Saraphok (Migration)

[2018] AATA 4688

Saraphok (Migration) [2018] AATA 4688 (10 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rinrada Saraphok

CASE NUMBER:  1700841

HOME AFFAIRS REFERENCE(S):           BCC2016/3532450

MEMBER:Helen Kroger

DATE:10 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 10 October 2018 at 12:50pm
CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – ceased study – family’s funding withdrawn – period of non-enrolment – same sex relationship – open country in Australia – no attempt to contact department or education provider – decision under review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 13 January 2017 made by a delegate of the Minister for Immigration and Border Protection 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 applicant, Ms Saraphok, a Thai national, was granted a visa on 24 May 2014 to study in Australia.

3. On the 22 December 2016, Ms Saraphok was sent a Notice of Intention to Consider Cancellation of her student visa inviting her to comment on a potential breach of condition 8202 which was imposed on her visa. This Notice of Intention to Consider Cancellation superseded the previous NOICC that was issued to Ms Saraphok on the 1 December 2016. It appeared that the applicant was not enrolled in a registered course. The applicant has not responded to the NOICC nor provided a statement of explanation.

4. The delegate cancelled the visa on the basis that the applicant has not maintained enrolment in a registered course and the grounds for cancelling the visa outweighed the grounds for not cancelling the 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.

5. The applicant seeks review of the delegate’s decision and for that purpose provided a copy of the primary decision to it.

6. The applicant appeared before the Tribunal on 3 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Liangswang, who claims to be the girlfriend of the review applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

7. The applicant’s appointed representative did not attend the hearing and did not participate by telephone.

8. 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

9. 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?

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)

    ·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).

11. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant was invited to respond to the NOICC on the 22 September 2016, and no response was received by the Department indicating the reasons why the visa should not be cancelled.  At the hearing, the alleged breach (as discussed by the delegate in his/her decision), was put to the applicant and reference was made to the delegate’s decision record that indicated that she had not been enrolled in a registered course of study since 11 April 2016. The applicant first indicated that she was not sure if she was enrolled in a registered course and later confirmed during the hearing that this was correct and that she hadn’t been enrolled in a registered course of study since that time.

12. On the evidence before the Tribunal, namely the applicant’s admission during the hearing,  the Tribunal finds that 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

13. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

14. 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 Tribunal has considered the applicant’s evidence provided at the hearing along with the evidence given by the witness to support the applicant’s claims.

16. The information provided to the Tribunal at the hearing has been considered by the tribunal in its exercise of discretion as outlined below.

    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

17. The applicant is a Thai national who is 22 years of age. She first travelled to Australia with the intent to study and enrolled at Deakin, initially studying English, which she explained was a mandatory requirement before commencing a Diploma in Accounting.  She submitted to the Tribunal that she didn’t like Accounting and moved to a Diploma in Management, of which her COE was ultimately cancelled.  She indicated that she studied for approximately three months in each area.  She submitted to the Tribunal that she wasn’t attending classes due to a “problem in Thailand” and was “stressed”.

18. During this time, the applicant was working part time in a restaurant where she met and commenced a relationship with a same sex partner. She submitted to the Tribunal that she shared this circumstance with her parents in Thailand, and following their disapproval of the relationship, they withdrew all direct funding to her, which included the financing and payment of her studies for a registered course. She indicated that the withdrawal of financial support made her circumstances very difficult, and that the remuneration from her part time work was insufficient to pay for her studies. Her partner is now working full time and financially supports her.

19. She also explained she was in a distressed state during this time and was unable to study. She indicated that she ceased communications with her family, but has resumed telephone conversations with them, although not discussing the current status of her studies or her personal living arrangements.

20. The applicant indicated during the hearing that she did not seek to discuss the changed circumstances affecting her study with the appropriate authorities at Deakin, nor did she contact the Department. No medical documentation was submitted to indicate the applicant’s state of health during this time.

21. The applicant stated that she wished to stay in Australia rather than return to Thailand as Australia was an “open” society, in comparison to Thailand.

22. The Tribunal accepts that the applicant commenced her English course and finished it on 13 February 2015, however given the significance of the period in which she was not enrolled in a registered course of study, and the fact that she did not inform the Department or her course provider, the Tribunal finds that these considerations outweigh any weight given in favour of not cancelling the applicant’s visa.

    The extent of compliance with visa conditions

23. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal is mindful of the significance of the breach.  As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

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

24. The applicant explained at the hearing that she was in a spousal relationship with a same sex partner, a relationship that is possible in Australia, but indicated that it was not accepted in Thailand as the latter isn’t an “open country”. She explained that the relationship commenced shortly after her arrival in Australia and that it is a relationship not approved by her family. She told the hearing she just wanted to stay with her partner and get the necessary visa to do so.  This statement was also provided by the witness who also referenced the possibility of being granted a Partner’s visa.  The applicant explained that she wanted to stay in Australia so that she could stay with her Partner, and gave no indication that she wished to resume studies at any stage.

