Baramdoyal (Migration) - [2024] ARTA 65

DECISION AND
REASONS FOR DECISION
Baramdoyal (Migration) [2024] ARTA 65 (5 December 2024)
Applicant:Miss Lechna Shantee Baramdoyal
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2215923
Tribunal:General Member W Banfield
Place:Canberra
Date:5 December 2024
Decision:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 05 December 2024 at 10:20am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in full-time registered course – study difficulties, change of course, cancellations of enrolment and four periods of non-enrolment – non-payment of fees, non-commencement and unsatisfactory course progress – deaths in family and family’s funeral expenses – no application for compassionate leave or approach to department – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)
STATEMENT OF REASONS
APPLICATION FOR REVIEW

On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant was not enrolled in a full-time registered course of study. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 8 October 2024 to give evidence and present arguments. The applicant was represented in relation to the review.
On 4 December 2023 the applicant submitted various documents which included the following:
·Department of Home Affairs (the Department) notification and decision record dated 25 October 2022.
·Applicant’s Mauritius passport biometric information.
·Confirmation of Enrolment (COE) from Queens Group Pty Ltd for Diploma of Community Services.
·Complaints and Appeals Application form from Job Training Institute dated 25 February 2020.
·Student intervention plan from Job Training Institute dated 23 April 2020.
·Letter from Job Training Institute dated 14 April 2020.
·Attendance letter from Rhodes College (Queens Group Pty Ltd) dated 23 November 2023.
·Employment offer letter from Bestway Migration Services dated 9 August 2023.
·Letter from applicant addressing intention to re-enrol in course dated 13 September 2021.
·Statement of results from Holmesglen TAFE for course Diploma of Early Childhood Education and Care dated 11 June 2020.
·Email chain between applicant and course provider.
·Mauritian Death Certificate for Vishnou Nunkomar dated 13 May 2021.
·Mauritian Death Certificate for Reshwar Burumdayal dated 23 April 2021.
·Email from Brightannica Melbourne dated 12 September 2018.
·Statement of the applicant addressing the cancellation of her Student Visa dated 1 December 2023.
·Statement of the applicant’s partner Natharajen Iyasamy dated 1 December 2023.
·Statement of the mother of the applicant’s partner, Kanagal Lutchmee Iyasamy, dated 1 December 2023.
Evidence at the hearing
The applicant came to Australia as a student in July 2017. She began studying early childhood education to become a teacher but found it different to her expectations. She decided to change her course and at the same time her father had to declare bankruptcy. The applicant enrolled in a leadership and management course because her father has a business in Mauritius, and her mother worked in aged care. She completed high school before arriving in Australia. The applicant outlined issues she had with her teacher and education provider for the leadership and management course, including a lack of assistance. As a result, the applicant had difficulties understanding the topic and felt her parents’ money was being wasted.
The applicant’s partner who is also in Australia studied in the disability field and they are planning a business together. The applicant wants to make things better for people such as the elderly in Mauritius. It was submitted a teacher advised that she should have a skill such as community services before a management course. However, the applicant was not allowed to change course at the college. She was given an intervention plan even though she had not been late with assignments.
The applicant transferred to Southern Cross Institute were individual support and community service courses are offered. In 2021 she lost a cousin and her grandfather in a two-week period and her family’s money went towards funerals. She asked her college for an extension of time regarding fees, and they had agreed, however, her enrolment was cancelled in May 2021. The applicant tried to fix the situation but at the time she was struggling mentally.
The applicant enrolled at Rhodes College in 2021 but was not able to attend classes and had to communicate through her education agent. She referred to an issue with fees and commented that at the time, she had not been back to Mauritius since 2017. She then explained her relationship with her partner, their different religions, and the need to meet his parents in Mauritius. She said her partner has had a visa refused and is currently on a Bridging Visa A.
The Tribunal explained to the applicant that her visa was cancelled because she had periods where she did not maintain enrolment in 2018, 2020, 2021 and 2022. The applicant agreed she has not completed any of her studies since she arrived in 2017 but claimed she has the intelligence and the will to do so. She said she did not anticipate her mental health issues. The applicant disclosed she recently suffered a miscarriage and her brother-in-law committed suicide amongst other things she has had to deal with since 2018. The applicant did not seek help because mental health is not usually addressed in Mauritius.
The Tribunal put to the applicant that she could continue to face issues and stresses if her visa is not cancelled. The applicant gave an example of the help and support she currently receives from her teacher and declared she had grown up significantly. The applicant agreed she was not enrolled for the periods of time identified by the Department. She said she had given an explanation previously and was granted a visa in 2021, however, her enrolment was cancelled in 2022. The applicant provided details about an issue she had with fees.
The Tribunal explained the matters that must be considered in deciding whether the visa should be cancelled. She was advised the Tribunal accepted the applicant came to Australia for the purpose of study. Regarding any compelling need for her to stay in Australia, the applicant referred to her current study units and said there are no similar courses in Mauritius, Australian qualifications will set her apart, and she and her partner and brother want to bring their skills together in a business. The applicant said she wants to finish her studies and go back to Mauritius.
