McGarrity (Migration)

[2019] AATA 3624

McGarrity (Migration) [2019] AATA 3624 (14 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ciara McGarrity

CASE NUMBER:  1827436

HOME AFFAIRS REFERENCE(S):          BCC2018/1080226

MEMBER:Dominic Triaca

DATE:14 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 14 August 2019 at 3:40pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – course enrolment – COE cancelled – applicant chose to discontinue studying – engaging in work – 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 18 September 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).

2. The delegate cancelled the visa on the basis that had not been enrolled in a registered course of study since 16 September 2017. 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 14 August 2019 to give evidence and present arguments.  

4. The applicant was represented in relation to the review by her registered migration agent, however her representative was did not appear at the hearing.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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?

7. 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).

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

9. The delegate’s finding was based on a report from the Provider Registration and International Student Management System (PRISMS) that stated the applicant had not been enrolled in a registered course of full time study since 17 September 2017. The delegate identified the relevant period from 17 September 2017 to 18 September 2018 as being the period in which the applicant was not enrolled in a registered course of study. This amounted to approximately 12 months during which the applicant was in continuous breach of the conditions of his visa.

10. In her oral evidence before the Tribunal, the applicant confirmed that the delegate’s finding that her Confirmation of Enrolment (CoE) was cancelled 17 September 2017 was true and correct as was the fact that she remained unenrolled for that period of approximately 12 months following the cancellation of her enrolment.

11. Accordingly, the Tribunal is satisfied that the applicant was not enrolled in a registered course of study for the period 17 September 2017 to 18 September 2018 and so finds that the applicant was in continuous breach of condition 8202(2) of his visa for a period of approximately 12 months from 17 September 2017 2018.

    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.’

    Applicant’s Evidence.

13. In her evidence before the Tribunal, the applicant stated the following in summary:

    (a)She is 24 years old and a citizen of Northern Ireland.

    (b)She arrived in Australia in October 2014 for a 12 month working holiday.

    (c)She initially found work at the Elephant and Wheelbarrow Hotel in St Kilda. She subsequently worked in farming.

    (d)She realised the opportunities available to her in Australia and decided she would study here.

    (e)She obtained a student visa on 13 December 2016. She commenced studying a Diploma of Business leading to a Bachelor course at Western Institute of Technology in early 2017 where she studied for about 6 months.

    (f)She had a bad experience at that Institute. She says the course was not what she had envisaged, teachers regularly did not attend and there were not enough computers available.

    (g)She stopped attending in mid-2017. She did not complete her course. She did not enrol in any other courses. She says she “just stopped going.” She provided a copy of media articles that create a negative impression of the Western Institute. The Tribunal has read and had regard to that material.

    (h)She then found work as a nanny through Gum Tree.

    (i)Her confirmation of enrolment was cancelled by Western Institute on 17 September 2017.

    (j)She continued to work as a nanny until she fell pregnant in August 2018.

    (k)She was unable to travel to Ireland after that time because she considered it not safe to fly whilst pregnant and, after the visa cancellation she was on a Bridging Visa and was advised that if she left Australia she would be unable to return for an extended period and she did not want this on her record.

    (l)She gave birth to a baby on 24 April 2019 at Sandringham Hospital. She is not in a relationship with the child’s father and provided a copy of her son’s birth certificate that states that fact.

    (m)She would like to return to study in Australia and if her visa is not cancelled she intends to study childcare.

    (n)If her visa remains cancelled she will return home to Northern Ireland.

    (o)She is being financially supported by her mother. Her mother has visited her in Australia for approximately 1 month.

    (p)In October 2019 her sister will arrive in Australia to commence a working holiday.

    (q)She is waiting for a passport for her child.

14. On 13 June 2018, the Department sent the applicant a Notice of Intention to consider cancellation of the student visa (NOICC). The applicant did not respond to that notice and the visa was subsequently cancelled by the delegate of the Department.

    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

15. The term compelling was the subject of detailed consideration by Crennan J (as her Honour was then) in Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (“Paduano”).[1] Her Honour set out the jurisprudence in relation to the words “compel” and “compelling” and the various dictionary meanings and stated, relevantly:

    “At [35] A judge must bring to bear to the task of interpreting words of ordinary meaning, his or her understanding of common usage, especially having regard to the purpose, context and language of the relevant delegated legislation.

    [1] Paduano v Minister for Immigration and Multicultural and Indigenous Affairs & Migration Review Tribunal [2005] FCA 211; (2005) 143 FCR 204 [31] – [45]

16. Commenting further on the adjective “compelling” in the Regulations, at [37], Crennan J said (emphasis added):

    The ordinary meaning of the adjective ‘compelling’ is not confined to the meanings used by the Tribunal when it construed the legislative expression. The legislative expression is wide and unqualified. ‘Compelling’ in its wide, ordinary meaning means ‘forceful’.

17. “Need” was considered in Dimic v Djekovic (2014) NSWSC 1502, per Hallen J, at [111] as follows: “Need”, of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45]. It is different from “want”. The latent difference between the words was stated by Lord Neuberger of Abbotsbury (Now President of the Supreme Court of the United Kingdom), in the House of Lords decision,R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808, at 54:”Need is a more flexible word than it might first appear. “In need of” plainly means more than merely ‘want’, but it falls far short of ‘cannot survive without.”

18. “Need” and “want” are not interchangeable. The difference between need and want is significant. See Boettcher v Driscoll (2014) SASC 86 at [41] per David J.

