Dahal (Migration)

Dahal (Migration) [2024] AATA 1085 (3 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Arpit Dahal
REPRESENTATIVE:  Ms Sophie Vaughan
CASE NUMBER:  2218969
HOME AFFAIRS REFERENCE(S):          BCC2022/3706239
MEMBER:Christine Kannis
DATE:3 May 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 03 May 2024 at 7:01am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased enrolment – impact of the COVID-19 pandemic – financial hardship – enrolment refusals – employment in aged care – multiple course cancellations – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 116, 140, 189, 198, 359
Migration Regulations 1994, Schedule 8, Condition 8202; r 1.03
CASES
Liu v MIMIA [2003] FCA 1170
Plaintiff M64/2015 v MIBP [2015] HCA 50
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 21 December 2022 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).
The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of his 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.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal on 23 April 2024 by MS Teams video to give evidence and present arguments.
The applicant was represented in relation to the review.
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
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?
On 25 August 2020, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.
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).
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.
In the present case, the applicant’s visa was cancelled on the basis that he was not enrolled in a full-time registered course.
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.
The information from PRISMS shows that the applicant was not enrolled in a registered course from 1 April 2021. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 1 April 2021 and the Tribunal finds that he breached condition8202(2)(a) of his visa.
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
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.
On 22 November 2022, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 1 April 2021 and had therefore failed to comply with condition 8202(2)(a) of his visa.
Response to NOICC
On 6 December 2022, the applicant responded to the NOICC in a submission from his representative in which the following information was provided:
·The applicant is 23 and is a Nepalese citizen.
·The applicant was granted a Student (subclass 500) visa on 13 March 2018 to undertake study in a Diploma of Nursing and an Advanced Diploma of Nursing.
·The applicant arrived in Australia in April 2018 to commence his studies. His wife was granted a dependant visa on 1 April 2019 and soon after entered Australia.
·On 27 November 2018, the applicant commenced working on a casual basis at the Rainbow Hotel in Melbourne.
·On 9 January 2020, the applicant was awarded a Diploma of Nursing. He intended studying an Advanced Diploma of Nursing however decided to switch to a Diploma of Community Services.
·In or around February 2020, the applicant relocated to South Australia and commenced employment with TGI Friday's as a kitchenhand.
·On 27 February 2020, the applicant began studying a Diploma of Community Services at Southern Cross Education Institute in South Australia.
·On 18 March 2020, the Prime Minister announced a human biosecurity emergency due to COVID-19. Around this time, Southern Cross Education Institute ceased in person classes and moved to study online. Regarding online classes, the applicant said:
This was a massive change in study format. I found this hard to cope with and was struggling with online classes.
This frustration poured into my daily life making me lose focus, ultimately, affecting my mood and relationships with people around me.
During this time, my relationship with Dhan was not good and we were struggling.
·On 25 March 2020, the applicant was stood down from TGI Friday's due to the hospitality industry struggling during COVID-19 and he was told the restaurant would be closed from 25 March 2020 to 20 September 2020.
·In May 2020, the applicant applied for a second Student visa and was granted a Bridging visa A in association with this application. He intended undertaking a Bachelor in Health Science (Aesthetics). This change in course reflected his growing interest in preventative skin health and dermal therapies. His ex-wife was included in the application as a dependent applicant. The applicant had attempted to enrol into a Bachelor of Nursing however due to his low English test scores he chose to undertake a Bachelor of Health Science (Aesthetics) commencing on 1 June 2020.
·In late June 2020, the applicant returned to work at TGI Friday's however he was offered only limited hours.
·The applicant successfully completed a semester of his Bachelor's degree, however, due to COVID-19, financial hardship and marital problems, he ceased his studies.
·On 5 October 2020, the applicant contacted his university for financial assistance. On 9 October 2020 he received a tuition fee final reminder and a response advising they were unable to offer a payment extension or a payment plan as he missed the deadline for the request and unless he can show he was experiencing extenuating circumstances, he would need to pay the fees in full.
