TELLIS (Migration)

[2019] AATA 6028

TELLIS (Migration) [2019] AATA 6028 (8 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss SASHA LORETTA TELLIS

CASE NUMBER:  1707229

HOME AFFAIRS REFERENCE(S):          BCC2017/715421

MEMBER:Lynda Young

DATE:8 October 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 08 October 2019 at 9:25am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered higher education course ceased – compelling and compassionate circumstances – limited academic progress – applicant’s academic exclusion from university – current course not available in India – completion of courses since visa cancellation – cultural expectation to support parents in retirement – decision under review set aside     

LEGISLATION

Migration Act 1958, ss 48, 116, 119
Migration Regulations 1994, Schedule 2; Schedule 8; Condition 8202

CASES

COT15 v MIBP (No 1) (2015) 236 FCR 148
Ibrahim v MHA [2019] FCAFC 89     

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision dated 4 April 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’s visa, granted on 4 April 2016, was subject to condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations), requiring the applicant to be enrolled in a registered course of study.

3.    On 14 March 2017, the applicant was issued a Notice of Intention to Consider Cancellation (NOICC) under s.119 of the Act, on the basis it appeared she had not complied with visa condition 8202(2)(a) as, on evidence obtained from the Provider Registration and International Student Management System (PRISMS), the applicant had not been enrolled in a registered course of study since 18 August 2016.  The applicant responded to the NOICC by providing a ‘submission’ and supporting documents to the Department on 28 and 29 March 2017.

4. On 4 April March 2017, the delegate cancelled the visa under s.116(1)(b) of the Act on the basis the applicant, in breach of visa condition 8202(2)(a), had not been enrolled in a registered course of study between 18 August 2016 and 27 March 2017, and the grounds in favour of cancellation outweighed the grounds against cancellation.

5.    The applicant applied to the Tribunal for review of the decision on 5 April 2017, and attached to her application, a copy of the Notice of Cancellation and the Decision Record (application). The issues in the present case are whether the ground for cancellation in s.116(1)(b) of the Act is made out, and if so, whether the visa should be cancelled.

6.    The applicant appeared before the Tribunal on 3 May 2019 to give evidence and present arguments. 

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

ISSUES

8. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b).

9. Section 116(1)(b) provides for cancellation of a visa where ‘its holder has not complied with a condition of the visa.’ Visa conditions for each subclass are identified in the relevant part of Schedule 2 to the Regulations, and described in Schedule 8 to the Regulations.

1. In this case, condition 8202 was imposed on the applicant’s student visa.

2. Condition 8202, as it applies in this case, is set out in the attachment to this decision.  Relevantly, it requires the applicant:

   a.be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

   b.has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   c.has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

3. If satisfied the ground for cancellation in s.116(1)(b) is made out then, as the ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa, having regard to matters specified in the Act or regulations that are required to be considered and all information relevant to the exercise of the discretion in the circumstances of the case, including matters raised by the applicant and matters of government policy.

4. There are no matters specified in the Act or the Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. Matters to which the Tribunal has regard in considering whether to exercise its discretion to cancel the applicant’s visa include matters raised by the applicant and the matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, including:

   a.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;

   b.the extent of compliance with visa conditions;

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

   d.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;

   e.past and present behaviour of the visa holder towards the department;

   f.whether there would be consequential cancellations under s.140;

   g.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;

   h.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;

   i.if it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia;

   j.any other relevant matters.

5. The issues for the Tribunal’s determination in this case are:

   a.does the ground for cancellation in s.116(1)(b) of the Act exist?

   b.if the ground for cancellation in s.116(1)(b) of the Act exists, should the discretion to cancel the visa be exercised?

