Zafar (Migration)

[2020] AATA 522

Zafar (Migration) [2020] AATA 522 (20 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ambreen Zafar

CASE NUMBER:  1709158

HOME AFFAIRS REFERENCE(S):          BCC2017/716624

MEMBER:Justin Owen

DATE:20 February 2020

PLACE OF DECISION:  Sydney

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

Statement made on 20 February 2020 at 2:00pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – claim administrative error and error beyond control – health issues – motor vehicle accident – partner visa application pending – COE cancelled – claim based on incorrect/erroneous oral advice – lack of evidence provided regarding student enrolment – did not maintain enrolment – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 119, 140, 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 20 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 is a national of Pakistan born 1 February 1977.  Her Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa was granted on 10 November 2014 and was subject to condition 8202.  The visa had a stay period with a stay period until 21 August 2019.  On 20 March 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of her visa, as she had ceased to be enrolled in a registered course since 10 October 2016.  The applicant responded to the NOICC on 3 and 4 April 2017.  On 20 April 2017 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of her visa.      

3. The delegate cancelled the visa on the basis that the applicant has not complied with the requirements of condition 8202 (2)(a) of the visa.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 5 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from her husband Mr Muhammad Younos Khan.  The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

5. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

6. 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

7. 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?

8. 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).

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

10. When making the application for review, the applicant supplied the Tribunal with a copy of the delegate’s decision of 20 April 2017. The decision record states that the Provider Registration and International Student Management System (PRISMS) records indicated that the applicant had not been enrolled in a registered course of study between 10 October 2016 and 24 March 2017.  The applicant therefore had not been enrolled for a total of over 5 months. 

11. The Tribunal notes the applicant’s claim that she did however believe she was enrolled during this period and her clam that she was studying to complete her Advanced Diploma during this period.  The Tribunal notes that these claims do not accord with either the PRISMS records that were put to the applicant under s359AA or the academic records the applicant from her education provider.  On the evidence before it, the Tribunal is satisfied that the applicant was not in fact enrolled in a registered course of study during this period of almost 5 months.  

12. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

13. 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 Procedural Instruction ‘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

14. The applicant arrived in Australia to study a package of courses which included Diplomas and a Bachelor’s degree.  The Tribunal notes the evidence she has provided of a study programme that included the study of a Bachelor of Business, an Advanced Diploma of Marketing and a Diploma of Marketing.   The Tribunal notes the evidence that the applicant since her arrival at the end of 2014 has successfully completed:

    ·Certificate II in Business

    ·Certificate III in Business

    ·Advanced Diploma of Management

    ·Diploma of Business

    ·Advanced Diploma of Business

    ·Diploma of Marketing

    ·Advanced Diploma of Marketing

    ·Bachelor of Business (Accounting).

15. The Tribunal accepts the applicant has been an excellent student.  On the evidence before it, the Tribunal is satisfied that the applicant’s original intention was to travel and stay in Australia for the purposes of study.

16. The Tribunal has considered whether the applicant has a compelling need to remain in Australia.  The Tribunal notes that the applicant recently successfully completed her Bachelor of Business (Accounting) degree and does not hold any further enrolments.  The Tribunal enquired as to her future intentions.  She stated that she intends to undertake work experience in the accounting profession and seek future employment in the area.  In response to the Tribunal’s questions she stated she would consider further study down the track.  The Tribunal notes that its review pertains to a Student visa which is a temporary visa.  The applicant has successfully completed her studies.  The Tribunal does not consider the applicant’s desire to seek employment in the accounting profession or her plans to possibly undertake further study represent a compelling need to stay in Australia.  

