Kun (Migration) - [2019] AATA 6001

Kun (Migration) [2019] AATA 6001 (4 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss. Zsuzsa Kun
CASE NUMBER:  1822861
HOME AFFAIRS REFERENCE(S):          BCC2018/374578
MEMBER:P. Adami
DATE:4 October 2019
PLACE OF DECISION:  Melbourne, Victoria
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 04 October 2019 at 11:58am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course ceased – gap in enrolment – proposal for PhD studies – applicant’s claimed unique set of skills – family financial hardship – decision under review affirmed
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8202
CASES
Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172
Rana v Minister for Home Affairs [2019] FCA 915
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 30 July 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course, in breach of condition 8202 on her visa, and cancelled the visa on the basis that the applicant had not complied with a condition on her visa. The delegate considered that the factors against cancellation did not outweigh those in favour and cancelled the visa. The applicant provided the Tribunal a copy of the delegate’s decision dated 30 July 2018.
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 applicant is a 44 year old Canadian national who most recently arrived in Australia on 18 June 2014. The applicant was granted a Student (Temporary) (class TU) Student (subclass 500) visa on 19 June 2017.
The applicant appeared before the Tribunal on 21 June 2019 to give evidence and present arguments. The applicant was represented by Mr. Murray McInnis of Counsel who was instructed at the hearing.
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
By way of correspondence dated 2 May 2018, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of her Student Visa. The applicant did not respond to the NOICC.
As set out in the delegate’s decision, the Provider Registration and International Student Management System (PRISMS) indicated that the applicant was not enrolled in a registered course from 28 July 2017. The applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course from 28 July 2017 until the date of cancellation on 30 July 2018. At the hearing Mr. McInnis helpfully conceded that the applicant had not been enrolled in a registered course for this period, and that the discretionary factors in s116 of the Act were the focus of his submissions on behalf of the applicant.
On the evidence before the Tribunal, the applicant was not enrolled in a registered course for the period July 2017 to July 2018. Accordingly, the applicant has not complied with condition 8202(2) and the visa is liable to cancellation under s116(1) of the Act.
Consideration of the discretion to cancel the visa
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’.
Mr. McInnis handed to the Tribunal at the hearing 2 decisions, Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172 and Rana v Minister for Home Affairs [2019] FCA 915. Mr. McInnis further referred the Tribunal to Thamarath (Migration) [2019] AATA 1250 and Ahmed (Migration) [2019] AATA 1333. Mr. McInnis explained to the Tribunal that these decisions were for general assistance to the Tribunal. The Tribunal has read these decisions and accepts they were of value in assisting the Tribunal.
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia.
The delegate in their decision notes that the applicant stated in her application that her intended purpose of stay in Australia was to study at the Higher Education level. The delegate gave this consideration minimal weight in the applicant’s favour because since 28 July 2017, the applicant had not fulfilled the purpose of her stay in Australia. Further, by failing to respond to the NOICC, the delegate stated that they had no evidence or information that she attempted to notify her university or the department about her circumstances. The delegate was critical that the applicant remained onshore and did not pursue her study which was the reason her student visa was granted.
Mr. McInnis on behalf of the applicant provided a background of the applicant’s study history to the Tribunal. Mr McInnis explained that the applicant had completed a Bachelor’s degree in Canada focused on Biochemistry, Psychology and Biology. Thereafter, the applicant completed a Bachelor’s degree in Industrial Design in 2011. The applicant then went on to study and completes a Certificate II in Graphic Art; Certificate IV in Business; Diploma of Graphic Design and Certificate IV in Visual Arts.
The applicant travelled to Australia on 18 June 2014 and has not left Australia since that date. Mr. McInnis explained to the Tribunal that the applicant was seeking to combine her science background with her design studies. It was said that it was this combination of learning that lead the applicant to prepare a 1 page research proposal which was handed to the Tribunal at the hearing titled “‘Orthotic Device to Improve Facial Asymmetry’ A Masters by Research Proposal…” (tf29). Mr McInnis explained to the Tribunal that the applicant can leapfrog the Masters level and enter the PhD stream at Swinburne University of Technology (Swinburne) under project co-ordinator Carolyn Barnes. No letter of acceptance for admission to Swinburne was provided to the Tribunal, nor was any correspondence about consideration being given to the applicant’s research proposal, or the suitability of the applicant’s research proposal given to the Tribunal. The Tribunal considers that little weight can be given to the submission that the applicant can enter the PhD stream at Swinburne when no formal evidence of same was provided.