EVIDENCE ON THE APPLICATION

1. The evidence before the Tribunal on this application comprises:

   a.documents on the Department’s cancellation file, relevantly, the NOICC and the applicant’s response to the NOICC provided to the Department on 28 and 29 March 2017, comprising:

   i.the applicant’s “submission” dated 27 March 2017;

   ii.report of Dr Osman Qadri dated 27 March 2017;

   iii.Confirmation of Enrolment (CoE) 8B860768 dated 27 March 2017 for enrolment at University of Western Sydney in Master of Professional Accounting, course start date 3 April 2017, completing 18 June 2018;

   iv.University Western Sydney Counselling Service Memorandum dated 17 April 2015, from DM Morris, Counsellor re ‘Break from Studies’;

b.the application, including the attached Notice of Cancellation and the Decision Record;

c.the applicant’s “reply to hearing” statement dated 22 April 2019;

d.CoE 900FBC36 dated 27 July 2017 for enrolment at University of Technology Sydney in Graduate Certificate in Management, course start date 24/07/2017, completing 31/12/2017;

e.CoE 90103557 date 27 July 2017 for enrolment at University of Technology Sydney in Graduate Diploma in Event Management, course start date 12 March 2018, completing 30 June 2018;

f.CoE 98A9BE26 dated 16 March 2018 for enrolment at University of Technology Sydney in Graduate Diploma in Event Management, course start date 23 July 2018, completing 31 December 2018

g.CoE A8645956 dated 12 April 2019 for enrolment at University of Technology Sydney in Graduate Diploma in Event Management, course start date 26 April 2019, completing 15 July 2019;

h.NIB Confirmation of Health Cover x 3  Policy End Date 31 December 2019;

i.Bridging E Visa, Grant Notice dated 23 March 2018;

j.Notification of Grant of TU-573 Visa dated 4 April 2016;

k.University of Technology Sydney, Online Student Record dated 22 April 2019, for C11021 Graduate Certificate in Management (course completed 2017) and C06017 Graduate Diploma in Event Management, (Active), 2018;

l.copy of current and expired passport bio pages;

m.CoE 7CA9ED53 dated 26 February 2016 for enrolment on at University of Western Sydney in Master of Accountancy, course start date 11 January 2016, completing 31 January 2018;

n.CoE 8B860768, (as previously provided to Department in response to NOICC);

o.Letter from University of Western Sydney, dated 24 September 2015, stating, [in part] “Leave of Absence is approved, from Master of Accountancy course 2691, for period 21 September 2015 to 6 December 2015”;

p.University of Western Sydney, Graduate Certificate in Accounting, conferred 12 September 2017;

q.letter from University of Western Sydney, undated, addressed to applicant, stating [in part]: “You have been excluded from all study at Western Sydney University for a period of 12 months (one year) from 13/4/16 because you have: - failed the same or equivalent unit three times; and/or - passed less than 50% of the credit points you attempted in the last two quarters, having previously been on conditional enrolment.”;

r.Movement Details Record for the applicant dated 2 May 2019, confirmed by the applicant at hearing;

s.PRISMS summary for the applicant dated 2 May 2019, confirmed by the applicant at hearing;

t.the applicant’s evidence at hearing;

u.the applicant’s post-hearing submission dated 17 May 2019;

v.University of Technology Sydney, Online Student Record dated 12 July 2019, for C11021 Graduate Certificate in Management, complete 2017 and C06017 Graduate Diploma in Event Management, complete, 2019;

w.CoE ACC53283 for enrolment at University of Technology Sydney in Master of Event Management, course start date 26 July 2019, completing 31 December 2019;

x.letter from University of Technology Sydney dated 26 July 2019, confirming applicant is entitled to graduate her Diploma in Event Management course, official ceremony to be held in October 2019.

1. The Department’s NOICC issued 14 March 2017, notified the applicant it intended considering cancellation of her visa as, based on PRISMS evidence, it appeared she had not been enrolled in a registered course of study after 18 August 2016, possibly breaching visa condition 8202(2)(a).  The applicant was invited to provide her written response to the NOICC within five working days, addressing the identified ground(s) for cancellation, reasons why her visa should not be cancelled, the matters the delegate would take into account in considering whether to cancel her visa, being those matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, and any other matter she considered relevant.

2. In her “submission” dated 27 March 2017 responding to the NOICC, the applicant stated:

   “I am writing this in regards to the cancellation notice that was received on the 14th March 2017 by email.

   Purpose of Submission

   The officer is urged to find that:

   ·The compelling and compassionate circumstances exist, which led breach of visa condition 8202(2)(a)

   ·The medical condition of the applicant has posed a threat to her professional and personal growth

   ·The applicant has genuine intention to stay in Australia temporarily for the purpose of higher education

   ·The officer is urged to find, why the grounds for cancellation do not exist

   Submission

   I arrived in Australia in January 2013. I was enrolled to study Master of International Business and Finance at the University of Western Sydney. I could only manage to pass one unit out of 4. My performance was hindered and compromised because I could not manage to grasp the entirety of underlying concepts.

