Lacaze (Migration)

[2018] AATA 3947

Lacaze (Migration) [2018] AATA 3947 (24 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Marie Anne May Chantal Mirella Lacaze
Mr GERVAIS LACAZE
Mr GERVAIS LUDOVIC LACAZE
Ms MARIE JENNIFER DEBORAH LACAZE

CASE NUMBER:  1701401

HOME AFFAIRS REFERENCE(S):           BCC2016/4113530

MEMBER:Jason Pennell

DATE:24 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 24 August 2018 at 11.20am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – course deferral –enrolled in lower level course – non-enrolment for significant period – enrolment after NOICC issued – inability to complete degree – medical condition – diagnosis of condition – children’s education – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140
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 19 January 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 21 June 2018 to give evidence and present arguments.  

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’s movement details indicate that she was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) on 8 May 2008 and arrived in Australia on 13 May 2008. On 31 August 2012 and 6 October 2014 the applicant was granted a further class TU visa.

9.The applicant is married to Mr Gervais Lacaze (‘the second applicant’) and has two children being her son, Mr Gervais Ludvoic Lacaze (‘the third applicant’) and her daughter Ms Marie Jennifer Deborah Lacaze (‘the fourth applicant’). The third applicant is 22 years old and studying building and constriction. The fourth applicant is 14 years old and a student at the Heatherton Christian College. Prior to travelling to Australia that applicant was employed as a secretary and as a sales representative. She then was engaged in owning and operating a dress making business.      

10.The applicant’s evidence and the Provider Registration and International Student Management System (PRISMS) records that she initially enrolled in a Diploma of Hairdressing Salon Management which she ceased studying on 8 December 2008. The applicant then enrolled in an English course commencing 30 March 2009 which she completed on 19 June 2009. The applicant enrolled in a Bachelor of Nursing at the Australian Catholic University commencing on 20 July 2009. The academic transcript issued 1 September 2014 shows that the applicant failed subjects in 2009 and 2010 and did not undertake the full course load from July 2010 until December 2012. On 8 July 2013 the applicant commenced a Diploma of Nursing which she completed in 2015.

11.The applicant claims that upon completing the Diploma course there was no immediate place for her in the Bachelor course in the second half of 2015 or the first half of 2016. As a result, she completed a short course in English from July 2015 until June 2016.

12.The applicant claims that she was not able to continue with her studies from July 2016 as a result of being unwell. The applicant provided copies of Medical reports by Dr Christine Pham in support of her claim that she was not able to study due to her medical condition during the second semester in 2016.      

13.On 4 January 2017, the Department sent  a Notice of Intention to Consider Cancellation (NOICC) to the applicant and invited her to respond in writing. On 11 January 2017 the applicant requested an extension to respond to the NOICC and was provided a 5 day extension. By an email dated 19 January 2017 the applicant responded to the NOICC. In her response she did not dispute the grounds for cancellation. On 19 January 2017 the delegate cancelled the applicant’s visa.

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

(a)Report of Dr Christine Pham of St James Avenue Medical Centre.

(b)Applicant’s submissions dated 20 June 2018.

(c)Applicant’s Statement signed by the applicant.

(d)Certificate of Diploma of Nursing (Enrolled-Division 2 Nursing) dated October 2015.

(e)Certificate of Registration Nursing and Midwifery Board of Australia for period 1 June 2016 to 31 May 2017

(f)Australia Catholic University Academic Transcript dated 1 September 2014.

(g)Letter of proficiency course No 22258 VIC Certificate in EAL dated 11 December 2015.

(h)Report Dr Anthony Chan, Thyroid Ultrasound, dated 19 November 2015.

(i)Report Dr Anthony Chan, Bone Densitometry, dated 19 November 2015.

(j)Medical reports by Dr Christine Pham dated 22 September 2016, 10 January 2017, 19 February 2018,26 May 2018 and 2 July 2018,.

(k)Letter from Kingston Church dated 28 April 2017.

(l)Overseas Student Confirmation of Enrolment (CoE) email from Australian Catholic University dated 14 January 2017.

15.At the hearing the Tribunal had in its possession the departmental file No BCC2016/4113530 which contained a copy of PRISMS, the NOICC and the delegate’s decision dated 19 January 2017.

16.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?

17.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).

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 18 June 2016 until 18 January 2017. The applicant enrolled in a course on 18 January 2017, after the NOICC was issued on 4 January 2017. Therefore on the evidence before the Tribunal, the applicant was not enrolled in a registered course.

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 Procedural Instruction ‘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 Diploma of Nursing and Bachelor of Nursing.

23.The applicants movement records indicate that the applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) on 8 May 2008 and arrived in Australia on 13 May 2008. The applicant was granted further student visas on 31 August 2012 and 6 October 2014.

