Navarro (Migration)

[2024] AATA 2474

Navarro (Migration) [2024] AATA 2474 (27 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Diossa Navarro

REPRESENTATIVE:  Mr Mehmet Celepci (MARN: 0636137)

CASE NUMBER:  2302064

HOME AFFAIRS REFERENCE(S):          BCC2022/3726040

MEMBER:Penelope Hunter

DATE:27 June 2024

PLACE OF DECISION:  Sydney

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

Statement made on 27 June 2024 at 1:33pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 500 visa –– applicant was not enrolled in a full-time registered course – breached condition 8202 – death of father – Covid 19 pandemic – there was non-compliance by the applicant in the way described in the notice – decision under review affirmed  

LEGISLATION
Migration Act 1958, ss 116

Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 February 2023 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 (Cth) (the Act).

2. The delegate cancelled the visa pursuant to s 116(1)(b) of the Act on the basis that the applicant was found not to have complied with a condition of her 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. On 3 June 2024, the applicant was invited to attend a hearing before the Tribunal to give evidence and present arguments on 19 June 2024.

4. On 18 June 2024, the Tribunal received a request for postponement from the representative for the applicant seeking to adjourn the hearing as they had not been able to contact the applicant. The Tribunal refused the adjournment application noting that the notice of hearing had been validly served, that the applicant had a positive obligation to keep her contact details current and on the material presented the adjournment request had not been made with the consent or on the instructions of the applicant.

5. The applicant appeared before the Tribunal on 19 June 2024 via MS Teams video to give evidence and present arguments. The representative of the applicant was also present for hearing and provided submissions.

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 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.

8. The applicant is a 34 year old single female citizen of the Philippines. She was granted the visa on 15 December 2020, with effect until 16 February 2023, to undertake study in Australia. This visa was subject to conditions, including condition 8202.

   Did the applicant comply with Condition 8202?

9. 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)

   ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

   ·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).

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

11. On 7 November 2022, the Department wrote to the Applicant with a Notice of Intention to Consider Cancellation (NOICC) under s 116(1)(b) of the Act, as the applicant was not enrolled in a course of study the applicant was informed that this may be a ground for cancellation of her visa and invited to comment.

12. With the assistance of an agent the applicant provided a submission in response to the Department on 14 November 2022. In addition she submitted a copy of a death certificate of her father and a Confirmation of Enrolment (CoE) in a Certificate IV in Leadership and Management with course dates from 21 November 2022 to 19 November 2023, and then a Diploma of Leadership and Management, with course dates from 11 December 2023 to 15 December 2024. All enrolments were recorded as created on 14 November 2022. In her submission the applicant claimed that she was forced to stop her study due to the untimely death of her father and because of the impact of the COVID-19 pandemic.

13. In their decision the delegate stated that they had had regard to the applicant’s Provider Registration and International Student Management System (PRISMS) records. These set out that she had not been enrolled in a registered course since 16 February 2021. In assessing the response of the applicant, the delegate noted that the applicant had not completed any course since the visa was granted on 15 December 2020, and her last enrolments in Commercial Cookery and Hospitality Management had been cancelled on 16 February 2021 due to non-commencement of study. They further noted that the applicant had only obtained a new enrolment after being contacted by the Department, and it appeared that the applicant had only enrolled in an attempt to avoid possible cancellation rather than any genuine attempt to study. The delegate reasoned that the applicant had not been enrolled for a period of 21 months, she had not contacted the Department to discuss her visa options following the death of her father, and restrictions associated with the COVID-19 pandemic ended in Australia after October 2021. Upon consideration of the applicant’s submissions the delegate proceeded to cancel the applicant’s visa. The applicant has submitted to the Tribunal a copy of the delegate’s decision record.

14. The Tribunal received an application for review from the applicant on 16 February 2023.

15. At the hearing the Tribunal asked the applicant whether she understood that it was a condition of her Student visa that she be enrolled in a registered course of study and she confirmed that she did. The applicant was also asked whether she disputed that she was not enrolled in a course of study in the relevant period and the applicant also confirmed that she did not.

16. Therefore, on the material before it, the Tribunal is satisfied that the applicant, as at the date of the delegate’s decision was not enrolled full time in a registered course. The Tribunal further finds that the applicant was not enrolled between the period 16 February 2021 and 14 November 2022. Accordingly, the applicant has not complied with condition 8202(2)(a).

