Abdelhadi (Migration)

[2024] AATA 1657

Abdelhadi (Migration) [2024] AATA 1657 (31 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Sarah Abdelhadi

CASE NUMBER:  2300721

HOME AFFAIRS REFERENCE(S):          BCC2022/3108800

MEMBER:Christine Kannis

DATE:31 May 2024

PLACE OF DECISION:  Perth

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

Statement made on 31 May 2024 at 6:48am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 600 (Student) – not enrolled in full-time registered course – previous cancellation of certificate course before successful completion – multiple enrolments and cancellations of diploma and advanced diploma courses for non-payment and non-commencement – mental health and treatment, and COVID restrictions – new enrolment made after receiving department’s initial email – future business plans in home country and no claim of compelling need to remain – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 359AA
Migration Regulations 1994 (Cth), r 1.03, Schedule 8, condition 8202(2)(a)
Education Services for Overseas StudentsAct 2000 (Cth), s 19(3)

CASE
Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 January 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 failed to comply 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. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal by MS Teams on 21 May 2024 to give evidence and present arguments.  

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (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?

7. On 25 May 2020, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.

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 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).

9. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

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

11. Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2]

    [1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).

    [2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act.

12. The information from PRISMS shows that the applicant was not enrolled in a registered course from 16 June 2021 to 28 August 2022.

13. On the evidence before the Tribunal the applicant was not enrolled in a full-time registered course from 16 June 2021 to 28 August 2022 and the Tribunal finds that she breached condition8202(2)(a) of her visa.

14. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

15. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below.

16. On 25 August 2022, the Department of Home Affairs Character and Cancellation Branch sent the applicant an email regarding verification of her contact details and she responded on 26 August 2022.

17. On 22 November 2022, the Department of Home Affairs (the Department) issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because she had ceased to be enrolled in a registered course from 16 June 2021 to 28 August 2022 and had therefore failed to comply with condition 8202(2)(a) of her visa.

18. On 7 December 2022, the applicant responded to the NOICC via her migration agent and provided the following information:

    ·She arrived in Australia in November 2016 as the holder of a Subclass 417 (Working Holiday) visa and complied with the visa conditions.

    ·She was granted her first Subclass 500 (Student) visa on 13 November 2018 to study a Certificate IV in Leadership and Management which she successfully completed on 11 December 2019.

    ·She decided to undertake a Diploma and  Advanced Diploma in Leadership and Management in November 2020.

    ·She has a history of long-term anxiety disorder. Her current medications for anxiety disorder include diazepam, escitalopram and Inderal propranolol.

    ·During 2020 and 2021 she was adversely affected by the COVID-19 pandemic. She was in a bad mental state with constant fear and anxiety. During the lockdown she lost her work, exhausted savings and had no other means to pay rent and almost became homeless. This triggered extreme anxiety, panic and constant fear. She was not able to focus on studies as her mental state was deteriorating. 

    ·She was out of work, out of money and could not afford to pay tuition fees that resulted in cancellation of her enrolment. The circumstances were beyond her control.

    ·She had no intention of breaching her visa conditions. Since her arrival in Australia she always intended to comply with conditions of her visa.

    ·Her intention to stay in Australia temporarily for study purposes is genuine. She is looking forward to completing the diploma ad advanced diploma courses to enhance her skills before returning to France. Her plan is to open a retail clothing business with her sisters in France to bring back the Australia beach fashion style with a French touch.

    ·Cancellation of the visa would significantly limit her ability to remain in Australia which would lead to significant emotional hardship for her and her Australian partner.

19. At the time of responding to the NOICC, the applicant provided documents which included but were not limited to the following:

    ·Articles with respect to COVID-19 and the mental health of international students.

    ·Gold Coast Learning Centre Record of Results and Certificate IV in Leadership and Management dated 11 December 2019.

    ·Medical Certificate dated 27 November 2022 from Dr Karen Wright stating the applicant has an anxiety disorder and has previously been prescribed medication, and continues to take medication for this condition.  Dr Wright stated the applicant’s condition is longstanding and her symptoms became debilitating in June 2021 which resulted in her withdrawing from her study for the period of June 2021 - August 2022. She has recommenced study in August 2022 and has commenced a new medication which will likely reduce her symptoms interfering with her ongoing studies.

    ·Written statement dated 6 December 2022 from the applicant’s partner, Mr Troy Morris, is which he said he had been in a relationship with the applicant for nearly 2 years. He said she has struggled with her anxiety and mental health for a period in their relationship and has acquired professional help and improved. Mr Morris said if the applicant loses her visa he will be devastated as they have formed a life together.

