yu (Migration)

[2019] AATA 2977

yu (Migration) [2019] AATA 2977 (16 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ni Chia Yu

CASE NUMBER:  1707230

HOME AFFAIRS REFERENCE(S):          BCC2017/927101

MEMBER:Frank Russo

DATE:16 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 16 May 2019 at 3:45pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) – Subclass 572 Vocational Education and Training Sector – not enrolled in registered course – domestic violence order – birth of child with Australian citizen – sole parent – compassionate and compelling reasons – referred for ministerial intervention – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140, 351, 359AA

Migration Regulations 1994 (Cth), Schedule 8, condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 March 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis the applicant did not meet the requirements of her Student visa as she was not 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.

3. The applicant appeared before the Tribunal on 29 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to her application for review, however her representative did not attend the hearing.

5. 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

6. 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?

7. 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).

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

9. The applicant is a 46-year-old national of the Republic of China (Taiwan). At the hearing the applicant provided the following documents:

   a.Copy of part of an Apprehended Domestic Violence Order (ADVO) which records the applicant as the protected person;

   b.Copies of tax invoices for payments to the applicant for services as a massage practitioner and income and expenditure statements relating to such services; and

   c.Copies of account records from an academy/institution, dated from December 2015 until January 2019, relating to fees for the applicant’s daughter.

10. The applicant gave evidence at hearing that she first arrived in Australia in 2013. She had previously lived in the United Kingdom for a while, where she had been a student, but has otherwise lived in Taiwan. She stated that following her initial arrival in Australia as a tourist, and after observing Australia’s diverse society, she decided it would be a good place to study, and so she applied for a Student visa while she was onshore.

11. The applicant told the Tribunal that she completed an Advanced Diploma of Business while in Australia. She also completed a Diploma of Massage from a Chinese traditional medicine school and obtained a First Aid Certificate. She later enrolled in courses in Tourism and Hospitality, but did not complete the courses for the reasons which are outlined in the Tribunal’s reasons below.

12. The delegate found that the applicant had not been enrolled in a registered course of study from 13 July 2016 until the date of the delegate’s decision on 29 March 2017. The applicant conceded at hearing that she had not complied with a condition of her student visa in that she has not been enrolled as a student since 13 July 2016.

13. Adopting the procedure in section 359AA of the Act, the Tribunal put to the applicant that it had on file a copy of her enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal provided the applicant with a copy of her PRISMS enrolment records. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether she had any comments in relation to his PRISMS enrolment records and advised that she may be granted time to comment on or respond to the information if needed.

14. The applicant chose to respond to the PRISMS enrolment record at the hearing and indicated that it was an accurate reflection of her enrolment history.

15. The Tribunal notes that according to the applicant’s PRISMS enrolment record, the applicant was most recently enrolled in the Advanced Diploma of Hospitality, with a commencement date of 28 September 2015, however her enrolment was cancelled on 13 July 2016. The reason for cessation of studies is recorded as ‘Student Notifies Cessation of Studies’.

16. By the applicant’s own admission and on the evidence before the Tribunal, the applicant was not enrolled in a registered course from 13 July 2016. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

17. 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

18. The applicant gave evidence that she applied for a student visa in 2013 while she was onshore because she likes to travel. She planned to study Tourism and Hospitality for the purposes of then finding work in the tourism industry. She told the Tribunal that she had already obtained diplomas in Massage, Business and Tourism Management in the United Kingdom and wanted to further her education. She does not have any qualifications from Taiwan.

19. The applicant told the Tribunal that after arriving in Australia she studied for almost two years. In this time she completed an Advanced Diploma of Business and commenced her studies in Hospitality. The Tribunal notes that this evidence is consistent with the applicant’s PRISMS record, which indicates the applicant was enrolled in the Advanced Diploma of Business from 12 August 2013 to 21 February 2014 and completed the course. Her PRISMS record indicates that she was enrolled in the Advanced Diploma of Hospitality from 25 August 2014 and such enrolment was cancelled on 12 January 2015.

