Kaur (Migration)

[2018] AATA 4176

Kaur (Migration) [2018] AATA 4176 (28 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Sandeep Kaur
Mr Dilbaj Singh
Ms Avleen Kaur

CASE NUMBER:  1702122

HOME AFFAIRS REFERENCE(S):           BCC2016/4223473

MEMBER:Jason Pennell

DATE:28 August 2018

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 28 August 2018 at 4.20pm  

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered Higher Education course – birth of her child – recovery after childbirth – applicant able to continue studies outside Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 116, 140, 189, 198, 348

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 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).

2.The delegate cancelled the visa on the basis that the applicant had not complied with a condition of the visa. 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.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.

4.The applicants appeared before the Tribunal on 6 June 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

6.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.

7.The applicant was born on 4 January 1989 in Batala Gurdaspur India. Her father died in 2011 and her mother continues to reside in Batala. The applicant has a brother and sister. The applicant attended the Baring School (ICSE) until year 12. In 2012 the applicant completed a Diploma in Nursing at the VMS Institute of Nursing & Paramedical Sciences in Gurdaspur, Punjab, India. The applicant then worked as a staff nurse at the Care Well Heart & Super Specialty Hospital in Amritsar, India from July 2012 to December 2013.

8.The applicant’s movement details indicate that she was granted a (Temporary) (class TU) Higher Education Sector (subclass 573) on 14 July 2014. The applicant arrived in Australia on 18 July 2014 and commenced an English language course at Holmesglen Institute completing the course in December 2014.

9.The Provider Registration and International Student Management System (PRISMS) states that the applicant was enrolled in the following registered courses:

(a)General English course (Beginner to Advanced) from 18 July 2014 to 12 December 2014.

(b)Diploma of Nursing (Division 2 nursing) commencing 27 January 2015. On 9 February 2016 the applicant’s enrolment was deferred /suspended. On 30 June 2016 the applicant’s enrolment was cancelled.

10.On 12 January 2017 a Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant. The NOICC invited the applicant to respond to the notice in writing within five days after she was taken to have received the notice. On 16 January 2017 the applicant’s authorised agent requested an extension of time to respond to the NOICC. On 24 January 2016 the applicant provided her response to the notice.

11.On 18 January 2017 the applicant received a confirmation of enrolment letter from Holmesglen Institute confirming her enrolment in Diploma of Nursing commencing 23 January 2017. The PRISMS confirms that the applicant was not enrolled in a registered course of study from 30 June 2016 until 18 January 2017.

12.It therefore appears that the applicant enrolled in a course on 18 January 2017 as a result of having received the Departments NOICC on 12 January 2017. Condition 8202(2)(a) states that a visa holder meets the requirements of the visa if they are enrolled in a registered course. As such the applicant did not meet the requirements of condition 8202(2)(a). As a result the applicant’s visa was cancelled on 1 February 2017.

13.Prior to the hearing the applicant provided the following documentation:

(a)Applicant’s undated submissions to the Tribunal.

(b)Letter from The Northern Hospital confirming the applicant’s attendance.

(c)Holmesglen Institute applicant’s student attendance details dated 4 January 2018.

(d)Holmesglen Institute Letter of Offer dated 18 January 2017.

(e)Holmesglen Institute Confirmation Letter dated 18 January 2017.

(f)Holmesglen Institute statement of results dated 10 January 2017.

(g)Holmesglen Institute training plan.

(h)Westmead Doctors Medical Certificate dated 6 February 2017.

(i)Wallan Medical & Specialist Centre Medical Certificate dated 6 February 2017.

(j)Emails from the applicant to Christine Wharley dated 6 January 2017 and 12 May 2017.

(k)Email from the applicant to Trudy Wheeler dated 4 January 2017.

(l)Email from Susan Barboza to the applicant dated 10 February 2017.

(m)Letter from Holmesglen Institute to the applicant dated 6 January 2017.

(n)Vodafone account dated 24 July 2016.

(o)Holmesglen application form for signed by applicant date 15 July 2016.

(p)Email from Alethea Clarke to the applicant dated 5 July 2016.

(q)Email from the applicant to Holmesglen dated 28 June 2016 & 19 July 2016.

(r)Emails from the applicant to Rachel Gilder dated 19 & 20 January 2016.

(s)Emails from the applicant to Sandra Baboza dated 6 July 2016.

(t)The Northern Hospital invoice dated 2 June 2016.

(u)The Northern Hospital receipt dated 10 March 2016.

(v)The Northern Hospital invoice dated 10 March 2016.

(w)The Northern Hospital receipt dated 16 March 2016.

(x)The Northern Hospital invoice dated 16 March 2016.

(y)Birth Certificate of Avleen Kaur dated 24 June 2016.

(z)Holmesglen letter dated 9 February 2016.

(aa)Victoria Clinic Genetics Services invoice dated 18 November 2015.

(bb)Certificate of Completion of Open Disclosure Course dated 27 August 2015.