17. The applicant discussed her Partner visa application that was lodged in May 2019.  Her husband is the sponsor.  The application is before the Department and she has been informed it will take up to two years to be assessed.  The applicant’s husband provided oral testimony asserting the genuineness of the relationship.  The applicant spoke about the care that she provides her two teenage stepsons with whom she partially cohabitates with.  The Tribunal accepts that the applicant wishes to remain in Australia with her husband and step-children.  It accepts her claim that she provides a wide range of household support to her husband and stepchildren. She also has expressed a desire to conceive a child with her husband and has sought medical advice and assistance which the Tribunal accepts.  The Tribunal accepts for the purposes of this review the applicant’s claim she is in a genuine relationship with the sponsor of her Partner visa application, an Australian citizen.  The Tribunal notes that the applicant may be eligible to apply for a Bridging Visa E to allow her to remain in Australia to finalise any outstanding matters and visa applications – such as her Partner visa application - that have been lodged.  Given her Partner visa application is before the Department, the Tribunal does not consider the applicant is likely to be required to depart Australia in the interim.  The Tribunal considers the applicant would be able to continue to focus on such matters as she and her husband conceiving a child during this period.  If she does choose to depart Australia, on the basis of her relationship with her sponsor she will be able to apply for a Partner visa offshore.      

18. The Tribunal accepts the applicant wishes to remain in Australia to stay with her husband and stepchildren, conceive a child as well as undertake work experience in the accounting fiend and potentially undertake further study in the future.  The Tribunal notes that the applicant’s visa is a Student visa, the purpose of which is to study.  Given the circumstances outlined, the Tribunal does not accept the applicant has demonstrated a powerful or compelling reason for needing to stay.  For these reasons, the Tribunal is not satisfied that the applicant has a compelling need to remain in Australia. 

    The extent of compliance with conditions

19. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions other than those that she has accepted, and the Tribunal has taken this into account. 

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

20. The Tribunal has considered the degree of hardship that may be caused to the applicant and her family should her Student visa be cancelled.  

21. The applicant advised that there would be significant hardship imposed upon her relationship with her husband and her stepsons.  The Tribunal accepts that there will be a degree of emotional hardship imposed by any separation of the applicant from her husband and stepsons.  The Tribunal notes however the applicant will be able to apply for a Bridging visa as part of her ongoing Partner visa application and remain in Australia whilst the application is assessed.  The Tribunal considers the hardship to be imposed on the relationship is limited.   

22. The applicant expressed concerns as to the hardship that would be imposed on her husband and stepsons.  She stated that she looks after the household cooking, cleaning and essentially all domestic duties.  The applicant’s husband in his own oral testimony also spoke of the increased hardship in relation to the household that may occur if the applicant’s visa was cancelled.  In his written statement he said he has 50% responsibility for his 16yo and 15yo son.  The Tribunal accepts that the applicant’s husband and stepsons may need to take on further responsibility for household chores and various domestic responsibilities if the applicant’s visa was cancelled and she did depart Australia.  The applicant’s husband is in employment and can avail himself of commercial services for household and domestic duties if he so desires.  The Tribunal accepts that the applicant’s husband may need to take on a greater degree of responsibility in caring for his children if the applicant’s visa is cancelled.  The Tribunal does not consider this to be a significant hardship.   

23. Both the applicant and her husband raised their desire to have a daughter and expressed their concerns as to their respective ages.  The applicant stated her concern that if her visa was cancelled she may not be able to achieve this goal.  The Tribunal acknowledges the medical evidence they have provided and concedes the applicant is of an age of decreasing fertility.  The Tribunal also concedes that the stress of the cancellation can potentially have an impact on the applicant’s ability to conceive.  The Tribunal notes however that the applicant has applied for a Partner visa so she will be able to apply for a Bridging visa to remain in Australia whilst her Partner application is assessed.  The applicant and sponsor can also continue to attempt to conceive a child offshore if they so wish, though the Tribunal acknowledges the applicant’s husband’s responsibility for the care of his sons  The Tribunal does not consider the applicant and her husband’s desire to have a daughter and the impact cancellation may have upon this goal is a significant hardship.   

