Shukla (Migration)

[2018] AATA 4929

Shukla (Migration) [2018] AATA 4929 (19 October 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Varsha Shukla

CASE NUMBER:  1710216

HOME AFFAIRS REFERENCE(S):           BCC2017/1079335

MEMBER:Brendan Darcy

DATE:19 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 19 October 2018 at 3:54pm

CATCHWORDS

MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – enrolment in a registered course – ceased studies – unplanned pregnancy – unmarried sole parent – close bond with an Australian citizen – no claims as a genuine student – duration of non-compliance – death of applicant’s mother – other migration options – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulatiosn 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 11 May 2017 made by a delegate of the Minister for Immigration and Border Protection 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 delegate found the applicant had been in breach of condition 8202 imposed on his student and that the grounds for cancellation 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.

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

4. On 24 January 2018, the Tribunal wrote to the applicant’s representative inviting the applicant to provide any information in writing regarding their enrolment or enrolments, any circumstances in which the ground for cancellation arose; any compelling need to remain in Australia;; any compliance with visa condition (including previous visas), any hardship that may be caused by the visa remaining cancelled or any other relevant consideration, and to do by 7 February 2018.

5. On 7 February 2018, the applicant submitted a number of documents via her representative and a legal submission prepared by the applicant’s representative.

6. On 30 August 2018, the applicant’s representative wrote to the Tribunal that she is suffering financial hardship and that this affects her Australian citizen child and that it would be appreciated that the a decision was made at the earliest opportunity.

7. On 31 August the Tribunal emailed the representative seeking clarification that the applicant is foregoing her right to give evidence and present arguments at a scheduled hearing, and if so, the Tribunal will proceed to make its decision ‘on the papers’. The representative emailed the Tribunal on the same day to confirm the applicant’s instructions to forego her scheduled hearing right and is expectation the written decision.

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.

12. Based on the delegate’s decision record which was attached to the applicant’s review application, Provider Registration and International Student y Management (PRISMS) records indicates the applicant has not been enrolled in a course work since 23 August 2013.

13. The decision record also notes that applicant was provided with a Notice of Intention to Consider Cancellation (NOICC) on 19 April 2017, inviting the applicant to respond in writing. The decision record further indicates the applicant did not respond.  A delegate on behalf of the Minister then proceeds to cancel the applicant’s student visa on 11 May 2017.

14. The applicant applied to the delegate’s cancellation decision reviewed by the Tribunal on 12 May 2017 with the decision record attached.

15. In examining the applicant’s legal submission and her own statement (both dated 7 February 2018) to the Tribunal, the applicant does not deny she was not enrolled in any course between 23 August 2016 and 11 May 2017.

16. Based on the available evidence, the applicant was not enrolled in a registered coursework between 23 August 2016 and date of cancellation for nine months, while holding a subclass 572 student visa for vocational education and training.

17. Accordingly, the applicant has not complied with condition 8202(2).

18. As the applicant has failed to comply with the visa condition, the ground for cancellation in s.116(1)(b) does not arise.

    CONSIDERATION OF THE DISCRETION TO CANCEL THE VISA

19. 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’

20. The review applicant provided a written statement outlining the reasons she failed to comply with conditions 8202. In September 2013, the applicant met an Australian citizen (male) whom she assumed was divorced and with whom she developed a romantic relationship. The applicant sought the permission of her family in India to marry the Australian citizen. However, when the applicant discussed marrying the Australian citizen, he disclosed his existing marriage. The relationship ended on 24 October 2014 – soon after the applicant was granted this student visa under review on 24 October 2014. On 11 January 2015, the applicant discovered she was pregnant and the child, Nesh Shukla, was born on 11 July 2015. The applicant claimed the unplanned pregnancy was difficult and had to refrain from attending classes based on the medical advice of a medical professional. (A supporting medical certificate was also submitted).

21. The applicant further claimed that her family in India ceased all contact with and emotional support for the applicant, except her mother, because she is a sole parent.  However, her mother passed away on 6 October 2016. (A supporting death certificate was submitted). 

22. The applicant further claimed that she was granted sole parental responsibility of her child who is an Australian citizen child and that she and her child have developed a close bond with an Australian citizen named Anne Bergin who has been supporting them. The applicant’s statement indicates that she works as a housecleaner and a carer for Ms Bergin and her sister. Ms Bergin’s statement date 4 December 2017 indicates she is frail suffering from arthritis.

23. The review applicant also claimed to hold fears she and her child will be in physical, social and emotional danger of being abused and assaulted due to her being an unmarried sole parent, if they returned to India, and because she faced social pressure in the past when she divorced prior to arriving in Australia.

24. The applicant has claimed emotional suffering since discovering her romantic partner was married and the subsequent relationship breakdown which was followed by her pregnancy and her responsibilities in caring for her Australian citizen child. She further argued that her child will suffer severely and her and her child’s close relationship Anne Bergin will be severely impacted upon if the applicant’s visa is not reinstated.

