Chiwara (Migration)

[2024] AATA 3993

Chiwara (Migration) [2024] AATA 3993 (27 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Laurah Chiwara

CASE NUMBER:  2309850

HOME AFFAIRS REFERENCE(S):          BCC2023/1150452

MEMBER:Christine Kannis

DATE:  27 September 2024

PLACE OF DECISION:  Perth

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

Statement made on 27 September 2024 at 7:39pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 500 visa –– applicant did not maintain enrolment in a registered course at the required AQF level – difficulty with online study – breached condition 8202 – mental health – the breach did not occur in circumstances beyond the applicant’s control – decision under review affirmed     

LEGISLATION
Migration Act 1958, s 116

Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 June 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 video on 24 September 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 9 July 2021, 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. In the present case the applicant’s visa was cancelled on the basis the applicant did not maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework (AQF) that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted.

10. The AQF is the policy for regulated qualifications in the Australian education and training system. It is monitored and maintained by the Commonwealth Department of Education and Training, in consultation with the states and territories. It is made up of 10 levels as follows: 1 – Certificate I; 2 – Certificate II; 3 – Certificate III; 4 – Certificate IV; 5 – Diploma; 6 – Advanced Diploma, Associate Degree; 7 – Bachelor Degree; 8 – Bachelor Honours Degree, Graduate Certificate, Graduate Diploma; 9 – Masters Degree; 10 – Doctoral Degree.

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 applicant’s Student visa was granted on the basis that she was enrolled to study a Bachelor of Business course starting on 15 February 2021. This course would provide an AQF Level 7 qualification. On 2 February 2023, the University of Newcastle informed the Department that the applicant was enrolled in this course in Semester 1 2021 (February to July 2021) and that there was no record of her enrolment after that time. However the Tribunal notes that PRISMS shows the applicant’s enrolment in the Bachelor of Business course was cancelled on 27 April 2023 due to Non-payment of fees.

13. On 23 February 2023, the applicant obtained enrolment in a Diploma of Community Services course, a course at the AQF Level 5. She has since enrolled in a Graduate Diploma of Management (Learning) course, a course at AQF Level 8. PRISMS shows she enrolled in this course on 27 April 2023 and that course will commence on 17 February 2025.

14. On the evidence before the Tribunal, the applicant’s visa was granted in relation to a  Bachelor of Business a course at the AQF Level 7. Since then, the applicant enrolled in a Diploma of Community Services course, a course at AQF Level 5. Notwithstanding that PRISMS shows the applicant’s enrolment in the Bachelor of Business was cancelled on 27 April 2023, the Tribunal accepts and places weight on the information provided by the University of Newcastle on 2 February 2023 and finds the applicant was not enrolled in an AQF Level 7 course after July 2021. As noted, she enrolled in an AQF Level 8 course on 27 April 2023. The applicant conceded at the hearing that she had not complied with condition 8202(2)(b) while the holder of her Student visa.

15. On the evidence before the Tribunal, the applicant did not maintain enrolment in a registered course that will provide a qualification from the AQF 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) and the Tribunal finds that she breached condition8202(2)(b) of her visa.  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

16. 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 his representative, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below.

17. On 21 April 2023, the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because she did not maintain enrolment in a registered course that will provide a qualification from the AQF that is at the same level as, or at a higher level than, the course in relation to which the visa was granted and had therefore failed to comply with condition 8202(2)(b) of her visa.