25. The witness, who is employed full time, financially supports the applicant, who claims not to currently work.

26. The Tribunal notes the oral evidence provided by both the applicant and witness that indicates that a visa cancellation would create some personal hardship with the applicant having to return home to Thailand. Whilst the parties claimed that their relationship would be difficult in Thailand, indicating that it was not an “open country”, the Tribunal has had regard to the legal status of same sex relationships in Thailand, the comprehensive anti-discrimination law that was introduced in 2015 to protect and cover sexual orientation and gender identity in that country, whilst recognising that there are continuing traditional elements that could influence views on social and human rights.

27. The Tribunal has also had regard to the views of the applicant’s family who stopped their financial support of their daughter when she advised them of her relationship. Whilst her Partner currently financially supports her, there is no evidence before the Tribunal that the applicant’s family would not resume financial assistance, should she return to Thailand.

28. The Tribunal appreciates that a cancellation would cause some hardship as acknowledged in the explanations provided by the applicant. However the Tribunal gives more weight to the significance of the breach, the time that has elapsed since the applicant was enrolled, than the hardship potentially caused to the applicant and her Partner.

    Circumstances in which ground of cancellation arose

29. The applicant submitted to the Tribunal during the hearing the circumstances around the period when she did not enrol. She claims that she didn’t enjoy her choice of course and changed it, indicating that she didn’t attend these classes either. Whilst working part time, she met her current Partner, and a relationship developed of which her parents disapprove.

30. The applicant explained that this caused her to stress and that it made it difficult for her to concentrate, which lead to her disengaging from her studies. At the same time, her parents withdrew the necessary funds to pay for her courses. Whilst the applicant submitted the difficulty that this situation imposed on her, there is no evidence before the Tribunal to indicate that she sought any professional advice or counsel to assist her, nor is there evidence to indicate that she contacted her college provider to advise them of the payment difficulties she was facing.

31. The applicant acknowledged during the hearing that accordingly, she did not continue her enrolment in a registered course and at no stage, did she indicate interest in resuming studies in Australia or contact the Department.

32. Given the circumstances as outlined above, the Tribunal gives limited weight to these reasons provided by the applicant and more weight to the period in excess of twelve months in which the applicant was not enrolled in a registered course of study. As such, the Tribunal finds that these considerations outweigh any weight given in favour of the applicant and not cancelling the visa.

    Past and present behaviour of the visa holder towards the department

33. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach.

34. 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

35. It is unlikely that the visa applicant would be detained but rather provided with a time limited period in which he can leave the country or apply for review of the decision.

    Whether any international obligations would be reached as a result of a cancellation

36. There is nothing before the Tribunal to indicate there are international obligations to consider.

    Any other relevant matters

37. The Tribunal notes that the applicant did not respond to the invitation of the Department to comment on the NOICC.  The applicant provided no reason for this when asked about it during the hearing.

38. The applicant indicated to the Tribunal during the hearing that she just wanted to stay with her Partner in Australia and that she wanted a visa to enable this. She did not provide any information to show that she had a continuing interest in studying in Australia or in any way regretted not continuing in a registered course. 

39. This statement was supported by the witness statement who told the Tribunal that they were interested in a visa that allowed the applicant to stay in Australia as her Partner.

40. Whilst the Tribunal is not unsympathetic to the wishes of the applicant and her Partner, the Tribunal notes that the relationship could continue should the applicant return to Thailand, notwithstanding the distance. The Tribunal notes the comments made by the applicant in relation to her family’s disapproval of the relationship, but has regard to the applicant’s submission that she speaks with her family regularly and there is nothing before the Tribunal to indicate that they would not provide assistance should the applicant’s visa be cancelled.

41. The Tribunal has considered the applicant’s statements however the breach is significant. As a visa holder who is bound by the conditions on the visa, she made no attempt to inform the Department or rectify the situation and the Tribunal places significant weight on the length of the breach, namely in excess of two years and four months. The fact that the applicant’s parents stopped financing her stay in Australia does not explain her dropping out of classes before not continuing with enrolment. As such, the Tribunal finds that the length and significance of the breach outweighs the applicant’s explanations.

42. The Tribunal has considered all factors listed above both individually and cumulatively in the context of the breach. The Tribunal finds that the breach in excess of two years and four months is significant in the context of a student’s study period and the fact that she would be well aware of the expectations placed on her, along with the fact that she made no attempt to contact the Department or education provider, and indeed, made no attempt to return home. As such, considering the circumstances as outlined by the applicant during the hearing, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Helen Kroger
    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.