   The semester that followed; being cautious, I only took 3 units. Regrettably to say, I could only pass one among the three units. The unsatisfactory display of performance led me to the conclusion that I wanted something rather different. I could not comprehend the concepts despite many efforts I put forward to better my situation.

   The decision brought me to the change of course. My instinct told me that I could perform better with Master of Professional Accounting, given my existing background in commerce and so I went with it. From February 2014 until March 2016, I was enrolled to study MPA. Unfortunately, things did not go exactly as I anticipated. I was failing units consecutively at the conclusion of each semester. This worried me and the university took notice of it and put me on conditional enrolment. Prior to that, I took a leave of absence because after seeking university appointed therapy in June 2015.

   I started to feel empty, abandoned and utterly numb to the external world. Not a single day went by that I didn't cry. I had never experienced such a strange and strong feeling in my entire life. I would think of nothing but going to bed during my study period. I remember vividly that I spent the first few weeks of my university hiding in my room, crying my eyes out. I was homesick and I was not sure that I wanted to be there at all.

   My depression and anxiety started sometime before I came to the university, but leaving home, being in an extremely arduous, taxing social environment and being under humongous academic pressure, all took a toll on me. Before I was granted a leave of absence, I had a chance to share my experiences with my university appointed therapist and I get to address my homesickness, when I left for India on September 24th 2015 for a period of 3 months and I had a chance to rekindle with my family.

   The duration of enrolment in the course of MPA was from February 2014 to March 2016, and I was enrolled full time. Unfortunately, my mental health was compromised and I couldn't perform in my studies.

   University had me excluded from enrolment and from the period of April 2016 until present, I could not enrol anywhere. I was waiting for my exclusion and my student access was banned until further notice. Attached is the letter provided by the university and COE to show proof that I was a full time student until April 2016.

   I admit the fact and take full responsibility that my academic progress was not at all satisfactory. I made strides to make it better, unfortunately it did not work. Perhaps my lack of judgment, poor experience, might have contributed as factor; most importantly my mental health was poorly managed. I have been seeking therapy during this absence. I have attached my medical certificates for your perusal.

   Conclusion

   In retrospect, I submit that the officer can be satisfied that I am a genuine temporary resident and the reasons that I mentioned My objective to come to Australia was solely to get higher education in the field of commerce.

   It is an emerging field and there are major prospects in getting a much sought after job and make my family to be proud of me. My intention is to stay in Australia temporarily for the purpose of achieving a quality education and if it hadn't been for my lapses, I would have finished and embarked upon the greatest journey of my life.

   I would look forward to hearing from you at your leisure and should· you feel, if you require additional documentation or questions to ask, please feel free to contact me.”

3. In his report dated 27 March 2017, Dr Osman Qadri stated:

   “This is to certify that Sasha Loretta Tellis has been suffering from anxiety and depression symptoms since July 2016. She has been attending this practice for counselling uptil the present time.·

   She was unable to attend her university from July 2016 due to her severe mental and emotional distress.

   I would advise on medical and compassionate grounds she be allowed to continue her studies now as she has recovered sufficiently”

4. In her memorandum dated 17 April 2015, Ms DM Morris, Counsellor at the University Western Sydney Counselling Service, stated, relevantly:

   “…today, Sasha presented with certain features of depression. This has likely affected her academic performance over the last 9 or so months.

   Sasha unfortunately is geographically distant from her sources of support to which she needs to retur in order to be well. To this end, I support her taking leave from her course and returning home .We have discussed certain strategies to manage and I am confident she has taken these on board. A follow up appointment has been made for her with the Counselling Service prior to her departure…”

