050 was refunded to the applicant by direct credit to her bank account on 29 March 2017.
·On 30 September 2019 the Tribunal forwarded this correspondence to the applicant and her solicitors.
·On 4 October 2019 the Tribunal forwarded the same correspondence to the applicant and her solicitors under s.359A of the Act. The Tribunal particularised one of the matters as “…On 10 March 2017, Ms Kaur applied to claim a refund of tuition paid towards semester 1, 2017 once she was aware that her student visa was cancelled. Holmesglen refunded Ms Kaur’s tuition paid towards semester 1, 2017 on 29 March 2017.
·The Tribunal requested a comment or response by 18 October 2019. The applicant via her solicitors provided a written response to the Tribunal.
·In the written response to the Tribunal the applicant did not address the request for information concerning refund of fees paid to the applicant.
·The Tribunal is not aware why the applicant provided submissions to the Tribunal that might be characterised as misleading.
·The Tribunal gives no weight to claims of financial hardship due to pecuniary loss caused by non-refund of tuition fees.
·The applicant also asserted loss of future earnings after graduation at the end of 2019. The applicant did not provide particulars as to these possible losses in the future. The applicant did advise the Tribunal she holds an existing qualification in General Nursing and Midwifery (gained through a Diploma in Nursing from India) and has worked in that field in the past. The applicant’s written submission to the Tribunal at paragraphs 43 to 45 addressed “Financial Hardship – Living in Australia without Work Rights” addressed the above. It did not address any financial hardship that might be caused to family members. The Tribunal gives minimal weight to possible future losses and hence financial hardship due to delayed employment with an additional qualification in favour of the applicant.

