2305230 (Migration)

[2024] AATA 3041

2305230 (MIGRATION) [2024] AATA 3041 (19 JULY 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2305230

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 12:57pm

CATCHWORDS
MIGRATION – cancellation – Student (Class TU) visa – Subclass 500 (Student) – not enrolled in full-time registered course – study difficulty at bachelor level – enrolment in English course with intention to continue studying at lower levels in different subject area – abusive relationship and protection order – mental health and counselling, and physical health and treatment – new enrolments in third subject area – work in Australia in sector with limited opportunities in home country – decision under review affirmed

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

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 3 April 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 her 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.

3. On 24 June 2024, the applicant was invited to attend a hearing before the Tribunal on 10 July 2024, via MS Teams video to give evidence and present arguments.

4. On 2 July 2024, the applicant attended a MS Teams test session in anticipation of the hearing.

5. On 8 July 2024, the applicant wrote to the Tribunal and requested that the hearing be postponed until 12 July 2024, as her health was not good.

6. On 9 July 2024, the Tribunal responded to the applicant refusing the application for postponement as the member was not available to conduct the hearing on the proposed date and there was no medical evidence to support the request.

7. The applicant appeared before the Tribunal on 11 July 2024  to give evidence and present arguments. The applicant confirmed at the hearing that her health was satisfactory and she was in a position to proceed with the hearing. She was responsive to the questions asked by the Tribunal and made submissions relevant to the issues to be determined. The Tribunal is satisfied that she had a meaningful opportunity to participate in the hearing.

8. 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

   Summary of information before the Tribunal

9. The applicant is a [age] year old citizen of Vietnam. She was granted a student visa on 6 May 2020, that was valid until 1 July 2023, to undertake study in Australia. This visa was subject to conditions, including condition 8202.

10. On 10 February 2023, a delegate of the Minister wrote to the applicant and provided her with a Notice of Intention to Consider Cancellation (NOICC) under s 116(1)(b) of the Act. The applicant was notified that information from her Provider Registration and International Student Management System (PRISMS) records indicated that she had not been enrolled in a course of study since 1 December 2021. The applicant was informed that this may be a ground for cancellation of her visa and she was invited to comment on why the grounds for cancellation may not exist.

11. On 27 February 2023,  the applicant provided a letter of submission, a letter dated 20 February 2023 from [Dr A], invoices for counselling sessions with [Counselling provider] , copy of a Family Violence Intervention Order dated [in] May 2019 issued by [the Magistrates Court], Confirmations of Enrolment (CoE) in a Certificate III in [Subject 1], a Certificate IV in [Subject 2] and a Diploma of [Subject 3] all created on 1 February 2023, and an employment contract with [Employer 1] dated 8 February 2023. Her letter of submission set out the following information (in summary):

    i.When she arrived in Australia she enrolled in a Bachelor of [Discipline 1], but despite her best efforts she was unable to keep up. She then decided to study an English language program to strengthen her English skills. She finished this course in December 2017.

    ii.At this time she also became involved with a friend of her cousin. He had a very hot temper, was jealous and bullied her. When she decided to break up with him, he started threatening, stalking her and begged for forgiveness. They reconciled but the relationship again deteriorated. He beat her and threatened to send pictures to her family. She did not dare break up with him. This impacted her studies. Then she found out that he was using cocaine and ended their relationship. He continued to stalk her and at one time beat her and threatened her family in Vietnam. She reported this to the police and obtained orders for her protection from the court.

    iii.This experience inspired her to enrol in a Certificate III in [Subject 2]. However, although she had the intervention order she was still traumatised by her experience and hid from everyone. She went to see a doctor and was diagnosed with anxiety and depression. In 2021 she experienced an onset of migraines. She was not sleeping and also had poorly controlled asthma. On the advice of her doctor she delayed her study as her medical conditions were quite debilitating.

    iv.She engaged in treatment with [Counselling provider], and after some improvement in her medical symptoms decided to continue her education. In January 2023, she had enrolled in a Certificate III in [Subject 1], a Certificate IV in [Subject 2] and a Diploma of [Subject 3]. It would be hard for her to return to Vietnam without a qualification. She truly wished to complete her education. Things had happened to slow her progress in Australia but she wishes to complete her education journey.

    v.With her qualifications she wanted to join organisations that promote the rights of people, especially women, children and the elderly who were vulnerable to violence and discrimination in Vietnam. As a victim herself of domestic violence she understood the circumstances of victims. To gain more experience she also had a job offer in the position of an [Occupation 1] while she continued her studies.

12. In considering the response of the applicant the delegate set out information from the applicant’s PRISMS records had disclosed that the applicant had not completed any courses while holding the student visa which was current at the time. Further, during her residence in Australia these records also revealed that she had only completed in the past two English courses and a Diploma of [Subject 4] in 2018. The records documented that she had many enrolments cancelled for various reasons including deferment, compassionate and compelling reasons, change to student details, extensions of her COE, non-payment of fees and non-commencement of studies. It was noted that the applicant only obtained her CoE in the Certificate III in [Subject 1] after being contacted by the Department on 17 January 2023, and the delegate suspected that it was obtained to avoid possible cancellation. The delegate acknowledged the medical conditions of the applicant and her circumstances however the delegate also noted that the purpose of the visa was to allow the applicant to remain in Australia to study. The time she was not studying was considered significant and the delegate determined to cancel the visa.

