Kaur (Migration)

[2018] AATA 3951

Kaur (Migration) [2018] AATA 3951 (21 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Randeep Kaur
Miss Tavneet Randhawa
Mr Gurdip Singh

CASE NUMBER:  1703228

HOME AFFAIRS REFERENCE(S):           BCC2017/319543

MEMBER:Jason Pennell

DATE:21 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 21 August 2018 at 3.19pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – not enrolled in a registered course – deferment of studies – family issues – purpose of further visa – period of non-compliance – limited opportunities for managerial positions – breach of visa due to child birth – intervention order –  decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision dated 22 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 5 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse, Mr Gurdip Singh (‘the husband’). Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5.The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

6.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

7.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.

8.The applicant was married to her husband on 20 February 2000. On 9 June 2015 the applicant gave birth to her and her husband’s daughter, Tavneet Randhawa.

9.The applicant was sent a Notice of Intention to Consider Cancellation (NOICC) on 14 February 2017.[1] The NOICC invited the applicant to respond to the notice in writing within five working days after the applicant is taken to have received the notice. No response was received by the department in response to the NOICC.  

[1]    The NOICC was forwarded to the applicants registered Migration Agent, Ketan Juvekar (MARN 1068746)

10.The applicant’s movement details indicate that she was granted a Vocational Education and Training Sector visa (subclass 572) on 20 May 2009. The applicant arrived in Australia on 27 June 2009. The applicant subsequently applied for and was granted two further Vocational Education and Training Sector visas (subclass 572) on 9 January 20012 and 17 April 2013 respectively. The applicant was granted (Temporary) (class TU) Higher Education Sector (subclass 573) on 4 November 2014.

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

(a)On 13 July 2009 the applicant was enrolled in a Certificate III ESL course.

(b)On 5 October 2009 the applicant enrolled in a Certificate III in Hospitality (Commercial Cookery) and completed the course on 7 October 2011.

(c)On 31 January 2011 the applicant commenced an Advanced Diploma of Ho spitality which she finished on 23 September 2011.

(d)On 23 November 2011 the applicant then commenced a Diploma of Business and completed the course on 7 November 2012.

(e)On 11 March 2013 the applicant then enrolled in an Advanced Diploma of Business and completed the course on 20 May 2013.

(f)On 15 July 2017 the applicant enrolled in an Advanced Diploma of Business. The education provider cancelled the applicant’s enrolment on 29 May 2014 due to the non-payment of fees.

(g)On 28 July 2014 the applicant commenced Certificate IV in Commercial Cookery. The applicant’s enrolment was cancelled on 24 August 2017 due to the applicant’s notification of cessation of studies.  

(h)On 8 September 2014 the applicant enrolled in General Purpose English course. On 13 November 2014 the applicant’s enrolment was cancelled due to her non-commencement of studies.

(i)On 27 October 2014 the applicant enrolled in Bachelor of Business (Management). On 17 June 2015 the applicant enrolment was deferred /suspended on compassionate or compelling circumstances.

(j)On 19 October 2015 the applicant enrolled in Bachelor of Business (Management). On 22 July 2016 the applicant’s enrolment was cancelled due to having left the education provider.

12.Condition 8202(2)(a) states that a visa holder meets the requirements of the visa if they are enrolled in a registered course. The PRISMS indicates that the applicant has not been enrolled in a registered course of study since 22 July 2016. As such she is in breach of condition 8208(a)

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

(a)Applicants undated submissions

(b)Medical report by Dr Melissa Soares dated 14 June 2018.

(c)MCHN Summary dated 12 June 2015

(d)International Student Offer and Acceptance Agreement 26 March 2018

(e)Certificate of Completion of Certificate III in Hospitality (Commercial Cookery) dated 17 September 2012.

(f)Transcript of results Certificate III in Hospitality (Commercial Cookery) dated 20 September 2012.

(g)Emails to the applicant from Cambridge College dated 10 June 2015.

(h)Family Violence Summons against Gurdip Singh dated 26 March 2016.

(i)Interim Intervention Order against Gurdip Singh dated 19 April 2016.

(j)Notice of hearing dated 22 April 2016.

(k)Intervention Order against Gurdip Singh dated 14 June 2016.

(l)Tax Receipts from Psychology 4 Change dated 18 August 2016, 5 July 2016 and 21 July 2016.

(m)Application to revoke Intervention Violence by Gurdip Singh.

(n)Letter from department of Human Services to Gurdip Singh dated 15 August 2016.

(o)Letter from relationships Australia dated 22 August 2016.

(p)Intervention Order against Gurdip Singh dated 3 November 2016.

(q)Completion Letter for Certificate IV in Commercial Cookery from Management Institute of Australia dated 2 October 2016.

