Mare (Migration)

[2020] AATA 3701

Mare (Migration) [2020] AATA 3701 (9 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Agnes Mare

CASE NUMBER:  1907906

HOME AFFAIRS REFERENCE(S):          BCC2019/44730

MEMBER:David McCulloch

DATE:9 July 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 09 July 2020 at 8:43am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – pregnancy and relationship difficulties with partner – deferral of studies not confirmed – one unit remaining to be completed – re-enrolment cancelled for unsatisfactory attendance – conditional enrolment with another education provider – genuine intention to progress with studies – best interests of Australian citizen children –  decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a national of Zimbabwe, born on [Date 1]. The visa that has been cancelled was granted on 3 November 2016 for a stay period until 26 March 2019. That visa was subject to condition 8202.

2. On 5 March 2019, the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of her visa, as she ceased to be enrolled in a registered course from 23 March 2018. The applicant provided a written response to the NOICC on 11 March 2019.  On 26 March 2019, the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of her visa. The applicant seeks review of the delegate’s decision.

3. The delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course. The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.

4. The Tribunal exercised its discretion to hold the hearings by telephone. Two hearings were held during the COVID-19 pandemic on 29 May 2020 and 3 July 2020. The Tribunal determined it was reasonable to hold hearings by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

5. At some points in the hearing, the Tribunal had difficulty understanding the applicant by telephone. When this occurred, the Tribunal asked the applicant to repeat what she had been saying, which she did. The Tribunal was then able to understand what the applicant was indicating to the Tribunal. Considering the hearing overall, the Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. 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

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. This is an application for review of a decision dated 13 August 2019 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).

   Did the applicant comply with condition 8202?

8. 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 full time registered course: 8202(2)(a)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

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

10. The applicant provided a copy of the delegate’s decision to the Tribunal which indicates that she has not been enrolled in a registered course of study since 23 March 2018. However, as it appears from the record contained in the Provider Registration and International Student Management System (PRISMS), the applicant in fact ceased to be enrolled in a registered course when her second enrolment in a Diploma of Nursing finished on 16 February 2018. It is not clear to the Tribunal how the delegate determined the date of 23 March 2018 being the date on which the applicant ceased to be enrolled.

11. The applicant agreed in the hearing that she had ceased to be enrolled in a registered course after the enrolment in the Diploma of Nursing ended on 16 February 2018 until she re‑enrolled in the Diploma of Nursing, and this Confirmation of Enrolment was created on 26 March 2019.

12. There is nothing before the Tribunal to suggest that the applicant was a holder of a Subclass 560 or 571 (School Sector) visa as a secondary exchange student, thus the applicant’s obligation under condition 8202(2) is to be enrolled in a registered course.

13. 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

14. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

15. 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). These matters include: the purpose of the visa holder’s travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non‑refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non‑citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non-refoulement obligations; and any other relevant matters.

16. The applicant provided the following response to the NOICC dated 11 March 2019 (not corrected for spelling or grammar):

    Thank you for giving me the opportunity to respond before a decision is made to cancel my visa. First I would like to assure you that I do take education seriously and I have honest intentions. This can be proven as well when I was with QIBT I discovered I was not able to study there as it was hard for me I did go to Tafe and was honest about the situation. I went home reapplied and came back the only reason all this happened at this point in time was due to the emotional stress I went through when I was pregnant and I can assure you this will not happen again. I am now a mother of one and want to gain education for the betterment of my son and my life and also to be a role model to him. I love to learn and always want to better my life through education. I have been studying with tafe for my Diploma of nursing and I thought I had graduated as we had a graduation before we where given our last results for one course. I then reached out to my tafe in January upon realising that I have not received my diploma in the mail. That is when I was told I didn't make it in one course I then asked to resubmit it and sent an email to one of the advisors. I then discovered that I was pregnant at the same time and communicated with the international students advisor about the challenges I was facing as the father of my child was denying the pregnancy and I a:m by myself here. She asked me to try and solve this problem. I then took a break and was in contact with the student advisor till I gave birth. I was then told that she is no longer with tafe and that they had no idea I was going through this. We came with a plan for me to re-enrol in a course I failed so I can finish as it is important for me to do this course because western Sydney University need me to have completed my diploma for me to start with them. I am however starting this course on the 1st of April till the first of July then I will go to Western Sydney University to do my Bachelor. I am waiting on all the documents to be send to me I ask to be given up to Friday for me to send the documents from Tafe.