24. The applicant expressed concerns that cancellation of her visa would impact adversely upon her on-shore Partner visa application and stated she feared she would have to lodge an offshore Partner visa application that would involve significant additional expense.  The Tribunal notes again that the applicant may apply for a Bridging visa to remain in Australia whilst her Partner visa application is assessed.  The Tribunal accepts that should she ultimately have to depart Australia to lodge a Partner visa from offshore (for instance for Schedule 3 reasons) then it will involve an additional expense.  The Tribunal does not consider the cost of lodging a Partner visa application from offshore is an unusual or onerous burden: it is part of a process undertaken by thousands.  The Tribunal considers any hardship to be imposed by the potential future lodgement of an offshore Partner visa application to be limited.

25. The applicant also raised the processing time of any offshore Partner visa application as a hardship – stating the processing time is 17 to 24 months.  The Tribunal accepts that if the applicant was to go offshore she would be separated from her husband and her stepsons and this would generate a limited degree of emotional hardship.  The Tribunal notes however that the applicant retains the ability to remain in close contact with her husband and stepsons through modern communication technology.  Her husband and stepsons can visit her if they desire.  The Tribunal has considered the circumstances of the applicant, her husband and her stepsons and does not consider the process of an offshore Partner visa application will generate any hardship that is overly onerous or unusual.   

26. The applicant has also raised the impact cancellation of her Student visa will have on her Partner visa application as it pertains to Schedule 3 criteria.  Given the applicant was not holding a substantive visa when she lodged her Partner visa application, she will be subject to Schedule 3 criteria and required to put forward compelling reasons why the criteria ought to be waived.  Any compelling reasons that are put forward by the applicant will be assessed by the delegate as part of the Partner visa application.  The Tribunal does not consider this process and the cancellation of the applicant’s Student visa imposes an impediment to the applicant putting forward compelling and compassionate reasons as to why the Schedule 3 criteria should be waived as part of the Partner visa process.   

27. The applicant expressed concern in her oral testimony that her studies in Australia would have been wasted if her visa was to be cancelled.  The Tribunal does not consider this to be the case.  The applicant has completed a number of courses of studies including her accounting studies at the Bachelor level.  She has essentially completed the courses she intended to undertake when applying for a Student visa.  The Tribunal does not accept the argument that her studies would have been a waste of time should her visa be cancelled.  The applicant has acquired an impressive array of qualifications and in the Tribunal’s opinion she has the ability to take advantage of her knowledge and her studies whether it be offshore or in Australia.    

28. Similarly the applicant stated she had spent $42,000 on course fees for her Bachelor qualification.  The Tribunal accepts she has spent other significant amounts on the other courses of study she completed.  The Tribunal accepts these fees can be a significant financial burden and hardship on a student.  The fees however are part of the process in undertaking studies at the higher education level and were known to the applicant.  The Tribunal does not consider the significant financial outlay of the applicant – and any subsequent financial hardship – represents an unusual or onerous burden on the applicant. 

29. The applicant and her husband in their oral testimony discussed the applicant’s future plans to work in her husband’s business and to further her skills and experience in accounting.  In relation to the former, the Tribunal notes that its review pertains to a Student visa.  Whilst a limited period in the workforce is permitted each week, it is incidental to the purpose of a Student visa.  The Student visa the applicant has held is not an employment visa.  The Tribunal considers any hardship that may be caused in relation to this matter is limited.  In relation to accounting, the Tribunal notes that the applicant has completed her studies and can pursue experience in the workforce in accounting not only in Australia but offshore.  The Tribunal considers any hardship that might be caused by precluding the pursuit of such experience in Australia whilst holding a Student visa is limited. 

30. The Tribunal has considered the applicant’s written statement and the submission received through her representative.  The applicant has stated that if her visa is cancelled she will lose credit for her completed study with any future employer.  Such a statement is entirely speculative and in the Tribunal’s opinion not grounded in fact.  The applicant has completed her studies successfully and has a good academic record to demonstrate to any potential future employer. 

