Syukur (Migration)

[2022] AATA 2587

Syukur (Migration) [2022] AATA 2587 (28 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Basma Astridz Olga Syukur
Mr Nova Rochmanto
Mr Jordan Kesatria Nova
Miss Jazelle Mazaya Nova

REPRESENTATIVE:  Dr Yusak Oktavianus (MARN: 2117099)

CASE NUMBER:  2207126

HOME AFFAIRS REFERENCE(S):          BCC2021/2264557

MEMBER:Vanessa Plain

DATE:28 July 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 500 (Student) visa.

The Tribunal has no jurisdiction with respect to the other applicants

Statement made on 28 July 2022 at 2:55pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in full-time registered course – discretion to cancel visa – pregnancy – no response from college to request for deferral and enrolment cancelled – attempts to appeal – enrolment at new college and academic progress – explanation for not responding to department’s notice – members of family unit – consequential cancellation of visas with no jurisdiction to review – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140(1), 348
Migration Regulations 1994 (Cth), Schedule 8, 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 May 2022 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the primary applicant was not enrolled in a registered course of study. 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. For the purposes of the Tribunal’s jurisdiction under s 348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicants.

4. The applicants appeared before the Tribunal on 28 July 2022 to give evidence and present arguments.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

6. The applicants were represented in relation to the review.

7. 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

8. 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 (Cth) (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?

9. 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 full time registered course: 8202(2)(a)

   ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

   ·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 attendnce as specified: 8202(2)(c)(ii).

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

11. An examination of the Delegate’s Decision Record reveals that the applicant was granted a Student (Temporary) (class TU) subclass 500 visa on 12 November 2019 for the purpose of undertaking registered courses of study in Australia. The applicant’s COE was cancelled on 20 January 2020 and she did not re-enrol in a course of study until 20 April 2022.  On that basis, her period of non enrolment was approximately two years and three months in duration.  

12. A Notice of Intention to Consider Cancellation (NOICC) of the visa was issued to the applicant on 23 December 2021.  The applicant did not respond to the NOICC.

13. At the hearing, the applicant acknowledged that she was not enrolled in registered course between 20 January 2020 and 20 April 2022.  She provided extensive documentation to the Tribunal (set out below) to corroborate her reasons for non-enrolment.     

14. On the evidence before the Tribunal as set out above, the Tribunal is satisfied that the applicant did not maintain enrolment in a registered course of study from 20 January 2020 and 20 April 2022 and on that basis, she has not complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

15. 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.

16. 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’.

17. In her sworn evidence at the hearing, the applicant stated as follows:

    ·The applicant became pregnant with her second child shortly after commencing her studies.  She applied in writing to defer her studies in Certificate III in Commercial Cookery due to her pregnancy.

    ·After applying for a deferral, the education provider sent her an official deferral request form and further requested that she provide evidence of her pregnancy by way of supporting documentation.  The applicant complied.  She filled out the deferral documentation and attached her medical records in accordance with the request of the college.

    ·She never received any notification from the college that her request for deferral had been denied and she had no reason to believe it would be given that she had submitted everything the college had requested. 

    ·She did not respond to the NOICC because when she received the document she was concerned that it was a scam.  The reason for her concerned lied in the fact that the document contained a duplication of her surname, it was described differently than on her passport and for that reason, she became suspicious.  So she did not respond to it but it prompted her in December 2021 to contact the college.  The college had changed its phone and email contact details and she had immense difficulty finding an appropriate contact.  She then contracted COVID-19 in December 2021 and was severely ill with the virus, as were her family members.

    ·Early in 2022 she attended the college in person with her young babies, she did no because she could not get through on the telephone.  The representative she spoke to was rude, she told her not to come to the college with her babies.  She told her that her enrolment was cancelled.  The applicant asked why that was given her deferral request was never refused.  The college representative didn’t have any explanation, but she told the applicant that she would have to pay ‘more’ money to re-enrol. 

    ·The applicant interpreted the college’s request for money as inappropriate, as the money did not seem to be in relation to tuition fees, which the applicant had always paid.  The applicant informed the representative that she had always been a good student and wanted a statement of credit for the subjects she’d successfully completed, so that she could apply to study the same course with a different education provider.  

    ·The applicant immediately researched other colleges that provide courses in cookery and hospitality.  She went to open days.  She ultimately enrolled in a new college and received some credits for the work she already completed with her former education provider. She said further that she believes she did not receive full credit for subjects already completed.  So, she contacted her former college again.  They said the reason for her lower level of credits was due to the fact that they couldn’t locate her assignments as submitted.  The applicant contends that she has always submitted assessments on time.

18. In support of her application, the applicant submitted the following documents:

    ·COEs for a Certificate III & IV in Commercial Cookery and a Diploma of Hospitality Management

    ·Emails to and from the applicant’s former education provider regarding the applicant’s deferral request

    ·Medical documents evidencing pregnancy

    ·Education provider contact details

    ·A chronology of face-to-face meetings with the representative of the education provider

    ·Signed receipts for submission of assignments

    ·Photographs of practical placements participation

    ·Birth certificate for the applicant’s second child

    ·Statement of attainment

    ·Father-in-law death certificate

    ·COVID-19 infection

    ·Documents evidencing attendance at orientation at new college provider

    ·Academic documents evidencing course progress at new college provider

    ·Legal submissions

    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      

19. The applicant was granted a Student (Temporary) (class TU) subclass 500 visa on 12 November 2019 for the purpose of undertaking registered courses of study in Australia. 