5. The Decision Record sets out, relevantly, in summary:

   a.the applicant was granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 4 April 2016, with a stay period to 31 March 2018;

   b.the Department’s NOICC issued on 14 March 2017 on the basis of PRISMS evidence that the applicant was not enrolled in a registered course of study since 18 August 2016;

   c.the applicant, in her response to the NOICC, agreed there was non-compliance, agreed there were grounds for cancellation, and provided reasons why her visa should not be cancelled;

   d.there was no evidence suggesting the applicant originally intended her travel to and stay in Australia for any purpose other than study;

   e.there was no evidence the applicant had been non-compliant with visa conditions other than with visa condition 8202;

   f.the delegate accepted the applicant, if her visa were cancelled:

   i.may be caused some financial difficulty;

   ii.may be caused some hardship on being required to depart Australia but may be eligible for a Bridging Visa E, providing time for her to finalise outstanding matters;

   iii.if she did not voluntarily depart Australia ,would become an unlawful non-citizen and be liable for detention under s189 and removal under s198 of the Act;

   iv.would be subject to s.48 of the Act, significantly limiting the classes of visa for which she may apply onshore;

   v.would be subject to Public Interest Criterion 4013, and may not be granted a temporary visa for three years;

   vi.may be caused some hardship as she had obtained, apparently in response to the NOICC, enrolment on 27 March 2017 in a Master of Professional Accounting course and commenced the course on 3 April 2017, although there was no evidence suggesting the applicant could not complete her studies outside Australia;

   g.although the period of leave recommended in the University of Western Sydney counselling service letter dated 17 April 2015 is unspecified as to dates and duration, PRISMS records the applicant was granted deferrals from her studies in Master of Accountancy from 6 April 2015 to 13 September 2015 and from 21 September 2015 to 10 January 2016.  The delegate considered this information irrelevant in explaining non-enrolment from 18 August 2106 to 27 March 2017;

   h.the applicant failed to provide documents supporting her claimed exclusion and consequent enrolment ban between April 2016 and March 2017, and PRISMS has no record of the ban;

   i.the delegate acknowledged the applicant may have suffered from depression, which may have assisted her not enrolling.  Although accepting the applicant’s studies may have been impacted by difficulty she may have experienced adjusting to the new environment, the delegate considered the applicant had experienced the ordinarily expected effects of residing in a foreign country;

   j.there was no evidence the applicant had been uncooperative with the Department

   k.cancellation of the visa would not result in the automatic consequential cancellation of any dependent visa holders;

   l.the circumstances of the applicant’s case were not such that would engage Australia's international obligations and cancellation of the visa would not lead to a breach of Australia's international obligations;

   m.the applicant will, as a legal consequence of cancellation, become an unlawful non-citizen, which may be rectified by applying for a Bridging Visa E.  Her options to apply for future visas onshore will be limited, she may be required to return to her home country, and will be excluded from Australia for three years;

   n.the delegate was satisfied the grounds for cancelling the visa outweighed the reasons not to cancel the visa.

1. The applicant, in her “reply to hearing” statement dated 22 April 2019, stated:

   “I am writing in regard to my AAT hearing on the 3rd of May, 2019. I have been continuously enrolled in a full time post graduate course in Event Management at the University of Technology, Sydney (UTS) since June 2017. I have attached documents in support of my statement, along with active health covers. Since my battle with depression and anxiety, my enrolment in the present course has really opened new doors for me. In the first semester I had the option of enrolling in an elective, and chose Positive psychology and the self which has been a huge step in the process of self healing. Even though it has been a struggle, I have been fairing considerably well post exclusion. I enrolled in a packaged offer with UTS for a Graduate certificate in Event management and a Graduate Diploma in Event Management as I have had a great interest in Event management and UTS offers one of the best courses in this field. Upon the completion of my current graduate diploma in July 2019, I wish to do another semester which would help me graduate with a Master's degree. A successful career is my highest importance, and I have been concentrating on university to help me achieve this. If given a chance, I look forward to temporarily staying in Australia to finish my degree.”