31. The applicant raised the impact of hardship upon her family offshore.  Noting her previous divorce, an event the Tribunal accepts was difficult for the applicant, the applicant stated her family wanted to see her happy.  The Tribunal accepts that this is the desire of her family offshore.  She has completed her studies – the purpose of her Student visa.  She now has a Partner visa application before the Department.  The Tribunal does not however consider the cancellation of the applicant’s Student visa will generate any particular hardship on her family. 

32. The applicant has raised the fact that due to her current immigration status she has been unable to see her mother for a significant period of time.  The Tribunal accepts that there is a degree of hardship for the applicant in relation to her absence from her mother.  The Tribunal notes however that she retains the ability to depart Australia at anytime to reunite with her mother (albeit with a subsequent negative effect upon her ability to re-enter Australia).  The applicant through her representative stated that remitting the cancellation of her Student visa would allow the applicant to apply for a Bridging Visa A that would allow her to apply to travel offshore and see her mother.  The Tribunal does not consider the inability of the applicant to travel offshore due to her current visa status is a reason not to cancel the applicant’s Student visa.  The inability to re-enter Australia on a range of Bridging visas is the intended consequence of the legislation.  In the Tribunal’s opinion it is not a reason, in the facts pertaining to the applicant’s case, why her Student visa should not be cancelled.      

1. The Tribunal accepts that there will be a moderate degree of hardship caused by the applicant’s Student visa being cancelled.  The Tribunal however believes this hardship is limited and is able to be mitigated by the applicant.  In regards to the degree of hardship to be caused to the applicant and her family should her visa be cancelled, the Tribunal weighs the matter slightly in favour of cancelling the visa. 

   Circumstances in which the ground for cancellation arose.

2. The applicant’s visa was cancelled because she remained in Australia as the holder of a Student visa but did not continue her studies for a period of around five months.  The applicant however has claimed this period came about due to a series of administrative errors and poor advice by her two education providers.  She has claimed that the breach of the visa condition was beyond her control and due to her lack of understanding of the visa conditions.   

3. The Tribunal put the PRISMS record which outlined the applicant’s breach of the condition attached to her visa to the applicant under s359AA and invited the applicant to comment or respond.   The applicant responded orally at the hearing. 

4. The applicant addressed the circumstances that led to her not being enrolled in a registered course of study in some detail and provided a further detailed written statement.  In summary, the applicant stated that she held a valid COE at Group Colleges Australia (GCA) for her Bachelor of Business (Accounting) studies that was due to commence on 18 July 2016.  At that time however she had not concluded her current Advanced Diploma of Marketing studies at the Australis Institute that was due to conclude on 13 July 2016.

5. The applicant stated that she had suffered from a number of health issues in 2016 and she had also been impacted adversely by her divorce from her husband in 2015.  This meant she was delayed in completing her Advanced Diploma of Marketing studies until 9 October 2016. 

6. The applicant claims she decided to return to Pakistan for a number of health reasons and contacted GCA staff and requested deferral of her Bachelor of Business (Accounting) course with a new COE once she completed her Advanced Diploma of Marketing course in October 2016.   The applicant claims she went in person to GCA and discussed these matters and gained approval in July 2016.  She claims the GCA staff assured her they would issue her with a new COE and the applicant subsequently departed for Pakistan.  

7. The applicant claims that in August 2016 she discovered GCA had in fact cancelled your her COE and not issued her with a new one for her Bachelor of Business (Accounting) studies.  The applicant claims she went to GCA who said she could commence her studies in January 2017 intake and there would not be an issue.  She claimed that GCA staff said she did not need a new COE.  The applicant claims GCA staff told her to complete her Advanced Diploma studies before she commence study of the Bachelor course. 

8. The applicant claims she subsequently continued her Advanced Diploma studies but in early October 2016, when she was due to complete her studies, her health declined and she was in considerable pain due to an anal skin tag.  She claims she nevertheless submitted all her coursework and assignments on time. 