20. The applicant is currently enrolled in a Certificate III in Commercial Cookery and thereafter in a further Certificate and a Diploma of Hospitality Management.  The documents submitted demonstrate that she is attending class and progressing academically.  

21. Although the Tribunal considers the period of non enrolment to be substantial, for the reasons set out below the length of the non-enrolment period ought to be given only minor weight as it arose is respect of circumstances not reasonably within the control of the applicant. Moreover, the applicant is currently enrolled in a course of study and for that reason, her purpose for being in Australia is in line with the purpose of a student visa.    

22. The Tribunal gives these considerations some weight against the visa being cancelled.     

    The extent of compliance with visa conditions

23. The applicant has not complied with condition 8202(2)(a).  The applicant has provided extensive reasons for the breach which are set out above, namely, due to the fact that she sought a deferral of her course on the basis of her pregnancy which she reasonably believed had been granted. When it became apparent to her that the deferral had not been granted, she immediately took steps to appeal that decision and ultimately re-enrolled with another education provider.

24. The Tribunal acknowledges that there is no other evidence before it of breaches of other visa conditions.

25. The Tribunal gives these considerations some weight in favour of the visa not being cancelled.

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

27. The Tribunal acknowledges that the applicant is a married woman with two small children and that a visa cancellation may cause difficulty for the family unit.  The Tribunal further finds that given the reasons for the breach of the visa condition, if the visa were to be cancelled, it would unfairly cause reasonable emotional and physiological hardship for the applicant, particularly in view of the fact that the academic documents submitted by her demonstrate that she is a diligent student.

28. Based on the matters set out above in the applicant’s evidence, the Tribunal accepts that the cancellation has led to some significant personal detriment for the applicant which would be compounded by the continuation of the cancellation of the visa and the Tribunal gives this  weight towards the visa not being cancelled. 

    Circumstances in which ground of cancellation arose

29. The ground for cancellation arose because the applicant did not maintain enrolment in a registered course of study from 20 January 2020 to 20 April 2022.

30. The Tribunal refers to the entirety of the applicant’s oral evidence as set out above.  The Tribunal has further considered the entirety of all the documents submitted by the applicant which plainly corroborate the applicant’s oral evidence.  For this reason, the Tribunal finds the applicant’s explanation for her non-enrolment credible in the circumstances. 

31. The documentation submitted establishes that the applicant took all reasonable steps to obtain a deferral of her studies, on account of her pregnancy.  She went so far as to provide medical proof of her pregnancy to her education provider in support of her application for a deferral of her studies.  It is apparent that she reasonably believed that her deferral had been granted.  Her belief was reasonable as she was not in receipt of any information from the education provider to the contrary.  Moreover, when she realized she was not enrolled, she immediately took steps to appeal the cancellation of her enrolment by attending the college personally with her two babies, where she was told not to attend with her children.  She then took steps to immediately enroll elsewhere after obtaining credits for her previous study.

32. The Tribunal is of the view that the reason for the breach of the visa condition was due to circumstances not reasonably within the control of the applicant, on the basis of the matters set out above. 

33. The Tribunal gives this consideration significant weight in favour of not cancelling the visa. 

    Past and present behaviour of the visa holder towards the Department

34. The applicant has conducted himself in good faith in her dealings with the Department and its staff.  Her explanation (set out above) for her failure to respond to the NOICC is corroborated by reference to the applicant’s name as set out in her passport. 

35. The Tribunal gives this some weight in favour of the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

36. The dependant applicants’ visas are consequently cancelled as a result of the applicant’s visa being cancelled.  Given that the Tribunal has found that the reason for the breach of the visa condition was not reasonably within the control of the applicant, the Tribunal gives this factor some weight against cancelling the visa for this consideration.   

    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

37. If the visa were to be cancelled, the applicant would be excluded from making applications for certain types of visas and may be liable to detention and/or deportation if she does not depart the country.  These are mandatory consequences of the legislation and in view of the fact that the Tribunal has found that the reason for the breach of the visa condition was not reasonably within the control of the applicant, the Tribunal gives this a little weight in favour of 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   

38. Relevant Departmental policy instructions (Procedural Advice Manual 3) relating to family separations states (at [76]) as follows:

    “Obligations apply to persons within Australia’s territory and also to persons within Australia’s jurisdiction. The obligations that are most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement (this latter term refers to an obligation that people should not be removed to frontiers/territories where they face certain types of harm)...”

39. Australia is a signatory to the Convention on the Rights of the Child (CROC) and the International Covenant on Civil and Political Rights (ICCPR).  Article 3.1 of the CROC provides as follows:

    “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.”

40. Australia is also a signatory to the International Covenant on Civil and Political Rights (ICCPR).  Article 23.1 of ICCPR provides as follows:

    “The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State...”

41. The applicant, her husband and two children are citizens of Indonesia.  If the applicant’s student visa is cancelled, there is no evidence before the Tribunal of any reasonable prospect of separation from her husband and children and vice- versa.   

42. The Tribunal affords this consideration little weight against cancelling the visa.

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

43. Not applicable.

    Any other relevant matters

44. There are no other relevant matters for consideration.   

45. The matters set out above do not reveal any bad faith on the part of the applicant, it is clear based on the evidence that the reason for the breach of the visa condition was not reasonably within the control of the applicant and that she took all reasonable steps to procure a deferral of her studies on account of her pregnancy.  In the absence of being informed by her education provider that her application for deferral was unsuccessful, she was acting under the reasonable assumption that her deferral had been granted.

46. It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa not being cancelled and I so find.

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

    DECISION

48. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 500 (Student) visa. The Tribunal has no jurisdiction with respect to the other applicants.

    Vanessa Plain
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.