2. The applicant’s evidence at hearing, germane to the issues in this case, was, in summary:

   a.the applicant’s first contact with UWS about poor academic performance was in January 2015, which resulted in academic restrictions limiting her to enrolling, conditionally, in only 2 courses per quarter. The applicant remained on academic restriction until September 2015, when following approval from Ms Morris, a counsellor at UWS, whom she first consulted on 17 April 2015, she was granted a six- month leave of absence, backdated to commence from 27 May 2015.

   b.the applicant resumed studies on a conditional enrolment basis in January 2016, but again performed poorly, and was excluded by UWS in April 2016, for one year.  Between April 2016 in April 2017 , the applicant was unable to enrol at UWS and, as she could not obtain a release letter from UWS, was not able to enrol elsewhere.

   c.the applicant did not seek counselling prior to 17 April 2015, as there was, in her home country, a cultural stigma attached to her illness of such significance that the applicant felt unable to speak to her close friends about her illness, and had avoided returning home for almost 2 years as a result.  She felt she had been greatly assisted by Ms Morris, the counsellor at UWS, and only sought treatment from Dr  Qadri when she could no longer access Ms Morris once excluded.  Dr. Qadri did not refer the applicant to any specialists.

   d.the applicant had planned to return home for the period of her exclusion, which necessitated informing her parents about her illness.  Her attempts to do so were initially rebuffed, eliciting a response in the nature of “get your game face on”. Combined with the effects of the symptoms of her illness, the lack of family support and perceived rejection by her parents was overwhelming and she failed to inform the Department of her exclusion.

   e.after her visa was cancelled, the applicant told her parents everything.  In the course of discussions about her future, the applicant’s parents agreed the applicant could pursue her interest in event management.  When the applicant enrolled in UTS, she felt so uplifted and happy, and her academic performance likewise lifted.  Her performance has not been perfect, she has failed to courses, both by 2 or 3 remarks only.  Evidence provided by the applicant subsequent to the hearing demonstrates the applicant successfully completed the Graduate Diploma in Event Management, and as she told the Tribunal was her intention, then enrolled into the Master of Event Management course.

   f.the applicant has only worked for a 3 month period with the Sydney Institute whilst she has been in Australia;

   g.after the applicant’s return to her home country, her parents want her to run their events management company;

   h.the applicant was able to provide detailed descriptions of her classes and course content, her last consultation consistent with the knowledge of a student actively attending classes and pursuing her studies;

   i.her last consultation with Dr Qadri was 27 March 2017.  She has been asymptomatic since joining UTS;

   j.her failure to perform academically that led to academic restriction and eventually to her academic exclusion and therefore her failure to be enrolled were all the results of her medical condition.  The medical evidence of Dr  Qadri provided to the Tribunal completely supports the applicant’s contention;

   k.The applicant came to Australia only for the purpose of study.  She has complied with all of the other conditions of her visas;

   l.cancellation of her visa would seriously affect her plans for her career and her intended future with her parent’s events management company.  Neither of the Graduate Diploma in Event Management and the Master of Event Management courses into which she will be enrolled upon successfully completing the Graduate Diploma is available in her home country.  UTS does not offer either course by distance education and although she would not return home empty-handed if her visa were cancelled - she has successfully obtained a Graduate Diploma in Accounting and a Graduate Certificate in Management - she would not be returning home with a Master’s and would be prejudiced by her lack of that qualification and her inability to obtain a qualification in her home country.  As Graduate Certificates are not awarded in her home country, and the focus is on bachelor’s and master’s degrees, to return without her Masters would effectively place her in the same educational position as when she left her home country to study in Australia.  Her planned future career would almost certainly be unavailable to her;

   m.her parents have expended in excess of approximately $100,000 on her education severely completing their savings.  The applicant is expected to financially support and care for her parents in their elder years, and the depletion of their savings has elevated that cultural expectation to a personal necessity.  Any limitation on the applicant’s career prospects resulting from cancellation of her visa would in turn affect her potential future income and ultimately the level at which she is able to financially support her parents later in life;

   n.the applicant’s plan is initially to obtain employment in the event management industry upon return to her home country and after 3 to 5 years’ experience, move into running her parent’s business.  She would be significantly competitively disadvantaged on the open labour market in her home country were she to seek employment without a Masters as the majority of other candidates will hold that qualification;

   o.the only reason she failed to maintain enrolment was her medical condition, and the only reason she wants her visa reinstated is to complete her course and obtain her Masters qualification.  The applicant pointed out that once her exclusion had completed, she has continually been enrolled in and studying, despite there being no requirement to do so impose upon her given her student visa was cancelled.