(cc)Bloodsafe eLearning Australia Certificate of Completion Clinical Transfusion Practice dated 31 July 2015.

(dd)New Future Training letter of completion Apply First Aid Course dated 27 March 2015.

(ee)Holmesglen record of achievement Certificate IV in EAL for Further study dated 12 December 2015.

(ff)Registration Certificate of General Nursing and Midwifery dated 15 November 2012.

(gg)Diploma of General Nursing and Midwifery dated January 2012.

(hh)Baba Farid University of Health Services dated 22 April 2010.

(ii)Punjab School Education Board certificate dated 23 July 2008.

(jj)Applicants Indian Certificate of Secondary Education, No 7032062.

(kk)Reference from Care Well Heart & Super Specialty Hospital.

14.At the hearing the Tribunal had in its possession the departmental file No BCC2017/319548 which contained a copy of applicant’s movement details, PRISMS, the NOICC and the delegate’s decision dated 22 February 2017.

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

Did the applicant comply with Condition 8202?

16.Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

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

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

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

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

18.Condition 8202(2)(a) states that a visa holder meets the requirements of the visa if the visa holder is enrolled in a registered course. According to PRISMS the applicant was not enrolled in a registered course of study from 30 June 2016. The NOICC was issued on 12 January 2017 and her visa was cancelled on 1 February 2017. On 18 January 2017 the applicant received a confirmation of enrolment in a Diploma of Nursing from Holmesglen Institute. Therefore, on the evidence before the Tribunal, the applicant was not enrolled in a registered course from 30 June 2016 until 18 February 2016.

19.Accordingly, the applicant has not complied with condition 8202(2). The Tribunal notes that enrolment in a course of study in a registered course was at all times, a condition of the applicant's subclass 573 Student (Temporary) (class TU) Higher Education Sector visa.

20.Accordingly the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

Consideration of the discretion to cancel the visa

21.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’

Applicants purpose of traveling and staying in Australia.

22.During the course of the hearing the applicant confirmed that her intended purpose of traveling and staying in Australia was to study General English and then a Diploma of Nursing and Bachelor of Nursing.

23.The PRISMS indicates that the applicant was not enrolled in a registered course from 30 June 2016 until 18 January 2017. The applicant obtained a further enrolment to study a Diploma of Nursing and Bachelor of Nursing on 18 January 2017. It appears that she enrolled in the course on 18 January 2017 as a result of having received the Departments NOICC on 12 January 2017. As such, the Tribunal is concerned about the applicant’s genuine intentions of continuing her studies as it appears that she was no longer in Australia in accordance with the original purpose of her visa and that she did not meet the requirements of condition 8202(2)(a).

24.Nevertheless, the Tribunal is satisfied that the applicant’s intention at the time of the visa application does not constitute a reason not to cancel her visa and as such has given some weight to the applicant’s statement that the purpose of her traveling and staying in Australia was to study.

Compliance with visa conditions

25.The applicant was not enrolled in a registered course from 30 June 2016. The applicant remained in Australia without having complied with the conditions of her visa, until 18 January 2017. The Tribunal considers the period of non-compliance to be significant.

26.The applicant’s visa was cancelled on 1 February 2017.

27.The Tribunal considers that applicant’s non-compliance with his visa conditions is significant and as such gives little weight in favour of the applicant in considering this factor.

The degree of hardship that may be caused to the Applicant. 

28.The applicant’s evidence was that her intention was to complete her studies and gain international experience so that she will be able to return to India to get a good job at a good level as a registered nurse. She said that in the event her visa was cancelled she would be prevented from completing her studies and therefore would suffer hardship by reason of the fact that will not be able to complete her studies.

29.The applicant says that the hardship she faced after her visa was cancelled included that fact that she had lost the right to study in Australia, the fact that her child’s visa had been cancelled and that she was suffering financial hardship due to the fact that she had lost any rights to work in Australia. While the Tribunal recognises that the applicant has suffered hardship as a result of her visa being cancelled including the cancelation of her child’s visa and by not being able to work, it places no weight on these considerations as they are a necessary consequence of the applicant having breach condition 8202(2)(a).

30.The applicant claims that in the future she will suffer hardship by reason of the fact that she will be prevented from getting a better job in India. She states that she will be given a ‘bad name in society’ as her friends and family will ridicule her as a result of not finishing her studies. The applicant did not provide any independent evidence to the Tribunal as to the type of ‘better job’ she could obtain or how she would be given a bad name by her family and friends. 

31.In addition the applicant says that her child (less than 2 years) old will face problems in her future by suffering from a social stigma of being unlucky. Her family and friends in India believe that her daughter should have been a boy and that by having a daughter has been unlucky for the applicant. The applicant did not provide any independent evidence to the Tribunal as to how her daughter would suffer from such a social stigma as claimed.

32.Finally, the applicant says that she will not be able gain the practical experience in the Australian Hospital to take back to India to improve her chances of obtaining better employment. The applicant did not provide any independent evidence as to the type of practical experience she required and how it would improve her chances of employment in India. 