·On 15 October 2020, the applicant sought further assistance from the university’s Finance and was told there was nothing they could do as the census date to withdraw without having to pay a fee had passed and suggested he speak with an international advisor. On 20 October 2020 it was suggested he apply for the South Australian $500 Government Grant, which would not be sufficient to cover his tuition fees. The applicant asked his parents for financial assistance however their ability to assist him was limited. Even with their assistance, he could not gather sufficient funds to pay for his tuition and support himself for his stay in Australia. His enrolment was cancelled due to non-payment of fees on 1 April 2021.
·He maintained his employment as a kitchenhand however the income was not sufficient to support himself as well as pay his tuition.
·On 13 October 2021, the applicant commenced employment as a Personal Care Assistant at Resthaven. South Australia's health system was experiencing under-resourcing, understaffing and were at breaking point from fatigue and burnout. Consequently, the applicant put his resources and time into his role at Resthaven. With the overwhelming need for nurses and pressure on nursing staff to work and fill in the gaps, the applicant could not stop working. He received a promotion with to Enrolled Nurse and commenced this role on 16 February 2022. He continues to be employed by Resthaven in this role.
·On 22 November 2022, the applicant received a NOICC. On 30 November 2022, he applied to enrol in a Bachelor of Nursing with the University of South Australia and is waiting for his application to be processed.
·The applicant will greatly benefit from studying in Australia and completing his intended course of study, which will further and advance his career in Nepal.
·The applicant accepts he has not complied with condition 8202 for 1 year and 8 months however this is outweighed by his steps to comply and he is in the process of enrolling in a Bachelor of Nursing. He intends to resume his studies and will be in compliance with condition 8202 which is the purpose of his Student visa and this should be given weight in favour of not cancelling his visa.
·The applicant has spent 4 years in Australia and has created strong ties with his peers and the Australian community. In a letter of support his housemate, Ms Jo-Ann Taylor, stated she had known the applicant for 1 year 6 months and he is friendly and helpful and it would be a massive loss for her and their friends if his visa is cancelled.
·If his visa is cancelled, the applicant will suffer financial and psychological hardship as he would not be able to pursue his studies and career goals. He will face disappointment from his family. His parents paid for the Diploma of Nursing.
·The applicant’s second Student visa was granted for the purpose of him undergoing education in the Higher Education sector, a Bachelor of Health Science (Aesthetics). However, when he commenced studying it was during the height the C0VID-19 pandemic and it was a time of great uncertainty. He was stood down from his employment as a kitchenhand on 25 March 2020 due to COVID-19 restrictions. He returned to this employment in late July 2020 but was only offered limited hours and as a result experienced financial hardship. He was struggling financially, mentally and emotionally. The applicant was also experiencing marital problems and was depressed, anxious, terrified and didn't know what to do.
·The applicant acknowledges Student visa holders must have sufficient funds to support their stay in Australia however he was struggling to cope and didn't know what to do. He acknowledges Student visa holders are expected to depart Australia and return once they are able to afford and continue their studies. However, the Australian Government had closed its borders to non-residents and non-citizens since 20 March 2020 and it was uncertain when he could re-enter Australia to continue his studies. Australia reopened its borders to fully vaccinated international students from 15 December 2021, meaning he could not have returned to Australia for over a year if he had departed in October 2020 when he was experiencing financial difficulty.
·At this time there was a need for health-care workers in South Australia. In an effort to rectify his financial hardship, the applicant sought employment as an Enrolled Nurse as he had completed a Diploma of Nursing. He also hoped to gain better employment and save enough money to return to his studies.
·The applicant intended returning to his studies once he saved enough money for his tuition, which he now has. He acknowledges some time has passed since he gained secure employment and he could have re-enrolled into a course sooner. However, as there was an overwhelming need for nurses in South Australia, he was focused on providing his skills to combat the skills shortage and lost focus on his studies.
·The applicant came to Australia to study when he was 19 years old. The COVID-19 pandemic, financial and marital problems resulted in him struggling to cope. He is now 23 years old, has secure employment and is in a better place mentally, emotionally and financially. He wants to pursue a nursing career and become a registered nurse. The decision maker should be cognisant of his level of immaturity, that there was no wilful malice or mischief behind his non-compliance and that he has successfully changed his circumstances and is now in a better position to return to his studies.
