SUKAN (Migration)

SUKAN (Migration) [2019] AATA 1907 (28 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Napalai SUKAN
CASE NUMBER:  1701327
HOME AFFAIRS REFERENCE(S):           BCC2016/3726199
MEMBER:Antoinette Younes
DATE:28 March 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 28 March 2019 at 4:44pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – significant period of non-compliance – purpose of visa not fulfilled – Australian citizen child – 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

This is an application for review of a decision dated 24 January 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).
The delegate cancelled the visa on the basis that the applicant did not comply with condition 8202(2) which requires the visa holder to be enrolled in a registered course.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
On 21 February 2019, the Tribunal invited the applicant to a hearing scheduled on 27 March 2019. Amongst other things, the Tribunal advised that the Tribunal has considered the material before it but was unable to make a favourable decision on that information alone. On 27 March 2019, the applicant’s representative confirmed the applicant’s instructions that the Tribunal can make a decision on the papers without the need to conduct a hearing.
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
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?
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
In support of the application for review, the applicant provided to the Tribunal a copy of the delegate’s decision record which indicates that:
·The applicant was granted the student visa on 22 October 2014 on the basis of her intention to undertake an approved course of study.
·According to the Provider Registration and International Student Management System (PRISMS), the applicant was not enrolled in a registered course of study for the periods from 7 February 2015 to 24 September 2015, and 9 March 2016 to 22 December 2016.
·The applicant re-enrolled in a course in December 2016.
On 16 January 2017, the Department sent to the applicant a Notice of Intention to Consider Cancellation (NOITCC) to which the applicant responded essentially acknowledging that she was not enrolled in a registered course of study during those relevant periods. She provided explanations as discussed in the decision.
On the evidence before it, the Tribunal finds that the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2). Consequently the ground for cancellation exists.
Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.
Consideration of the discretion to cancel the visa
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’.
·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
The applicant came to Australia following the grant of a student visa. The student visa has a central objective, namely for the visa holder to undertake studies in Australia. The applicant did not study from 7 February 2015 to 24 September 2015, and 9 March 2016 to 22 December 2016. The Tribunal considers that period to be significant and the Tribunal has given this aspect weight in favour of cancellation.
The representative has advised the Tribunal that the applicant is no longer in Australia. Although it is plausible that her purpose to travel to Australia was to study, on the evidence the Tribunal is not satisfied that the applicant has a compelling need to travel to or to remain in Australia.
·the extent of compliance with visa conditions
The applicant was not enrolled in a registered course of study from 7 February 2015 to 24 September 2015, and 9 March 2016 to 22 December 2016 and consequently she has breached condition 8202(2) attached to her student visa. Although there is no evidence before the Tribunal that the applicant has breached any other condition, the Tribunal considers the non-enrolment for period totalling over a year to be significant.
The Tribunal gives this aspect weight in favour of cancellation.
·degree of hardship that may be caused (financial, psychological, emotional or other hardship)
In submissions to the Department on 18 January 2017, the applicant stated that she had given birth to an Australian child during the relevant period and she had care for her child. It was submitted that the father of the child is an Australian citizen who did not do “anything to take care of the child” which meant that the applicant had to care for the child alone and consequently the applicant could not afford the money or time to study. The applicant also raised the issue of the child in submissions to the Tribunal.
The applicant provided to the Department a birth certificate confirming the birth of her daughter in Australia on 23 May 2016.
The Tribunal gave the applicant an opportunity of a hearing where the Tribunal would have asked the applicant for further information about her circumstances, especially the situation in relation to the child.
On the limited evidence before it, the Tribunal does not know the extent of the impact that the birth of the child had on the applicant and how it impacted on her studies. The Tribunal does not have sufficient information or evidence to determine the extent of the impact or hardship that the birth of the child had on the applicant. Despite this, the Tribunal has decided to give this aspect some weight in the applicant’s favour.
Although not submitted by the applicant, the Tribunal appreciates that the cancellation of a visa can bring about a degree of hardship including financial, psychological and emotional. However on the evidence before it, the Tribunal gives this limited weight in the applicant’s favour.
·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
The ground for cancellation arose as a result of the applicant’s breach of condition 8202(2). The applicant has explained the breach on the basis of the birth of her daughter. The Tribunal does not have sufficient information before it to conclude that this was beyond the applicant’s control.
The Tribunal gives this consideration limited weight in the applicant’s favour.
·past and present behaviour of the visa holder towards the department
The applicant responded to the NOITCC, although briefly making it difficult to fully assess her circumstances but in any event, the Tribunal gives this aspect some weight in her favour.
·whether there would be consequential cancellations under s.140
There is no evidence before the Tribunal that there would be any consequential cancellation pursuant to s.140.
The Tribunal gives this aspect neutral 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
There are mandatory consequences in case of the cancellation of the visa, including detention and removal from Australia, as well as difficulties in obtaining any further visas. The applicant is no longer in Australia and accordingly removal and detention are not applicable in her case.
The cancellation of the visa has the consequence that the applicant would have difficulties in obtaining any further visas in Australia however those are also intended and legitimate consequences of cancellation.
The Tribunal gives this consideration neutral 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
As a signatory to the Convention on the Rights of the Child (CROC), Australia has an obligation concerning the applicant’s son and two step-children under 18. The CROC applies to children under 18 years of age. By being a signatory, Australia has agreed to act in a manner consistent with the Convention, recognising the best interest of the chid.
The CROC sets out the rights of children in 54 Articles and two Optional Protocols. It spells out the basic human rights that children everywhere have: the right to survival, to develop to the fullest, to protection from harmful influences, protection against abuse and exploitation, to participate fully in family, cultural and social life.
The four core principles of the Convention are non-discrimination, devotion to the best interests of the child, the right to life, survival and development, and respect for the views of the child. The CROC sets out standards in relation to health care, education, legal and civil rights.
Article 3 of the CROC states:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
The applicant has a child born on 23 May 2016. The applicant has claimed that the child is an Australian citizen. The delegate appears to have accepted that the child is an Australian citizen and the Tribunal will proceed on the basis that the child is an Australian citizen by birth, due to the father being an Australian citizen. The Tribunal does not have sufficient information about the child or the applicant’s current circumstances, including any relationship with the father of the child. The applicant has claimed that the father has not taken care of the child.
On the evidence, the Tribunal is not satisfied that Australia would be in breach of any international obligation in case of cancellation.
Overall, the Tribunal gives this aspect limited weight in the applicant’s favour.
·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The student visa is a temporary visa. The Tribunal gives this consideration neutral weight.
·any other relevant matters.
There are no other relevant matters.
The Tribunal has considered the applicant’s circumstances individually and cumulatively. The Tribunal is satisfied that there are limited aspects that are favourable to the applicant. The Tribunal is satisfied that those limited aspects do not outweigh the reasons to cancel the visa. The breach of condition 8202(2) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Antoinette Younes

Senior 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.

[2019] AATA 1907

28 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Natural Justice