Ng (Migration)

[2019] AATA 2882

Ng (Migration) [2019] AATA 2882 (25 June 2019)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Cherlyvia Ng
Mr Christopher Antonio Lim

CASE NUMBER:  1702203

DIBP REFERENCE(S):  BCC2016/4282011

MEMBER:Wendy Banfield

DATE OF DECISION:  25 June 2019

DATE CORRIGENDUM

SIGNED:26 June 2019

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

where the decision record reads as Subclass 500, on the cover page, in paragraph 1 and in paragraph 25, it should read Subclass 572.

Wendy Banfield
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Cherlyvia Ng
Mr Christopher Antonio Lim

CASE NUMBER:  1702203

HOME AFFAIRS REFERENCE(S):          BCC2016/4282011

MEMBER:Wendy Banfield

DATE:25 June 2019

PLACE OF DECISION:  Sydney

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

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 25 June 2019 at 12:45pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – reason for non-enrolment – application for a different visa class – continue studying pending outcome of visa application – purpose of visa grant – genuine mistake – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
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 3 February 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

   Background

2. The applicant is a citizen of Indonesia and was the holder of a Subclass 572 Student Visa issued on 22 June 2015. She had been enrolled to study a Diploma of Leadership and Management when her husband Mr Lim obtained a job that would involve regional sponsorship. The applicant discontinued her studies and moved interstate with her husband; however, the application was never lodged. Mr Lim secured another sponsorship and an application for a Subclass 457 visa was made on 8 December 2016. Prior to Mr Lim’s Subclass 457 visa being granted, the applicant’s Student Visa was cancelled and she was not granted a Temporary Work Visa as a secondary applicant.

3. The delegate cancelled the visa on the basis that the applicant had not been enrolled in a course of study from 20 May 2016 until 16 January 2017 when a Notice on Intention to Consider Cancellation (NOICC) was issued by the Department. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. 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 visa was 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 applicant.

5. The applicants appeared before the Tribunal on 20 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from her husband Mr Christopher Antonio Lim.  

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.

   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 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).

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

10. The applicant had been enrolled in a Diploma of Leadership and Management but discontinued studying after Mr Lim obtained a job interstate that had the possibility of regional sponsorship. The applicant did not dispute she had not been enrolled to study for the relevant period, from 20 May 2016 until 16 January 2017 when a NOICC was issued by the Department. 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

11. 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’

    ·     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

12. On the evidence before it, the Tribunal is satisfied that the applicant’s original purpose in travelling to and staying in Australia was to study.

13. The applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant said she would still like to study in Australia but did not provide a strong or persuasive reason for needing to stay such that the discretion to cancel the visa should not be exercised. For this reason, the Tribunal does not place weight on the applicant having a compelling need to remain in Australia. 

    ·     the extent of compliance with visa conditions

    There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account in favour of the applicant.

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

14. During the course of the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of her visa being cancelled. On the evidence, the applicant would be unable to remain in Australia with her husband who holds a temporary work visa. The Tribunal has given weight in the applicant’s favour regarding this consideration.

    ·     circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

15. The applicant’s visa was cancelled because she remained in Australia as the holder of a student visa but did not continue enrolment in a course of study. The applicant provided reasons for discontinuing. The applicant’s evidence was that in May 2016 her husband Mr Lim was nominated by an employment agency for a job in a regional area that would involve an application for a Subclass 187 Visa. At the time the applicant have been studying but declared that she advised her education provider she would be moving to Melbourne with her husband.

16. Mr Lim’s sponsorship for a Subclass 187 Visa did not go ahead, however he subsequently applied for and was granted a Subclass 457 Visa. The 457 Visa application was lodged on 8 December 2016 but the applicant’s Student Visa was cancelled on 3 February 2017. For this reason, the applicant was not granted a Subclass 457 Visa as secondary applicant. The applicant explained that she had believed Mr Lim’s employment and related visa applications would mean she could discontinue her enrolment. According to the applicant, she had spoken to her education provider who told her she could discontinue her studies if she had a valid reason such as an application for a different visa class.

17. In her written submissions to the Department and the Tribunal, the applicant provided evidence of relevant visa applications made by Mr Lim that included the applicant as a secondary applicant. The Tribunal has considered the circumstances that led to the cancellation of the applicant’s Student Visa and on balance, is satisfied the applicant has explained her situation honestly and did not intentionally create the situation that led to visa cancellation. It appears the applicant was ill-advised about how to proceed in her situation. This is evident from the obvious adverse consequences that would result. The applicant could have continued studying until the outcome of Mr Lim’s visa application but she mistakenly believed she did not need to.

18. For these reasons, the Tribunal finds the  particular circumstances that led to the applicant’s visa being cancelled should be considered favourably to a certain degree in relation to the Tribunal exercising its discretion to cancel the applicant’s visa.

    ·     past and present behaviour of the visa holder towards the department

    There is no evidence to indicate the applicant has not cooperated with the Department and the Tribunal has given this weight in favour of the applicant.

    ·     whether there would be consequential cancellations under s.140

19. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act as Mr Lim now holds a Subclass 457 visa.

    ·     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 of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

20. The cancellation of the visa would mean the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit her options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. In the facts of this case, the Tribunal had taken this into account in favour of the applicant in the Tribunal’s discretion in regards to cancellation of the applicant’s visa.

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

21. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations including non-refoulement and the best interests of children.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

22. The Subclass 572 Student Visa is not a permanent visa.

    ·     any other relevant matters

    The student visa program in Australia enables people who are not Australian citizens or permanent residents to undertake study in Australia. The Tribunal accepts the applicant did initially enrol and commence studying which was the purpose for which the visa was granted. She has said she wants to continue to study in future. The Tribunal has taken into account the fact that the applicant was mistaken about her situation following Mr Lim’s application for a different visa and did not deliberately breach visa conditions. As stated, it would have been very easy for the applicant to continue studying a course she was already enrolled in while awaiting her husband’s visa outcome, but she made a mistake in this regard.

    Conclusion

23. The Tribunal has considered the applicant’s circumstances individually and cumulatively and is satisfied that in this case the majority of considerations should be considered in favour of the applicant. Therefore the Tribunal does not consider it appropriate in this case to exercise the discretion to cancel the visa.

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

    DECISION

25. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 500 (Student) visa. The Tribunal has no jurisdiction with respect to the other applicant.

    Wendy Banfield
    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.