Kaur (Migration)

[2019] AATA 4063

Kaur (Migration) [2019] AATA 4063 (1 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Rajwant Kaur

CASE NUMBER:  1905343

HOME AFFAIRS REFERENCE(S):     BCC2019/161319

MEMBERS:Dr Jason Harkess

DATE:1 August 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa

Statement made on 01 August 2019 at 12:41pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – vicissitudes of life – emotional stress – responsibility to comply with visa conditions – failure to take reasonable steps – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The Applicant is a citizen of India. She seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 28 February 2019 cancelling her Subclass 500 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant’s student visa was granted on 28 February 2018 with an original expiry date of 30 September 2020, providing for more than two years and seven months during which the Applicant would be permitted to reside in Australia for the purposes of full-time study. Specifically, it was granted on the basis that she would enrol in and successfully complete a Bachelor of Business at the Holmes Institute.

3. The delegate cancelled the Applicant’s visa on the basis that she had breached that condition of the visa which required her to continue to be enrolled in a registered course of study.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The Applicant appeared before the Tribunal on 1 August 2019 to give evidence and present arguments. The Tribunal also received evidence from Mrs Maninder Sekhon, the Applicant’s sister.

6. The Tribunal was assisted by an interpreter of the Punjabi and English languages.

7. For the following reasons, the Tribunal has decided to affirm the decision to cancel the visa.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’) as they then were, when the visa was granted. In the present case, the issue is whether the Primary Applicant has breached condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

Did the Applicant Breach Condition 8202?

1. Condition 8202(2)(a) of the Applicants visa require that the Applicant remain enrolled in a full-time registered course. In the delegate’s decision record, the delegate identified the period from 27 April 2018 to 28 February 2019 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to more than 10 months during which the Applicant was alleged to be in continuous breach of the visa.

2. The delegate’s finding in this respect was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[1] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database allows registered course providers to report changes in relation to a student’s enrolment status and to notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s Confirmation of Enrolment (‘CoE’) in a course for which they had previously been enrolled and the reasons for doing so.

   [1] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

3. The PRISMS report obtained by the delegate indicated that the Applicant’s course provider had cancelled the Applicant’s enrolment in the Bachelor of Business course on 27 April 2018.

4. The Department of Home Affairs wrote to the Applicant on 18 February 2019, notifying her of its intention to consider cancelling her student visa (‘the NOICC’). That notice set out particulars of the alleged breach by the Applicant of condition 8202. The Applicant was invited to comment on these allegations before the Department moved to cancel her visa. The Applicant did not reply to the NOICC.

5. At the hearing before the Tribunal, the Applicant conceded that she was in breach of her student visa for the period alleged by the delegate. She stated that she had stopped attending classes.

6. Based on the available information and material, the Tribunal is satisfied that the delegate was correct in reaching the conclusion that the Applicant was in breach of condition 8202(2)(a) of the visa.

Consideration of the Discretion to Cancel the Visa

1. 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. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

2. In evidence, the Applicant stated that the reason for her ceasing her studies principally arose from two stressful situations that were occurring in her life in 2018. First, she referred to her father’s ailing health. Her father, who was in India, had not been well since 2014. However, at the beginning of 2018, his health began to deteriorate. He ultimately passed away in November 2018 when he was aged in his late-sixties. During that year, the Applicant stated that she was suffering ongoing stress at having to deal with hearing about his condition. She would receive regular calls from family members, often daily, throughout 2018 and until his death. All of this was confirmed in evidence by the Applicant’s sister, Mrs Sekhon, who also confirmed that the Applicant had a very close relationship with their father. The Tribunal accepts this evidence as providing an accurate account of the situation arising with respect to the Applicant’s father.

