2302130 (Migration)

[2024] AATA 3538

2302130 (Migration) [2024] AATA 3538 (19 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2302130

MEMBER:Penelope Hunter

DATE:19 July 2024

PLACE OF DECISION:  Sydney

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

Statement made on 19 July 2024 at 11:29am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – victim of crimes, lost employment during COVID pandemic and exhausted savings – physical and mental health – no course completed – no steps to re-enrol after receiving department’s notice of intention – plan to pursue employer-sponsored visa – generalised claims of fear of harm in home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(a)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 February 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant was found not to have complied with a condition of his visa. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 20 June 2024, via MS teams video to give evidence and present arguments.

4. 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

   Background

5. The applicant is a [Age] year old male citizen of Colombia. He was granted the visa on 13 October 2021 to undertake studies in Australia up until 21 July 2023. This visa was subject to conditions, including condition 8202.

6. On 7 November 2022, the Department wrote to the Applicant with a Notice of Intention to Consider Cancellation (NOICC) under s 116(1)(b) of the Act, with information that the Provider Registration and International Student Management System (PRISMS) recorded revealed that the applicant was not enrolled in a course of study. The applicant was informed that this may be a ground for cancellation of his visa and he was invited to comment.

7. In response to the NOICC the applicant provided a letter of submissions to the Department in which he claimed he had lost his employment due to the COVID-19 pandemic and faced a difficult situation exhausting his savings to remain in Australia. The applicant also submitted the following letters of support:

   i.Letter from [Mr A], nurse practitioner, [Hospital], dated 18 January 2023.

   ii.Letter from [Mr B], Senior Social Worker of Immunology and Infectious Disease Ambulatory Care, [Hospital], dated 18 January 2023.

   iii.Letter from [Mr C], LGBTQ Counsellor, [Organisation], dated 24 January 2023.

8. In considering the response of the applicant the delegate noted that they had had regard to the applicant’s PRISMS records which held information that he had not been enrolled in a registered course for 13 months. This period was considered to be significant. The delegate further noted that the restrictions associated with the COVID-19 pandemic ended in October 2021. The period of non-enrolment began from 16 December 2021. In considering the letters submitted, it was also identified that they set out the situation for the applicant from June 2022, which was considered to be some time after he had ceased studying. The delegate was not persuaded that the evidence and submissions of the applicant addressed the entire period he was not studying. The delegate proceeded to cancel the applicant’s visa. The applicant has submitted to the Tribunal a copy of the delegate’s decision record.

9. The Tribunal received an application for review from the applicant on 17 February 2023.

10. In anticipation of the hearing the applicant submitted further copies of the letters of support provided to the Department, some extract of sample workplace scenarios and a medical certificate dated 25 January 2024, which set out that the applicant was unfit for work and usual activities from 25 January 2024 to 1 February 2024.

11. Following the hearing the applicant provided to the Tribunal the following:

    i.A letter of support from [Ms D], senior social worker, [Hospital], dated 3 July 2024.

    ii.Brochures for study in [subject 1] with [University 1].

    iii.A brochure for the study of [subject 1] at [College].

    iv.An email to the applicant regarding continuing study from [University 2], and brochures regarding courses.

    Did the applicant comply with Condition 8202?

12. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.

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

    ·be enrolled in a full time registered course: 8202(2)(a)

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

    ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

    ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

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

15. At the hearing, the applicant agreed that he knew that it was a condition of his student visa that he maintain enrolment in a registered course of study.

16. The decision record of the delegate which sets out that he had not been enrolled in a course of study since 16 December 2021. 

17. At the hearing the applicant  did not dispute that his enrolments were cancelled on 16 December 2021 by his education provider. The applicant also told the Tribunal that he did not re-enrol in study before the decision of the delegate to cancel his visa on 9 February 2023.

18. Therefore, on the material before it, the Tribunal is satisfied that the applicant, as at the date of the delegate’s decision was not enrolled full time in a registered course. The applicant was not enrolled between the period 16 December 2021 and 9 February 2023.

19. Accordingly, the applicant has not  complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

20. 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

21. The purpose of the applicant’s travel and stay in Australia was to undertake study. His visa was granted on 13 October 2021. The delegate commented in their decision that the applicant had not completed any study while the holder of that visa prior to the cancellation decision, and the two enrolments that he had held were cancelled due to non-payment of fees and non-commencement of studies. The applicant did not dispute this information at hearing. He said he was originally enrolled in a Diploma of [Subject 2] but then decided to transfer to a Diploma of [Subject 3].

22. The applicant told the Tribunal that he first arrived in Australia in 2015 and had held several student visas. When asked by the Tribunal whether he had completed any courses while in Australia, the applicant acknowledged that he had only obtained a certificate of completion of an English courses. He claimed that initially he had started his studies [in Area], but while there, in 2017 he was the victim of sexual assault. He determined to transfer to Sydney and he said that this meant that he had to resume his studies from the beginning.

