Lo (Migration)

[2018] AATA 2397

Lo (Migration) [2018] AATA 2397 (23 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Si Yi Lo

CASE NUMBER:  1703738

HOME AFFAIRS REFERENCE(S):           BCC2017/242572

MEMBER:Michelle East

DATE:23 May 2018

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 23 May 2018 at 1:47pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Requirement to be enrolled in a registered course – Applicant not enrolled in a registered course – Whether the visa should be cancelled – Compelling circumstances – Where cancellation will cause hardship for young children – Decision set aside and substituted

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116(1)(b), 189, 198
Migration Regulations 1994 (Cth), Schedule 4, PIC 4013, Schedule 8, Condition 8202(2)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 February 2017 made by a delegate of the Minister for Immigration and Border Protection 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 delegate cancelled the visa on the basis that there was a ground for cancellation for breach of condition 8202 of the Act, namely that the applicant had not been enrolled in a registered course of study since 5 May 2016. 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. The applicant appeared before the Tribunal on 16 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from her husband.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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?

6. 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).

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

8. Information provided to the Tribunal by the applicant demonstrates that she applied for a withdrawal from her course at TAFE,  as well as a refund of her fees from 1 June 2016.  She stated she was pregnant and needed the ‘assistances and support of my immediate family to look after me’ (sic).  The Delegate in its decision referred to the Provider Registration and International Student Management System (PRISMS) which indicated the applicant had not been enrolled in a registered course of study since 5 May 2016.

9. The applicant also provided a written submission to the Tribunal explaining why she withdrew from her course in May 2016, namely that she was pregnant and needed the support of her family in Malaysia.

10. At hearing, the applicant confirmed she had not been enrolled in a registered course of study since that time.

11. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

12. 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’.

13. On 17 February 2017, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because she was not enrolled in a registered course and therefore failed to comply with condition 8202(2) of her visa.

14. No response to the NOICC was received by the Department.

15. Prior to the hearing the applicant provided a written explanation of her circumstances together with records of her academic achievements until her withdrawal from her course in 2016.

16. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of any breach and any reasons for the breach.

    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

17. The purpose of the student visa is to enable the visa holder to undertake study in Australia.  The applicant has provided evidence of her studies in Australia having completed a Certificate III and IV in Children’s Services, a Diploma in Management and also Early Childhood prior to the cessation of her studies in 2016. 

18. Based on the applicant’s own evidence as well as that referred to in the delegate’s decision, the applicant has not been engaged in studies since May 2016.

19. 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 therefore was not fulfilling the purpose of her travel to and stay in Australia.

20. The Tribunal explored the nature of any compelling reasons for the applicant to remain in Australia at the hearing of this matter.  The applicant explained she has one child with her husband.  She and her husband have been married since January 2016, having met in August 2015.  Her son was born in Malaysia on 6 August 2016.  The applicant advised the Tribunal which also had the benefit of observing her that she is pregnant with a due date in the end of July.  Her husband is an Australian citizen and works as a fly in/fly out worker.  He gave evidence to the Tribunal of his financial obligations including a mortgage.

21. The Tribunal notes there are personal reasons which would go towards being compelling reasons for the applicant to travel to or remain in Australia.  Namely, the applicant has one child at the moment and will shortly be expecting her second. The first child has Australian citizenship by descent.  She appears to be in a stable, married relationship. 

22. The applicant did initially comply with the conditions of her visa by completing several qualifications from when she was first granted a student visa Subclass 572 in 2012.  It was only when she fell pregnant that she advised her course provider that she wished to withdraw from her studies.  She said they advised her she would be subject to cancellation of her student visa and she thought that this would automatically happen.

23. Since having her baby in 2016, she has travelled to Australia twice on a Subclass 601 Visitor Visa and according to her sworn testimony she thought she was complying with all necessary visa conditions.

24. The Tribunal has carefully considered the evidence provided by the applicant and finds there are compelling reasons for her to remain in Australia.  The Tribunal finds this weighs heavily in favour of the applicant.

    The extent of compliance with visa conditions

25. The applicant was granted her visa to undertake study in Australia and since 5 May 2016 has not done so. She has not complied with the primary condition of the visa granted to her.

26. Despite this, until that time, she did comply with her visa, completing several qualifications.  According to the medical evidence and her own oral evidence she withdrew when she was pregnant and thought she had done all that was necessary in order to cancel her enrolment and consequently her visa.

27. The Tribunal gives this some weight in favour of the applicant.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the visa holder and any family members

28. As noted above, the applicant is married to an Australian citizen with one child born in 2016 and a further expected birth in July 2018.  The applicant’s husband gave evidence of his financial obligations together with the physical and emotional toll it would take commuting to see his family offshore during any period the applicant would be unable to re-enter Australia following cancellation of her visa.  The applicant said she would be able to live with her family in Malaysia however it would not be an option for her husband to join her there due to his financial commitment of his mortgage and work responsibilities.