(r)Applicants Record of Results Management Institute of Australia dated 2 October 2016.

(s)Application to vary order dated 13 September 2016.

(t)Victorian Institute of Technology Statement of Course Completion dated 10 October 2014.

(u)Victorian Institute of Technology Certificate of Advanced Diploma of Business dated 7 November 2012.

(v)Applicants Victorian Institute of Technology Academic Transcript dated 20 May 2013

(w)Australian National Institute of Business and Technology transcript of results dated 10 January 2013.

(x)Statement of Attainment from Australian National Institute of Business and Technology Advanced Diploma of Hospitality dated 11 December 2012.

(y)Victorian Institute of Technology Certificate of Diploma of Business dated 7 November 2012.

(z)Applicants Victorian Institute of Technology Academic Transcript dated 7 November 2012.

(aa)Letter from Australian National Institute of Business and Technology dated 2 December 2011.

(bb)Indian Marriage Certificate dated 3 December 2008.

(cc)Applicant’s Republic of India Passport No G8476629.

(dd)Gurdip Singh Republic of India Passport No G8559860.

14.At the hearing the Tribunal had in its possession the departmental file No BCC2017/319548 which contained a copy of 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:

·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).

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 22 July 2016. The NOICC was issued on 14 February 2017 and her visa was cancelled on 22 February 2017. On 26 March 2018 the applicant received an offer to enrol in a Bachelor of Tourism and Hospitality Management from Academies Australasia Polytechnic, but was not able to accept the offer. Therefore, on the evidence before the Tribunal, the applicant has not been enrolled in a registered course since 22 July 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 was to remain in Australia and study a commercial cooking and hospitality.

23.The applicant’s movement records indicate that the applicant was initially granted a Vocational Education and Training Sector visa (subclass 572) on 20 May 2009 and subsequently was granted two further Vocational Education and Training Sector visas (subclass 572) on 9 January 20012 and 17 April 2013 respectively. Finally, the applicant was granted (Temporary) (class TU) Higher Education Sector (subclass 573) on 4 November 2014.

24.Relevantly, the PRISMS states that on 27 October 2014 the applicant enrolled in a Bachelor of Business (Management) course and deferred /suspended her enrolment on compassionate or compelling circumstances on 17 June 2015.

25.On 19 October 2015 the applicant enrolled in Bachelor of Business (Management) course and on 22 July 2016 her enrolment was cancelled due to having left the education provider.

26.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. The applicant did not maintain her enrolment in a registered course in accordance with her visa conditions. The applicants evidence to the Tribunal (and her submissions to the department) was that she did breach condition 8202(2)(a) by failing to be enrolled in a course from 22 July 2016. The applicant failed to maintain her enrolment in a registered course until the cancellation of her visa on 22 February 2017, a period of 7 months while remaining in Australia on a visa granted for the purpose of study.

27.The applicant’s evidence was that she obtained a deferment of her course in June 2015 as a result of the birth of her daughter.[2] The applicant claims that as a result of problems with her daughters lungs Doctors had advised her to breast feed the child for 15 months.[3] The applicant did not provided any medical evidence to support this claim. The medical report of Dr Soares dated 14 June 2018 notes that the applicant attended her clinic on ten occasions in 2016 and 2017. It refers to the applicant’s daughter being unsettled and having eczema which was managed at the clinic. The report makes no mention of the applicant having to breast feed her daughter for the period suggested. The report states that during this period the applicant had the care of her daughter which resulted in her missing classes. However, the applicant was not enrolled in a registered course from 22 July 2016 and as such was not studying during this period. 

[2] Email correspondence between the applicant and Cambridge College dated 10 June 2015 confirms the applicant’s deferment of course due to the birth of her daughter.

[3] The applicant’s submissions to department

28.In addition, the applicant states that as a result of an ‘accidental family problem’[4] that occurred in or about June 2016 she had sought a further deferment of her studies in June 2016. That is, as a result of her husband being the subject of a Family Violence Order. However, there is no evidence of her seeking such a deferment or her education provider granting her deferment at that time.

[4] The applicant’s submissions to department.

29.The applicant did not provide any specialist evidence that she was not able to be enrolled in a registered course and to study in accordance with her visa conditions due to her ‘accidental family problem’ or to the fact that she had the care of her daughter. Many people face similar family issues and are still able to maintain their enrolment in a registered course.