Mr. McInnis told the Tribunal that the applicant had also completed a number of short courses at various institutions (Swinburne, RMIT and Council for Adult Education) which included:-
Public speaking
Starting and managing a small business
Developing the capacity to get the best out of others
Exporting and Importing
Graphic design typography
Graphic design focus on image and type
Mindfulness drawing
Drawing techniques and design
Painting and Drawing
Photography
Present yourself with confidence
The applicant, in an undated letter headed ‘Written Statement to the AAT’ (tf1) states, “The combination of design and biotechnology is not available in Canada in any of the schools I have researched, this is my chance.” The Tribunal considers that even accepting the applicant’s purpose of travel and stay in Australia is to study at a Master’s or even possibly at a PhD level, no evidence was provided to the Tribunal as to applicant’s compelling need to remain in Australia to study same, notwithstanding the applicant stating there was such a need. The Tribunal considers that the applicant’s bare claim without more does not have the persuasive or cogent force to convince the Tribunal that the applicant is compelled to study in Australia.
The Tribunal would have been greatly assisted with corroborative evidence as to a compelling need to remain in Australian and study at Swinburne which Mr. McInnis stated was the one institution in Australia suitable for the applicant, given the applicant’s particular skills set and the educational opportunities provided by Swinburne.
Given the lack of certainty as to the applicant’s admission into the PhD program at Swinburne, and the lack of corroborative evidence about a compelling need to study at Swinburne, as submitted, the Tribunal gives this factor minimal weight in favour of the applicant’s visa not being cancelled.
The extent of compliance with visa conditions
The delegate considered the applicant’s extent of compliance. The delegate gave minimal weight to this consideration in the applicant’s favour because of the length of the applicant’s non-enrolment; the applicant did not respond to the NOICC; the applicant had not enrolled in an approved course from 28 July 2017 to the 30 July 2018 date of decision; the applicant had less than 8 months before her visa expired and thus had failed to seriously consider her enrolment and visa timeframe; the Department had made the applicant aware at the time of the visa grant that she must be enrolled in a registered course of study for the duration of her visa; and the applicant did not either depart Australia or inform her education prior or the department of her circumstances and chose to remain in breach of her visa conditions.
The Tribunal is unaware of any other conduct breaching other visa conditions, and the Tribunal considers the applicant has only breached condition 8202. The period of non-enrolment is significant, and the Tribunal considers that although the breach of visa conditions is limited to condition 8202, condition 8202 is intended to reinforce the intention of the student visa, so that holders are able to enter and remain in Australia for the purposes of study.
The Tribunal gives this factor minimal weight in favour of the applicant’s visa not being cancelled.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the applicant and any family members
The delegate in their decision states that the applicant did not respond to the NOICC and thereby failed to provide any information to suggest the applicant may be caused undue hardship as a result of the cancellation.
As a result, the delegate concluded that minimal weight should be given to this consideration in favour of the applicant, given the 11 month non-compliance of the condition was substantial and the applicant had 11 months to rectify her enrolment status.
Mr. McInnis submitted that the applicant possessed a unique set of skills which she has not been able to utilise. It was also submitted that the research proposal provided to the Tribunal would allow the applicant to bring together her prior studies’ knowledge.
The applicant’s hardship as submitted to the Tribunal can broadly be described as being limited to an inability to capitalise on and/or utilise her past learning. Given the limited nature of the hardship as explained to the Tribunal, and acknowledging the applicant is not faultless in allowing the non-enrolment to arise, the Tribunal gives this factor minimal weight in favour of the applicant’s visa not being cancelled.
The circumstances in which the ground of cancellation arose- whether there are any extenuating circumstances beyond the visa holder’s control that lead to the grounds existing
The delegate gave this factor minimal weight in the applicant’s favour because no response was received to the NOICC. This resulted in no compelling information being before the delegate to consider the circumstances which lead to the applicant breaching her visa conditions. The delegate noted the length of time of the non-enrolment and the failure of the applicant to defer her studies or obtain a new enrolment, such that the applicant could have safeguarded her visa but instead chose to stay in Australia in noncompliance with her visa conditions.
Mr. McInnis explained to the Tribunal that the applicant’s father, who was in Canada but who now lives in Romania, suffered serious heart issues that resulted in a triple heart bypass, and saw him cease work altogether. As a result of her father ceasing work, the applicant was not able to pay her tuition fees. Mr. McInnis explained that it was the applicant’s father’s ill health that directly resulted in the applicant becoming non-enrolled.
The Tribunal notes that no medical evidence was provided to the Tribunal about the applicant’s father’s ill health. Notwithstanding this, the Tribunal accepts the evidence of the applicant in this regard and accepts that much of the financial strain endured by the applicant was brought about by the applicant’s father’s ill health.