20. In June 2015 the applicant gave birth to a daughter, at the age of 42. The applicant had commenced a relationship with the father of the child, who is an Australian citizen, and is currently 67 years old. The relationship ended in July 2015, shortly after the birth of the child. The child is an Australian citizen.

21. The applicant explained that she became pregnant in October 2014. Over the course of 2015 she experienced domestic violence. She told the Tribunal that as a result of her pregnancy and the consequent birth of her child, as well as the domestic violence that she experienced, she was unable to continue with her studies for a period of time. Accordingly she requested leave from the college she was enrolled with. This is also supported by information contained in the applicant’s PRISMS record, which records the reason for cancellation of her enrolment in the Advanced Diploma of Hospitality as ‘Deferment/Suspension – Compassionate or compelling circumstances.’

22. The applicant told the Tribunal that during this time the New South Wales Police made an application for the ADVO on her behalf. The applicant provided the Tribunal with a copy of the part of the ADVO at the hearing. She gave evidence that as a result of the domestic violence she experienced she was forced to live in a women’s refuge for a period of eight months.

23. The applicant explained that she lodged her second Student visa application in September 2015 so she could continue with her studies. This visa was approved in June 2016. She stated that at the time the father of her child was paying child support and she was able to work in order to pay for her studies. However, at the end of 2016 the father of her child stopped paying child support. The applicant explained that child support was something he didn’t wish to pay. When he reached retirement age he applied for an Aged pension in order to reduce his child support obligations. She added that the child’s father doesn’t have the ability to look after the child, and since this time she has been forced to raise the child on her own without any assistance.

24. The applicant explained that by this point her priority became supporting her child and paying for their essential living expenses. In order to do this she had to work. She told the Tribunal that she understood that as a condition of her Student visa she had to be enrolled in a registered course, however her priority became being a good mother to her child and ensuring her child’s health. Due to these circumstances she stated that she is unable to study. Although studying was previously a priority in her life, she stated that she no longer has the energy to study on top of working part-time and raising her child. In addition, due to the visa condition which requires that she work no more than 40 hours per fortnight, she is unable to afford any studies in addition to paying living expenses for both herself and her child.

25. The applicant’s child is now four years old and lives solely with the applicant. The applicant was candid in explaining to the Tribunal that the purpose for her remaining in Australia is no longer to study, but in order to bring up her daughter, who is an Australian citizen. The restrictions which apply to the Student visa are ones which do not suit her current circumstances. The applicant therefore requested that the Tribunal affirm the decision to cancel her visa and refer her case for the Minister’s intervention.

26. The Tribunal finds that the initial purpose for the applicant’s travel to and stay in Australia was for the purpose of study, however on her own admission, the applicant is not interested in or capable of committing to studies at present, both for financial reasons and because of her responsibilities as a single parent. Although the applicant’s stated reason for remaining in Australia, namely to raise her four-year-old child, is a compelling one, the applicant conceded at hearing that her purpose for remaining in Australia is not consistent with the intended purpose of her Student visa. Accordingly, the Tribunal gives this strong weight in favour of cancelling the visa.

    The extent of compliance with visa conditions

27. When asked about her compliance with other conditions of her visa, the applicant indicated that she has complied with them. She indicated that she currently works as a massage therapist 35 hours per fortnight, as her visa does not allow her to work more than 40 hours per fortnight. There is no evidence that the applicant has not complied with other visa conditions.

28. The applicant was however not enrolled to study from 21 July 2016 until 29 March 2017, which is a significant breach. The applicant has not been enrolled in any course of study since July 2016 and was also frank in declaring at the hearing that for financial and other reasons she will not be able to comply with the enrolment condition in the future. Accordingly, the Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.

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

29. The applicant explained to the Tribunal that the main hardship that may be caused as a result of the cancellation of her visa is to her four-year-old child. As noted above, the applicant’s child is an Australian citizen through the child’s father. The child does not have Taiwanese citizenship. The potential hardship is two-fold. Firstly, if the visa is cancelled, the applicant, who is currently the sole financial support for the child, may be unable to continue to support the child. Secondly, if the visa is cancelled it may result in the potential separation of the child from one or more of her parents, in particular her mother, who has raised the child on her own since birth.

