Rodlanda (Migration)

[2018] AATA 1570

Rodlanda (Migration) [2018] AATA 1570 (11 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Wassana Rodlanda

CASE NUMBER:  1708917

DIBP REFERENCE(S):  BCC2017/807406

MEMBER:Fiona Meagher

DATE:11 April 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 11 April 2018 at 3:45pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Enrolment in a registered course – English language difficulty – Advice from agents – Father’s health – Ongoing desire to study – Decision under review set aside

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 April 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 572 Vocational Education and Training 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 had not complied with condition 8202(2). 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 9 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Paul Breier. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

4. 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

5. 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?

6. 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).

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. A copy of the delegate’s decision was provided with the application for review.

8. The Tribunal discussed with the applicant the courses in which she was enrolled, and the dates upon which they were to occur. The applicant acknowledged that she had not been enrolled in a registered course of study since 14 July 2016. This accords with the Department’s records as reflected in the delegate’s decision.

9. 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

10. 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.

11. 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).

12. The applicant told the Tribunal that initially she had planned come to Australia to study English six months and then to undertake a business management course. She said that she finished the armour language course and was advised by the school she was attending that the business management course was no longer available and that she would have to undertake a hospitality course instead.

13. The applicant said that she had passed English language course and has a certificate to show for it, but at the end of the core she could still not really understand very much she did not have a lot of vocabulary and her memory was not very good. She was aware of these shortcomings so she enrolled in another language course for three weeks.

14. The applicant said that she consulted an advisor who worked with Thai students, who told her that hospitality would be better for her to study as it needed less vocabulary or language than business management and would be more practical and therefore easier. The applicant said that she undertook the first course covering coffee and managing a restaurant. She said that she completed that course, although did not go to the ceremony where the certificates were given out.

15. The applicant said that she then started a second course in hospitality and hotels, and that is when she began to have problems. She was unable to communicate by email using sufficiently formal language. She said that she became concerned between March and July because she realised she would be unable to pass the tests she would have to take in July as she could not use formal language in an email and she did not have sufficiently good English to undertake the practical test of an interview with a customer. She said that she discussed her predicament with her teacher who said that she should continue to try but that she should not attempt anything at which she was unlikely to succeed, and that perhaps she should go back and repeat English. She said that at that point her school contacted the agency, and the agency advised her that she should go to another school. Accordingly she asked the agency to find her a new school. The agency said that her old certificate of enrolment would have to be cancelled so that she could apply to a new school.

16. The applicant said that she was supposed to go and have a discussion with the agency about a new school but she was unable to attend due to an emergency. She did not have the money to pay for a new course as her father unexpectedly had to have an operation. The applicant said she has no documentation to support that, only a photograph of her father in hospital.

17. The applicant said that she subsequently contacted the agency and asked whether she would have any visa problems because she said she wanted to continue studying. She said that the agency told there would not be any problems. The applicant said that she was concerned that there had been so many difficulties regarding her study, and then she met her boyfriend Paul Breier, and he told her that he would take care of her and be responsible for everything.

18. The applicant told the Tribunal that her boyfriend said that he would deal with the new school and organise everything for her. She said that she moved to the Gold Coast with her boyfriend and asked the agency to find her a school at the Gold Coast, but at this time her boyfriend said that he would make all the arrangements for her in relation to studying. The applicant said that she was very clear with her boyfriend that she did not wish there to be any matter which would prevent her from studying, or interfere with her visa. The applicant said that she was worried as to why things were taking so long, but she was assured by her boyfriend that he was taking care of matters. She said that he told her that the agency had contacted all the schools they could contact, and nowhere had a place, but said that her boyfriend could contact other schools if he wanted to. The applicant said that she understood that she wasn’t enrolled at the time, but was trying everything because she wanted to study arm so that she could improve herself so that she could help her family in Thailand.

19. The applicant said that she had no other problems with her visa.

20. The applicant said, in relation to the question of hardship if her visa were to be cancelled, that her father will be very upset because she will be a disappointment to her family because she made a mistake. She said that she has not told her family that she is not studying at the moment because she does not want anybody particularly her father to worry. She is concerned that worry might make his health worse. She also has a daughter in Thailand, and has not told her either.

21. The applicant said that before she knew the visa was going to be cancelled she tried to contact schools of the Gold Coast herself. She went on to say that after she received the Notice of Intention to Consider Cancellation (NOICC) she also tried to become enrolled in a school at the Gold Coast. She said she did everything she could, but that she’d also put a lot of trust and her boyfriend in the agency who told her that she would not trouble with her visa.

22. The applicant said that there was no one else in Australia would be affected by the cancellation of her visa. She said that after she came to Australia and had difficulties with her study, she found communication very difficult and day-to-day living difficult. She said that she was very remorseful, and that she wishes she had not put her trust in her boyfriend in the agency. She said that she realises in hindsight that things are not nearly as easy as she thought they would be in relation to studying in Australia and maintaining her visa.