30.Therefore, based on the period of time the applicant has not been enrolled in a registered course, it appears that the purpose of her stay in Australia is no longer to study. The applicant’s evidence was that her husband and child’s visas are dependent on her visa and that they have now been living in Australia almost 10 years, since 2009. The applicant’s stated that she and her family have now made a life in Australia. The further student visa’s sought and obtained by the applicant has allowed her and her husband to remain in Australia on what is effectively a permanent basis. It therefore appears that the applicant has prolonged her studies for the purposes of permanent migration rather than for the primary purpose of studying in Australia on a temporary basis. Therefore, even if the applicant had maintained the conditions of her visa the Tribunal does not accept that the applicant is a genuine student. It does not accept that she has a genuine desire to complete her Bachelor of Business (Management) and finds that the purpose of the visa is for migration purposes rather than as a genuine student.

31.As such the Tribunal gives little weight to the applicant’s statement that the purpose of her traveling and staying in Australia was to study. 

Compliance with visa conditions

32.The applicant was not enrolled in a registered course from 22 July 2016. The applicant remained in Australia without having complied with the conditions of her visa, a period of 7 months. The Tribunal considers the period of non- compliance to be significant.

33.The applicant’s visa was cancelled on 22 February 2017.

34.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. 

35.The applicant did not provide a response to the NIOCC. However, her evidence to the Tribunal was that it was her intention to complete her studies so that she could return to India and obtain a better job in the hospitality industry or open her own business. Her evidence was that she in the event her visa was cancelled she would be prevented from completing her studies and therefore would not be able to obtain better employment or pursue her wish to open her own business.    

36.The Tribunal accepts that by not completing a Bachelor of Business (Management) she potentially will be limited in obtaining management positions in the hospitality business industry in the event that she returns to India.  However, the applicant has completed her Certificate III and IV in Commercial Cooking. Both these courses are designed to train students in kitchen management, finance management and team management to enable them to become a qualified cook, commis chef, kitchen manager or owner operator of a hospitality business. Therefore, the Tribunal notes that the applicant has already received the necessary training to achieve her goal of being qualified to find better employment or to establish her own business.

37.The Tribunal notes that in the event that the applicant’s visa is cancelled, under s.48 of the Act she may have limited options available to her if applying for further visa in Australia. In addition she will be subject to Public Interest Criterion 4013 which means that she may not be granted a temporary visa for three years from the date of cancellation.

38.The Tribunal accepts that if the applicant’s visa is cancelled she will suffer some hardship by having to return India without a Bachelor of Business (Management) and as such has given some weight to hardship the applicant may suffer in the event that her visa is cancelled in making its decision.

The circumstances in which the grounds for cancellation arose

39.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 in June 2015 and the fact that an Intervention order was taken out against her husband.

40.The applicant’s evidence was that she deferred her enrolled in Bachelor of Business (Management) due to having to breast feed her new child and as a result of the Intervention order taken out against her husband. The applicant’s evidence was that in March 2016 her husband had become angry while speaking to his family in India. He had been drinking and became quite ‘unruly.’ Her evidence was that her husband had never behaved in such a way before. Nevertheless she called the police and they removed him from the family home and took out an intervention order against him. The matter was not finalised until June 2017.

41.The Tribunal accepts that husband’s intervention order and the resulting court proceeding would have caused the applicant stress and that she may have been preoccupied with the proceeding. However, it was the applicant’s evidence that despite not being threatened by him, it was her action of calling the police that caused him to be removed from the family home and an intervention order being made. The applicant did not provided any independent evidence, including any specialist medical reports, as to how breast feeding her child and her husband’s intervention order had prevented her from continuing her studies.  As such the Tribunal does not accept the applicant’s evidence that she was so preoccupied with her husband’s proceedings that she was not able to comply with the conditions of her visa.

42.Finally, the applicant’s evidence was that she and her husband have been living in Australia almost 10 years, since 2009. Her husband and child’s visas are dependent on her visa. The applicant’s evidence that she and her family have now made a life in Australia and as such it appears that the applicant has extended her studies for the purposes of permanent migration rather than for the primary purpose of studying in Australia on a temporary basis. The further student visa’s sought and obtained by the applicant has allowed her and her husband to remain in Australia on what is effectively a permanent basis. Therefore, even if the applicant was able to maintain the conditions of her visa and commence and complete the Bachelor of Business (Management) as she claims, the Tribunal does not accept that the applicant is a genuine student. It does not accept that she has a genuine desire to complete her Bachelor of Business (Management) and finds that the purpose of the visa is for migration purposes rather than as a genuine student.

43.Therefore, in circumstances where she was aware of his visa conditions and that she had not enrolled been enrolled in a registered course from 22 July 2016 the Tribunal gives no weight to the applicant’s statement that he breached the conditions of the visa as a result of the birth of her child in June 2015 and the fact that an Intervention order was taken out against her husband. 

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

Past and present behaviour of the applicant

45.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.

46.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

47.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. 

48.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. 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.

49.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.

50.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

51.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. 

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

53.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.

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.