19. Having regard to these authorities, I take the phrase compelling need to have the ordinary meaning of the words, compelling, demanding attention or demanding interest or being forceful[2], and need requiring something more than a mere want, but falling far short of requiring the applicant to demonstrate necessity in the sense that she cannot survive without it.

    [2] Re Burton (2018) AATA 4220 at [25] per Member Ison

20. The applicant’s purpose of travel to Australia was not study. She arrived in 2014 for a working holiday. The Tribunal accepts that his purpose changed after she arrived in Australia and in December 2016 she obtained a Student Visa and it appears that for a period between about December 2016 and July 2017 she studied in Australia and her purpose for remaining in Australia was to study.

21. However, the Tribunal considers that at some point in 2017 studying was no longer the applicant’s purpose for remaining in Australia, noting that she was in breach of the conditions of his student visa for approximately 12 months. She says she “just stopped going” to classes and she then found work as a Nanny in Melbourne. She fell pregnant in August 2018 and has not returned to any form of study. It appears her purpose since April 2019 has been caring for her young child.

22. The Tribunal acknowledges that the applicant’s present position is that she would like to return to study child care.

23. Having regard to the applicant’s evidence, the Tribunal does not consider the applicant has a compelling need to travel or stay in Australia. The Tribunal accepts that she had a purpose of studying in Australia for a period between 2016 and 2017. It also accepts that she would study in the future in Australia if given the opportunity. However, given her conduct in Australia set out below and her lack of academic progress when studying, the Tribunal gives this only minimal weight towards the visa not being cancelled.

    The extent of compliance with visa conditions.

24. The applicant confirmed that she was not enrolled in a registered course of study from 17 September 2017 until the cancellation of her student visa on 18 September 2018, being a period of approximately 12 months. This is a substantial period of time. Therefore, the applicant has not complied with condition 8202(2) for a substantial period of time this weighs towards the cancelling of the visa unless the Tribunal accepts the reasons for non-enrolment.

25. In her evidence, the applicant stated reasons for her non enrolment to be that she stopped studying at Western Institute due to the course being poorly run and not what she was expecting.

26. The Tribunal accepts that the applicant had difficulties studying at Western Institute. However, the evidence is that she ceased studying there in mid-2017 leading to the cancellation of her enrolment in September 2017. It appears to be that upon deciding to leave Western Institute; she simply chose to stop studying and does not appear to have taken any steps toward resolving the situation. Rather, her evidence is that she found work as a Nanny and continued to work until falling pregnant in about August 2018. This was despite being in Australia on a student visa with a requirement that she be enrolled in a registered course of study. There is no evidence the applicant progressed any dispute with Western Institute, or engaged with the Department in relation to her circumstances. On her own evidence, she did nothing. The reasons she has advanced for doing nothing are not satisfactory and are inconsistent with the fundamental purpose for which the visa has been granted.

27. The Tribunal considers a breach of condition 8202 of the applicant’s student visa is a serious matter. Condition 8202 is a fundamental condition that underpins the grant of temporary student visas in Australia. For the applicant to breach it for such a lengthy period, without providing any satisfactory explanation, weighs heavily in considering the cancellation of her visa.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship).

28. The applicant advanced no real argument in relation to any potential hardship. She would clearly prefer to remain in Australia and states she wishes to raise her child in Australia due to “greater opportunities” but there is no substantive reason advanced in support of that wish.

29. She stated that her sister is due to arrive in Australia in October 2019 and she is very much looking forward to seeing her sister, and her sister meeting her nephew. The Tribunal takes into account that she will be disappointed by the cancellation of her visa and gives this some weight in her favour. However, her disappointment must be tempered by the extent of the breach of her visa conditions.

    Past and present behaviour of the visa holder towards the department.

30. The applicant appears to have co-operated with the Department and there is no adverse evidence against the applicant in this regard. I give this some weight towards not cancelling the visa.

    Whether there would be any consequential cancellations under s 140

31. There is no evidence suggesting that if the applicant’s visa is cancelled, any other persons visa will be cancelled under s 140 of the Act.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence , or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.

32. The Tribunal recognises that, if the visa is cancelled, she will become an unlawful non-citizen and may be liable to detention under s 189 and removal under s 198 of the Act if she does not voluntarily depart Australia. However, she may be eligible for a bridging visa that would allow her lawful presence in Australia for a short period of time so that she can finalise his affairs in Australia before departing.

33. If her visa is cancelled, the Tribunal also recognises that he will be subject to s 48 of the Act which means she will have limited options when applying for further visas, including the possibility that she may not be granted a temporary visa for 3 years from the date of the cancellation.

34. She indicated that she had received advice on the consequences of canellation.

35. The Tribunal considers these are the intended consequences of the legislation.

36. In any event, the applicant’s evidence was that if the visa remained cancelled she would return home to Northern Ireland and therefore there is no indication that she would become unlawful or be subject to detention so I give this factor no weight.

    Whether any international obligations, including non-recoupment and best interests of the children as primary consideration, would be breached as a result of the cancellation.

37. The Tribunal notes that the applicant has one child in her care. Her evidence is that if the visa is cancelled, she will return to Northern Ireland with her child. The circumstances of the case are not such as to engage Australia’s international obligations. She says she is awaiting a passport for her child and is being assisted by her representative in this regard.

    Any other relevant matters

38. There do not appear to be any other matters relevant to the application.

39. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    D. Triaca
    
    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.