17. As the applicant has failed to comply with the visa condition, the ground for cancellation in s 116(1)(b) does arise.

    Consideration of the discretion to cancel the visa

18. 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’.

    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

19. The purpose of the visa under review was for her to undertake study in Australia. The applicant was granted her visa on 15 December 2020, there is no evidence before the Tribunal that she has completed any of initial study. As noted by the delegate, her enrolments in the Certificate IV in Commercial Cookery and the Diploma of Hospitality were cancelled due to non-commencement of study.

20. Prior to the cancellation of her visa, the applicant obtained new enrolments in the Certificate VI  and Diploma of Leadership and Management. The applicant initially claimed in her submission to the Department that she wished to undertake vocational studies to strengthen her job prospects and advancement opportunities in her home country and perhaps open her own business. At the hearing, the applicant told the Tribunal that on her current bridging visa she did not have permission to study and she had not commenced the courses in Leadership and Management.

21. The applicant told the Tribunal that she had been in Australia since 2018 and that she needed to remain in Australia so that she could go back to study. The applicant said that she wished to obtain qualifications in aged care and she said that this would assist her to obtain employment in her home country. The Tribunal asked the applicant whether she could undertake relevant qualifications in her home country and she acknowledged that there were some courses however she said that they were not the same as those available in Australia and here she could obtain better qualifications. She also said that she was the bread winner for her family and was a single mother.

22. The Tribunal has considered the claim of the applicant that she wishes to return to study and that Australia has a quality education system. It also notes that the applicant did not engage in any study for approximately 21 months before her visa was cancelled, there is no evidence of progress in her initial studies, and her current proposed course of study in aged care is the third change in her study pathway. While the Tribunal accepts that qualifications obtained in Australia may provide the applicant with an advantage if she was to work in aged care in the future, it is not the case on her evidence that she will be unable to study or obtain relevant qualifications in her home country. It is accepted that she is a single mother with financial responsibilities, however the Tribunal also notes the considerable costs and expense of overseas study. The Tribunal is not satisfied that the evidence demonstrates that the applicant has a compelling need to remain.

23. Overall the Tribunal gives this factor neutral weight.

    The extent of the applicant’s compliance with visa conditions

24. As set out above the duration of the applicant’s non-compliance was considerable from February 2021 to  November 2022. The applicant was acknowledged that she was aware it was a condition of her visa that she maintain enrolment. The duration of the applicant’s non-compliance is a matter of considerable concern.

25. There is no evidence before the Tribunal that the applicant has not complied with any other conditions of her visa.

26. The Tribunal gives this factor low weight in favour of not cancelling the visa.

    The degree of hardship that may be caused (financial, psychological, emotional or other hardship)

27. Again the Tribunal accepts that the applicant is a single mother with financial responsibilities. Her son is currently aged 9 years and he has been supported by her mother while the applicant has been in Australia. With respect to financial hardship, it is not the case that the applicant will have lost the benefit of studies for which she has already paid. If granted the visa, the applicant would be starting her courses again. Currently the applicant is working full-time to support herself. It is accepted that the wages that she receives are higher than she could potentially receive in the Philippines, however the employment of the applicant is not the purpose of the visa under consideration. The Tribunal has also weighed that there are considerable costs and expense associated with the study in Australia as an international student. While the applicant may be able to secure a better position with qualifications from Australia, the applicant has claimed that aged care is an area where there is a demand for employment in the Philippines and it appears that she would not be without employment options.

28. The applicant did not identify, and there is no medical evidence before the Tribunal that demonstrates, that the applicant would be subjected to psychological harm should the visa remain cancelled. The Tribunal asked the applicant if she had sought any medical assistance in the past for her claimed depression and she said that she had not. It is accepted that a cancellation decision would have an emotional effect on the applicant and her future plans.