17. It is apparent from the evidence that the applicant ceased to be enrolled in a registered course on 17 February 2018 until the visa was cancelled on 26 March 2019. On 26 March 2019, the applicant obtained a re-enrolment in the Diploma of Nursing, the enrolment which had previously been cancelled. This course duration was from 1 April 2019 until 5 July 2019.

18. The applicant has claimed in response to the NOICC and in the first Tribunal hearing that there are extenuating circumstances beyond her control explaining her ceasing to be enrolled in a registered course for more than a year. The primary reason claimed by the applicant is an upheaval in her life and mental distress caused by her pregnancy in the second half of 2017 and relationship difficulties with the child’s father. The applicant indicated in the hearing, and the Tribunal accepts, that she gave birth on 7 July 2018.

19. The applicant elaborated in the first hearing that her first enrolment in the Diploma of Nursing, concluding on 8 December 2017, resulted in her believing that she had finished and passed necessary requirements for this course. The applicant indicated that she received her graduation certificate from TAFE Southport, the education provider. However, she was subsequently told that it transpired that she had not passed one of the units that she had undertaken in the second half of 2017, being Research and Applied Evidence.

20. As a result, the applicant applied for and was granted an extension of the Confirmation of Enrolment in the Diploma of Nursing from 9 December 2017 until 16 February 2018. The applicant indicated that during this period, her life was in upheaval due to her pregnancy and she could not cope with or complete her final unit during this period. The applicant indicated that the child’s father initially denied he was the father and was also cheating on the applicant.

21. The Tribunal asked the applicant whether at this time she sought medical support for her difficulties; she said that she did not as it was not within her culture to accept help. However, later the applicant sought some support from Lifeline.

22. The applicant indicated that during the period of the second enrolment in the Diploma of Nursing, to finish the unit, she spoke to an international student advisor which resulted in the advisor indicating that she had made an application on the applicant’s behalf for a deferral on compassionate and compelling grounds based on her pregnancy. The applicant indicated that she assumed that this had been approved without ever having this confirmed. The Tribunal put to the applicant that it would have considered that unless the deferral had been confirmed then the applicant was negligent in not following up as to whether the deferral had been granted. The applicant in the hearing acknowledged her error in this respect and said that she was in emotional turmoil.

23. The applicant indicated that she re-approached the education provider in November 2018 following her giving birth and her other difficulties resolving to recommence her studies. The applicant said that the original international advisor she had dealt with had left and her replacement told her that she was no longer enrolled and was unsympathetic.

24. It is clear that the applicant was aware of the process for seeking a deferral on compassionate or compelling circumstances because she had received such a deferral on 1 March 2016 when studying a Diploma of Health Care. In the hearing, the applicant indicated that this was because her mother in Zimbabwe had practical difficulties because of illness in being able to effect transfer of fees for the course. In the hearing, the applicant agreed that she had previously obtained a deferral on compassionate and compelling grounds. This suggests a cognisance on the part of the applicant in relation to the core visa obligation to be enrolled in a registered course.

25. In the circumstances, the Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control that explain the failure to be enrolled in a registered course from 17 February 2018 until the visa was cancelled on 26 March 2019. Notwithstanding that the applicant might have been suffering a degree of mental distress due to her pregnancy and relationship issues, the Tribunal does not accept that this justifies the applicant not taking the relatively simple but very important step in terms of her visa obligations to ensure that the deferral which the international student advisor indicated had been applied for had in fact been granted. This is adverse to the applicant in the exercise of the Tribunal’s discretion.