25. Based on the documentary evidence submitted and with no evidence to the contrary, the Tribunal accepts these circumstances regarding the applicant’s recent past to be case.

    the purpose of the visa holder’s travel and stay in Australia

26. At no point did the applicant or the applicant’s representative advance the claim the applicant is a genuine student or that she intends to advance her studies if the visa was granted. Since the applicant’s arrive in in Australia, there is evidence that she had achieved any significant academic achievements by completing diplomas in community welfare and management and an advanced diploma of business. However she has not been enrolled in any course since 23 August 2016.

27. However, at no point did the applicant or the applicant’s representative advance the claim the applicant is a genuine student or that she intends to advance her studies if the visa was granted or which kind of career goals she may have in mind. Alternatively she claimed she had compelling emotional and humanitarian reasons to remain in Australia, which are not for the purpose of any student visa.

28. The Tribunal provided the applicant ample opportunity to advance whether she was a genuine student. As she did not, the Tribunal finds there are no credible reasons to find the applicant will study full time or will be a genuine student into the foreseeable future. For these reasons, the Tribunal places considerable weight in this student visa remaining cancelled.   

    the extent of compliance with visa conditions

29. The Tribunal notes that nine months of not being enrolled is a significant amount of time. While this is no other evidence the applicant has not been non-compliant with other conditions imposed on her as a student visa holder, the Tribunal places some weight on her non-compliance with condition 8202 in not having the visa reinstated.

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

30. As outlined above, the applicant provided documentary and written evidence that she will face financial, emotional and even physical hardship if her visa remains cancelled. The Tribunal notes there is no current medical evidence that the applicant suffers from any significant physical or mental health problems.  The Tribunal accepts this to be the case and assesses the emotional, financial and other hardships will be significant, given she is likely to return to India without her family’s support and that social services are relatively limited in that country compared to Australia. Overall the Tribunal places a significant amount of weight on their being financial, emotional and psychological hardship if the visa remains cancelled.  

    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.

31. The applicant claimed not to be enrolled in any coursework and therefore in breach of condition 8202 due to her circumstances as in becoming pregnant, in a relationship breakdown and in having a child as a sole parent.  It is claimed these circumstances were adversely compounded by the abandonment of her family and the death of her mother.

32. However, it is not claimed the applicant’s relationship broke down due to domestic or intimate partner violence. The applicant appeared to have sought a deferment in her studies in August 2015 based on her medical certificate and the PRISMS record. While these events – a romantic relationship that broke down, an unplanned and difficult pregnancy, the death of the applicant’s mother and dealing with sole parenthood were not deliberately diversion from the applicant’s full time study, they are not necessarily a barrier to continuing her enrolment or studying. It is accepted the applicant has considerable challenges with regards to sole parenthood and no support from her family when she became unenrolled. However not all these circumstances were beyond the applicant’s control in explaining her non-compliance with condition 8202, given the cancellation of the enrolment in August 2016 was due to disciplinary reasons and that her child had already reached twelve months of age.

33. Nevertheless the Tribunal accepts the applicant’s extenuating circumstances deserve sympathetic understanding as leading to the grounds for cancellation. Accordingly the Tribunal places some weight on the visa not being cancelled due to extenuating and compassionate circumstances leading to the grounds for cancellation.

    past and present behaviour of the visa holder towards the department

34. According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department but the applicant did not respond to the NOICC when given the opportunity. The Tribunal gives this past and present behaviour towards the Department a little weight in her favour.

    whether there would be consequential cancellations under s.140

35. This factor is not relevant in this matter.

    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

36. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained. She may even be forcibly removed. The applicant has presented no specific evidence in relation to this factor but the Tribunal notes as a parent of an Australian citizen child she may be eligible for one of the subclasses of parent visas. Accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

    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

37. The applicant has argued there are compelling humanitarian reasons for her remaining in Australia. While it does not place much weight on her relationship with Ms Bergin‘s household, it is conceivable there are issues in respect with non-refoulement and the best of interest of the applicant’s Australian citizen child. There is no evidence the applicant has earlier applied for a protection visa in the past or is barred by s.48A in applying for a protection visa. Given the applicant has another migration option in this regard, the Tribunal places no weight on this considerations in favour of the student visa not being cancelled.

    other relevant consideration

38. There are no other relevant considerations in this application for review.

39. The Tribunal is not satisfied those factors, cumulatively considered, in favour of the visa not being cancelled are outweighed by those factors in favour of the visa being reinstated. In particular, the Tribunal is not convinced that the applicant intends to remain in Australia as a full time student who will uphold the conditions imposed as a student visa holder. It is also because the applicant is a parent of an Australian citizen child and that she has other migration options open to her if the visa remains cancelled.

40. The applicant’s representative has considered requesting the Minister to personally intervene in granting her a visa. While there are some matters with regards to the best interests of the child that the Minister may consider, the Tribunal declines to make a recommendation in favour of such a request as it is not satisfied other migration options have been explored or exhausted.

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

    DECISION

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

    Brendan Darcy
    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.