18. On 5 May 2023, the applicant responded to the NOICC and provided the following information:

    • She is an elder child in her family and her parents have a high hope for her future. Her family is well established in Zimbabwe and her father is working as a finance director. He set an example that education can help in career.
    • In 2020, after finishing her studies in Zimbabwe, she started studying the Foundation program in the Newcastle International College and passed with credits and high distinction.  She finished her Foundation program online before her visa grant and did well in her first semester but started losing interest in studies because of the online delivery and her personal circumstances were not allowing her to focus on studies.
    • She not able to focus on studies because her parents were in the process of divorcing.  She saw their fights and a lot more. At 18 years old she was mentally broken and couldn’t absorb that her parents were not coping. She was crying all day and night.
    • Her father couldn’t communicate well in the home and missed payment of her fees of second semester in University of Newcastle. She had no hope of coming here and she set aside her dream of coming to Australia. She started working in Zimbabwe and diverting her mind by online studies. She finished a certificate course in Dementia Level 1 in 2022. Her interest in health-related subjects was increasing because she saw it as the major issue in the world compared to making money in business.
    • When Australian borders opened in December 2021 she was thinking whether she can go to Australia and asked her father whether he will support her financially and asked her mother as she was her only moral support. They both agreed she can shape her career in her own way.
    • As she had a valid visa she entered in Australia and in the meantime contacted an education agent online who assured her he will obtain a  Bachelor’s CoE for her before she enters Australia. He advised she won’t be able to secure enrolment in big universities as her CoE was already cancelled.
    • She was not aware that once a CoE is cancelled, another provider won’t issue another CoE at the same AQF Level. When she entered Australia she he met with many agents and almost all suggested she study diploma study as she won’t be able to secure a bachelor’s enrolment due to the previous cancellation.
    • She decided to study what interests her the most. Community service is where she can earn and learn on daily basis. The day she saw her parents’ fights she decided it should not happen with any couple and children. This course provides understanding of life and gives high morals to live in the society. She has been studying community service for 3 months and is enjoying studying the subjects. She hasn’t wasted her time and sat idle without studies after coming to Australia.
    • She was getting an opportunity to become nurse in Zimbabwe if she could have finished studies in health-related fields but now she will be working as a counsellor or community worker and will serve her people in better way after she graduates.
    • She does not want to make it longer but the circumstances were not in her hands when she couldn’t continue the bachelor course at the University of Newcastle.  
    • Compassionate and compelling reasons for dropping her studies are: Parent’s Divorce; Border Restrictions; Mental Stress; Anxiety;  Father did not make fees payment due to his personal reasons and  Could not arrange CoE from Bachelor course
    • She meets the Genuine Temporary Entrant Criteria because: Her parents have sufficient amount of funds to support her studies; Holding a valid enrolment in CRICOS registered course;  Her mother is alone and she wants her there and Her siblings are growing up and she needs to set example for them.

19. At the time of responding to the NOICC the applicant provided the following documents:

    • Orders made by the High Court of Zimbabwe evidencing the divorce of the applicant’s parents dated 3 January 2023;
    • Applicant’s Newcastle International College Statement of Academic Record showing Foundation Program completed and units undertaken in semesters 2 and 3 of 2020;
    • Florence Academy Training Certificate showing the applicant completed Dementia Level 1 e-learning course delivered by Florence Academy on 2 September 2022; and
    •  CoE for Graduate Diploma of Management (Learning ) created on 27 April 2023.

    Evidence provided at hearing

20. The Tribunal adopted the procedure in s 359AA of the Act to put to the applicant details of her enrolment record from the PRISMS database, a copy of which is on the Tribunal 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, her enrolment in a Bachelor of Business course (AQF Level 7 ) was cancelled due to Non-payment of fees and that she enrolled in a Diploma of Community Services (AQF Level 5) on 23 February 2023 and in a Graduate Diploma of Management (Learning) (AQF Level 8) on 27 April 2023.   

21. The Tribunal explained to the applicant that this information was relevant because it indicates that she did not maintain enrolment in a registered course that will provide a qualification from the AQF that is at the same level as, or at a higher level than, the course in relation to which her visa was granted. The Tribunal explained that this information may be relevant to assessing whether she breached the conditions of her student visa by not maintaining the required level of enrolment. 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 asked the applicant whether she had any comments in relation to her PRISMS enrolment records. In response the applicant said she agreed with the information put to her as set out in paragraph 20 (above).