26. Significantly relevant however and potentially beneficial to the applicant and the exercise of the Tribunal’s discretion would be if the applicant had successfully completed the unit she still needed to pass when she re-enrolled in the Diploma of Nursing on 26 March 2019 for a period commencing on 1 April 2019 and ending on 5 July 2019.

27. As it is, on the applicant’s evidence in the first hearing, she had this enrolment cancelled on 13 May 2019 for unsatisfactory attendance. The applicant indicated that a week or two after starting this course, she had to provide evidence to the education provider that she had the right to study on her bridging visa, which she did. She indicated that she had difficulty obtaining the timetable for her courses. She was also marked absent for classes that she attended, albeit late.

28. The applicant indicated that the education provider made it clear when they cancelled this enrolment that there was no further possibility of re-enrolling. The applicant indicated that she was not provided with an indication of appeal options in terms of the cancellation. The Tribunal expressed a degree of scepticism to the applicant about this, given the obligation of education providers to have and provide details of review rights. The Tribunal also expressed scepticism to the applicant that the education provider would be so strident in its denial of her ability to complete the Diploma of Nursing when she had passed all but one unit.

29. The Tribunal explored with the applicant in the first hearing steps she took to complete her Diploma of Nursing with another education provider following the cancellation of her enrolment in May 2019. The applicant indicated that she approached two other education providers understanding that she had the right to study on her bridging visa. The applicant indicated one provider was not viable for reasons that the Tribunal did not readily understand. The other provider indicated that the applicant would not get credit for any of her previous study and she would have to do the whole Diploma again.

30. The applicant was to provide following the first hearing evidence of contact with education providers during this period but information relating to this was not subsequently provided.

31. The Tribunal indicated to the applicant in the first hearing that it well understood that navigating international study options can pose challenges. The Tribunal put to the applicant that it might have expected that she would have utilised the services of a migration agent to help her. Given that the applicant had completed the Diploma of Nursing except for one unit, getting help from a migration agent to navigate best options to facilitate completing the Diploma with the original or a new education provider would be a logical option which the Tribunal would have expected the applicant to take in assessing international student options.

32. The Tribunal was not convinced in the first Tribunal hearing of her explanations in terms of claimed extenuating circumstances as to why she did not finish her requirements in the Diploma of Nursing that she enrolled in in April 2019, or why she did not in the period soon after the enrolment was cancelled explore options, and then enrol in another course to finish her Diploma of Nursing. As indicated, promised documentary evidence in relation to contact with education providers was not provided.

33. Following the first hearing, the applicant provided to the Tribunal evidence of a conditional enrolment in a Diploma of Nursing with Institute of Health and Nursing Australia commencing on 10 August 2020. The applicant indicated in the second hearing that she was having to undertake an English test before unconditional admittance into this course and that the education provider was also asking for a valid student visa.

34. The applicant indicated that her intentions after completing the Diploma of Nursing, which will take 18 months, is to then undertake a Bachelor of Nursing in Australia.

35. The applicant indicated in the second hearing that she had been taking steps to enrol in a Diploma of Nursing which would give her credit for the units that she had previously passed in the course, but that this proved not to be possible, and she was left with no alternative other than to progress with a Diploma of Nursing that she would have to start all over again.

36. The applicant indicated in the second hearing that her studies are being funded by her parents. The applicant indicated that they are relatively well off.

37. The applicant indicated in the second hearing that she, her partner and children will be relocating to Sydney to undertake the Diploma of Nursing. There are family relatives in Sydney who will be able to assist with the care of the applicant’s children to facilitate the applicant’s ability to study.

38. The applicant’s partner, who has been assisting relatives in Melbourne during the COVID‑19 pandemic, has two jobs in Sydney that he will be able to recommence once he relocates to Sydney.