30. As noted above, the applicant explained that she has had to raise her child without financial assistance. After the birth of her child she received some child support payments from the child’s father for a few months, but this soon ceased, with the father of the child now receiving an Aged Pension. She stated that the only assistance she has received has been from social workers, who have provided some legal assistance. I note in this regard that the application fee for her application to the Tribunal was paid by the Salvation Army. A copy of the receipt for this application fee is at folio 1 of the Tribunal’s file.

31. At the hearing the applicant provided copies of receipts for work as well as income and expenditure statements. These are dated at various dates in 2018 and 2019. The applicant indicated that she provided these to the Tribunal for the purpose of confirming that she is working part-time in order to pay for her and her daughter’s living expenses. The applicant also provided numerous copies of account records from an academy/institution. These are dated from December 2015 until January 2019, and are account statements issued by the institution to the applicant for her daughter’s fees. The applicant stated that she provided these documents in order to show the Tribunal that she has been responsible for looking after her child and paying all of her expenses.

32. The Tribunal questioned the applicant as to whether her child would be entitled to a Taiwanese passport. The applicant stated that she has made enquiries in this regard, however unless the child’s father provides consent, a Taiwanese passport cannot be granted. She explained that she had contacted consular services in Australia several times, including the day before the hearing. On each occasion she was told that the consent of the child’s father would be required to apply for a Taiwanese passport for the child. The applicant told the Tribunal that Taiwanese law is ‘mainly on the father’s side’. She gave evidence that she had raised the question of obtaining a Taiwanese passport with the child’s father, who told her, in the applicant’s words, as translated, ‘Don’t do any dream’.

33. The applicant stated that she is aware that she would need to obtain the child’s father’s permission to take the child overseas, whether on an Australian passport or otherwise. In addition, if the child moves overseas, the father would be deprived of visitation rights.

34. The applicant gave evidence that the child’s father has never contested custody of the child and there have not been any custody proceedings, hence there are no records relating to the custody rights of the father. She explained that following the issue of the ADVO, the police issued arrangements for the child’s father to see the child three to four times a year in either a public place, such as a shopping centre, or for two hours at a time under supervision at a police station. The last supervised visit was at Christmas 2018. The next will be the child’s birthday in June 2019.

35. The applicant stated that she is aware that under Australian law the child’s father has rights to visit his child. In addition, the child is now four years old is aware that she has a father. The applicant stated that she does not have a right to get involved in the relationship between the father and the child. When she takes the child to see her father she keeps her relationship issues under control in public, as she wants her child to grow up in a normal environment.

36. The Tribunal considers that an immense degree of hardship may be caused through the cancellation of the visa. There is the issue of financial hardship which would be caused to the applicant and to her daughter, who is an Australian citizen. The Tribunal accepts the applicant’s evidence with respect to her financial state and the responsibility she has shown with respect to raising her daughter on her own.

37. More significantly though, if the applicant’s visa is cancelled and the applicant is no longer able to reside within Australia, it raises serious questions as to the arrangements for the care and custody of the applicant’s child. Possible options include the applicant returning to Taiwan. This may result in her separation from the child if the child’s father does not consent to the child obtaining an Australian passport or to becoming a Taiwanese citizen. If the child were to obtain Taiwanese citizenship, then this would result in potential separation from the child’s father, who on the applicant’s evidence, the child has developed an awareness of. Either way, there is potential hardship to the child, who would grow up without one or other parent. The more significant relationship is however that which the child has with her mother, the applicant, who has been the sole carer, and for most of the child’s life has been solely responsible for supporting the child financially.