    Evidence provided at hearing

20. The Tribunal adopted the procedure in s 359AA of the Act to put to the applicant information from a copy of her enrolment record from the PRISMS database, a copy of which is on the Department’s file. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal put to the applicant that according to the information from her PRISMS enrolment record, she was enrolled in the following courses of study:

    a.She was enrolled in a Certificate IV in Leadership and Management course which was cancelled on 14 June 2019 due to Student left provider-transferred to course at another provider;

    b.She was enrolled in a Certificate IV in Leadership and Management course which she finished on 15 November 2019;

    c.She was enrolled in a Diploma of Leadership and Management course  which was cancelled on 29 July 2020 due to Non-payment of fees;

    d.She was enrolled in an Advanced Diploma of Leadership and Management  course  which was cancelled on 29 July 2020 due to Non-payment of fees;

    e.She was enrolled in a Diploma of Leadership and Management  course  which was cancelled on 16 June 2021 due to Non-payment of fees;

    f.She was enrolled in an Advanced Diploma of Leadership and Management  course  which was cancelled on 16 June 2021 due to Non-commencement of studies; and

    g.She was enrolled in a Diploma of Leadership and Management course which was cancelled on 20 April 2023 due to Non-payment of fees.

21. The Tribunal explained to the applicant that this information was relevant because it indicates that from 16 June 2021 to 28 August 2022 she did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether she breached the conditions of her student visa by not maintaining enrolment in a registered course of study. The Tribunal explained that the information may also be relevant in considering the discretion to cancel the student visa, including in considering her purpose for remaining in Australia.

22. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether she had any comments in relation to her PRISMS enrolment records. In response the applicant said she didn’t know her enrolments were cancelled due to non-payment of fees because she did pay her fees but paid them late. She said she paid her fees even though she was not studying so she could re-enrol without difficulty.

23. The Tribunal asked the applicant about the anxiety she experienced in 2020 and 2021. She said in 2020 she was living on the Gold Coast and was far away from her family when the COVID-19 pandemic commenced. She said she had a part-time cleaning job and her shifts were reduced to 17 hours per week and her employment income just covered her rent. She said she was not really interested in studying in 2020 and was depressed about her financial circumstances. In response to the Tribunal asking whether she sought any medical treatment including medication and/or counselling in 2020, the applicant said she did not seek treatment and she does not like taking medication.

24. The applicant told the Tribunal that she continued to work until the end of 2020/beginning of 2021. She said she met her ex-partner (Mr Troy Morris) in 2021 and he financially supported her. She said she did not undertake any study in 2021 and did not seek any treatment for her anxiety.

25. The applicant told the Tribunal that she and her ex-partner moved to Brisbane in late 2021. She said she worked as a cleaner for 20 hours per week from late 2021 until sometime in 2023. She said she did not undertake any study in 2022 and did not seek any treatment for her anxiety until late 2022 when a doctor prescribed medication but she did not take it.

26. The Tribunal referred to Dr Wright’s Medical Certificate in which she said the applicant withdrew from study in June 2021. The Tribunal noted that PRISMS shows her enrolment was cancelled due to non-payment of fees and non-commencement of studies. The applicant told the Tribunal that in June 2021 she was very nervous because she could not afford to pay her course fees and she felt like a failure. The Tribunal asked the applicant whether she considered departing Australia and returning once she had the financial capacity to support herself. In response the applicant said she did not want to leave Australia because she was in love with her ex-partner. Dr Wright said the applicant  recommenced study in August 2022 and commenced a new medication. The applicant told the Tribunal she did not undertake study in August 2022 or take new medication. She said she re-enrolled but did not pay the fees.

27. The Tribunal put to the applicant that she would have known from 16 June 2021 to 28 August 2022 that she was no longer enrolled in a course and was not abiding by the conditions of her visa. She conceded she was aware that she was not studying but claimed she did not know when her CoEs were cancelled. She said she thought communication  from the education providers about non-payment of fees were just warnings. No evidence of these communications were provided to the Tribunal.

28. The Tribunal asked the applicant the main reason/s she was not enrolled in a registered course from 16 June 2021 to 28 August 2022. She said the reasons were money and stress. When asked to explain the cause of the stress she said it was stress from life in general.  Noting that the applicant was able to obtain a CoE four days after the Department contacted her on 25 August 2022, the Tribunal asked her the reason she obtained that CoE. In response she said when she received the NOICC she was scared and realised she was doing something wrong and so she obtained a CoE.

29. In response to the Tribunal asking whether she considered asking her education provider to defer her study on compassionate and compelling grounds due to her anxiety, the applicant said she was not aware she could request a deferment.

30. In response to the Tribunal asking whether she notified the Department of the change in circumstances when her enrolment was cancelled, the applicant said she was not advised that her enrolment had been cancelled and she understood any communication about non-payment of her fees were just warnings.

31. When asked about the purpose of her travel to Australia, the applicant told the Tribunal that she initially came to Australia to visit. She said she enjoyed the country and thought she could use it to study, improve her English and gain some qualifications to take home with her when she departs. In response to the Tribunal asking whether she has a compelling need to remain in Australia, the applicant said she wants to return home. She said when she requested a review of the cancellation decision she was still in a relationship with her ex-partner. The relationship has since ended and she obtained a restraining order against him in June 2023 due to family violence perpetrated by him.

32. When asked about the hardship that may be caused by cancellation of the visa, the applicant said she will be sad to leave Australia but she understands that her visa was cancelled because of her mistake. She said she was sorry for not letting the Department know when she was not studying. She said she would like to stay in Australia for a few more weeks to sort out her affairs.