23. The Tribunal asked the applicant about the statement in her NOICC response that after she completed the Foundation program she started losing interest in studies because of the online delivery and her personal circumstances. In response the applicant told the Tribunal that because of the time difference between Australia and Zimbabwe, the online classes were from 1.00 am until 6.00 am and this made it difficult. She said her parents were arguing and they separated in December 2021.

24. The Tribunal referred the applicant to the statement in her NOICC response that she was mentally broken and that she suffered mental stress and anxiety and asked if she sought any medical assistance for these conditions. She said she did not seek medical assistance.

25. The Tribunal asked the applicant about the statement in her NOICC response that her father missed payment of her fees of second semester in University of Newcastle. The applicant said her father refused to pay her fees because she had decided to live with her mother.

26. The applicant told the Tribunal that after her father refused to pay her fees in 2021, she gave up on the idea of coming to Australia and remained in Zimbabwe for the remainder of 2021 and all of 2022. She said she tried to reason with her father and in 2023 he agreed to pay her fees. The applicant said before she left Zimbabwe she contacted an online consultant who advised her that she could change her area of study from Business to Community Services in Australia.

27. The Tribunal asked the applicant about her arrival in Australia on 2 February 2023 at which time she did not have a current CoE. She said Border Force gave her 7 days to obtain enrolment and she enrolled in the Diploma of Community Services on 23 February 2023. The applicant told the Tribunal that she was not aware she was required to maintain enrolment in a registered course that will provide a qualification from the AQF that is at the same level as, or at a higher level than, the course in relation to which the visa was granted. The Tribunal pointed out that it was a condition of her Student visa and she said it was her mistake in not understanding the condition.

28. When asked about the purpose of her travel to Australia, the applicant told the Tribunal that she originally wanted to study Business but her interest has now changed and she wants to pursue nursing. In response to the Tribunal asking whether she has a compelling need to remain in Australia, the applicant said she needs to complete her Diploma of Community Services because she wants to set a good example to her younger siblings.

29. When asked about the hardship that may be caused by cancellation of the visa, the applicant said she did not complete her Bachelor of Business and if her visa is cancelled she will not finish her Diploma of Community Services and this will have a detrimental effect on her confidence and her future.

    Non-disclosure certificate

30. At the hearing the Tribunal noted a certificate had been issued under s 376 of the Act in relation to folios in Departmental file BCC2023/1150452 on the basis that disclosure would disclose or enable a person to ascertain the existence or identity of, a confidential source of information. The Tribunal noted it has a discretion under s 376 to disclose the information on the file. The Tribunal stated it considered that the certificate contained a valid ground of public interest immunity not to disclose the information. The Tribunal invited the applicant to comment on or make submissions on the validity of the s 376 certificate and why the documentation should be released.

31. Utilising the procedure under s 359AA of the Act, the Tribunal put the information covered by the s 376 certificate to the applicant. The Tribunal put to the applicant an email dated 2 February 2023 from Stott’s College advising it had received an online request for admissions that morning and it had not been looked at or assessed at that time. In response the applicant said she agreed with the information. The Tribunal pointed out that such information was relevant to the review because the information indicates she arrived in Australia without a current CoE.

32. The Tribunal put to the applicant an email dated 2 February 2023 from the University of Newcastle advising that the applicant had only enrolled 4 courses in Semester 1 2021 (Period Feb-July 2021) and that she did not have any other enrolment status since then. The email also advised that the applicant did not pay Semester 1 2021 tuition fees as well as failed all 4 subjects and that the University sent a warning email of an outstanding debt in June 2021 but did not receive any response. In response the applicant said she agreed with the information however she said she was not aware that she had failed the 4 subjects because her CoE had been cancelled. The Tribunal pointed out that such information was relevant to the review because the information indicates the date and reason her cancellation of her enrolment in a Bachelor of Business.