38. According to a report issued by the Immigration and Refugee Board of Canada[1], until February 2000, the acquisition by a child of Taiwanese citizenship by descent was only possible where a child’s father was a citizen of Taiwan or where the father was unknown or stateless and the child’s mother was a Taiwanese national. The Nationality Law of Taiwan was amended in 2000 to allow for citizenship to be transmitted through either parent, so long as the child had not reached their twentieth birthday. The Tribunal notes that under Article 2 of the Nationality Act of Taiwan, a person shall have the nationality of the ROC (Taiwan) under certain conditions[2], including:

    1.    His/her father or mother was a national of the ROC when he/she was born.

    [1] Canada: Immigration and Refugee Board of Canada, Taiwan: Nationality laws (2000 - February 2004), 23 February 2004, TWN42385.E, available at: [accessed 6 May 2019]

    [2] Nationality Act 1929 (Republic of China), available at: Department of Household Registration, M. O. I., [accessed 6 May 2019]

39. While the applicant appeared to accept that it may in theory be legally possible for her daughter to become a citizen of Taiwan, she would still encounter practical difficulties, including:

    a.Any application for citizenship would require the child’s father’s permission;

    b.Taiwanese citizenship does not automatically provide a right to reside in Taiwan. Rights to reside in Taiwan require a registered household within Taiwan. The father of the child is Australian and does not possess a registered address in Taiwan, hence while the child may obtain Taiwanese citizenship, the child may not obtain a right to reside in Taiwan.

1. These difficulties are supported by information available on the websites of the Taiwanese Department of Household Registration and the Bureau of Consular Affairs, Ministry of Foreign Affairs[3]. The publicly available information on these websites indicate that for a passport application for a ‘newborn baby’, the application must include a certified birth certificate, the parents’ marriage certificate or a Household Registration Certificate with the parents’ marriage registration within three months and copies of the passports of the parents.

   [3] Ibid, and Passports for Newborn Babies, available at: Bureau of Consular Affairs, Ministry of Foreign Affairs, [accessed 6 May 2019]

2. The Tribunal accepts that while it may be possible for a child who has descent from a Taiwanese mother to now obtain Taiwanese nationality by descent, obtaining citizenship in this case is likely to involve practical difficulties because of the circumstances of the child, including her having an Australian father who is unsupportive of such action being taken. In addition to this, the Tribunal is satisfied that either way difficulty may be experienced by the child or by one of her parents if the applicant’s visa is cancelled. Either the applicant would be deprived of her right to temporarily reside in Australia and therefore be separated from her daughter, or, if the applicant’s daughter were able to reside with the applicant in Taiwan, she would be separated from her father, potentially causing hardship both to the daughter and the daughter’s father, who are both Australian citizens.

3. Accordingly, the Tribunal gives this consideration significant weight against cancelling the visa.

   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

4. As noted above, the applicant gave birth to her child in June 2015. Her relationship ended in July 2015, shortly after the birth of her child.

5. The applicant gave evidence that she commenced the relationship with her daughter’s father in July 2014. She noticed she was pregnant in October 2014 and at that time found that things were not going well with her relationship. She told the Tribunal that in January 2015 she experienced domestic violence, as a result of which she was admitted to Liverpool Hospital for three days. During this time she almost miscarried her child. The applicant did not have copies of her hospital admission records, but stated that they can be obtained from Liverpool Hospital.

6. The applicant explained that the police investigated the matter and requested leave on her behalf from the college where she was enrolled. The Tribunal notes the applicant’s PRISMS record, which confirms that her enrolment in the Advanced Diploma of Hospitality was cancelled on 12 January 2015 due to ‘Deferment/Suspension – Compassionate or compelling circumstances’. The applicant told the Tribunal that while she was on leave the ADVO was issued by the police. As noted above, at the hearing the applicant provided a copy of part of the ADVO, which records the applicant as the protected person, and records the details of the 67-year-old defendant.

7. The applicant stated that when she gave birth to her daughter in June 2015 she still had hope that she and the father of the child might reconcile their relationship. The child’s father expressed an intention to apply for a partner visa on the applicant’s behalf, however the applicant told the Tribunal that he was not mentally stable. The child’s father made allegations that the child was not his, sought legal advice and threatened to take steps to cancel the applicant’s visa application. The applicant stated that she was forced to obtain a DNA test for the child, which established that her ex-partner was the father of the child.