9. The applicant claims Australis College then informed her she had failed an assignment and was required to resubmit.  The applicant claims between October 2016 and March 2017 she was unwell from her anal skin tag, subsequently underwent surgery on 6 December 2016 and was in a motor vehicle accident on 22 December 2016.  She states that she was alone and coping with these issues by herself.  These issues individually and collectively delayed her re-submission of her final assignment. 

10. The applicant claims she finished her assignment on 17 March 2017 and attempted to submit to Australis College.  She said the staff told her to return on 22 March 2017 to submit when her teacher would be present.  She claims on 20 March 2017 however she received the NOICC from the Department.

11. The applicant stated that she believed, given she had not completed her Advanced Diploma course, that Australis College had continued her enrolment after October 2016 until she finished her studies in March 2017.  The applicant also stated that she believed GCA would provide her with a new COE for her planned Bachelor of Business (Accounting) studies after her talks with the college in July 2016. 

12. The applicant claims she was surprised and alarmed to learn that neither Australis College continued her enrolment after 9 October 2016 and GCA did not issue her with a new COE after July 2016. 

13. The Tribunal has considered the applicant’s claims.

14. The Tribunal notes that the applicant has provided no corroborative evidence of her communication with either GCA or Australis College to verify her claims concerning the advice she received from her education providers and their assurance that they would either issue her with a new COE (GCA) or she could continue her enrolment without a new COE (Australis).  The applicant has conceded that she did not put her requests in writing and relied on the oral assurances of the staff of the education provider.  In the absence of any corroborative evidence the Tribunal cannot accept the applicant’s claim that these assurances were made.  The Tribunal finds it unusual that the applicant would not seek to put such requests and receive such confirmation in writing, particularly given the importance of remaining enrolled in a registered course of study.

15. The Tribunal furthermore has serious doubts as to the applicant’s claims that she remained enrolled in her Advanced Diploma of Marketing beyond 9 October 2017.  The applicant provided the Tribunal with her testamur and statement of results from the Australis Institute (T1, Folio. 44).  The testamur states the applicant fulfilled all the requirements for the grant of the Advanced Diploma and is dated 7 November 2016.  The signed statement of results states the applicant fulfilled the requirements for the Advanced Diploma of Marketing starting on 4 January and ending on 9 October 2016.  The Tribunal was perplexed as to how the applicant was granted her Advanced Diploma – which states she completed her studies successfully on 9 October 2016 – when she claims she had one remaining subject and assignment to complete, which she claims she did so on 22 March 2017. 

16. The applicant provided a copy of a receipt as evidence of her resubmission of an assignment for her Advanced Diploma of Marketing (T1, Folio. 71).  It is dated 22 March 2017.  The Tribunal notes the information provided on the receipt but gives it no positive weight as evidence that she remained an enrolled and active student at that time.  There is no evidence before the Tribunal from the education provider that the applicant was a student at that time.  The Tribunal notes the evidence she provided of her testamur, her statement of results, and the PRISMS record that was put to the applicant under the relevant provisions all state she concluded her studies in the Advanced Diploma and subsequently ceased enrolment at the Australis Institute on 9 October 2016.

17. The Tribunal notes the applicant’s claims she attempted to lodge this assignment to complete her Advanced Diploma of Marketing on 17 March 2017 – a few days prior to the issuance of the NOICC - but was told by Australis Institute staff to return on 22 March 2017.  Given the lack of corroborative evidence of such a direction the Tribunal gives the claim no weight.  The Tribunal cannot understand furthermore why her provider would not have accepted the assignment and simply provided it to her lecturer when he was next in attendance.

18. At the hearing the applicant offered to talk to Australis College to ask them why they had issued her with a testamur and a statement of results with the ‘wrong dates’.  Given the applicant’s claims concerning the dates of her enrolment in the Advanced Diploma of Marketing, the Tribunal at the hearing agreed to allow the applicant time to contact the Australis Institute to procure corroborative evidence of her claims.  On 11 February 2020 the applicant through her representative responded in writing to the Tribunal.