33.Nevertheless, the Tribunal accepts that by not completing a Diploma of Nursing and/or a Bachelor of Nursing the applicant and her family will suffer some hardship in the event that she returns to India. However, in circumstances where the applicant was aware of the visa conditions, the Tribunal places little weight on the applicant’s statements in relation to the hardship she says she and her family will suffer in the future. Having known the conditions of her visa the applicant would have reasonably known that by breaching the conditions of her visa it would impact on her eligibility to continue as a student in Australia. In addition, there is no evidence as to why the applicant would not be able to continue her studies either in India or elsewhere.  As such, the Tribunal gives little weight in favour of the applicant in considering this factor.

34.The Tribunal notes that the applicant will be eligible to apply for a Bridging visa E which may allow her to remain in Australia in order to finalise any outstanding matters.

35.Nevertheless if the applicant’s visa is cancelled she will become an unlawful non-citizen and may be liable for detention under s.189 and removal under s.198 of the Migration Act 1958 if she does not depart Australia voluntarily.

The circumstances in which the grounds for cancellation arose

36.The applicant confirmed to the Tribunal that she was aware of the visa conditions. He claims that she breached the conditions of the visa as a result of the birth of her child by caesarean section and a subsequent infection that delayed her recovery.

37.The applicant’s evidence was that as a result of becoming pregnant and contracting a vaginal thrush infection she obtained a deferment of her course in January 2016.  A letter from Holmesglen Institute to the applicant dated 6 February 216 confirms that the applicant applied to suspend her studies on 29 January 2016. It states that the applicant’s enrolment in the course was suspended from 27 January 2016 to 30 June 2016 on compelling and compassionate grounds and confirms that the Department was notified accordingly. The letter confirms that the applicant intended to recommence her studies in semester 2 of 2016 and advises that upon receipt of a new application form and payment of tuition fees, new confirmation documents would be issued to the applicant. 

38.The applicant’s evidence was that she gave birth to her daughter on 30 May 2016. She stated that due to the fact that her daughter was born by emergency caesarean and that she had subsequently suffered from an infection she was not in any condition to continue her studies in July 2016. As a result she claims that prior to the birth of her child she was mentally unfit to re commence her studies.

39.As a result the applicant’s evidence was that she made a further application to defer her course on 20 May 2016. By an email dated 5 July 2016 Aletha Clarke of Holmesglen Institute advised the applicant that due to the fact that she had already deferred the course she was not validly enrolled in a registered course at that time. The applicant was advised Ms Clarke that it was her responsibility to contact the Department and advise them that she was not able to commence her studies in July 2016. 

40.The applicant’s evidence was that, despite being informed by Ms Clarke to do so, she did not make any application to enrol in a registered course commencing in July 2016. In addition, while her evidence was that she had made attempts to contact the Department by telephone she said that she was not able to wait on the telephone given her condition and the fact that she had to look after her baby.  

41.The applicant did not provide any specialist medical report in relation to her medical condition in July 2016. Rather, the applicant provided the Tribunal with a medical report dated 6 February 2017 from a General Practitioner Dr Surendran. The report confirmed that the applicant had a caesarean section and suffered from a wound infection for which ‘she attended for care’ on 4 July 2016. The report states that her recovery was delayed and that she could not attend usual studies from July 2016. It notes that she breast fed her child from July 2016 and couldn’t attend study from July to December 2016. However, the report fails to detail the nature of her wound, the type of treatment she received or how her wound or treatment would prevent her from commencing any studies from July 2016.

42.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 would be difficult, the medical report provides no medical reason as to why she was prevented from continuing her studies from July to December 2016 due to the fact that she breast fed her child. 

43.Finally, the Tribunal notes that despite the medical report stating that she was not able to attend her studies from July to December 2016, she was not enrolled in a registered course during that period. As a result, the Tribunal places little weight on the medical report of Dr Surendran.

44.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 no 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. While the Tribunal accepts that the applicant suffered from thrush 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.

45.Accordingly, the Tribunal places no weight on this consideration in the applicants favour.

Past and present behaviour of the applicant

46.The applicant has been cooperative and courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight is given to him in consideration of this factor.

Persons in Australia whose visa would be cancelled under s.140.

47.The following people whose visas will be cancelled under s.140 of the Migration Act 1958 (‘the Act”) as a result of the applicants visa being cancelled are:

(a)Miss Tavneet Randhawa

(b)Mr Gurdip Singh

48.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, the cancellation of the applicant’s visa would mean the consequential cancellation of her husband and child’s visa. 

49.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.  Accordingly the Tribunal is satisfied that the potential consequences of cancellation of the applicant’s husband and he child’s visa will not provide significant reasons not to cancel the visa.

50.Accordingly, the Tribunal places no weight on this consideration in the applicants favour.

Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled.

51.The circumstances of this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision. 

Other relevant factors

52.Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case. 

53.Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

54.The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa.

55.The Tribunal has no jurisdiction with respect to the other applicants.

Jason Pennell
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.