8. Due to fears of further domestic violence, the applicant was assisted by a social worker and the police to move to a women’s refuge in Burwood, where she remained for eight months. The applicant told the Tribunal that her ex-partner withdrew the partner visa application in September 2015, at which point she reapplied for a Student visa. She stated that she tried to continue with her studies, but that many things were beyond her control. She explained that the child’s father ceased making child support payments, which forced her to look for work in order to support the child.

9. The applicant gave evidence of continuing harassment which she received from her ex-partner, including visits to her home. After she left the women’s refuge she commenced working and moved into a townhouse with her daughter, however her ex-partner would visit her and threaten that if she didn’t open the door he would not pay child support. She stated that her ex-partner had the attitude that she ‘belonged to him’. As a result of this threatening behaviour she was forced to move to another address in 2018, the location of which she has kept secret from him.

10. The Tribunal is satisfied that there were significant extenuating circumstances which were beyond the control of the applicant and which resulted in the grounds for cancellation of the visa. In particular, the Tribunal notes the domestic violence which the applicant experienced and the subsequent period when she resided in a women’s shelter for eight months, followed by the financial hardship which she has experienced as a single mother, attempting to raise her young child on a part-time income, and the difficulty this posed for paying enrolment fees. The Tribunal also notes the ongoing threats of domestic violence which the applicant experienced in 2016 and 2017, until she moved addresses in 2018. During much of the period from July 2016 until 2018 the applicant was in a particularly vulnerable position and faced a series of circumstances which resulted in her inability to be enrolled as a student.

11. Accordingly, the Tribunal gives this matter significant weight against cancelling the visa.

    Past and present behaviour of the visa holder towards the department

12. There is no evidence that the applicant has been uncooperative with the Department or the Tribunal. The decision of the delegate records that the applicant did not respond to the Department’s notice of intention to cancel her visa, however she was cooperative in her dealings with the Department and provided information as requested. The Tribunal gives this some weight against cancelling the visa.

    Whether there would be consequential cancellations under s.140

13. The applicant confirmed at hearing that there are no persons in Australia whose visas would, or may, be cancelled under s.140. The Tribunal weighs this factor neither in favour nor against cancelling the applicant’s 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

14. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. An option open to the applicant is she could apply for a Bridging visa in order to remain within the community to finalise her affairs before departing Australia, although this period of time is likely to prove problematic for the applicant, who has found herself in a particularly vulnerable position and is responsible for the custody and care of her four-year-old daughter, who is an Australian citizen. The applicant would need to seek advice regarding her immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion. This would have significant impact on the applicant and her four-year-old daughter, who is an Australian citizen. On the evidence before it, the Tribunal gives this weight against 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

15. The Tribunal notes that Australia is a signatory to the Convention on the Rights of the Child and has consequential obligations to ensure that in actions concerning children, the best interests of the child are a primary consideration. The Tribunal notes that this does not preclude the cancellation of a visa, however it requires the decision maker to turn their mind to the consequences of the action, in this case the cancellation of a visa.

16. The applicant gave evidence that her daughter, who is an Australian citizen, is now almost four years old. The fact that the applicant’s daughter holds Australian citizenship is confirmed by the Department’s records, in particular the decision of the delegate, which noted that the applicant’s daughter does not hold dual citizenship with Taiwan.

17. The Tribunal is concerned that if the applicant’s visa is cancelled, there is the potential for the applicant’s four-year-old to be separated from the applicant, who has been responsible for the care and custody of the child since birth. The Tribunal therefore gives this factor significant weight against cancelling the visa.

    For permanent visas, whether the former visa holder has strong family, business or other ties in Australia

18. This matter is not applicable as the visa in question is not a permanent visa.

    Any other relevant matters.