19. The applicant provided a copy of what the applicant claims is a copy of the receipt for her initial submission of the assignment which she has claimed she was required to re-submit a further assignment in March 2017.  The receipt is ticked ‘First submission’.  The applicant claims this was from October 2016.  The receipt however is undated.  The Tribunal is not satisfied that the receipt constitutes corroborative evidence that the applicant’s assignment was failed; that she was required to make a resubmission and was in fact a student of the Australis Institute between October 2016 and March 2017.  The Tribunal gives the receipt no weight. 

20. The applicant’s representative has also written that on 6 February 2020 they contacted Australis Institute via email on behalf of the applicant asking the details of the applicant’s completion date of her Advanced Diploma of Management course and the Tribunal’s concerns.  The applicant’s representative states that the Australis Institute has not replied to his email and states ‘it is not in our control now’.  The applicant has also stated and provided an email that she personally visited the Australis Institute on 11 February 2020 seeking the same information.  The applicant has provided an email from herself to her representative that states she met two representatives of the education provider and sought the same information but was unsuccessful.  On 12 February 2020 the applicant also provided the Tribunal with a copy of her email to her education provider outlining her visit to the provider, her request to the provider and the claimed response from the education provider’s staff that only the director can access emails and they would deliver the message to the director.  No response or indeed no further evidence pertaining to the claim has been provided at the time of decision.  Over two weeks have now elapsed since the Tribunal’s hearing.         

21. The applicant’s representative in his correspondence requested the Tribunal to seek this information the applicant seeks to rely upon directly from the college and has asserted that the education provider will provide the evidence to the Tribunal.  The Tribunal rejects this assertion.  It is not the role of the Tribunal to adduce the evidence upon which the applicant claims to rely upon.  The applicant has provided evidence from her education provider of a completed testamur and a statement of results that clearly indicates she completed her studies successfully on 9 October 2016.  This evidence reflects the information appearing in the applicant’s PRISMS records that were put to the applicant under the appropriate provision.  The applicant has not provided any satisfactory corroborative evidence to the Tribunal to confirm she was in fact an enrolled student at the Australis Institute beyond 9 October 2016.  

22. The Tribunal on the evidence before it does not accept the applicant was an enrolled student at the Australis Institute beyond 9 October 2016.  The Tribunal considers the applicant ceased to hold a COE at that time.  The applicant’s representative at the hearing suggested that education providers sometimes used the date a student’s COE concluded on the testamur and statement of results rather than the actual date the course was satisfactorily completed.  It was suggested that this was the case in this review: that the applicant continued her studies until March 2017 but was issued with essentially a backdated testamur and statement of results that aligned with her COE after the completion of her course.  The applicant’s representative suggested that the providers sometimes did this to ensure they were not issuing a new COE to students that had almost completed their studies and losing the opportunity to issue the limited number of COEs to a new student.  In light of the lack of corroborative evidence, the Tribunal does not accept the applicant’s claim made through her representative.  The vast weight of corroborative evidence before the Tribunal suggests the applicant’s enrolment at the Australis Institute and in an Advanced Diploma of Marketing concluded with her successful completion of the course on 9 October 2016.  Nevertheless the Tribunal records its concerns if it was to be the case that an education provider was backdating key documentation: the issuance of testamurs and statements of results backdated so an education provider can avoid issuing a new COE is, in the Tribunal’s opinion, at best dishonest and potentially unlawful.

23. The Tribunal has considered the applicant’s claims in relation to GCA and her planned Bachelor of Business (Accounting).  The Tribunal notes there is no corroborative evidence before it to substantiate the applicant’s claims that GCA told her (after informing them she could not commence her studies in July 2016) that she did not require a new COE and she should simply commence her Bachelor studies in January 2017 after finishing her Advanced Diploma studies. The applicant stated to the Tribunal that she was subsequently aware that her enrolment had been cancelled in August 2016 but was advised by GCA there would not be an issue.  The applicant has asserted her acceptance of this purported oral advice from GCA is responsible for her not obtaining a COE for her Bachelor course sooner than March 2017.