23. In addition to coming to Australia for the purpose of study, he told the Tribunal that he wished to experience living in a first world country and become immersed in the culture. The applicant said that he wanted to remain in Australia because although he was not always successful in his study he has had the opportunity to grow his skills in [work sector]. He said that he was lucky to be in Australia and would like to remain. He claimed that he previously had been offered an opportunity to obtain an employer sponsored visa but he could not proceed with the application due to his visa cancellation. He currently had a new position at a reputable business, he was on trial and if he was able to remain in Australia his current employer indicated that they may sponsor him in the future. He claimed that he [work sector] needed people and with his work experience he did not require further qualifications to pursue these opportunities.

24. The Tribunal raised with the applicant that despite being provided with a NOICC he did not take steps to re-enrol, and whether this indicated that he did not intend to return to studies. The applicant said that at the time he made enquiries but was unable to obtain an enrolment. The Tribunal also identified to the applicant that the purpose of the visa that he was seeking to have returned was to undertake study. The applicant responded that at the time his visa was cancelled he was thinking of studying [subject 1].

25. In considering the evidence and submissions of the applicant it does not appear to the Tribunal that the applicant has obtained or progressed in his qualifications in line with the purpose for which the visa was granted. It acknowledges the frankness of his submission that he wishes to pursue an employer sponsored visa. This is also not consistent with the purpose of the visa which the applicant is seeking to have reinstated.

26. The Tribunal identified to the applicant its concerns about his academic progress and granted to the applicant leave to applicant provide evidence of an intention to study. It acknowledges the brochures that he has submitted, together with the email evidence of his enquiries with [University 2]. It also noted the comments of [Ms D] in her reference that the applicant had aspirations of studying a bachelor of [subject 1]. The applicant spoke to the Tribunal about his general interest in [subject 1], but he was more focussed on a career in the [work sector]. Overall, the Tribunal is not satisfied that this material demonstrates that the applicant genuinely intends to return to study, and to continue to remain in Australia for the purpose for which the visa was granted.

27. As to whether the applicant has a compelling need to pursue and employer sponsored visa, while the Tribunal accepts his claim that the [work sector] requires workers. The evidence of the applicant, while it is a good position, it is a new job. He is on trial, and his employer has not committed to sponsorship. 

28. The Tribunal gives this criteria low weight in favour of the applicant.

    The extent of the applicant’s compliance with visa conditions

29. As set out above the duration of the applicant’s non-compliance was considerable from 16 December 2021 and 9 February 2023. The applicant was acknowledged that he was aware it was a condition of his visa that he maintain enrolment. The duration of the applicant’s non-compliance is a matter of considerable concern and it goes to the purpose of the visa.

30. The Tribunal notes the evidence of the applicant that he had not be conferred with the statement of attainment of the qualification of any of his previous studies. However there is no evidence before the Tribunal of previous breaches of condition 8202 while the applicant was the holder of a student visa. There is also no evidence before the Tribunal that the applicant has not complied with any other conditions of his visa.

31. The Tribunal gives this factor low weight in favour of the applicant.

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

32. The applicant told the Tribunal that he had experienced hardship in the past in Australia being the victim of sexual assault in 2017 and further physical assault in 2019. He felt that he had worked hard to overcome these obstacles and if he had to returned to Colombia he would see it as a step backward. In her letter of support, [Ms D], sets out that the applicant has been involved with the unit at [Hospital] since 2019, and that she has been his counsellor since December 2023.

33. The applicant also claimed that financially he had been in Australia for a long time and now finally he was earning a steady income and in a position to improve his finances. He said that if he was to return to Colombia he would have nothing and have to start again.

34. The Tribunal accepts that the cancellation would cause psychological and financial hardship for the applicant. It gives this factor some weight in favour of the applicant.

    The circumstances in which the ground for cancellation arose

35. The applicant said that with the outbreak of the pandemic his employment was affected. He had been working in [work sector] and he lost his employment as the business closed. For some time he survived on his savings which he was using to pay rent and his course fees. By December 2021 he claimed that he was unable to continue to meet payment of his fess. The applicant said that he approached to his education provider and explained his situation. However, while they stated that they were sympathetic, they were unable to assist him further..

36. As to the duration of his non-enrolment, the supporting letter from [Mr A], nurse practitioner, at [Hospital] records that the applicant since June 2022 had been experiencing significant psychosocial stressors including insecure housing, significant work related conflict and the psychological consequences of a serious physical assault, occurring on a background of concerns about the COVID-19 pandemic on his family and lockdowns in Australia. The applicant expanded on these circumstances during the Tribunal hearing, he claimed that his partner was controlling. However, he was unable to leave because he did not have any money or anywhere to go. He was trapped, in circumstances where he was still processing a sexual assault that had occurred while he was in Queensland and another physical assault that had happened in Sydney in 2019. He did obtain further employment but then was in a position where he was training staff to work in roles above him. When he asked his employer for higher wages in ended in a dispute where the applicant claimed he felt threatened and ended up in tears. All of these circumstances built up. He had been seeking counselling with [Hospital] since his assault in 2019, but in 2022 the applicant maintained that his psychological condition deteriorated further.