The Tribunal accepts that a caesarean operation is a difficult operation and can give rise to complications.
The applicant provided extensive evidence relating to her period of stay in Northern Hospital that addressed complications in the birth of her child. However, she has not provided any medical evidence or medical opinions post August 2016 that diagnose emotional hardship. She has not provided any prognosis relating to this submission. The Tribunal gives it little weight.
The applicant claimed she would be “deeply ashamed”. The applicant claimed she might suffer an “uncertain future”. The Tribunal is of the view the applicant has engaged in a difficult challenge. She has come to a radically different country in Australia. She has sought to engage in an education and training system with very different practices and expectations to that in her home country. She has done so with the support of her family. Her family has grown while in Australia. These should all be matters of pride because they are matters of challenge and achievement. The Tribunal is satisfied the applicant’s theoretical training and practical work experience in her home country will hold her in good stead if she should seek employment. The applicant did not provide any psychiatric, psychological medical or other professional advice relating to counselling that outlined any emotional or psychological hardship if the applicant should return home to India without completing her nursing qualifications. The applicant did not provide any evidence relating to emotional/psychological hardship. It is difficult for the Tribunal to engage in any rational assessment of emotional/psychological hardship when the applicant has not provided material relating to this claim. The Tribunal is prepared to accept there may be some embarrassment or discomfort associated with a return to India after a period of time in Australia with only minimal academic progress. The Tribunal is prepared to accept there may well be family or community disapproval. The Tribunal accepts that the applicant might regret not taking full advantage of her opportunities in Australia. The Tribunal gives little weight in favour of these claims to the applicant.
Circumstances in which ground of cancellation arose
The submission of the applicant’s solicitors addressed the circumstances in which the ground for cancellation arose as follows:
·The applicant was told by the education provider to wait until January 2017 to enrol as this was when her courses were offered (Tf: 72 [30])
·The period of non-enrolment should not be given large weight as it evidences an unintended breach with compassionate and compelling circumstances (Tf: 72 [31])
·The applicant’s initial deferment and subsequent attempt to defer a second time show an intention to comply with requirements of her provider (Tf: 72 [32]-[33])
·There were significant mitigating factors (Tf: 72 [34]):
oThe applicant’s deferral and the medical grounds for that deferral
oThe applicant’s attempts to enrol a second time.
·The circumstances of the non-compliance were of a compelling and compassionate nature relating, firstly, to her unplanned pregnancy which was not terminated for religious reasons, and secondly, the advice given by her provider. These were beyond her control and highly compassionate. The Tribunal was invited to consider the applicant’s claims based on the severity of her medical circumstances and the advice given to her (Tf: 71 [47]-[48]).
The Tribunal has considered the matters outlined in paragraph 49 above. The circumstances giving rise to the cancellation of the visa are comprehensively summarised and analysed in paragraphs 16 to 37 above.
The delegate made a finding the applicant was not enrolled in a registered course of study from June 2016 until January 2017. The circumstances relating to the NOICC are outlined in paragraph 19 above. The Tribunal is satisfied the applicant commenced and completed the necessary enrolment process during January 2017. The applicant is correct to observe the education provider issued a letter of offer and COE on and from 18 January 2018. The Tribunal has considered the background to enrolment and circumstances of enrolment and made findings or reached conclusions at paragraphs 14, 19, 37 and 38 above.
As outlined in paragraph 14 above the applicant was aware her application for a second deferment was refused by her education provider on 5 July 2016. The applicant made application to enrol in Diploma and Bachelor-level courses in August 2016 to commence in January 2017. On the available evidence as summarised at paragraphs 14, 19 and 38 the applicant does not appear to have enrolled in any course of study in the second half of 2016. In the circumstances of this review application the Tribunal regards the period of non-enrolment as significant. The Tribunal has considered the circumstances under which the cancellation arose. The applicant was not enrolled in a course of study in the period July 2016 until December 2016/January 2017. The Tribunal has considered those circumstances and outlined in detail its findings. The Tribunal is of the view the applicant has not provided sufficient reason for non-enrolment.
The Tribunal accepts that the applicant provided medical grounds for the first deferral in the first half of 2016. The Tribunal has considered the circumstances in which the ground for cancellation arose and reached conclusions as outlined above. The Tribunal is satisfied the applicant in the period July 2016 until early January 2017 was not enrolled in a course of study and this period of non-enrolment was a breach of condition 8202.
The Tribunal accepts that an unplanned pregnancy (as submitted by the solicitors for the applicant) may cause a range of difficulties (including those that may be physical, emotional or financial) for the applicant and her family. The Tribunal is aware of the totality of the applicant’s circumstances inclusive of the birth of her child, her decision to breast feed and the need to look after her newborn child. The Tribunal notes that it is not unusual for women to continue their studies after having given birth and while breast feeding their child. The Tribunal has considered the medical certificates of May 2016 and February 2017. The Tribunal has considered the extensive medical documentation provided by Northern Hospital relating to pre-birth, birth and post birth matters. While the Tribunal accepts that breast feeding a child while studying could be difficult, the medical reports do not provide any reason as why she was prevented from continuing her studies from July to December 2016 due to the fact that she breast fed her child. These medical notes and medical reports do not provide any diagnosis of a condition that might have prevented the applicant from engaging in study in the period July 2016 until December2016/January 2017. Of concern to the Tribunal is the lack of either relevant corroborative evidence or relevant contemporaneous medical or professional advice that the applicant suffered such consequences post August 2016 that she was unable to engage in study. The Tribunal gives these circumstances little weight.
The Tribunal gives some weight to the fact the applicant delivered her child by caesarean section in late May 2019. The Tribunal gives minimal weight to the various reasons and explanations proffered by the applicant in relation to her non-enrolment in a course of study in the second half of 2016.
Past and present behaviour of the visa holder towards the Department
There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in her dealings. However, this is expected of all visa holders and does not outweigh the significance of the breach.
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
Whilst the Tribunal acknowledges that some hardship may be caused to the applicant should she be required to depart Australia the Tribunal notes that she will be eligible to apply for a Bridging Visa E which may allow her to remain lawfully in Australia so that she can finalise any outstanding matters.
If the visa is cancelled the applicant will become an unlawful non-citizen and may be liable for detention under Section 189 and removal under Section 198 of the Migration Act 1958 if she does not voluntarily depart Australia.
