SAMATHI (Migration)

[2019] AATA 5723

SAMATHI (Migration) [2019] AATA 5723 (19 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss NARISSARA SAMATHI

CASE NUMBER:  1831107

HOME AFFAIRS REFERENCE(S):          BCC2018/3913899

MEMBER:Peter Booth

DATE:19 December 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 19 December 2019 at 9:06am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – non-payment of fees – decision under review affirmed

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 15 October 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 the applicant had breached condition 8202(2)(a). 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 13 December 2019 to give evidence and present arguments. 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 affirmed.

   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 below. Relevantly, it requires that the applicant:

   ·be enrolled in a full time registered course: 8202(2)(a)

   ·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).

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

8. The delegate’s decision cancelling the applicant’s visa is dated 15 October 2018. The delegate found that the applicant was not enrolled in a registered course of study from 30 October 2017. At the hearing the applicant affirmed the correctness of the delegate’s finding. 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

9. 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’.

10. The Tribunal turns to consideration of any relevant factors, including matters raised by the applicant and the Departmental guidelines which cover the following matters.

    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

11. The applicant gave evidence that she arrived in Australia on 15 March 2017 as the holder of a “student” visa. She said that she intended to study “English for one year, then a diploma for six months”. She gave no evidence as to whether she had a compelling need to travel to or remain in Australia.

    The extent of compliance with visa conditions

12. The applicant confirmed that she had not been enrolled in a registered course of study from 30 October 2017.

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

13. The applicant gave no evidence regarding any degree of financial, psychological, emotional or any other hardship which may be caused by the cancellation of the visa. However, the Tribunal accepts that cancellation of the applicant’s visa will cause some degree of financial hardship in the form of lost tuition fees, or emotional hardship, in the form of disappointment or embarrassment in not completing the course. The Tribunal gives this factor little weight.

    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

14. The applicant said that she arrived in Australia on 15 March 2017 for the purposes of study in English for one year and “then a diploma for six months”. The applicant said that she started the course but did not complete it. Apparently this took “eight or nine months”. The applicant did not obtain a certificate in respect of this course because “I did not apply for the next stage”. The Tribunal enquired as to the next stage to which she said “I received an email to enrol in a diploma course”. In answer to a question from the Tribunal she said the diploma course was “marketing” but that she did not start it. In answer to a question from the Tribunal she said “the course provider told me to pay all the course fees. I also found out that I was pregnant. I decided to keep the money to take care of the baby”. In answer to a question from the Tribunal she said the course was due to commence “approximately January 2018”. The Tribunal enquired when the applicant had been requested to pay course fees to which she said “the letter was sent to my previous address, but I did not get it, then after three months I got an email to give me a warning about cancellation”.

15. The Tribunal again enquired as to the approximate date on which the applicant had been requested to pay the course fees to which she said “the last email was on 29 September 2017”. The Tribunal repeated the question several times, asking the applicant to inform the Tribunal when she had been requested to pay the fees; the applicant was unresponsive. Finally the applicant said “I was asked to pay course fees on 27 September 2017, could not find money to pay the course fees and did not go to study”. The applicant, in response to a question from the Tribunal confirmed that she had received a notice from the course provider informing her that the enrolment would be cancelled. She said that she applied for a deferral. The applicant added “I was told to pay total course fee of $2700 within one week, I could not find the money to pay for it so went to talk to them, I was not sure if I could pay by instalment or not, then I moved house, after that I got an email that cancelled my enrolment”. The applicant did not elaborate as to her assertion that she had requested a deferral of the course. The Tribunal enquired whether the applicant had requested to pay the fees in instalments to which she said “I did, but I did not get a reply”. The Tribunal enquired whether that communication was in writing to which she said “no, through the agent”. She did not elaborate. She went on to say “when I received an email from the Department was about August 2018 that they were going to cancel the visa”. The Tribunal enquired whether she responded to this notice to which she said “I asked the lawyer”.

16. The Tribunal pointed out that the applicant had not responded to the notice of intention to cancel her visa and invited the applicant to comment. In response the applicant said “at the time I told my lawyer I intended to apply for a partner visa, my lawyer said I need to apply for a bridging visa first to let them know my intention is not to overstay here”. The Tribunal enquired whether the applicant had applied for a “partner visa” to which she said “no not at the moment, my lawyer said it from holding a bridging visa I cannot apply for a partner visa”. The Tribunal enquired whether the applicant had proceeded with the pregnancy, to which she said “no, I have a lot of problems, on 19 December 2018 there was bleeding, it was stressful with study and the visa, I have a doctor certificate”. The Tribunal enquired whether the applicant was referring to the medical certificate dated 13 December 2019 referring to a “miscarriage”  on that day, to which the applicant said yes.

17. The applicant’s partner lives in Australia and is working. He has been working since 2017, the applicant informed Tribunal. However she then went on to say in 2017 “he did not work much because he had just completed study”. Apparently the applicant’s partner is working as a “dealer at Star Casino from August” and earns approximately $1200 per week. The applicant’s partner completed a Bachelor of Architecture. The applicant went on to say that she intends to travel to Tokyo on 6 March 2020. There was a copy of that document in the Tribunal file and the Tribunal observed that it was a one-way ticket. The Tribunal enquired of the relevance of this document to which the applicant said “to show my intention is not to overstay in Australia”. In response to an invitation from the Tribunal the applicant went on to say “I intend to leave Australia on 6 March 2020 and now I have my partner’s family here, they have a plan to give me a farewell in February, let me stay until then”. The Tribunal enquired whether the applicant intended to return to Australia from Japan to which she said “yes, it is a holiday for six days”. In response to further questions from the Tribunal the applicant said that she did not have a return ticket from Thailand to Australia and intended to buy a ticket from Japan to Thailand. She said that when she arrives in Thailand she intends to “apply for a partner visa”. In answer to a question from the Tribunal she said that her partner has “PR, permanent residency”. It was difficult to obtain clear evidence from the applicant and at times she appeared most reluctant to respond. However it is tolerably clear that the applicant did not pay relevant course fees and accordingly her enrolment was cancelled. The reason for not paying the course fees was the applicant’s decision to allocate the funds for the benefit of her unborn child. Whilst she said that she had applied for deferral of the course she did not elaborate upon it. The Tribunal gives this assertion little weight.

18. She also asserted that she requested instalment payments for the course fees. However she did not elaborate upon this assertion nor produce any documents in support of it. The Tribunal gives this assertion little weight. It appears that the applicant’s partner had completed a Bachelor of Architecture degree sometime in 2017. The applicant gave no evidence as to why the applicant’s partner would not support her in the pregnancy nor why he could not contribute towards the course fees. In any event, having regard to the totality of the applicant’s evidence the Tribunal is not satisfied that her reason for breaching condition 8202 was beyond her control. The Tribunal finds that the reason for her non-enrolment and therefore breach of condition 8202 was a deliberate decision on the part of the applicant not to pay the fees and to apply the funds for a different purpose.

    Past and present behaviour of the visa holder towards the Department

19. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    Whether there would be consequential cancellations under s.140

20. The Tribunal was provided with no evidence on this point and gives it little weight.

    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

21. The Tribunal accepts that there may be legal consequences as a result of the cancellation. However, these consequences were intended by the Parliament when enacting the relevant legislation. The Tribunal gives them little weight.

    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

22. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

23. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    Any other relevant matters

24. There was no evidence of any other matters and the Tribunal gives this factor no weight.

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

    DECISION

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

    Peter Booth
    Member