The Tribunal notes that the applicant has provided to the Tribunal at the hearing 3 letters, each dated 17 June 2019, in which the authors state that they have given or would give money or a loan to the total value of $60,000 to the applicant to allow her to continue her studies in Australia. It was not explained why the giving of money or offer to loan money was not secured at the time the applicant was suffering from her financial difficulties arising from her father’s ill health.
The Tribunal heard that when the applicant had work rights attached to her visa, she worked at 3 different employers for approximately 2-3 months each. The Tribunal considers that the applicant was prepared to work to assist her earn an income to help cover her general living expenses, and perhaps part of her tuition cost.
Ultimately however, the Tribunal considers that the applicant did not take the steps to protect her enrolment such as seeking a deferral from study, seeking further time to pay, or seeking advice from the Department about her options given the position she found herself in. The Tribunal considers any one of these steps is a reasonable one that a genuine student ought to have made. The failure to take one of these steps is accentuated by the applicant’s failure to remedy her non-enrolment for approximately 1 year. That is, initially the applicant may have been upset or distressed about her father’s ill health and lack of money being sent to her, however, she did not act sufficiently to preserve her enrolled status during the year in which she was non-enrolled.
As a result, the Tribunal gives this factor significant weight towards the applicant’s visa being cancelled.
Past and present behaviour of the visa holder towards the Department
The delegate noted that despite the applicant failing to respond to the NOICC, she has been cooperative with the department in updating her contact details, and there is no information to suggest that she has provided incorrect information or deliberately misled the department.
There is no evidence before the Tribunal which contradicts the delegate’s conclusion and the Tribunal accepts this. The Tribunal gives this factor minimal weight in the applicant’s favour against the visa being cancelled given the applicant is doing no more than what all applicants should do.
Whether there would be consequential cancellations under s140
The delegate noted that the departmental records did not reveal any secondary applicants on the applicant’s visa. As a result, the delegate gave minimal weight to this consideration in the applicant’s favour.
There is no information before the Tribunal that there are other persons whose visa would or may be cancelled under s140 of the Act. The Tribunal considers this factor is not relevant in determining the applicant’s application.
Whether there are mandatory legal consequences of a cancellation; whether cancellation would result in the visa holder becoming unlawful and being liable to detention and removal; or whether indefinite detention is a possible consequence of cancellation; or whether the visa holder would be prevented from making a valid visa application without the Minister’s intervention
The delegate in their decision record noted that the cancellation of the applicant’s visa will result in the applicant becoming an unlawful non-citizen liable to detention under s189 of the Act, and removal under s198 of the Act. Further, the applicant will have limited options to apply for further visas in Australia.
The delegate also concluded that the applicant 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 Requirement 4013 to be met.
The delegate gave little weight to this consideration in favour of the applicant because these are the intended consequences of the legislation when a visa is cancelled; it reflects the seriousness with which the department takes this type of cancellation ground; and the applicant will be eligible for a bridging visa to lawfully depart Australia.
The Tribunal finds that there are mandatory legal consequences, as set out in the delegate’s decision, which would impact the applicant should she not voluntarily return to her home country. The Tribunal considers that this factor weighs in the applicant’s favour not to cancel her visa. However, given these are the intended consequences when a visa is cancelled, the Tribunal places little weight on this factor towards the visa not being cancelled.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of cancellation
The delegate noted in their decision record that according to department records, the applicant did not have any children associated to her visa whose interests could be affected. Further, the applicant had not provided any information regarding any children. As such, the delegate gave minimal weigh to this consideration in the applicant’s favour.
There is no information before the Tribunal that any international obligations would be breached as a result of visa cancellation. As a result the Tribunal considers this factor not to be relevant in the determining the applicant’s application.
Any other relevant matters
In concluding his submissions, Mr. McInnis submitted that the applicant has not sat on her hand and done nothing, but has approached Swinburne earlier this year regarding her research proposal. Mr. McInnis described the applicant’s situation as a unique case and the applicant as a genuine student. The applicant was described as a genuine student who found herself in financial difficulties, and was an honest and intelligent applicant.
The Tribunal accepts that following the delegate’s decision of 30 July 2018, the applicant has not sat on her hands and done nothing. Further, the Tribunal does not challenge the applicant’s honesty, intelligence or desire to study in Australia. The Tribunal has considered the applicant’s financial difficulties above and hers is not a unique case in that regard. Whilst the applicant has impressive academic credentials, the lack of evidence from Swinburne about the applicant’s research proposal and likelihood of acceptance in either a Masters or PhD level degree weighs heavily against setting aside the decision under review and substituting a decision not to cancel the applicant’s visa.

Having carefully considered all the circumstances of the applicant and all the material before the Tribunal (i.e. the Department file, Tribunal file and that arising in both oral and documentary form at the hearing), and weighing it with reference to the above considerations, as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
P. Adami
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.