The applicant submitted she has complied with all other visa conditions. She was employed in 2019 before COVID but then focussed on studies and her partner worked. The applicant was invited to comment on any hardship if her visa is cancelled. She said if it is not cancelled, she will be able to go to bed without stress, and financially it has been a huge due to applications for review for her and her partner. The Tribunal noted the applicant responded to the Department when she was issued a Notice of Intention to Consider Cancellation. She was asked if she sought advice from the Department or elsewhere about her circumstances to avoid breaching visa conditions. The applicant spoke to friends and education agent and during periods of non-enrolment she was seeking information about different courses. In terms of others whose visa would be cancelled, the applicant referred to her partner and said they would be returning to Mauritius if her visa is cancelled.
The Tribunal discussed the legal consequences of cancellation. The applicant currently has a Bridging visa E and cannot work, while her partner holds a Bridging visa A. She said it has been very hard, as he only has work as a cleaner and occasionally graphic design. The applicant was not aware of any international obligations that would be breached if her visa is cancelled. In conclusion, the applicant said she is praying to be able to finish her studies as it is only since last year that she has had the support of her partner’s parents after two terrible years. She does not care about working and just wants study rights back.
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
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full-time registered course.
The applicant’s visa was granted subject to condition 8202, which requires the visa holder to be enrolled in a registered course. The Department accessed the Provider Registration and International Students Management System (PRISMS), which provides the Confirmation of Enrolment and study records of international students registered to study in Australia. The Department found that according to PRISMS, the applicant had not been enrolled in a full-time registered course of study between 15 April 2022 and 04 July 2022. They also noted significant periods of non-enrolment while the applicant held a student visa, between the dates of 19 June 2018 and 20 November 2018, 22 June 2020 and 19 October 2020, and 31 May 2021 until 22 September 2021.
The Department found that as the applicant had not maintained enrolment in a registered course of study, she no longer met the requirements of subclause 8202(2)(a). Therefore, the applicant did not comply with a condition of the visa. On 14 September 2022 the Department of Home Affairs sent a Notice of Intention to Consider Cancellation letter to the applicant inviting her to comment on the failure to maintain enrolment. On 19 September 2022, applicant provided a written response via email. However, on 25 October 2022 the Department notified the applicant that her visa was being cancelled.
The applicant provided evidence to the Department and the Tribunal related to personal issues as a student in Australia. This included her cousin and grandfather passing away within a short period in 2021. The applicant outlined in her written evidence and at the hearing problems with her education providers and courses of study including difficulty paying the required fees. She agreed her enrolment to study had been cancelled several times and she had to resolve the issues by re-enrolling with the same provider or transferring. The applicant does not deny she did not maintain enrolment for the periods identified by the Department. The Tribunal finds the applicant was not enrolled on four occasions totalling more than 12 months.
Based on the information available, the Tribunal is satisfied the ground for cancellation is made out. Therefore, the Tribunal finds that the applicant has not complied with condition 8202 of the visa.
Consideration of the discretion to cancel the visa
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
The applicant was enrolled as a student when she arrived in Australia in 2017. She has been and is currently enrolled in a Diploma of Community Services. The Tribunal is satisfied the applicant’s original travel to and stay in Australia was to study. In relation to a compelling need to remain in Australia, the applicant referred to her and her partner’s plans in her response to the Department:
With his experience in the disability field, he will be of a great support when it will come to implementing new ideas back home. We want our organisation to be impactful by bringing in the concept of creative art. We want to be able to help the vulnerable people by proposing new concepts. In Mauritius, there is not much emphasis on elders or disable people. They are highly disregarded, and I want to be the one to change that and I will be the one to change that. I want to be able to help not just the elderly members of the community but also all the domestic abused children. Things haven't really changed back home, and I want to be the one to change that. I know that I can change that by establishing our organisation.
At the hearing the applicant claimed there are no similar courses in Mauritius, and Australian qualifications will set her apart. She repeated that she and her partner and brother want to bring their skills together in a business in Mauritius. The Tribunal accepts the applicant has outlined a theoretical plan for her career, and overseas qualifications could be of benefit, but she has been in Australia since July 2017 without achieving any qualifications to date. Based on her education history in Australia which includes numerous enrolment cancellations, the Tribunal is not satisfied the applicant will complete her current course of study and return to her home country. Furthermore, the applicant has not demonstrated how she would accomplish her stated aim of creating an organisation to help the disabled, elderly, and vulnerable in Mauritius. The Tribunal understands the applicant may still wish to study in Australia but is not satisfied she has demonstrated a compelling need to remain.