24. The Tribunal is not satisfied with the applicant’s explanation for her failure to maintain her enrolment.  In the absence of any meaningful corroborative evidence the Tribunal cannot be satisfied that she received advice from the Australis Institute and GCA as she has submitted.     Even if the Tribunal were to accept that the applicant was issued with such advice, the Tribunal notes that visa holders have an obligation to ensure they continue to meet the conditions attached to their visa – that includes retaining enrolment in a registered course of study.  The applicant failed to do this.  The Tribunal notes the applicant did subsequently enrol in March 2017 in her Bachelor of Business (Accounting) course and has now completed her studies.  The Tribunal gives this some positive weight for her moves to rectify her enrolment situation.   

25. The applicant has claimed she was under the impression that having failed a subject at Australis Institute that her enrolment would be continued automatically.  She claims she was told by the provider that she did not need a new COE.  She claims GCA similarly told her that they would send her a new COE and subsequently told her that she could simply continue and complete her Advanced Diploma studies at Australis and there would not be any issue with her Bachelor enrolment.  The Tribunal found the applicant to be a bright, articulate and intelligent individual with strong motivation: given the importance of retaining enrolment, the Tribunal is surprised that the applicant did not seek to confirm any of this alleged advice formally in writing.   The Tribunal notes that applicants have an obligation to ensure that they continue to meet the conditions attached to their visa      

26. The Tribunal accepts that the applicant experienced a range of personal problems between 2013 and the cancellation of her visa in 2017 – both previously in relation to her divorce and in later times concerning her health, her financial issues, the motor vehicle accident and her feelings of isolation.  Whilst the Tribunal has some sympathy for the applicant, the Tribunal considers that these issues are part of the vicissitudes of life that many people encounter at some point.  Although they are stressful events, they are not in the Tribunal’s opinion in relation to the evidence before it pertaining to this case, adequate reasons for the applicant to fail to comply with the conditions of her Student visa and fail to remain enrolled in a registered course of study. 

27. The Tribunal has considered the circumstances in which the ground for cancellation arose.  The Tribunal does not accept on the evidence before it that the circumstances in which the ground for cancellation arose were beyond the applicant’s control.  The Tribunal considers the applicant, an experienced student, had an obligation to ensure that she continued to meet the conditions attached to her visa.  The Tribunal is not satisfied on the evidence before it that the applicant was a student of the Australis Institute and studying an Advanced Diploma beyond 9 October 2016.  The Tribunal notes the applicant’s claims to have relied on incorrect and erroneous oral advice from both the Australis Institute and GCA. The Tribunal considers the applicant could have easily sought and received written confirmation of her enrolment and a COE if she so desired.   The Tribunal has taken into account the applicant’s evidence concerning the personal problems she faced which she claims generated an environment where she made these errors.  The Tribunal has some sympathy for the applicant and has put some positive weight on her strong academic record.  Nevertheless the obligation remains on the applicant to meet the conditions of her visa which includes remaining enrolled in a registered course of study.  In relation to the circumstances in which the ground for cancellation arose, the Tribunal weights this matter in favour of cancelling the visa.       

    Past and present behaviour of the visa holder towards the Department  

28. The Tribunal has considered the past and present behaviour of the applicant towards the Department.   The applicant said she met the other conditions attached to her visa.  The Tribunal notes the applicant responded to the Department’s s.119 letter and gives this some positive weight.  On the evidence before it the Tribunal weighs this factor slightly against cancelling the visa. 

