Kaur (Migration)

[2018] AATA 2628

Kaur (Migration) [2018] AATA 2628 (6 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Baldeep Kaur

CASE NUMBER:  1702655

DIBP REFERENCE(S):  BCC2017/129949

MEMBER:Christine Kannis

DATE:6 July 2018

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 06 July 2018 at 7:17am

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) visa – Registered course enrolment – Poor attendance record – Ceased study for personal reasons – No extenuating circumstances – Decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140, 189

Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

CASES

Liu v MIMIA[2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 February 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

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

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal 23 April 2018 to give evidence and present arguments.  

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. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevant to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

7. On 20 January 2014 the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

8. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since 26 April 2016. Her enrolment in a Bachelor of Business (Management) was cancelled on 26 April 2016. The reason for cancellation was stated to be non-commencement of studies.

9. Having regard to the information in the PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 26 April 2016. The Tribunal finds that she breached condition8202(2)(a) of her visa.

10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

11. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

12. On  27 January 2017 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because she had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of her visa. 

13. On 4 February 2017 the applicant responded to the NOICC and provided the following information:

    ·She came to Australia to achieve her dream of having a great career in Hospitality. She was admitted to Cambridge College and enrolled in Certificates III and IV in Commercial Cookery and a Diploma in Hospitality leading to a Bachelor degree.

    ·She studied the Certificate III in Commercial Cookery for one year and her attendance was 100% until April 2016 and she passed with good grades.

    ·After completing the Certificate III in Commercial Cookery her life started to unravel.

    ·In June 2016 she terminated a pregnancy.

    ·Following the termination she suffered from depression and guilt in relation to the termination.

    ·She wanted to go back to class after the termination but she could not face her classmates straight after and she had missed so many classes that she did not how to go back.

    ·Prior to the termination she was always under stress due to her past. She had a car accident.

    ·In the Indian culture it would have been shameful to be unmarried and pregnant.

14. The applicant provided a letter from Dr KH Chan dated 3 February 2017. Dr Chan advised that the applicant attended surgery on 2 June 2016 for a surgical termination of pregnancy.

15. At the commencement of the hearing the applicant provided the Tribunal with a written submission. The information provided in the written submission was not materially different from the information provided in the response to the NOICC save for the saying that the applicant had not one but two terminations in 2016.

16. The applicant told the Tribunal that she made a mistake in not discussing her options with anyone when she discovered she was pregnant. She said she couldn’t talk to anyone about her pregnancies and she did not know what to do and was stressed out.

17. The applicant said she could not discuss her situation with her friends because they were Indian and they would have been judgemental. She could not discuss her situation with her education provider or a migration agent because it would have been very uncomfortable for her. She did not tell her family because they would have been disappointed in her.

18. The applicant said prior to the first termination she discussed her situation with her doctor and her doctor advised her to return home to her family. She said she could not have faced her family.

19. The applicant said the termination decisions were big things for her. The Tribunal asked her the timing of the terminations to which she said the first has been performed in March/ April 2016 and the second in October 2016. The Tribunal noted the letter from Dr Chan advised that a termination had been performed on 2 June 2016.

20. The PRISMS indicates that the applicant has not successfully completed a Certificate III in Commercial Cookery and that her enrolment in the course has been cancelled on at least two occasions. The Tribunal noted that the most recent CoE for the Certificate III in Commercial Cookery shows the course ended on 31 January 2016 and that her enrolment in this course was cancelled.

21. The Tribunal referred the applicant to the PRISMS Information that she has not successfully completed a Certificate III in Commercial Cookery and to her response to the NOICC in which she said she had passed the course with good grades.

22. The applicant insisted she had completed the Certificate III in Commercial Cookery however because she had not paid all her outstanding fees for the course the education provider had not issued her a certificate showing she had completed the course.

23. The Tribunal could not be satisfied that the applicant completed the Certificate III in Commercial Cookery however whether she did so or not is not a decisive factor in the issue currently before the Tribunal.

24. The PRISMS shows that the applicant has had her enrolment in various courses cancelled in 2014, 2015 and 2016 and that since arriving in Australia she has completed only one course, namely a Diploma of Management, and that was in 2015. The applicant confirmed that she completed this course in 2015.

25. The Tribunal put to the applicant that she would have known she was in breach of a condition of her visa following cancellation of her enrolment. She said she was aware that her enrolment had been cancelled because she was not attending college and she knew her visa would be cancelled. She said she made a mistake in not talking to anyone about her situation but she did not know who to ask about her options.

26. There was nothing before the Tribunal to indicate that the applicant sought medical assistance for her depression or that she discussed deferral of her studies on compassionate grounds with her education provider. The applicant’s evidence was that she did not discuss her situation with anyone before or after the terminations because of the shame associated with the pregnancies.

27. The applicant told the Tribunal that after her enrolment was cancelled she remained in Australia and stayed at home most of the time. She was not permitted to work and her family have been financially supporting her. Her family believe she has not been studying because of health issues (stomach related) that she suffered when she was in India.

28. Regarding the potential hardship which would result from the cancellation of her visa the applicant said she if she returns to India she will have no explanation for why her visa was cancelled. She cannot tell her family the reason she ceased studying. If she returns to India it will be hard for her and it will be hard for her family and they will be sad. She wants to make her parents proud of her and she wants to look good in their eyes. She also wants to achieve her dreams of working in Hospitality and to be independent.

    Conclusion

29. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of the breach and reasons for the breach as set out in the response to the NOICC and in the applicant’s oral evidence at the hearing.

30. The purpose of the student visa is to enable the visa holder to undertake study in Australia. The applicant has not been enrolled in a registered course since 26 April 2016 and nine months elapsed from that date until the NOICC was issued. The applicant said cancellation of her enrolment was due to her ceasing to attend her course because she did not have anyone to talk to about her situation when she first fell pregnant in 2016. She felt ashamed because she was unmarried and pregnant.

31. Based on the evidence, the Tribunal finds the applicant’s breach of condition 8202 of her visa to be significant because she was not engaging in study for which her visa was granted and was not fulfilling the purpose of her travel to and stay in Australia.

32. In relation to the applicant’s evidence that it would have been uncomfortable for her discuss her situation with anyone including her education provider or a migration agent, the Tribunal gives this minimal weight in her favour not to cancel her visa because the responsibility sits with the applicant to ensure she meets the requirements of the visa. If she had ceased studying for personal reasons then it was open to her to seek a deferral from her education provider.

33. The evidence did not indicate that the ground for cancellation arose due to extenuating circumstances beyond the applicant’s control.

34. The Tribunal acknowledges that the cancellation of the applicant’s visa will be disappointing to the applicant and to her family.  However, the Tribunal is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

35. The Tribunal has no evidence before it that the applicant’s past and present behaviour towards the Department has been untruthful or unco-operative.  It considers this is a consideration that is in her favour and it has taken this into account.

36. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice pertaining to her immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion.

37. There are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

38. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

39. The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

40. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

    Christine Kannis
    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.