3. The applicant, in her post-hearing submission dated 17 May 2019, stated:

   “As per our conversation during the hearing, I was excluded from Western Sydney University from 13th April 2016 for a period of one year.  I have attached a copy of the letter from the university stating the period I was excluded.  The letter also states that I could have appealed after seeking advice, but as I mentioned in the hearing, after meeting with Donna Morris, she advised I was not fit to appeal and suggested I recoup before getting back to university.  You had also requested proof that I had plans of re-enrolling into Western Sydney University prior to the Notice of intent to cancel my visa (received on 14th March, 2017), the COE (8B860768) is the only proof the university has suggested of my enrolment which commenced on 3rd April 2017, 10 days prior to my exclusion being lifted.  I request you to please consider all the submitted information. My medical condition was a bump in my professional growth which led to a breach in visa conditions. I have worked on my personal growth and rectified myself for the purpose of my career advancement and am now halfway through my current semester which ends on 15th July 2019, after which I will continue on for one more semester in order to graduate with a masters. This degree is vital for my future plans without which I will have to start from scratch all over again. I look forward to being professionally stable and completing my masters in event management if the decision permits.”

DOES THE GROUND FOR CANCELLATION IN S.116(1)(B) OF THE ACT EXIST?

Did the applicant comply with Condition 8202?

1. To her credit, the applicant frankly admitted in her NOICC response to the Department, she had not been enrolled since 18 August 2016, and has not subsequently sought to resile from that position.  The decision record states and the applicant agrees, she rectified her non-enrolment on 27 March 2017 and from then on, according to the applicant’s evidence she has remained continuously enrolled.  The Graduate Certificate in Accounting conferred 12 September 2017, letter from University of Technology Sydney dated 26 July 2019 confirming applicant is entitled to graduate her Diploma in Event Management course, CoE’s and online student records (referred to in paragraph 15. above) evidence the applicant’s continuous enrolment and academic progress subsequent to 27 March 2017.  That evidence is uncontradicted.

2. On the evidence before the Tribunal, the applicant was not enrolled in a registered course of study after 18 August 2016 until obtaining, and thereafter continuously maintaining, enrolment in a registered course on and from 27 March 2017.  As a result, for the period from 18 August 2016 until 27 March 2017, the applicant failed to comply with visa condition 8202(2)(a).

3. Accordingly, the Tribunal is satisfied the ground for cancellation in s.116(1)(b) exists.

4. As the ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

SHOULD THE DISCRETION TO CANCEL THE VISA BE EXERCISED?

Consideration of the discretion to cancel the visa

1. 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.

2. 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

1. The Tribunal is satisfied the applicant’s intended purpose for her travel to and stay in Australia was study.  The applicant’s evidence consistently maintains this was her intention and the decision record states there is no evidence to the contrary.

2. On the evidence before the Tribunal, the applicant was not enrolled in any course of study for seven months and nine days between 18 August 2016 and 27 March 2017.

3. Student visas are granted for the purpose of non-citizens and non-permanent residents studying towards, and achieving, an educational qualification in Australia.  That purpose cannot be achieved unless the visa holder is enrolled in a registered course of study.  Taken in that context, the Tribunal finds the applicant’s failure to be enrolled in a registered course of study for more than 7 months is significant and weighs in favour of cancellation.  

4. The Tribunal is not satisfied the applicant’s originally intended purpose for travel to and stay in Australia provides a compelling need to travel to and remain in Australia.  Failing to be enrolled for more than seven months is inconsistent with such need and the applicant has given no evidence suggesting she has any such need.  The Tribunal gives this consideration weight in favour of cancelling the visa.

5. The applicant has, on the Tribunal’s findings set out in paragraphs 25 and 26 above, been continuously enrolled in a registered course since 27 March 2017.  The available evidence satisfies the Tribunal the applicant, in that period, has been awarded a Graduate Certificate in Accounting conferred 12 September 2017, has completed and become entitled to graduate her Diploma in Event Management course, and is currently enrolled in a Masters of Event Management course, due for completion in December 2019.  The Tribunal accepts the applicant’s evidence that neither of the Diploma or Masters courses are available in her home country, the Masters course cannot be completed by distance studies, and to return home without a Masters-level qualification will prejudice her future employability and earning capacity.  The Tribunal is satisfied completing studies in her currently enrolled course and becoming entitled to graduate and be conferred with a Masters of Event Management, provides a need for the applicant to remain in Australia.  The Tribunal gives his consideration weight in favour of not cancelling the visa.