·The applicant has been living in Australia for 4 years and has not been convicted of any offences nor does he have a criminal record to indicate he is a person of poor character.
·The applicant has been employed by Resthaven since October 2021 and has become a critical part of the team, having been promoted from Personal Care Assistant to Enrolled Nurse. Resthaven’s services include providing residential aged care homes, independent retirement living, in-home services and support for carers. The applicant has been a key part of Resthaven during COVID-19 and in their road to recovery after the pandemic. He has made valuable contributions to his community in his role in providing high quality services as an Enrolled Nurse. If his Student visa is cancelled Resthaven will lose a key team member. In a letter of support, Ms Melinda Meatheringham said he is a reliable and diligent employee and is well regarded by his peers, management and the residents at the facility and is an asset.
·The applicant has successfully completed a Diploma of Nursing and is an Enrolled Nurse. He wishes to complete a Bachelor of Nursing to become a Registered Nurse (Aged Care) which will enable him to upskill and continue working in aged care and increase his employment prospects. Both occupations are listed on the National Skills Commissions Skills Priority list. The Commission reports that not only is there a shortage of Enrolled and Registered Nurses there is also a strong future demand and growing need for Enrolled and Registered Nurses in Australia's labour market. The applicant’s continued presence in Australia would result in his ability to contribute to the Australian community through his work and his ability to continue contributing in addressing the needs of the Australian labour market.
At the time of responding to the NOICC, the applicant provided extensive documentation including the following documents:
·CoEs for Advanced Diploma of Nursing, Diploma of Nursing, Bachelor of Health Science (Aesthetics) and Diploma of Community Service
·Documents evidencing employment as a kitchenhand, Personal Care Assistant and Enrolled Nurse
·Academic certificate and transcript -Diploma of Nursing
·Bank statements
·Australian Nursing and Midwifery Federation (SA branch)-Media releases
·PTE Academic English test results
·Emails between the applicant and Torrens University Australia in relation to fees and financial assistance
·AHPRA Registration as an Enrolled Nurse
·Confirmation of application to enrol in a Bachelor of Nursing University of South Australia dated 30 November 2022.
·Letter of support Melinda Meatheringham dated 5 December 2022
·Applicant’s statement dated 6 December 2022
·Letter of support Jo Anne Taylor dated 6 December 2022
Evidence provided prior to hearing
Written statement dated 15 April 2024 made by the applicant in which he provided information not materially different from the information in his response to the NOICC and the following additional information:
·He has always had an interest in nursing which is what he originally came to Australia to study. Although he changed courses after completing a Diploma of Nursing, he now knows that this is where his passion lies. Having worked as an Enrolled Nurse at Resthaven, he has seen the value in what he can bring and loves being able to help people He would be grateful for the opportunity to expand his knowledge and become a registered nurse.
·He attempted several times last academic year (2023) to enrol in a Bachelor of Nursing, with both the University of South Australia and the University of Adelaide. These applications were rejected and he had no choice but to wait until 2024 to enrol in a Bachelor of Nursing at Flinders University.
·Since working at Resthaven his financial situation has improved and he is confident he will have the financial capacity to support his studies. He is also in a better headspace regarding his relationship and filed for divorce on 15 March 2024. He previously struggled to deal with the breakdown of his relationship and found it difficult to acknowledge the end of his marriage.
·When he came to Australia, he was 19 years old and did not know how to cope with the multiple obstacles that came his way. He is now 25 years old and has a better understanding of how to work through difficult situations.
·He would devastated if his Student visa is cancelled. He and his family have invested a lot of money in his studies in Australia and it would be disappointing to return without being a Registered Nurse. He would be disappointed in himself if he is not able to complete his degree and would be devasted if that is cut short because of his actions two years ago.
Representative’s written submission which included information provided in the response to the NOICC and in the applicant’s written statement dated 15 April 2024 and the following relevant information:
·In January 2022, the applicant was contacted by EC Credit Control regarding his outstanding fees with Torrens University and because knew he wanted to study in the future, he paid his outstanding fees.
·On 30 November 2022, the applicant attempted to enrol in a Bachelor of Nursing with the University of South Australia. The application was refused. In February 2023, he attempted to enrol in a Bachelor of Nursing with the University of Adelaide. He was not accepted into the course.