13. The Tribunal received an application for review from the applicant on 12 April 2024. Other than a copy of the decision record of the delegate the Tribunal has not received any further documents or submissions from the applicant.

14. The issue in the present case for the Tribunal 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.

    Did the applicant comply with Condition 8202?

15. 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).

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

17. The applicant was asked at the hearing whether she was aware that it was a condition of her visa that she maintain enrolment in a registered course and she confirmed that she was.

18. The Tribunal asked the applicant if she disputed that she was not enrolled in any registered course between 1 December 2021 and 1 February 2023 and she confirmed that she did not.

19. Consequently, on the material before it, the Tribunal is satisfied that as applicant was not enrolled in a registered course between the period 1 December 2021 and 1 February 2023.

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

    Consideration of the discretion to cancel the visa

21. 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

22. The purpose of the applicant’s travel and stay in Australia was for her to undertake study and obtain qualifications. The applicant expanded on her submissions to the Department and the Tribunal that when she first arrived in Australia in 2016, she had undertaken an English course and then commenced her Bachelor of [Discipline 1]. The applicant said that she was focused on her studies and she had tried to keep up although her English was not very good. She claimed that she experienced some discrimination and was unable to pass her course. She then undertook further English studies and transferred to a Diploma in [Subject 4] with the intention of proceeding to a Bachelor of [Subject 5]. Due to the problems that she had with her relationship she did not complete the Diploma. The applicant claimed that she did not realise for some time that she could go to the police for assistance. She said that when she finally ended her relationship in 2019 mentally she was broken.

23. She told the Tribunal that she was granted the visa, the subject of the cancellation decision, to undertake a Diploma of [Subject 5], she had not completed these studies. She told the Tribunal that things were very difficult during the pandemic and staying at home was the worst period. Mid-COVID she got a job at [Employer 2] and after everything she had been through she now believed that [Industry 1] was the best industry for her to build her a career.

24. The applicant said that she wished to stay in Australia to complete qualifications in [Industry 1]. She was fortunate that even though her visa was cancelled and she could not study, she was able to continue working in [Industry 1]. She told the Tribunal that she wanted to complete the Certificate III in [Subject 1] and then the  Certificate IV in [Subject 2]. After this the applicant claimed that she would like to take things to the next level with possible qualifications either in [Industry 1]. She also said that she needed to take things to the next level as her [Industry 1] studies would not really assist her with employment in Vietnam because there are not relevant facilities in her home country. The applicant spoke about her future in [Industry 1] in Australia and did not provide any evidence similar to her submissions to the Department that she wished to work for organisations in Vietnam to promote the rights of women and other vulnerable people.

25. The applicant further claimed that she was not wishing to stay in Australia just to make money but that now she had finally found her way and believed that she could make a difference with the work that she was doing and in the field. She prefers the environment in Australia, the culture is less bound by traditional roles.

26. The Tribunal accepts the evidence of the applicant that her experiences in Australia have impacted her ability to maintain her focus on her studies. This was however the primary purpose for which she was remaining in Australia. It accepts that she is concerned that she has not achieved qualifications that she can return to Vietnam with and build a career, but it is also noted that she has been in Australia for a number of years prior to the visa cancellation with the opportunity to obtain relevant qualifications. It is acknowledged that her proposed qualifications in [Industry 1] may improve her employment prospects in Australia, however her commitment to these studies appears to have little benefit to a future in [Industry 1] in her home country.

27. While she may be more attracted to the culture and environment in Australia, she is still yet to commence any further studies she proposes, it is not the case that she needs to remain to complete qualifications already started. The applicant further confirmed when asked by the Tribunal that she was able to study in a [Industry 1] related field in her home country and it is not the case that she is without study options in her home country.

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

    The extent of compliance with visa conditions

29. As set out above, the duration of the applicant’s non-compliance with condition 8202(2)(a) was considerable from 1 December 2021 to 1 February 2022, around 14 months. The applicant was acknowledged that she was aware it was a condition of her visa that she maintain enrolment. The duration of the applicant’s non-compliance is a matter of considerable concern as the failure to maintain enrolment and continue study goes to the core purpose of the visa.

30. There is no evidence before the Tribunal that the applicant has not complied with any other conditions of her 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 she had experienced hardship already while attempting her studies in the past. She told the Tribunal that it would have an emotional effect if she was unable to remain in Australia because she wished to stay and achieve something after the time she had spent here. Culturally the applicant said that it may be difficult to explain to people in Vietnam what she had done in Australia if she returned without qualifications. However, the applicant said that she did not have any concerns about her family. She was well supported, they knew that her visa was cancelled and her mother was encouraging her to return.