    Whether there would be consequential cancellations under s.140

29. The Tribunal has considered whether there are persons in Australia whose visas would, or may be, cancelled under s140 as a result of the cancellation of the applicant’s visa. The applicant confirmed no one else held a visa as a result of her visa. On the evidence before it the cancellation of the applicant’s visa would not result in the consequential cancellation of any dependent visa holders. Therefore any cancellation of the applicant’s student visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. On the evidence before it the Tribunal weighs this factor neither in favour 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

30. The Tribunal notes that the applicant will become an unlawful non-citizen if her visa is cancelled and may be liable for detention under s189 and removal under s198 of the Migration Act if she does not voluntarily depart Australia.  She will also be subject to an s48 bar which will limit her options in applying for further visas in Australia.  The Tribunal notes that the applicant, if she were to apply for a further Student visa offshore, will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a further Student visa for three years from this date.   However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa not to be cancelled. The Tribunal however also notes that if her visa is cancelled, the applicant may be eligible to apply for a Bridging Visa E to allow her to remain in Australia to finalise any outstanding matters and visa applications that have been lodged.  As previously discussed in this decision record, given her relationship with her husband, an Australian citizen, and the lodgement some 9 months ago of a Partner visa application, she may potentially remain in Australia on a Bridging Visa E whilst her Partner visa application is assessed.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.       

    Whether any international obligations that would or may be breached as a result of the cancellation

1. The Tribunal has considered whether there are 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 of the applicant’s visa.  The Tribunal notes that the applicant was married on 25 April 2019.  Her husband who gave evidence at the hearing has two children from his ex-marriage aged 16 years and 15 years respectively.  The applicant’s husband Mr Khan claims that since his divorce he has 50% responsibility for his two sons.  He stated that his former wife lives next door to the residence of him and the applicant and she is unwell from two previous strokes and incidents of heart failure.  The applicant said that she looks after all the household duties and responsibilities such as cooking and cleaning.  

2. The Tribunal finds that cancellation of the applicant's visa will not necessarily result in the segregation of the applicant’s husband’s children from their primary carer, being the applicant’s husband or indeed from their mother who lives next door.  As a result the Tribunal finds that cancellation of the applicant's visa will not adversely impact the applicant's stepchildren and as a result will not be a breach of the United Nations Convention on the Rights of the Child (CROC).  The Tribunal notes that even if it were to find that the cancellation of the applicant’s visa did have an adverse impact upon her stepsons, the Tribunal notes the applicant’s live Partner visa application that is before the Department and her ability to apply for a Bridging Visa E allowing her to remain in Australia whilst the application is assessed. 

3. There is no information before the Tribunal which indicates that any cancellation would result in any breach of Australia’s international obligations.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.     

   Conclusion

4. The Tribunal has considered the applicant’s circumstances individually and cumulatively.  Although the Tribunal finds that there are some aspects in the applicant’s case that weigh in her favour, on balance, the Tribunal is satisfied that the majority of considerations weigh against the applicant.  The Tribunal has noted the applicant’s claim that she was unaware that she was not enrolled in a registered course of study between October 2016 and March 2017.  The Tribunal notes that visa holders have an obligation to ensure they meet the conditions attached to their visa which includes maintaining their enrolment.  The Tribunal considers the length of time the applicant was in breach of her visa conditions to be significant.  The Tribunal is not satisfied with the applicant’s explanation as to how and why the breach occurred and is furthermore not satisfied that the issues encountered by the applicant are sufficient reason not for the visa to be cancelled. 

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

   DECISION

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

   Justin Owen
   Senior Member

   
   

   ATTACHMENT

   Migration Regulations 1994

   …

   Schedule 8

   8202(1)      The holder  (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

   (2)A holder meets the requirements of this subclause if:

   (a)     the holder is enrolled in a registered course; or

   (b)     in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

   (3)A holder meets the requirements of this subclause if neither of the following applies:

   (a)     the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

   (i)section 19 of the Education Services for Overseas Students Act 2000; and

   (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

   (b)     the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

   (i)section 19 of the Education Services for Overseas Students Act 2000; and

   (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

   (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.