·In February 2024, the applicant was accepted into a Bachelor of Nursing with Flinders University and began a Bachelor of Nursing in February 2024.
·The applicant acknowledges he was not enrolled in a course for a substantial period however his intention has always been to study. Upon receiving a Bridging visa that imposed a no study condition, he took steps to apply for study rights. This highlights his intention to continue studying once he was able to do so. He attempted to enrol in a Bachelor of Nursing at the University of South Australia and the University of Adelaide for the 2023 academic year. However, both Universities were unable to offer him a place in the course.
·The applicant acknowledges he did not comply with condition 8202 however he has since complied with his visa conditions and taken correct steps in responding to the NOICC and requesting study rights.
·Should the applicant's Student visa be cancelled he will experience hardship because he could not achieve his Bachelor of Nursing despite having invested a significant amount of money. The financial implications which arise from cancellation would not only affect the applicant but also his family who support him.
·The applicant's noncompliance occurred during the peak of the COVID-19 pandemic, which was an unprecedented event . Research shows that having a status as a "student" during the pandemic was a significant risk factor for developing depressive symptoms and anxiety. Loneliness and unemployment were found to be additional risk factors. During the period of non-compliance, the applicant fell into each three of these risk categories. He was stood down from his employment. Although he was eventually provided with some shifts, there was not enough work for him to support himself as a student. Additionally, his parents were unable to provide financial assistance. This put him in financial hardship. He made attempts to obtain financial assistance with Torrens University, however such attempts did not prevail.
·The applicant was unable to pay his university fees and was compelled to withdraw from the course. Due to border closures, he was unable to return to Nepal. These circumstances were out of his control, and he did not know how to handle this with the Department.
·Throughout the period of non-compliance the applicant was going through a relationship breakdown. This added to his feelings of helplessness and lack of control. The compound effect of these circumstances left the applicant feeling overwhelmed and unsure how to move forward.
·The applicant was 21 years old throughout the period of non-compliance. He did not have the emotional capacity to deal with an international pandemic, marital problems and financial hardship, all of which occurred at the same time.
·Since the applicant's visa was cancelled, his circumstances have changed. The effects of COVID-19 have subsided, providing more stability and certainty in terms of course structure and the applicant is finally able to study his course at Flinders University. The applicant continues to work as Enrolled Nurse at Resthaven which allows him to support himself and maintain enrolment in his current course. He is finalising his divorce and is in a more stable emotional, financial and mental state, in contrast to when the noncompliance occurred.
·There is no adverse information regarding the applicant's past and present conduct towards the Department and no evidence that he has breached any other visa condition.
·At no point since arriving in Australia has the applicant been deliberately malicious or tried to circumvent the migration system. He responded to the NOICC within the prescribed timeframe and on cancellation of his visa, he sought to regularise his status and followed the correct procedure to obtain study rights.
·The applicant's intention since entering Australia has been to study nursing. This is clear from his multiple attempts to enrol in a Bachelor of Nursing.
·The Aged Care Industry is facing a critical skills shortage. Care homes are closing due to lack of skilled staff and Australia faces a shortage of at least 110,000 aged care workers by 2030. The Australian Bureau of Statistics reports job vacancies in health care and social assistance are up 118% since before COVID-19. Since October 2021, the applicant has been employed by Resthaven and provides valuable work in an industry in the midst of a skills shortage and is completing a degree that will allow him to upskill within the industry. In addition the applicant is working and studying in Adelaide, a regional area. The applicant is aware that the purpose of a Student visa is to complete a course of study, and not to fill a gap in Australia's labour market. However he is completing a course of study that provide him with valuable skills within the healthcare industry.

Additional documents including but not limited to evidence of the applicant’s employment, emails from Torrens University and articles Impact of COVID-19 pandemic on mental health in the general population: a systematic review and Skilled migrant workers can fill staff shortages in aged care and Skilled migrant workers can fill staff shortages in aged care were provided.