29. Overall the Tribunal places low weight on this factor in favour of the applicant.

    Circumstances in which the grounds for cancellation arose

30. The applicant said that her enrolment was initially cancelled as she did not have the funds for her tuition fees. As a consequence of the COVID-19 pandemic she claims that her shifts had been reduced at Birch and Waite. She said she had also developed depression as her father had died and she could not return to see him before his death as the international borders had closed. The applicant was still working as a machine operator for Birch and Waite at the time of hearing and she was asked how long her shifts were disrupted by the COVID-19 pandemic at the relevant time. She told the Tribunal that it was for about three to four months. The Tribunal noted that the applicant’s father, according to the death certificate had died in November 2020, three months before her enrolment was cancelled. The applicant was asked how long she believed the depression had impacted upon her and she said that it was about three months. The applicant was asked whether she sought assistance at the time or obtained any medical treatment and she said that she did not but relied on the assistance of a friend. The applicant claimed that she was now ok because of this friend and could work and return to study.

31. The Tribunal accepts that the death of her father and the reduction of her employment would have presented difficulties for the applicant in maintaining her enrolment. It is satisfied that these circumstances were outside her control. Yet, on the applicant’s evidence these circumstances persisted for three to four months, not the 21 months that the applicant was in breach of her visa condition. The applicant confirmed that she did not lose her employment and has continued to work for Birch and Waite and has been engaged full-time in her role for some time. The length of the breach, and the period for which the applicant was not enrolled in circumstances when she claims Australian qualifications are important to her, is of considerable concern for the Tribunal.

32. Therefore the Tribunal attributes this factor low weight in favour of the applicant.

    Past and present behaviour of the visa holder towards the Department

33. There is no evidence that the applicant had not been cooperative in her dealings with the Department. The Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s 140

34. The applicant claimed to be single with no dependents. She initially arrived in Australia as a dependent on her partner’s visa. In her submissions to the Department she claimed he was now her ex-partner, and at the hearing she confirmed that they had separated. She has a son, but he has remained in the Philippines since she arrived in Australia and is not a dependent on her visa.

35. It follows that in assessing this factor, that any other person’s visa would or may be cancelled if the applicant’s visa was cancelled. There is no weight attributed to this factor.

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

36. There are mandatory legal consequences that may apply in the case of visa cancellation, including a difficulty obtaining a further visa. If the visa is cancelled the applicant may be subject to a restriction under s 48 of the Act and the applicant would have difficulties obtaining any further visas in Australia. Due to the operation of PIC 4013, the applicant would also be unable to be granted further visas offshore for three years from the date of cancellation.

37. The applicant told the Tribunal that if the visa remained cancelled and she had exhausted or ceased all lawful avenues of review, she would abide by any lawful direction to depart. The Tribunal is satisfied in these circumstances that the likelihood of the applicant being detained is remote.

38. It is accepted that cancellation would have further consequences and these would limit her options to immediately return to Australia or applying for a different kind of visa. These are also the intended and legitimate consequences of cancellation.

39. The Tribunal gives this consideration neutral weight.

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

40. The applicant is a citizen of the Philippines and there is no information that her visa cancellation would impact on Australia’s international obligations. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations. Nor has the applicant applied for refugee status or invoked Australia’s protection obligations.

41. The Tribunal asked the applicant if she had any fears upon returning to the Philippines and said that if she if her visa was reinstated she just wanted to finish her studies and then return to the Philippines.

42. The applicant has a child, however this child is in the Philippines and there is no evidence that his interests will be adversely affected if the applicant is required to return to him.

43. There is no weight attributed to this factor.

    Conclusion

44. The Tribunal has considered all of the evidence and the relevant circumstances of the applicant. The Tribunal does accept ted that there were events that occurred outside the applicant’s control which may have led to the initial cancellation of her enrolment. However, it does not accept on the evidence that this accounts for the extended period that the applicant was in breach of her visa condition. The Tribunal has placed a low weight on the evidence before it in relation to the circumstances giving rise to the cancellation. It is not persuaded by the material advanced by the applicant that it should be greater than this. The breach of condition 8202(2) is significant as that condition goes to the core purpose of the grant of a Student visa, namely to study in Australia. Overall, there were limited factors in the consideration of the Tribunal that were in favour of the applicant. It is accepted that the applicant wishes to remain in Australia, yet the for the reasons set out above, it is not demonstrated that she has a compelling need do so, nor is it demonstrated that there is a degree of hardship that would weigh in favour of the visa grant. The other considerations are generally of low or neutral weight, and the Tribunal is not satisfied that they weigh in favour of the exercise of the discretion not to cancel.

45. Overall, the Tribunal finds, considering the material before it as a whole, the that the visa should be cancelled

    DECISION

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

    Penelope Hunter
    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.