19. The Tribunal asked the applicant whether there were any other relevant matters which should be taken into account. The applicant responded by offering the details of her social worker if the Tribunal required any further information. The applicant then reiterated her request for the Tribunal to refer her case to the Department for the Minister’s intervention. She repeated her request that the Tribunal cancel her visa and then refer the matter for the Minister’s intervention so she may be able to obtain a more permanent form of residency which will allow her to stay in Australia to look after her child, who is a four-year-old Australian citizen.

20. As the applicant has made a request for the cancellation of her student visa, the Tribunal gives this significant weight in favour of cancelling the visa.

21. The Tribunal finds that overall the applicant was honest and frank about her circumstances and that of her child. The Tribunal notes in particular that the applicant conceded that the purpose for the Student visa is no longer relevant to the applicant’s circumstances, as she is unable to appropriately support her child on a part-time wage as a single parent who is not receiving child support. The applicant also gave evidence that her priorities have changed and that she is no longer interested in remaining in Australia for the purpose of studying. Her focus and purpose is to remain in Australia to care for and raise her four-year-old daughter. The Tribunal accepts the applicant’s evidence of the difficulties which she has in paying basic living expenses for herself and her young child in addition to paying enrolment fees while working a maximum of 40 hours per fortnight. The Tribunal notes that the purpose for the visa under review is no longer relevant to the applicant and she has herself requested that the Tribunal affirm the decision to cancel the visa and refer the matter to the Minister for his intervention.

22. In weighing each of the matters which should be taken into account, the Tribunal concludes that the visa should be cancelled. In reaching this conclusion the Tribunal gives particular weight to the purpose for the Student visa no longer being relevant to the applicant and her request that it be cancelled. Although the Tribunal has given significant weight to certain other matters that should be taken into account in favour of not cancelling the visa, the Tribunal gives greater weight, based on the applicant’s frank admission, that her purpose for remaining in Australia does not relate to study, in addition to her request that the cancellation of the visa be affirmed.

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

    Application for Ministerial intervention

24. The review applicant has requested the Tribunal to refer this case to the Department for consideration by the Minister pursuant to s.351 of the Act, which gives the Minister discretion to substitute for a decision of the Tribunal another decision that is more favourable, if the Minister thinks that it is in the public interest to do so.

25. The Minister has issued guidelines explaining the circumstances in which they may wish to consider exercising their public interest powers under s.351 of the Act. Those guidelines indicate that the Minister will generally only consider exercising their public interest powers in cases which are referred to the Department by a review tribunal or which exhibit one or more unique or exceptional circumstances. Departmental policy concerning Ministerial Intervention notes as a relevant factor, strong compassionate circumstances such that a failure to recognise them would result in irreparable harm and continuing hardship to an Australian citizen or an Australian family unit and compassionate circumstances regarding the age and/or health and/or psychological state of the person.

26. The Tribunal has considered these guidelines against the evidence provided. The Tribunal has significant sympathy for the applicant, who is the mother of an Australian child who is now four years old. The applicant herself has found herself in a vulnerable situation, such that in 2015-6 she needed to seek accommodation in a women’s refuge for eight months as a result of domestic violence. The Tribunal also notes the age of the applicant’s daughter and the harm and hardship which would be caused to her.

27. The Tribunal notes in particular the circumstances which are set out in paragraphs 29 to 49 of these reasons, which set out the hardship which may be caused by the cancellation of the visa and the circumstances in which the ground for cancellation arose, and notes that the Tribunal gave these matters significant weight against the cancellation of the visa.

28. Having regard to the above circumstances, and having considered the ministerial guidelines relating to the Minister's discretionary power under s.351, set out in PAM3 'Minister's guidelines on ministerial powers (s351, s417 and s501J)', the Tribunal considers there are strong compassionate circumstances in this case such that a failure to recognise them would result in continuing hardship to an Australian family unit. The Tribunal also considers that there are compassionate circumstances regarding the age of the applicant’s daughter, such that a failure to recognise them would result in irreparable harm and continuing hardship to that person.

29. For these reasons the Tribunal considers that the case should be referred to the Department to be brought to the Minister's attention.

    DECISION

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

    Frank Russo
    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.