The applicant will be subject to Section 48 of the Act which means that she will have limited options to apply for further visas in Australia. The applicant will also be subject to Public Interest Criterion 4013, which results in a 3 year exclusion period. The Tribunal notes that these are the intended consequences of the legislation when a visa is cancelled under these grounds, which reflects the seriousness with which the Department takes this type of cancellation ground.
The power under s.116 is discretion to cancel a visa. The Tribunal acknowledges that some hardship may be caused to the applicant if her visa is cancelled. The Tribunal is satisfied there is sufficient evidence before the Tribunal that warrants cancellation of the applicant’s visa. The Tribunal finds there is little evidence that weighs against cancelling the applicant’s visa.
Whether there would be consequential cancellations under s.140
In this case the applicant’s husband and daughter were granted visa’s solely on the basis of being a member of the family unit of the applicant. As a result cancellation of the applicant’s visa would mean the consequential cancellation of her husband and child’s visa. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.
Whether any international obligations would be breached as a result of the cancellation
There is little before the Tribunal to indicate there are international obligations to consider. The applicant did not address international obligations in her submission to the Tribunal of 5 September 2019 or earlier submissions to the Department.
The Tribunal has considered the Convention of the rights of the Child (CROC) and whether the cancellation would not be in the best interests of the applicant’s child. There is no evidence to suggest that cancellation of the applicant’s visa will result in the separation of the applicant and her child. The applicant did not advance any hardship the husband would suffer as a result of the cancellation of his visa. The applicant’s evidence was that her husband had limited English and as such he presumably will be better placed to find employment in the event he returns to India. The applicant did not provide any submissions to the Tribunal that addressed any possible breach of international obligations. Accordingly the Tribunal finds that it is in the best interests of the child that the visa of the applicant is cancelled. The Tribunal is not aware of any factor that outweighs this consideration (e.g. see Nweke v MIAC [2012] FCA 266 (Jagot J, 23 March 2012).
Accordingly, the Tribunal places no weight on this consideration in the applicants favour.
Any other relevant matters
In a submission dated 11 November 2019, outlined above in paragraph 36, the applicant’s solicitors advised that as Holmesglen was unable to provide a “record of [the applicant’s] interactions with Holmesglen”, the Tribunal was unable to rely on Holmesglen’s statement that it had done so. They stated that Holmesglen had not provided any evidence that contradicted the applicant’s submissions, including oral testimony before the Tribunal. They noted that the applicant had been consistent regarding her contact with Holmesglen staff and their comments regarding enrolment and submitted that any decision to affirm the decision before the Tribunal would be illogical and contrary to evidence before the Tribunal.
The Tribunal has had regard to all of the evidence before it. In this decision record the Tribunal does not slavishly refer to each individual piece of information submitted by the applicant, preferring instead to adopt a thematic approach. In this regard the Tribunal notes the observations of Collier J in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [45]:
…there is ample authority to support the proposition that, merely because the Tribunal did not specifically mention a fact or an issue, the Court should not necessarily infer that the Tribunal did not consider that fact or issue.
The Tribunal further notes that in determining whether it is satisfied that an applicant has adhered to conditions attached to her visa or provided acceptable reasons for non-compliance it is not required to uncritically accept the evidence, material, information or assertions of an applicant. As Heerey J observed in Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7]:
A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.
The Tribunal notes Holmesglen provided a significant amount of information to the Tribunal in response to a request from the Tribunal and an FOI request from the applicant. It is discussed at paragraphs 26 and 28 above. The Tribunal has considered that information, all material on the relevant Departmental and Tribunal files and the evidence of the applicant.
Therefore, in circumstances where the applicant was aware of her visa conditions and she had not enrolled in a registered course commencing in July 2016, the Tribunal gives minimal weight to the applicant’s statement that she breached the conditions of the visa as a result of her daughter being born by an emergency caesarean and that she suffered from a subsequent infection. Despite having given birth to her child and suffering from an infection the Tribunal does not accept that the applicant was not able to comply with her visa conditions by ensuring that she was enrolled in a registered course commencing in July 2016. The Tribunal has considered separately and cumulatively the applicant’s circumstances. The Tribunal has considered the totality of the applicant’s circumstances inclusive of the circumstances of the birth of her child, the fact she was breastfeeding, the need to care for a new born child, the presence of immediate family in Australia, the absence of extended family in Australia, her assertions of attempted enrolment, the assertions relating to non-availability of course offerings, the detail of the two medical certificates, the lengthy and detailed medical documentation from Northern Hospital, the information and records relating to enrolment from Holmesglen, the maintenance and provision of non-email material (files notes of interviews in the years 2015 and 2016) from Holmesglen concerning the applicant and submissions by the applicant to the Tribunal and the Department. The Tribunal gives some minor weight to the applicant’s assertion that she attempted to enrol in July 2016 but was told the enrolment could not be completed at that time because the relevant clinical placement was not available before January 2017. The Tribunal is satisfied the applicant made some desultory attempts to pursue enrolment in the period 30 June 2016 until 18 January 2017. The applicant was not successful in those attempts. The Tribunal gives these attempts some minor weight. The Tribunal accepts the applicant commenced enrolment processes in early January 2017 and thereafter received the NOICC. The Tribunal gives this attempt at re-enrolment some minor weight. The Tribunal gives some considerable weight to the failure to successfully re-enrol in the period July 2016 until January 2017.
While the Tribunal accepts that the applicant suffered from thrush or other vaginal infection prior to the birth of her child, in the absence of any medical evidence that it prevented her from enrolling in a registered course, the Tribunal does not accept that the applicants condition would have prevented her from securing enrolment in a registered course commencing July 2016.
The Tribunal has considered all factors both individually and cumulatively in the context of the breach. The Tribunal finds that the applicant was not enrolled in a course of study that is the principal source of a type specified for the Subclass 573 visa and for the reasons outlined in paragraphs 14, 22 to 29 and 38 above that a breach of approximately 6 months is significant in the context of a student’s study period. On balance the Tribunal is satisfied the factors in favour of cancelling the applicant’s visa heavily outweigh the factors that weight against cancelling the visa.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa.
The Tribunal has no jurisdiction with respect to the other applicants.
Mark Bishop
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.

[2019] AATA 6081

20 December 2019

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Immigration

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Statutory Interpretation

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