3. The second stressful aspect of 2018, to which the Applicant referred, related to the break-down of her marriage to her husband. The Applicant had married her husband in 2014, just before she came to Australia on a student visa previously granted. It was a marriage of ‘love’ rather than ‘by arrangement’, the latter being the usual kind of marriage that takes place in accordance with India’s customs. In 2015 the Applicant’s husband applied for a student visa as a secondary applicant so that he could come to Australia and reside with the Applicant while continued her studies. That application was refused. He had to remain in India. This ultimately led to a break-down in the relationship in 2018 when the husband told the Applicant that he wanted a divorce. Up until this time, the Applicant and her husband had been maintaining a ‘long-distance’ marriage in two different countries. The last time she actually saw her husband was in 2016 when she visited India. The Applicant stated that she attempted to maintain the relationship, but it deteriorated. The Applicant has provided the Tribunal evidence of the divorce proceeding in the Federal Court of Australia. It appears that the divorce will be finalised, at least in Australia, later this year. The Applicant stated that she did not wish to go through with the divorce.

4. The effect of the Applicant’s evidence, and her ultimate submission to the Tribunal, was that these two aspects of life led to her not being able to continue her studies in 2018. Accordingly, she stopped studying.

5. While the Tribunal accepts the Applicant’s evidence as a truthful account of her situation in 2018, it does not accept this evidence as providing a foundation for a satisfactory explanation for her decision to cease her studies altogether and breach her visa. Many student visa holders are forced to contend with personal difficulties during their stay in Australia, including the deaths of loved-ones and other family difficulties such as the break-down of relationships. They are all burdened in their own way in that they are each having to deal with some degree of emotional turmoil while away from their families in their home country. At the same time, they are obviously burdened with having to maintain their studies in Australia in order to comply with the strict visa conditions attaching to student visas.

6. In such circumstances, registered course providers and the Department of Home Affairs have in place policies that permit the exercise of discretion for compassionate reasons that will allow a student visa holder some latitude in having to deal with a difficult personal situation. The cancellation of an enrolment and the subsequent cancellation of a visa is a last resort. However, the exercise of a discretion to refrain from cancelling an international student’s enrolment, or to refrain from cancelling their visa, is premised on the visa holder taking positive steps to bring their personal issues to the attention of the relevant authorities and by producing evidence that corroborates their claims. In this case, the Applicant did not do so. For 10 months she remained unenrolled in any registered course of study. She made no attempts to contact the Department of Home Affairs about her personal situation and, on her own evidence, she made no attempt to contact the Holmes Institute to defer her studies.

7. Beyond the Applicant’s assertions as to how he was feeling during this time, there is no independent evidence demonstrating that the Applicant was suffering a diagnosable chronic mental health condition. Indeed, she continued to work 20 hours a week for all of 2018 and reap the benefits that Australia’s relatively high economy returns. In that respect, it is clear that her stress that she was suffering was not debilitating.

8. The Tribunal has formed the view that the Applicant’s personal suffering arising from her situation in 2018 falls into the category of ordinary mental difficulties that people generally suffer on a daily basis in dealing with life’s stressors. In the end, the Applicant’s explanation of the situation effectively amounts to a statement that she was unable to deal with her personal problems while, at the same time, maintaining her legal obligation to comply with an essential condition of her student visa. She chose not to comply with an essential visa condition. In these circumstances, there is no satisfactory explanation for her failure to take steps towards addressing the situation with respect to her continuous breach of her student visa.

9. The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia and complete her education. The Tribunal accepts that it would be difficult for her were she not allowed to complete successfully an Australian qualification. She has expended time and financial resources in her time in Australia so far. However, her desire must be tempered with the extent of her non-compliance with the conditions of the visa. It was a student visa which obliged her to prioritise studying in Australia the entire time she has been here. In the Tribunal’s view, she has not provided a satisfactory explanation for not complying with that fundamental condition.

10. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. There is no adverse evidence before the Tribunal in that regard. There also do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

11. The Tribunal notes that if the visa is cancelled, the Applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Migration Act 1958 if she does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting her options to apply for further visas from within Australia. She will also be subject to a 3 year exclusion period where she will not be eligible to have any temporary visa application approved if she applies for a visa that requires Public Interest Criterion 4013 to be met. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. It reflects the seriousness of the breach of visa conditions.

12. The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow her to make arrangements for her to depart Australia. She is a citizen of India and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to her departure from Australia.

13. Lastly, the Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

14. In all the circumstances, the Tribunal is satisfied that the Applicant’s visa ought to be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa.

Dr Jason Harkess
Member