23. Mr Breier told the Tribunal that he is responsible for a lot of the applicant’s situation. He said that she trusted him to take care of these issues, and that even when it was clear that she needed a certificate of enrolment, he pressured her not to take care of it like she needed to. He said that he had no understanding of immigration or visas, had talked to a number of people and been given the wrong information, and accordingly did not understand the seriousness of her situation, or the likely consequences.

24. Mr Breier said that the applicant trusted him to take care of her visa and ensure that she was enrolled in an appropriate course. He said that he actually lied to her about the status of her study in her visa because he was scared that she would have to move back to Sydney if he told the truth. Mr Breier told the Tribunal that he is involved in the film industry, editing promotional videos for websites. He said that at the time he was based at the Gold Coast and did not want the applicant to return to Sydney. He said that he thought that he would find a way to solve the visa problems, and that then the time went really fast. He said that he knows that that does not excuse his behaviour. He said that the agency would not talk to him, but he told her that he was talking to the agency, and did not tell the truth for a long time.

25. Mr Breier said that by then he had decided that he wanted a partner visa, and thought that the student visa issues would be relevant. He said that if he had not interposed himself in the visa process, he is sure that the applicant would have taken care of her enrolment and visa issues appropriately. Mr Breier said that it is very important for them as a couple, and the applicant with respect to her family that she be able to sort out her visa problems. He said that the applicant came to Australia to improve her position so that she could learn money for her daughter to go to university. He said that to do that she needs to speak English so that she can assist her sister to expand the family cannery business into other parts of Asia. That is the reason why the applicant needs to be able to speak English.

26. Mr Breier gave evidence about the timing of the receipt of the NOICC. He said that the applicant asked for a 15 day extension which to respond, and received only a five day extension. However during the five day extension, he said that the applicant received the notice of cancellation. Mr Breier said that he had received advice from an agent that the fact that the Department had failed to honour their agreement to give a five day extension for response to the NOICC was sufficient to overturn the delegate’s decision, but he acknowledged that he thought that was unlikely, as the applicant would not have been able to tell the department anything other than what he and she had told the Tribunal today.

27. The Tribunal asked the applicant will were study intentions now. She said she would like to go back to English. The Tribunal asked whether that was likely to be successful, and the applicant responded that she thought it would be a she had improved a lot she just struggles with formal language. Mr Breier stated that the applicant’s understanding of English is very much better now than it was. He said that she understands idiom and many more aspects of English, and Australian life than he had thought possible after such a short time in Australia.

28. Mr Breier stated that the applicant takes her failure to comply with the conditions of her visa very seriously. She takes it personally and wishes that she could apologise in person to the Prime Minister. She is extremely remorseful. Mr Breier said that he is also very remorseful.

29. The Tribunal has considered all of the applicant circumstances carefully. The Tribunal has some concerns regarding the applicant’s commitment and ability to study, and considers that student visa applicants should take an active and conscientious interest in the conditions of their visa, including the need to remain enrolled in an appropriate course of study. However, in this case, it is accepted that the applicant was somewhat affected by her difficulties with English, and resultant difficulties in pursuing further study, the somewhat lacklustre advice she received from her educational agent, the significant and manipulative role played by the applicant’s boyfriend in undertaking to deal with the Department and the agent, and his deception of the applicant with respect to those dealings, and her overall naivety and vulnerability. The Tribunal has had the benefit of hearing from the applicant and her boyfriend Mr Paul Breier at hearing. The Tribunal found the applicant to be credible, and indeed the witness to be credible (notwithstanding his history of misleading the applicant). Further the Tribunal found the applicant and her witness to be genuinely remorseful.

30. The Tribunal also had regard to the applicant’s concerns for her father’s health, and the fact that at least at one point she did not have enough money to enrol in another course. As well, the Tribunal took into account the fact that the applicant diligently attempted to study for over a year after arriving in Australia, and consistently expressed an ongoing desire to study, in the face of her boyfriend’s continued assurances that he was “sorting the issues out”.

31. Taking all of the applicant’s claims cumulatively, the Tribunal accepts that they amount to compelling and compassionate circumstances, noting however that the applicant should have been more diligent in taking responsibility for her study. The Tribunal considers, in the circumstances, that the applicant should be given the opportunity to continue her studies. The Tribunal has not reached this decision lightly in light of the applicant’s passivity in relation to her studies.

32. The Tribunal notes that the applicant states that they were granted five days extension of time in which to respond to the NOICC, but that the department did not honour that, and instead cancelled the visa during the five day period. There are some circumstances in which defects in departmental procedures, that may otherwise invalidated process, can be remedied by the Tribunal. Specifically, the Tribunal can open quote cure” a defect in natural justice or procedural fairness that occurred in the making of the delegate’s decision, through their own procedural fan must mechanisms. In this instance, the review process itself enables the applicant to have her case reviewed.

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

    DECISION

34. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

    Fiona Meagher
    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.