33. The applicant told the Tribunal that she was not currently seeking any treatment for mental health issues. Other than the three online counselling sessions with [Counselling provider] she has not had any other counselling or psychological treatment. She was offered but did not take any medication for depression. Currently she can manage her asthma without medication and at the moment only receives treatment for her migraines.

34. While the Tribunal accepts that the applicant will be emotionally upset if the visa is not reinstated, there is no medical evidence to demonstrate any emotional or psychological hardship to the applicant.

35. The applicant told the Tribunal that she would be well supported by her family in Vietnam. She claimed that her living circumstances are better in her home country than in Australia. It is also not the case that the applicant will lose the value of studies that she has not yet completed as on the evidence, the applicant will have to commence enrolment in her courses in [Subject 1] and [Subject 2] again. There is insufficient evidence of any financial hardship to the applicant if the visa remained cancelled.

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

    The circumstances in which ground of cancellation arose

37. The applicant has detailed a serious of circumstances which impacted upon her while she was the holder of her initial student visa. It is accepted that she entered into a relationship that became abusive and that as a consequence of this she was required to seek and intervention order in the [Local Magistrates Court] [in] May 2019. It is also accepted that these circumstances may have contributed to the decline in the mental health of the applicant. These are mainly circumstances which go to events prior to the grant of her current visa.

38. On the material before the Tribunal, the applicant was granted the visa on 6 May 2020, and she ceased studying in December 2021. It is acknowledged that her doctor does report that the applicant has a history of anxiety and depression, he does not set out any treatment or assistance that was provided to the applicant prior to December 2021. The applicant did not maintain that she was receiving treatment other than the online sessions with [Counselling provider] for which she provided receipts in May and June 2022. The Tribunal is not satisfied that the evidence demonstrates that it was outside the control of the applicant to seek assistance for any depression and anxiety as a consequence of the breakdown of her relationship. It is not satisfied that the circumstances that led to the applicant not being enrolled were outside her control.

39. As for the duration of her non-enrolment, the Tribunal accepts that she was impacted by lockdowns associated with the COVID-19 pandemic. The applicant told the Tribunal that in 2020 she lost her employment. The probable economic consequences of the pandemic on the applicant’s employment are acknowledged as well as the psychological toll of lockdown in Victoria. Throughout 2022, the applicant however indicated that she was working at [Employer 2] and lockdown restrictions had largely eased. She further told the Tribunal that her family was available to provide support.

40. Overall the Tribunal is not satisfied that the applicant has explained the lengthy period that she was not enrolled that gave rise to the ground for cancellation. Although it is accepted that the did have some medical issues, the medical evidence does not demonstrate that the applicant as so impacted for the 14 month period she was without enrolment.

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

    The past and present behaviour of the visa holder towards the department

42. There is no evidence that the applicant had not been cooperative in her 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

1. 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

2. 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.

3. The applicant told the Tribunal that if the visa remained cancelled and she 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.

4. It is accepted that cancellation would have further consequences and these would limit her options to immediately return to Australia or applying for a different kind of visa. These are also the intended and legitimate consequences of cancellation.

5. The Tribunal gives this consideration neutral weight.

   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

6. The applicant is a citizen of Vietnam. There is no information that her visa cancellation would impact on Australia’s international obligations.

7. The applicant claimed that her family would support her in Vietnam and they had invited her to return. There is no information that a visa cancellation would be in breach of Australia’s non-refoulement obligations. Nor has the applicant applied for refuge status or invoked Australia’s protection obligations.

8. The Tribunal asked the applicant if she had any concerns upon returning to Vietnam and she said that it was a traditional society where they do not prioritise women. She said however that she had never been harmed in the past, and acknowledged that it was in Australia that she had experienced violence although she had not informed her family of this. The applicant said that she thought it would be better for her if she could remain in Australia because life was peaceful and people do not gossip about her. She further said that people may also assume she has money because she had been in Australia and they may target her for robbery for this reason. She did not refer to any fear of return in her submissions to the Department. These claims of the applicant are considered to be vague and general, the Tribunal is of the view that the could if the applicant wishes to pursue them, be fully considered in a protection visa application which she has not yet made. These are the most appropriate mechanism for assessing her claims to fear returning to Vietnam.

9. The applicant has no children whose interests that the Tribunal needs to consider.

10. After considering all the relevant information of the applicant, the Tribunal attributes no weight to this factor.

    Any other relevant matters.

11. There are no other relevant matters that the applicant raised for consideration by the Tribunal.

    Conclusion

12. The Tribunal has considered all of the evidence and the relevant circumstances of the applicant. The Tribunal is satisfied that 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 and that she has experienced hardship in the past, the Tribunal does not accept that the evidence demonstrates this was the reason her enrolment ceased in the first instance and neither does it account for the extended time she was in breach of her 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)(a) 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 she 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.

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

    DECISION

14. 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.