The extent of compliance with visa conditions

1. Other than her non-compliance with condition 8202(2)(a), there is no evidence before the Tribunal disclosing any instance of the applicant failing to comply with any conditions imposed on her visa.  Although the evidence does not satisfy the Tribunal the applicant breached any other condition imposed on her visa, she was not enrolled in breach of visa condition 8202(2)(a) for more than seven months.  The Tribunal considers that noncompliance is significant and weighs in favour of cancelling the visa.

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

1. The delegate accepted cancellation of the applicant’s visa would likely result in some financial hardship but, on the basis there was no evidence the applicant could not complete the course in home country, did not consider there would be any or any significant arising by reason of the applicant being unable to complete her then recently obtained enrolment.

2. The applicant’s evidence at hearing, which the Tribunal accepts, is the event management courses in which the applicant was and is enrolled were not available in her home country.  Accordingly, the Tribunal finds the applicant would, upon cancellation of her visa, suffer hardship resulting from being unable to complete the courses in which she had enrolled.  This hardship includes forfeiting part or all of her prepaid course fees, reducing her employability in future, causing diminution in her income potential and restricting her ability to provide financially for her parents after they cease working.

3. According to the applicant, her parents have depleted their savings by financing her studies in Australia.  Although the applicant’s parents have continued to deplete their savings by supporting the applicant studies in Australia after her student visa had been cancelled and accordingly must be taken to have accepted some risk in that respect, the Tribunal accepts the applicant is subject to both a cultural and parental expectations to financially support of her parents in their retirement years and, in effect, the depletion of her parents savings is a form of investment the success of which is dependent upon the applicant’s earning potential. In other words, unless the applicant completes her qualifications at the Masters level, the applicant’s parents' return on investment will be diminished.

4. The Tribunal considers these specific hardships weigh against cancellation.

5. The Tribunal accepts visa cancellation ordinarily results in the visa holder becoming unlawful and liable for detention under s.189 and removal under s.198 unless the visa holder voluntarily departs Australia or holds a bridging visa. As a review applicant before the Tribunal is eligible for a Bridging E Visa which would remain in force for 35 days after the Tribunal makes its decision on the review application or the applicant departs Australia, whichever is the earlier, the Tribunal is not satisfied the applicant would immediately become unlawful or liable to detention or removal upon cancellation, or be caused any hardship as might otherwise result.

6. The Tribunal accepts the applicant would, if her visa were cancelled, be subject to s.48 of the Act, which significantly limits the classes of visa for which she may apply onshore. The Tribunal is satisfied cancellation of the applicant’s visa would prevent her re-entering Australia for up to 3 years as she may not meet the public interest criterion 4013.

7. The Tribunal considers any hardship as may be caused by these intended consequences of cancellation weighs in favour of not cancelling the visa

Circumstances in which ground for 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

1. The decision record states the applicant had failed to provide any supporting documentation in respect of her claimed period of academic exclusion.  The Tribunal has been provided with a letter from the University of Western Sydney setting out the details of the applicant’s academic exclusion and this evidence satisfies the Tribunal the applicant was, as she claimed, excluded and prevented from enrolling at all for 12 months after 4 April 2016.

2. According to the decision record, PRISMS recorded the applicant was granted deferrals from her studies in Master of Accountancy from 6 April 2015 to 13 September 2015 and from 21 September 2015 to 10 January 2016, consistently with the applicant’s evidence as to her approved leave of absence.  The Tribunal finds the applicant, appropriately, took “leave” with her education provider’s approval, from her studies for those periods, an.

3. On the evidence before the Tribunal, which is uncontradicted, the period of academic exclusion was imposed in consequence of the applicant’s poor academic performance.  Dr Qadri and Ms Morris both attribute the applicant’s poor academic performance to the symptoms of the applicant’s depression.  Ms Morris reports the applicant’s illness as affecting her academic performance from about August 2014, her education provider approved deferment effectively covering April 2015 to mid-January 2016, and Dr  Qadri reported the applicant was unable to attend university between July 2016 and 27 March 2017 as a result of her illness.  The content of Ms Morris’ memorandum and Dr Qadri’s reports is uncontradicted.

4. On the medical evidence before it, being the report of Dr Qadri, the Tribunal is satisfied the applicant was unable to attend university between July 2016 and 27 March 2017 as a result of her illness.

