Walia (Migration)

[2019] AATA 2570

Walia (Migration) [2019] AATA 2570 (3 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Prabhjot Kaur Walia

CASE NUMBER:  1822464

HOME AFFAIRS REFERENCE(S):           BCC2018/1078467

MEMBER:Stephen Conwell

DATE:3 July 2019

PLACE OF DECISION:  Melbourne

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 03 July 2019 at 5:59pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – credible witness – naivety – difficulties in re-enrolment – determined to complete studies in nursing – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

CASES
Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 July 2018 made by a delegate of the Minister for Home Affairs 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 delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not been compliant with condition 8202 imposed on her student visa and that the grounds for cancellation outweighed those grounds for not cancelling. 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 appeared before the Tribunal on 3 July 2019 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent, who attended the hearing.

4. 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

5. 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?

6. 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).

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

8. During the hearing, the applicant explained that she was first granted a Class TU Subclass 573 student visa on 7 January 2015 and arrived in Australia soon afterwards. She enrolled in a Diploma of Nursing at Holmesglen College in a package of study leading to a Bachelor of Nursing.  The applicant was progressing well until she encountered difficulty in passing one subject.  Due to a planned restructure of the course the applicant led to believe that she would have to repeat the entire year of study in order to pass that remaining subject. 

9. In discussing her predicament with friends the applicant was advised (incorrectly) that she was eligible to enrol directly into a bachelor’s course and she therefore need not pursue her diploma studies.  The applicant naïvely decided to act upon the advice of her friends without further confirmation from her college, a migration agent or the Department.  The applicant advised Holmesglen that she wished to withdraw from her diploma studies in order to enrol in a Bachelor of Nursing elsewhere.

10. Although she never received an acknowledgement of her withdrawal instructions from Holmesglen, the applicant presumed that to be the case and from September 2017 began applying to enrol in a Bachelor of Nursing at several other colleges and universities.  The applicant’s efforts to enrol were met with difficulties, such as an English language prerequisite and the fact that some colleges offered only a single annual intake for the nursing degree.  Whilst pursuing her enrolment, the applicant decided to return to her home country of India for six weeks from 4 February - 7 March 2018.  Upon her return to Australia, the applicant continued her efforts to enrol in a Bachelor of Nursing.

11. Events however overtook the applicant when she received Notice of Intention to Consider Cancellation (NOICC) from the Department on 5 June 2018, inviting her written response.  The NOICC noted that it appeared the applicant had not been enrolled in a registered course of study from 23 August 2017 to 25 May 2018, a total of 275 days without enrolment.  The applicant provided a written response on 12 June 2018 in which she conceded the breach of visa condition 8202 but proceeded to explain her ignorance of her responsibilities as a visa holder whilst focusing only on the challenges of re-enrolling in her nursing studies.

12. After considering the applicant’s written response, a delegate on behalf of the Minister proceeded to cancel the applicant’s Student visa on 30 July 2018.

13. At hearing and in the applicant’s written submissions, the ground for cancellation is not disputed.  On the evidence before the Tribunal, the applicant was in breach of condition 8202 by not being enrolled in a registered course study from 23 August 2017 to 25 May 2018 a period exceeding nine months. Further, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a registered course (per Liu v MIMIA [2003] FCA 1170).

14. As the applicant has failed to comply with the visa condition, the ground for cancellation in s.116(1)(b) is made out.

    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. 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

16. On the evidence before it, the Tribunal is satisfied that the applicant’s original purpose in travelling to and staying in Australia was to study.

17. The applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant said she would still like to study in Australia but did not provide a strong or persuasive reason for needing to stay such that the discretion to cancel the visa should not be exercised. For this reason, the Tribunal does not place weight on the applicant having a compelling need to remain in Australia. 

    the extent of compliance with visa conditions

18. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account in favour of the applicant.

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

19. During the course of the hearing the Tribunal discussed with the applicant any hardship that may arise as a result of her visa being cancelled. The applicant arrived in Australia as a 19 year old to embark upon her studies. Her naïve decision to withdraw from her original studies without seeking migration advice or consulting the Department has been exacerbated by the nature and course structure of her nursing studies, which prevented her from obtaining further enrolment as easily as she had expected.

20. The applicant submits that nursing is her chosen vocation, which is why she persisted in seeking to enrol in in this course and no other.  Her parents are supporting her financially whilst she is in Australia; should she have to return to India without an Australian qualification, it would mean that her several years in Australia has come to naught and has been at great financial cost to her family. The Tribunal gives weight in the applicant’s favour regarding this consideration.

    The 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

21. The applicant’s visa was cancelled because she remained in Australia as the holder of a student visa but did not continue enrolment in a course of study. The applicant provided reasons for her extended period of non-enrolment. In essence the applicant had given no thought to any legal consequences of her withdrawal from study; she was focussed only securing re-enrolment and had not considered what implications her non-enrolment might have for her visa status.  Further, the applicant had sought no advice from a migration adviser or the Department. 

22. The Tribunal views this non-compliance with a visa condition with grave concern, particularly given the extended period of non-compliance. It is the responsibility of a Student visa holder to continue to satisfy all visa criteria during the term of the visa.

23. However on balance and in the context of the applicant’s honest and consistent testimony, the Tribunal accepts the applicant had been naïve in her decision to withdraw from Holmesglen College without first seeking advice from a migration agent or from the Department. Nevertheless, the Tribunal does not accept that there have extenuating circumstances beyond the applicant’s control, leading to the cancellation of her visa. The Tribunal gives this factor, cumulatively considered, little weight towards the visa not being cancelled.

    past and present behaviour of the visa holder towards the department

24. There is no evidence to indicate the applicant has not been co-operative with the Department and the Tribunal gives this factor some weight in favour of the applicant.

    whether there would be consequential cancellations under s.140

25. There is no evidence before the Tribunal that this is relevant in the present case.

    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

26. The cancellation of the visa would mean the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit her options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. In the facts of this case, the Tribunal had taken this into account in favour of the applicant in the Tribunal’s discretion in regards to cancellation of the applicant’s 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

27. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations including non-refoulement and the best interests of children.

    any other relevant matters

28. The student visa program in Australia enables people who are not Australian citizens or permanent residents to undertake study in Australia. The Tribunal accepts the applicant did initially enrol and commence studying which was the purpose for which the visa was granted. She is determined to complete her nursing studies if she is given the opportunity. The Tribunal has taken into account the fact that the applicant was naïve in withdrawing from her enrolment at Holmesglen College without first considering the implications it may have for her visa status. The Tribunal also notes that the applicant’s persistence in seeking to enrol only in nursing studies exacerbated the period of non-enrolment, since it is a popular course and some colleges offer only a single annual intake. The applicant might have enrolled in any other course in order to simply comply with visa conditions however she appears determined to pursue a career in nursing. The Tribunal gives weight in favour of the applicant in this regard.

    Conclusion

29. The Tribunal has considered the applicant’s circumstances individually and cumulatively and is satisfied that in this case the majority of considerations should be considered in favour of the applicant. Therefore the Tribunal does not consider it appropriate in this case to exercise the discretion to cancel the visa.

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

    DECISION

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

    Stephen Conwell
    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.