33. The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.

    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

34. The purpose of the applicant’s visa was to enable her to study. The applicant was not enrolled in a course of study for a period of 14 months prior to the issuing of the NOICC. The Tribunal finds the applicant’s breach of condition 8202 to be significant because she was not engaging in the study for which her visa was granted and was not fulfilling the purpose of her travel to and stay in Australia.

35. The Tribunal questioned the applicant as to whether there was a compelling need for her to remain in Australia. In response, she said she wants to return home and offered no evidence of a compelling need.

36. The applicant’s non-engagement in the study for which her visa was granted, and the absence of compelling reasons for her to remain in Australia, weighs in favour of visa cancellation.

    The extent of compliance with visa conditions

37. The applicant has not complied with condition 8202 of her student visa because she has failed to maintain enrolment in a full-time registered course of study from 16 June 2021 to 28 August 2022. There is no evidence before the Tribunal that she has not complied with the other conditions attached to her visa.

38. The applicant’s non-compliance for a period of 14 months from cancellation of her enrolment until the issuing of the NOICC weighs in favour of visa cancellation.

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

39. The Tribunal accepts that the cancellation of the applicant’s visa will be make her sad but notes her wishes are to depart Australia in a few weeks’ time. The Tribunal gives the hardship that may be caused to the applicant minimal weight against cancellation.

    Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control

40. The applicant’s visa was cancelled as a result of her failure to maintain enrolment. The applicant was not enrolled in a course for 14 months prior to the issuing of the NOICC. She told the Tribunal that this was due to money and stress. In her response to the NOICC she referred to suffering anxiety and provided medical evidence.

41. Regarding the applicant’s claim that she was unable to maintain the required enrolment due to financial difficulties, the Tribunal notes that it is a requirement for the grant of a Student visa that visa holders can financially support themselves for travel, living costs and tuition fees during the stay in Australia. If a visa holder is experiencing financial difficulties it is reasonable to expect the visa holder to temporarily depart Australia until their financial situation improves rather than remain in Australia and continue to not comply with their visa conditions. The Tribunal accepts that the COVID-19 pandemic may have adversely impacted on the applicant in 2020 and that this was beyond her control. However her evidence was that from late 2021 she was working 20 hours per week and was sharing some living expenses with her ex-partner. Therefore she had a significant period of time to rectify her enrolment and failed to do so until contacted by the Department.

1. In relation to her claimed anxiety and stress, the medical evidence provided was dated after the period of non-enrolment and stated that the applicant re-commenced study in August 2022 and had commenced a new medication, neither of which were true according to the applicant’s evidence at the hearing. The applicant did not seek any treatment for her anxiety and stress during the period of non-enrolment however her evidence was that she continued to work during the period from late 2021 until receipt of the NOICC. The applicant maintained employment during the time she ceased to be enrolled in a registered course. Therefore, despite the claimed anxiety and stress, the applicant was able to maintain employment. This has strongly invited the Tribunal to consider that the applicant did not take condition 8202 seriously. The Tribunal also notes that the applicant was able to obtain a new CoE on the 29 August 2022 after being contacted by the Department on 25 August 2022.  

2. The applicant did not notify the Department when she was no longer enrolled in a course from 16 June 2021. The applicant claimed she was not aware that her enrolment had been cancelled but did not dispute that she was not studying throughout the period of non-enrolment.  The Tribunal considers it was the applicant’s responsibility to ensure she understood the conditions attached to her visa and to ensure that she complied with those conditions.

3. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The applicant’s enrolment was cancelled because she ceased to be enrolled in a registered course from 16 June 2021 to 28 August 2022. She referred to suffering anxiety and stress however as noted, she was able to maintain employment from late 2021 and during 2022 and therefore the Tribunal is not satisfied that the degree of severity of her anxiety caused her non-compliance. Also, as noted, she did not seek or receive medical treatment during the period of non-compliance. The applicant also said money was a reason for her non-compliance however she was in employment from late 2021 and had a significant period of time to rectify her enrolment and failed to do so.

4. The Tribunal finds there are no extenuating or compassionate circumstances in this case and this weighs in favour of visa cancellation.

   Past and present behaviour of the visa holder towards the Department

5. There is no evidence before the Department that the applicant has behaved inappropriately with the Department and the Tribunal gives this factor no weight in its considerations.

   Whether there would be consequential cancellations under s 140

6. There is no one attached to the applicant’s visa and as such the Tribunal gives this factor no weight in its considerations.

   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

7. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s 189 and removed from Australia pursuant to s 198. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant and gives this some weight against cancellation.

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

8. There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation and the Tribunal gives this factor no weight in its considerations.

   Any other relevant matters

9. The Tribunal is not aware of any other considerations in relation to the cancellation.

   Conclusion

10. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of her visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant was not fulfilling the purpose of her travel to and stay in Australia as she was not undertaking the study for which her visa was granted. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa. It will not be in breach of Australia’s international obligations. The Tribunal accepts that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

11. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Christine Kannis
    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.