· the extent of compliance with visa conditions
The applicant was not enrolled as a student on several occasions totalling more than 12 months which was a breach of visa condition 8202. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions. However, the applicant has not completed any courses in Australia and has been enrolled in the same Diploma of Community Services course multiple times. As well as remaining enrolled in a registered course of study, condition 8202 requires students to maintain satisfactory attendance and course progress as required by the education provider. The applicant in this case failed to comply with this condition over a period of several years which the Tribunal considers to be significant.
· degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant gave evidence that she and her partner would be affected financially and psychologically if her visa is cancelled. The Tribunal accepts the applicant experienced personal challenges as a student in Australia. It is also accepted she will be unable to continue studying In Australia if her visa is cancelled. For these reasons, the Tribunal is satisfied the applicant will suffer a degree of hardship if her visa is cancelled.
· circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
The applicant’s visa was cancelled because she remained in Australia as the holder of a student visa but was not enrolled to study from 15 April 2022 to 04 July 2022. The Department found there were other periods of non-enrolment while the applicant held a student visa, in 2018, 2020, and 2021. The applicant had her course enrolments cancelled for non-payment of fees, unsatisfactory course progress and non-commencement of studies. The applicant is currently enrolled in Diploma of Community Services which began on 9 October 2023 and has an end date of 5 October 2025.
The applicant’s reasons for not maintaining enrolment were varied and included:
·The applicant’s teacher in her leadership and management class lacked participation and did not give proper direction which led to the applicant not learning or understanding.
·The applicant wanted to transfer to a Certificate IV in Disability, but the college refused her request.
·She missed the deadline to enrol in the same course with another college and had to wait until a later intake.
·She lost her cousin and grandfather within a few months in 2021.
·Her mental health was affected, and she could not focus on her studies.
·The college had agreed to an extension of time to pay college fees because her parents had to pay for funeral costs but still cancelled her COE.
·The applicant asked her college if she could pay fees per semester but due to miscommunication her enrolment was cancelled.
·While the applicant and her partner were in Mauritius in 2022 to attend to family responsibilities, she was unable to communicate with her education provider.
·The applicant had to re-enrol when she returned to Australia.
Having assessed the claims and evidence, the Tribunal is not satisfied the circumstances in which the grounds for cancellation arose were entirely beyond the applicant’s control. Clearly the loss of her family members could not be anticipated, and the applicant’s wellbeing would no doubt be affected. However, there is no evidence the applicant applied for compassionate leave from her education provider, or sought any assistance from the Department, or elsewhere regarding her circumstances at the time.
Regarding the applicant’s issues with paying her course fees, if she or her family were unable to meet the cost of her studies, it was open to the applicant to return to her home country until her financial position improved. The applicant claimed she arranged to travel to Mauritius with her partner around the time she was trying to arrange with her college to pay fees per semester rather than monthly. She alleged the college agreed to the arrangement, however, no supporting evidence has been provided. The Tribunal is not satisfied the applicant’s failure to maintain enrolment and lack of academic progress has been the fault of her education providers as she claims. Student visa holders are not permitted to remain in Australia without being enrolled or completing courses of study and it is their responsibility to ensure they comply with visa conditions.

The applicant first arrived in Australia in July 2017 and is currently enrolled until 5 October 2025. If the applicant completes the Diploma of Community Service on that date, she will have obtained one diploma qualification in eight years. The Tribunal finds this is not satisfactory for a student visa holder. The Tribunal is also not satisfied the applicant’s claims regarding the circumstances that led to the grounds for cancellation account for her lack of academic achievement or progress.
· past and present behaviour of the visa holder towards the department
There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department.
· whether there would be consequential cancellations under s.140
There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.
· 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
The cancellation of the visa means the applicant would be subject to s.48 of the Migration Act which would limit her options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. There is no evidence to indicate the applicant may be subject to indefinite detention as a consequence of cancellation. The Tribunal has assessed the claims and evidence in this case. The mandatory legal consequences do not persuade the Tribunal that it should not exercise the discretion to cancel the applicant’s student visa.
· whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
The Tribunal considered whether the visa cancellation would lead to the applicant’s removal in breach of Australia’s non-refoulement obligations, that is, removing a person to a country where the person faces, persecution, death, torture, cruel, inhuman, or degrading treatment or punishment. There is no evidence before the Tribunal that Australia’s non-refoulment obligations would be breached as a result of cancellation of her student visa.
The applicant did not claim that there are children in Australia whose interests could be affected by the cancellation.
· if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The Subclass 500 Student Visa is not a permanent visa.
· any other relevant matters
There are no other relevant matters in this case.
Conclusion
The Tribunal assessed the applicant’s circumstances and the evidence submitted individually and cumulatively. The Tribunal is not satisfied the issues encountered by the applicant during the relevant periods of non-enrolment outweigh the grounds for the visa to be cancelled. On balance, the Tribunal is satisfied the discretion to cancel the applicant’s visa should be exercised. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
Date(s) of hearing: 8 October 2024
Representative for the Applicant: Mr Avinash Lejaven Poinen (MARN: 1171786)