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 an AQF Level 7 Bachelor of Business course. According to the University of Newcastle, she ceased enrolment in that course after Semester 1 2021 (February to July 2021). The information provided by the University of Newcastle, which was covered by the non-disclosure certificate, indicates that the applicant failed the 4 subjects she studied in this course in Semester 1 2021. When the applicant arrived in Australia she enrolled in an AQF Level 5 Diploma of Community Services course. This is not a course at the AQF level for which her visa was granted.

35. The applicant was not enrolled in a course of study at the required AQF level for a period of 1 year 9 months prior to the issuing of the NOICC and is not currently undertaking study at the required AQF level. The Tribunal finds the applicant’s breach of condition 8202 to be significant because she was not engaging in the AQF level of study for which her visa was granted and was not fulfilling the purpose of her travel to and stay in Australia for an extended period and is not currently engaging in the required AQF level of study. The Tribunal notes that the applicant enrolled in a course at the required AQF level 7 days after receiving the NOICC.

1. There is no specific definition of 'compelling' in either the Act or the Regulations. To be ‘compelling’, the reasons in question must force or drive the decision-maker irresistibly to some end.[3]   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 set a good example to her younger siblings. The Tribunal does not consider this constitutes a compelling need.

   [3] Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31].

2. The applicant’s non-engagement in the level of 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

3. The applicant has not complied with condition 8202 of her student visa because she has failed to maintain the required AQF level of enrolment from July 2021 to 27 April 2023. There is no evidence before the Tribunal that she has not complied with the other conditions attached to her visa.  The applicant’s non-compliance for an extended period weighs in favour of visa cancellation.

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

4. The Tribunal accepts that the cancellation will be disappointing to her because she wants to complete the Diploma of Community Services course she has been studying in Australia. The Tribunal accepts that if she does not complete the course it may disadvantage her future career. The Tribunal gives the hardship that may be caused to the applicant some weight against cancellation.

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

5. The applicant’s visa was cancelled as a result of her failure to maintain the required AQF level of enrolment prior to 27 April 2023. She told the Tribunal the reasons for not complying with the condition of her visa included border restrictions preventing her from coming to Australia, experiencing difficulty with online study due to the time difference; mental stress and anxiety caused by her parents’ divorce and her father refusing to pay her fees. She said the online classes and her personal circumstances caused her to lose interest in her studies. After she ceased study in the Bachelor of Business course she remained offshore for the remainder of 2021 and all of 2022 and was not enrolled in any Australian registered course. The Tribunal accepts that border restrictions, online classes and her parents’ divorce contributed to the applicant losing interest in her studies in 2021 and that her father refused to pay her fees in 2021. The Tribunal accepts that these circumstances were beyond the applicant’s control up until she travelled to Australia on 2 February 2023.

6. The applicant travelled to Australia and on 23 February 2023 enrolled in the Diploma of Community Services course. She told the Tribunal that prior to travelling to Australia an online consultant advised her that she could change her area of study from Business to Community Services. After she arrived in Australia various consultants advised her she could not enrol in a Bachelor level course because her CoE in a Bachelor of Business had been cancelled but she could enrol in a Diploma level course. The applicant told the Tribunal that she was not aware of the requirement to maintain enrolment in a registered course that will provide a qualification from the AQF that is at the same level as, or at a higher level than, the course in relation to which the visa was granted. She said when she received the NOICC an agent explained the requirement to her and she then enrolled in the Graduate Diploma of Management (Learning). As noted, it was a condition of her Student visa that she maintain study at a required AQF level and it is a reasonable expectation that a visa holder understand the conditions of the visa they have been granted.

7. In the Tribunal’s view it is the responsibility of a visa holder to be aware of the conditions of their visa and remain compliant with them and the applicant’s failure to understand the conditions of her visa was not a factor beyond her control and this weighs in favour of visa cancellation.

   Past and present behaviour of the visa holder towards the Department

8. 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

9. 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

10. 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

11. 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

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

    Conclusion

13. 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 cancellation will not affect any other person’s visa. It will not be in breach of Australia’s international obligations. The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

14. 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

15. 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.