Ramnik Kaur (Migration)

[2019] AATA 4335

Ramnik Kaur (Migration) [2019] AATA 4335 (23 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ramnik Kaur

CASE NUMBER:  1803740

HOME AFFAIRS REFERENCE(S):           BCC2017/4261014

MEMBER:Mark O'Loughlin

DATE:23 September 2019

PLACE OF DECISION:  Adelaide

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 September 2019 at 5:03pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – affidavit changed – change of financial circumstances – inconsistent evidence – commitment to obtain qualification – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116
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 9 February 2018 made by a delegate of the Minister for Home Affairs 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 the applicant was not enrolled in a registered course as required by visa condition 8202. 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 20 August 2019 to give evidence and present arguments.

4. The applicant was represented in relation to the review by her registered migration agent.

5. 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

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.

7. In considering the application the Tribunal has had regard to submissions and enclosures that were sent by the applicant and later by her representative on 30 January 2018, 13 August 2019, and 19 August 2019.  These documents have been relied on where indicated in this decision.

8. The Tribunal has movement records and PRISMS details but has not relied on them as the applicant gave evidence in respect of the matters covered in those documents and the Tribunal has relied on the evidence of the applicant.

9. The Tribunal has not relied on any other documents or evidence save for the oral evidence given by the applicant at the hearing.

   Did the applicant comply with Condition 8202?

10. 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).

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

12. The applicant agreed that there was a period of about 7 months from the 24 May 2017 during which she was not 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 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’

15. The applicant gave evidence that, not long before the hearing, she failed some topics in the Bachelor of Information Technology that she had been studying since March 2018 because the impending hearing of this application meant she could not focus on her exams.   She said that she failed some subjects and was obliged to transfer to a Bachelor of Business Information Systems at the same institution.

16. She gave evidence that the course is largely the same and that she can finish by December 2020 because she will be given credit for the subjects that she has passed.

17. The submissions made on behalf of the applicant were in part concerned to address a finding by the delegate that an affidavit from her father and grandfather as to the support that her family was sending said that they supported her until the 30 April 2017.  The delegate found that that was inconsistent with the applicant’s evidence that she had stopped studying before then and had stopped paying fees.

18. A further affidavit had been obtained from the same deponents in the same terms save that the date on which the financial support ceased was expressed as being 15 December 2016 rather than 30 April 2017.

19. There was no explanation for the change of date.  There was no suggestion that a mistake had been made nor any recognition that the second affidavit was a correction of the first.

20. The Tribunal asked the applicant to comment on that and she gave evidence that the earlier date was correct.  She was not able to explain why the two affidavits were different.  This is not surprising as they were not her affidavits and were prepared in India when she was in Australia.

21. The Tribunal accepts that the financial support from the applicant’s family ceased in December 2016.

22. The Tribunal further accepts that, without that money she was unable to obtain her Diploma despite having passed the course, because she still had some course fees to pay.  Without the Diploma she could not start the Bachelor’s course for which she held a Confirmation of Enrolment.

23. The applicant gave evidence, which the Tribunal accepts, that she found work as a cleaner at a childcare facility and was able to earn enough to pay the fees for the Diploma.

24. She said that she did this work for a few months.  She was living with relatives and did not need to pay for board or other living expenses so all of her earnings could be allocated to paying for her Diploma.

25. She was able to pay that off in a few months and after that her family’s financial situation had stabilised and they were again able to meet her tuition and other living expenses, so she stopped working.

26. In submissions the applicant had suggested that a finger injury and a heart condition had contributed to her distractions but the Tribunal is satisfied that these issues were minor and not likely to have caused much difficulty.

27. It appears that the applicant may have exceeded 40 hours’ work per fortnight according to some pay slips that she provided in support of submissions, but she said that her employer had told her that it was averaged over the year and it did not matter if she exceeded the 40 hour limit in individual fortnights. 

28. The Tribunal accepts that this was her belief and notes that the evidence suggests a fairly minor excess of work given that it only seems to have lasted about 3 fortnights and was only 10 hours at its worst.

29. The Tribunal is satisfied that there is no compelling need for the applicant to travel to or remain in Australia other than to study.

30. The Tribunal notes that the applicant’s failure to comply with visa conditions was of about 7 months’ duration and was significant.

31. The applicant said, and the Tribunal accepts, that she will suffer a substantial reduction in her earning capacity if she is not able to stay and finish her studies. 

32. The applicant also said that her family will suffer shame and embarrassment if she does not complete her studies as it was a difficult decision for them to send her, as a girl, away to study.  She said that this was not usual in their culture.  The Tribunal accepts that this is the case but the evidence is not strong enough to support a relevant finding of hardship.

33. The Tribunal finds that the circumstances in which the ground of cancellation arose were outside of the applicant’s control and as a general rule a visa should not be cancelled in these circumstances.

34. There is no evidence of past or present behaviour of the visa holder towards the department that suggests that it would be desirable to cancel her visa.

35. There is no evidence of consequential cancellations of visas held by other people under s. 140.

36. The Tribunal notes that if the applicant’s visa is cancelled she would become unlawful and would need to obtain a bridging visa or leave the country immediately. 

37. Future visa grants may be compromised by the cancellation of this visa and in particular, the applicant will come within the risk factors defined in Public Interest Criterion 4013.  That will mean she will be restricted in lodging an application for another visa to Australia for 3 years after the cancellation of the Student visa.

38. There is no evidence of any international obligations that would be breached as a result of the cancellation of the visa.

39. The Tribunal is not aware of any other relevant considerations.

40. The Tribunal notes that the applicant has now completed about half of her Bachelor course and that, although her breach of visa condition is clear and is significant, it appears to be secondary to an unanticipated deterioration in her father’s health and was not wholly within her control.  Further, the Tribunal accepts that the applicant has continued her studies in a manner that suggests a commitment to obtaining her qualification.

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

    DECISION

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

    Mark O'Loughlin
    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.