24.The PRISMS records that the applicant was initially enrolled in a Diploma of Hairdressing Salon Management when she arrived in Australia in May 2008.  The applicant then undertook an English course from 30 March 2009 to 19 June 2009. On 20 July 2009 she then commenced a Bachelor of Nursing at the Australian Catholic University on 20 July 2009. The applicant’s academic transcript from the Australian Catholic University shows that she failed subjects in 2009 and 2010 and did not undertake the full course load in 2010 to 2012. The applicant did not complete the Bachelor of Nursing course but rather deferred the course and commenced a Diploma of Nursing course on 8 July 2013, which she completed in July 2015. The applicant is a registered Division 2 Nurse and holds a current a nursing practising certificate.  

25.The applicant’s evidence was that she was found it hard to ‘cope with certain subjects’ in the Bachelor of Nursing course.’ As a result, on the advice of her course coordinator, the applicant transferred to the Diploma of Nursing with the aim of completing the Bachelor of Nursing once she had completed the Diploma course. 

26.The applicant claims that upon completing the Diploma course there was no immediate place for her in the Bachelor course in the second half of 2015 or the first half of 2016. As a result, she completed a short course in English from 2015 until mid-2016.

27.The applicant claims that in 2016 she became unwell to study during the second semester of July 2016 and relies on the medical reports by Dr Pham.

28.The applicant enrolled in a course on 18 January 2017, after the NOICC was issued on 4 January 2017. While the applicant’s enrolment in the course goes some way to indicating that she may want to study, it occurred at a time when the applicant's visa was under review and finally cancelled on 19 January 2017. As such, the Tribunal is concerned about the applicant’s genuine intentions of continuing her studies in Australia. Nevertheless the Tribunal 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

29.The applicant was not enrolled in a registered course from 18 June2016 until 18 January 2017. The applicant remained in Australia without having complied with the conditions of her visa, a period of 7 months.

30.The applicant obtained further enrolment to study a Diploma of Leadership and Management on 18 January 2017. It appears that the applicant did not register in a course of study of her own accord as the enrolment was obtained after the date of the NOICC, being 4 January 2017. The applicant’s visa was cancelled on 19 January 2017.

31.The Tribunal does not accept that the applicant’s enrolment in a registered course on 18 January 2017 outweighs the significant breach of 7 months of non-enrolment. The Tribunal therefore gives minimal weight in the applicant’s favour.

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

32.The applicant’s evidence was that she would suffer hardship if her visa was cancelled by reason of the fact that she would not be  able to complete a Bachelor of Nursing and therefore be prevented from obtaining the necessary qualifications to become a registered nurse in Mauritius. The applicants evidence was that she wanted to work in a care facility that required her to be a registered nurse.

33.While the Tribunal accepts that by not completing a Bachelor of Nursing the applicant’s opportunities as a registered Nurse will be limited. However, the applicant has completed a Diploma of Nursing at the Australia Catholic University. This allows her to register with the the Nursing and Midwifery Board of Australia as an enrolled nurse working under the supervision of a Registered Nurse. There was no evidence to suggest that the applicant would be prevented from obtaining registration and working as a nurse in Mauritius on a similar basis.

34.In addition the applicant’s evidence was that her son is 22 years old and studying building and constriction and her daughter is 14 years old and a student at the Heatherton Christian College. Her evidence was that in the event that her visa is cancelled they will also suffer as a result of having their visa cancelled and returning to Mauritius and not completing their education in Australia. However, the purpose of the applicant’s visa was to allow her to study in Australia on a temporary basis for the purpose of her studies and not for the benefit of her family members.

35.While the Tribunal acknowledges that the applicant and her family will suffer some hardship in the event her visa is cancelled, it places little weight in favour of the applicant in circumstances where she was aware of her visa conditions. As such she would have been reasonably aware that by breaching her visa conditions it would impact her eligibility to continue to hold the visa and therefore would impact her family and her future. The Tribunal does not place any weigh on the applicants claim that her employment opportunities would be limited if she was not able to complete the Bachelors course. There is no indication that she cannot complete her studies offshore In any event to place she has already achieved a qualification to be able to gain employment as a nurse in her home country.

36.The Tribunal notes that she will be eligible to apply for a bridging visa E which may allow her to remain in Australia so that she can finalise any outstanding matters.

37.The Tribunal notes that in the event that the applicant’s visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under 198 of Migration Act, if she does not voluntarily depart Australia. Further, 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 Mauritius without a Bachelors of Nursing degree and as such has given some weight to hardship the applicant will suffer in the event 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. She claims that she breached the conditions of the visa by reason of the fact that she was unwell and unable to study for the second semester of 2016.  

40.The applicant conceded that she was not enrolled in a registered course for July 2016 until February 2017. The applicant also accepted that she has not made any attempt to enrol in a registered course for the same period. The applicant claims that she had been unable to secure enrolment in the Bachelor of Nursing Course.

41.The applicants movement records indicate that the applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) on 8 May 2008 and arrived in Australia on 13 May 2008. The applicant was granted further student visas on 31 August 2012 and 6 October 2014.