39. The Tribunal accepts, based on the evidence of the applicant in both hearings together with documentary evidence provided by the applicant, that she is currently in relationship with an Australian citizen of Liberian extraction and that he and the applicant have had two children together. The children were born in Australia on [Date 2] and [Date 3] and are both Australian citizens.

1. The Tribunal comments that its view of the genuineness of the relationship was made without evidence from the applicant’s partner. This view of the Tribunal has only been reached for the purpose of considering the review of the cancellation of the student visa. It is not a determination that has been made with respect to determining whether the applicant would be granted a partner visa.

2. The applicant indicated that her future intentions after the Bachelor of Nursing is completed includes possibly working in Africa and/or for the United Nations.  The applicant anticipates that her partner, her children and herself will remain together as a family unit and will stay together.

3. The applicant indicated that in the future, she and her partner will consider getting married. The marriage will likely occur in Africa. The applicant indicated that at the moment, she was committed to gaining an Australian visa based on study, rather than her relationship with an Australian citizen, although down the track consideration may well be given to a partner visa.

4. The applicant indicated in the hearings that there will be hardship to her if she is not able to progress with her nursing studies. There will also be hardship in terms of disruption of the relationship with her Australian citizen partner and separation of the children from their father. This would be on the basis of the applicant being denied the ability to apply for many other categories of visas onshore and having to return to her home country with the children. This makes relevant a discretionary factor as to whether the interests of children in Australia would be adversly affected by the cancellation.

5. The Tribunal considers that these are the relevant discretionary factors in this case. The Tribunal assesses and weighs discretionary factors.

6. As indicated, the Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control for her failure to be enrolled in a registered course from 17 February 2018 for a period of well over a year. The Tribunal would have potentially overlooked that fact if the applicant had undertaken committed study when she re‑enrolled in the Diploma of Nursing due to recommence on 1 April 2019. The Tribunal is not satisfied that there were extenuating circumstances beyond the applicant’s control that led to the cancellation of this course. The Tribunal considers culpability for this on the part of the applicant.

7. The Tribunal did not find the applicant’s explanations as to why she did not explore other options for enrolment in a suitable course during the remainder of 2019 and early 2020 convincing in terms of demonstrating extenuating circumstances beyond the applicant’s control.

8. However, the applicant has now secured a conditional enrolment in a Diploma of Nursing commencing in August 2020. The Tribunal is satisfied on the evidence in both hearings that the applicant now has a genuine desire and ability to undertake this course (despite not progressing with her studies in the past). The Tribunal also accepts the genuineness of the applicant’s desire to undertake a Bachelor of Nursing after completing the Diploma.

9. As the student visa which has been cancelled has now ended, the applicant will need to make a fresh application for a student visa which will be considered on its merits.

10. Without the applicant’s current relationship with an Australian citizen and two Australian citizen children, the prior visa breach by the applicant and the considerable length of time in which she has failed to be enrolled in a registered course, both before and after the visa was cancelled, would not overcome the fact that the applicant has now, and eventually, enrolled in a course in terms of exercising discretion in the applicant’s favour.

11. Significantly tilting the balance in this case is the fact that the applicant is in what the Tribunal accepts, for the purpose of this decision, a relationship with her Australian citizen partner and they have had two young children in Australia, who are Australian citizens.

12. The existence of those relationships means that there would be potentially very significant hardship to the applicant and her family unit, including the Australian citizen children, if the visa was to remain cancelled. This could well result in the family being split up and the children being denied access to their father.

13. The degree of hardship combined with the fact that the Tribunal considers that the applicant has the genuine intention and ability to progress with studies now planned, for which a conditional offer has been obtained, persuade the Tribunal that it should not exercise its discretion to cancel the visa.  The Tribunal’s discretion should be exercised in favour of the applicant in the relevant circumstances.

14. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

15. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    David McCulloch
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)    The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)    a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)     must be enrolled in a full time registered course; and

    (b)     subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)    must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)    is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.