29. The Tribunal is satisfied there would be significant financial, emotional and physical hardship to the applicant and her husband should she be required to return to Malaysia.  The Tribunal also notes the young son the couple share together with their expected second child in July 2018 and the emotional impact it could have on them being separated from their father for an extended period of time.

30. The Tribunal finds this consideration weighs heavily in favour of the applicant.

    The circumstances in which the ground of cancellation arose (for example, whether there were extenuating circumstances beyond the visa holder’s control that led to the ground existing)

31. The applicant has given evidence of her pregnancy and also provided medical evidence indicating she was suffering from nausea and may need to withdraw from some of the classes if they were conducting cooking lessons.

32. In her letter requesting withdrawal and a refund of her fees from her course she said she wanted to return to Malaysia in order to have the support of her family.

33. The applicant at the hearing said she wanted to be near her mother for the birth because her husband was working fly in/fly out at the time with a two week swing.  She said she felt the need to have someone with her.

34. As noted above, the applicant in her evidence said she thought she had done all that was necessary in order to notify the relevant authorities that she would no longer be studying and there was no intention to mislead the Department.

35. The Tribunal is satisfied that the circumstances in which the ground of cancellation arose were to some extent beyond the applicant’s control and finds this weighs heavily in favour of the applicant.

    Past and present conduct of the visa holder towards the Department

36. In an explanation provided by the applicant to the Tribunal of her immigration history she demonstrates that she has held a variety of visas for the purposes of study as well as a visitor visa to spend time in Australia with her child and husband as a family.

37. The applicant in her oral evidence was very forthright in explaining the circumstances leading to the breach.  The Tribunal is satisfied based on the documentary evidence provided together with her oral evidence that she believed she had taken all necessary steps to withdraw from her course which would lead to a consequential cancellation of her visa.  She said her subsequent application for and grant of a Subclass 601 Visitor Visa reflected her belief of that.

38. The Tribunal is satisfied that the applicant has been open and honest in her dealings with the Department and that this weighs in her favour.

    Whether there are mandatory legal consequences such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation or whether there are provisions in the Act which prevent the person from making a valid visa application with the Minister’s intervention

39. The delegate’s decision indicates that if the applicant’s visa were to be cancelled she would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if she does not voluntarily depart Australia. Further, s.48 of the Act means that she will have limited options to apply for further visas in Australia. The applicant may also be subject to Public Interest Criterion 4013 which could result in a 3 year exclusion period.

40. The applicant indicated that if the visa remained cancelled she would return to Malaysia to live with her parents.

41. Of concern to the Tribunal is the 3 year exclusion period to which the applicant could be subject.  The applicant and her husband presented to the Tribunal as a genuine and committed married couple with a strong desire to maintain their family unit with their young son and soon to be expected newborn.  The husband spoke openly of his work commitments together with his financial obligations which would make it impossible for him to relocate to Malaysia with his wife.  He confirmed he is an Australian citizen of Chinese descent.  He said he works on a two week swing and would have to take every possible opportunity to visit his family should they have to go offshore.  He said this would be difficult financially and emotionally and obviously is not ideal with two young children to be separated for such a long period of time.

42. The Tribunal does note that these are the consequences of a visa being cancelled pursuant to the legislation. However, in balancing the potential hardship to the applicant if her visa is cancelled the Tribunal gives it substantial weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

43. There is no evidence before the Tribunal that there would be consequential cancellations in this case.

    Whether any international obligations would be breached as a result of the cancellation

44. There is no evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations in this case.  The Tribunal notes the applicant has one child and a further one expected in July 2018 and has accordingly considered the United Nations Convention on the Rights of the Child (CROC) in respect of Australia’s international obligations.  The Tribunal is satisfied the Convention would not be breached by the cancellation of the visa and as such gives it little weight in considering whether to cancel the visa.

    Any other relevant matters

45. The Tribunal notes the applicant was aware at the time she withdrew from her course that she could be subject to having her student visa cancelled and thought by withdrawing from her course that it would automatically happen.  She then re-entered the country twice on a visitor visa and has spent time with her partner here resulting in a further pregnancy and expected birth. When she was in Australia the second time she was notified her student visa was subject to cancellation.  Based on the applicant’s evidence the Tribunal is satisfied that she would have family support in Malaysia however the Tribunal does not consider this substitutes adequately for the applicant to be together with her husband and children.

46. The Tribunal notes the breach of condition 8202 of her visa and acknowledges the seriousness of breaching that condition.  However, after reviewing the documents and receiving oral evidence from the applicant and her husband and carefully weighing up all the factors to take into account in exercising its discretion, the Tribunal concludes that the applicant’s visa should not be cancelled.

    DECISION

47. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Michelle East
    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.