5. The period during which the applicant was not enrolled as identified in the decision record commenced 18 August 2016 and concluded 27 March 2017.  That entire period falls within the twelve-month academic exclusion imposed by University of Western Sydney, and also within the period during which Dr Qadri certified the applicant as unable to attend university by reason of her illness.

6. The Tribunal is satisfied the UWS-imposed 12-month academic exclusion prevented the applicant obtaining or maintaining enrolment in a registered course between 4 April 2016 and 27 March 2017, and was the ultimate result of the applicant’s illness, which would, absent the exclusion period, have prevented the applicant attending university between July 2016 and 27 March 2017.  The Tribunal considers the applicant’s falling ill and suffering the symptoms and effects of that illness were not matters within the applicant’s control.

1. Accordingly, the Tribunal is satisfied the ground for cancellation arose in circumstances beyond the applicant’s control and, in the absence of the PAM3 guidelines indicating the visa should not as a general rule be cancelled (the general rule), weighs this consideration in favour of not cancelling the visa. Further consideration in respect of the general rule is addressed at paragraphs 63 to 65. below.

Past and present behaviour of the visa holder towards the Department

1. There is nothing in the evidence before the Tribunal to suggest the applicant’s past or present behaviour towards the Department was adverse.  The Tribunal weighs this factor neither in favour of nor against cancelling the visa.

Whether there would be consequential cancellations under s.140

1. On the evidence before the Tribunal, there are no persons in Australia whose visas would, or may, be cancelled under s140.  The Tribunal weighs this factor neither in favour of nor against cancelling the visa.

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

1. The Tribunal is satisfied cancellation of the applicant’s visa would, in addition to preventing her re-entering Australia for up to 3 years as she may not meet the public interest criterion 4013, limit her ability to remain in Australia but would not, whilst her Bridging Visa E remains in-force, result in her immediately becoming unlawful and liable to detention under s.189 of the Migration Act or removal under s.198 of the Migration Act.

2. The Tribunal accepts the applicant would, if her visa were cancelled, be subject to s.48 of the Migration Act, which significantly limits the classes of visa for which she may apply onshore.

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

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

1. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm.  Australia is a signatory to a number of international instruments, which give rise to non-refoulement obligations.  Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

2. Non-refoulement obligations' is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

3. On the applicant’s evidence at hearing, her only reason to remain in Australia is to complete her studies.  She will return to her home country after completing her Masters of Event Management course.  The applicant’s evidence as to problems she would be caused if she returned before completing her Masters did not extend beyond those difficulties as would ordinarily and reasonably be foreseen as likely to afflict any bachelor’s-qualified person competing in a candidate pool of mostly Masters-qualified on an open labour market.  Those matters would not attract non-refoulement obligations.

4. The Tribunal finds, in the circumstances of this case, cancellation would not lead to removal in breach of non-refoulement obligations.  As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal.

5. There is no evidence before the Tribunal that cancellation of the applicant's visa would result in Australia breaching any obligations regarding the best interests of children.

6. The Tribunal considers these factors weigh neither in favour of nor against cancellation.

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

1. The applicant’s visa is a not a permanent visa.

Any other relevant matters.

1. The evidence before the Tribunal does not disclose any other relevant matters.

Conclusion

1. The PAM3 guidelines indicate that as a general rule, a visa should not be cancelled where, as the Tribunal has found occurred in this case, the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.  Nothing in the evidence before the Tribunal suggests that general rule should not be followed in the circumstances of this case.

2. The applicant has demonstrated she is a genuine student who should have her visa reinstated, and be given the opportunity to pursue her intended study, progressing to completion of a Master of Event Management.  She has, on and from 27 March 2017, remained continuously enrolled in a registered course and has, over that period, demonstratively progressed academically and been awarded a Graduate Certificate in Accounting conferred 12 September 2017, completed and become entitled to graduate her Diploma in Event Management course, and is currently enrolled in a Masters of Event Management course, due for completion in December 2019.

3. Taken together and considered as a whole in the absence of the general rule, the Tribunal is satisfied the matters weighing against cancellation of the visa significantly outweigh the matters weighing against cancellation of the visa.

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

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Lynda Young
Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

1. (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.