37. The claims of the applicant that he experienced severe psychological distress in 2022, are corroborated by the letters of support that the applicant has submitted from [Mr B], Senior Social Worker at [Hospital], and [Mr C], counsellor with [Organisation]. The Tribunal notes the comments of the delegate that it was only from June 2022, that the applicant engaged with counselling services. It is however clear that the circumstances which the applicant was facing had been building for some time before he obtained treatment. It accepts the submissions from those who were treating him that the applicant was experiencing several psychological distress.

38. The Tribunal accepts that the economic consequence of the pandemic was outside the control of the applicant. It accepts that the applicant may have lost employment around the end of 2021, but it appears he found further employment in 2022. The Tribunal also has concern about the applicant’s commitment to study given his evidence of his academic achievement over the almost 10 years he has been present in Australia and the fact that he had not completed any courses while the holder of the visa. It has considered the evidence that the applicant was in psychological distress and acknowledges that this may have impacted on his capacity to study. His counsellor at the time [Mr C] wrote however, in January 2023, that things were improving for the applicant and there was no reason he could not enrol in study. He did not despite being on notice that the Department was considering cancelling his visa. In totality the Tribunal cannot be satisfied that the circumstances that gave rise to cancellation were outside the control of the applicant.

39. The Tribunal gives this factor low in favour of the applicant.

    Past and present behaviour of the visa holder towards the Department

40. There is no evidence that the applicant had not been cooperative in his dealings with the Department. The Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s 140

41. The applicant is single with no dependants. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa remained cancelled. There is no weight attributed to this factor.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

42. There are mandatory legal consequences that may apply in the case of visa cancellation, including a difficulty obtaining a further visa. If the visa is cancelled the applicant may be subject to a restriction under s 48 of the Act and the applicant would have difficulties obtaining any further visas in Australia. Due to the operation of PIC 4013, the applicant would also be unable to be granted further visas offshore for three years from the date of cancellation.

43. The applicant told the Tribunal that if the visa remained cancelled and he had exhausted or ceased all lawful avenues of review, she would abide by any lawful direction to depart. The Tribunal is satisfied in these circumstances that the likelihood of the applicant being detained is remote.

44. It is accepted that cancellation would have further consequences and these would limit his options to immediately return to Australia or applying for a different kind of visa. This however is the intended consequence of cancellation.

45. The Tribunal gives this consideration low weight in favour of the applicant.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation 

46. The applicant is a citizen of Colombia. He has not made any claims that Australia’s international obligations are engaged. He spoke in general terms to the Tribunal concerns about homophobia and discrimination in Colombia as a gay man, but also acknowledged his experiences of violence in Australia and that he had family in Colombia. [Ms D] in her reference, further set out concerns of the applicant regarding governmental changes in Colombia and fears of discrimination. The Tribunal considers these claims somewhat generalised. It is of the view that his claims could be fully considered in a protection visa application, which he has not yet made. This is a more appropriate mechanism for assessing any claims he may have for fearing harm in Colombia.

1. The applicant is does not have any children whose interests would be affected by the cancellation of the visa.

2. The Tribunal gives this factor no weight.

   Conclusion

3. The Tribunal has considered all of the evidence and the relevant circumstances of the applicant. In weighing these considerations there are limited aspects that are favourable to the applicant. Although it is accepted that there were events that occurred outside the applicant’s control, the Tribunal does not accept that the evidence demonstrates this accounts for the extended time he was in breach of his visa condition. The Tribunal has placed a low weight on the evidence before it in relation to the circumstances giving rise to the cancellation. It is not persuaded by the material advanced by the applicant that it should be greater than this. The breach of condition 8202(2) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study in Australia. It is accepted that the applicant wishes to remain in Australia, yet the for the reasons set out above, it is not demonstrated that he has a compelling need do so, nor that there is a degree of hardship that would weigh in favour of the visa grant. The other considerations are generally of low or neutral weight, and the Tribunal is not satisfied that they weigh in favour of the exercise of the discretion not to cancel.

4. Overall, the Tribunal finds, considering the material before it as a whole, the that the visa should be cancelled

   DECISION

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

   Penelope Hunter
   Member

   
   

   ATTACHMENT

   Migration Regulations 1994

   …

   Schedule 8

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

   (a)a Defence student; or

   (b)     a Foreign Affairs student; or

   (c)      a secondary exchange student.

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

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

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

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

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

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

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

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

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