42.The PRISMS displays that the applicant was initially enrolled in a Diploma of Hairdressing Salon Management when she arrived in Australia in May 2008.  The applicant then undertook an English course from 30 March 2009 to 19 June 2009. On 20 July 2009 she then commenced a Bachelor of Nursing at the Australian Catholic University on 20 July 2009. The applicant’s academic transcript from the Australian Catholic University shows that she failed subjects in 2009 and 2010 and did not undertake the full course load in 2010 to 2012. The applicant did not complete the Bachelor of Nursing course but rather deferred the course and commenced a Diploma of Nursing course on 8 July 2013, which she completed in July 2015. The applicant is a registered Division 2 Nurse and holds a current a nursing practising certificate.  

43.The applicant’s evidence was that she was found it hard to ‘cope with certain subjects’ in the Bachelor of Nursing course.’ As a result, on the advice of her course coordinator, the applicant transferred to the Diploma of Nursing with the aim of completing the Degree course at a later time. 

44.The applicant claims that upon completing the Diploma course there was no immediate place for her in the Bachelor course in the second half of 2015 or the first half of 2016. As a result, she completed a short course in English from 2015 until mid-2016. The applicant did not provide the Tribunal with any documentation evidencing her application to enrol in the Bachelor course in 2015 and 2016.  

45.By an email dated 29 September 2016 the Australia Catholic University (ACU) offered the applicant a provisional offer to enrol in the Bachelor course subject to her completing a GTE questionnaire. However, the applicant failed to complete the GTE questionnaire. By an email dated 10 January 2017, after she had received the NOICC the applicant advised the ACU that she had not completed the GTE questionnaire because she had been unwell and undergoing treatment for her thyroid condition. She requested that it reconsider her application. 

46.The applicant has not provided any specialist medical reports as to her medical condition but rather, has provided the Tribunal with medical reports from her general practitioner, Dr Christine Pham. Dr Pham’s reports are expressed in broad terms and do not provide an expert opinion as to her condition or her ability to comply with the conditions of her visa.

47.The medial report of Dr Christine Pham dated 22 September 2016 refers to the applicant suffering from ‘hypertension, thyroid problem and other medical issues.’ The report fails not identify any examination or method by which she had made her diagnosis or to explain the applicant’s ‘other medical issue.’ In addition, she fails to identify any treatment the applicant is said to be receiving. Finally, the report states that the applicant ‘is not fit to study this semester’ but fails to explain or detail how any of her alleged medical conditions prevented her from studying or from securing her  enrolment in a registered course. The medical report dated 10 January 2017 is equally as vague in relation to the applicant’s diagnosis and treatment and fails to state how her medical condition prevented the applicant from studying or completing any correspondence to secure her enrolment in a registered course.

48.Finally, from Dr Pham’s medical report provided under over of letter dated 2 July 2018 states that the applicant has been suffering anxiety and depression since 2015. It suggests that her energy level and concentration had prevented her from studying in 2016/2017. From the report, it appears that the applicant was prescribed Atacand and Valium in or around 18 June 2016 until 18 January 2017.  Once again Dr Phams diagnosis of the applicant is made without identifying any method by which she has diagnosed the applicant’s condition and without detailing how the applicant is unable to continue her course or secure her enrolment in a registered course in 2016/2017. This is particularly relevant given the applicant was able to complete her English course in 2015 and 2016 at a time when she is said to have suffered anxiety and depression. In addition, despite Dr Pham diagnosis the applicant was able to secure her enrolment in a registered course after the NOICC was issued on 4 January 2017 and says that she was able to commence her studies without any evidence of change in her diagnosed medical condition.

49.In addition, while Dr Pham’s report dated 19 February 2018 states that the applicant suffered from a thyroid nodule and cyst, it does not identify any treatment she is receiving and fails to explain how the applicant’s medical condition prevented her from studying or securing her enrolment in a registered course with any education provider from July 2016 to ensure that she complied with her visa conditions. 

50.Therefore, while the Tribunal accepts that the applicant did suffer from a thyroid nodule and cyst, it does not accept that her alleged illness prevented her from studying from 2016 or at least securing her enrolment in a registered course.    

51.Therefore, in circumstances where she was aware of his visa conditions and that she had not enrolled in a registered course until after receiving the NOICC the Tribunal finds that the grounds on which the cancellation arose provides weight in favour of cancelling the applicant’s visa.

Past and present behaviour of the applicant

52.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 her in consideration of this factor.

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

53.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)Lacaze Gervais (D.O.B 03/09/1961)

(b)Lacaze Gervais ludovic (D.O.B. 04/03/1996)

(c)Lacaze, Marie Jennifer Deborah (D.O.B. 24/08/2003)

54.In this case the applicant partner and children were granted their current student visa 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 partner and children’s visa. 

55.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 partner and her children’s visa will not provide significant reasons not to cancel the visa.

56.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.

57.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

58.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. 

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

60.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 applicant.

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.