Evidence provided at hearing
The Tribunal adopted the procedure in s 359AA of the Act to put to the applicant information from a copy of his 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 his PRISMS enrolment record, he was enrolled in the following courses of study:
a.He was enrolled in a Diploma of Nursing course which was cancelled on 8 March 2018 due to due to Change to CoE/Student details;
b.He was enrolled in a Diploma of Nursing course which he completed on 29 October 2019;
c.He was enrolled in a Diploma of Nursing course which was cancelled on 29 November 2019 due to Change to student enrolment;
d.He was enrolled in a Diploma of Nursing course which he completed on 20 December 2019;
e.He was enrolled in an Advanced Diploma of Nursing course which was cancelled on 29 October 2019 due to Deferment/Suspension-Compassionate or compelling circumstances;
f.He was enrolled in an Advanced Diploma of Nursing course which was cancelled on 29 January 2020 due to Non-commencement of studies;
g.He was enrolled in a Diploma of Community Services course which was cancelled on 18 August 2020 due to Non-payment of fees; and
h.He was enrolled in a Bachelor of Health Science(Aesthetics) course which was cancelled on 1 April 2021 due to Student Notifies Cessation of Studies.
The Tribunal explained to the applicant that this information was relevant because it indicates that from 1 April 2021 he did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether he breached the conditions of his 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 his purpose for remaining in Australia.
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 he had any comments in relation to his PRISMS enrolment records. He disagreed that his enrolment in a Diploma of Community Services was due to non-payment of fees and contended that he withdrew from the course. The cancellation of this enrolment occurred prior to 1 April 2021 and the Tribunal does not attach any weight to the reason the applicant ceased that study. The applicant told the Tribunal that he otherwise agreed with the information in PRISMS. He said the reason for deferment of his enrolment in 2019 was because he relocated from Melbourne to South Australia. He said he notified of cessation of studies in 2021 because he was unable to pay his tuition fees.
The Tribunal asked the applicant about the statement in the NOICC response regarding his difficulty with online classes after the onset of COVID-19. He said he had never studied online prior to COVID-19 and he found the online classes and assignments overwhelming. He said COVID-19 also resulted in him being isolated and he found it hard to cope.
The Tribunal asked the applicant about his decision to change his course from a Diploma of Community Services to a Bachelor of Health Science (Aesthetics). He said after speaking to friends who had studied in the field, he realised the diploma course would not be productive which he explained as not assisting him move forward in his career.
The Tribunal asked the applicant about the statement in the NOICC response that due to COVID-19, financial hardship and marital problems, he ceased his studies. He told the Tribunal that not only did he find online classes difficult but he also felt isolated and this made him anxious. He said he did not have any friends and he felt lonely. In response to the Tribunal asking whether he sought medical treatment for his anxiety, the applicant said he had one session with a therapist at Torrens University prior to cancellation of his enrolment but did not seek any other medical treatment because he did not think he could get any help.
Regarding financial hardship, the applicant said that because of COVID-19 he was not employed for 3 months and when his employment resumed he was offered limited hours only and this resulted in him not being able to pay his tuition fees. He said prior to COVID-19 his parents also provided some financial support however COVID-19 affected their income and they could not help him. The Tribunal asked the applicant the reason he did not depart Australia when he could not afford to pay for his study. The applicant said the reason was because the airports were closed.
In relation to his marital problems, the applicant said he was dependent on his wife to help him financially and emotionally however when she came to Australia she did not live with him and she withdrew her financial support. The applicant explained that although he was in Melbourne when his wife arrived in Australia, she chose to live in New South Wales because she had friends living there. The applicant said they conducted a long distance relationship but untrustworthiness issues arose and their relationship deteriorated.
The applicant told the Tribunal that in October 2021 he commenced working at Resthaven and his hours increased and he had good earnings. He said his Diploma of Nursing qualification enabled him to obtain a position as a Personal Care Assistant and he was offered many hours of work. At this point in the hearing the Tribunal asked the applicant the reason he did not enrol in study given his improved financial circumstances. In response he said he could not afford the tuition fees because he had outstanding fees to Torrens University. The Tribunal noted that these fees were paid in January 2022 and asked him the reason he did not attempt to enrol from January 2022 until after receipt of the NOICC in November 2022. The applicant said he didn’t have sufficient funds to enrol. Noting that border restrictions had eased by 2022, the Tribunal asked the applicant the reason he did not depart Australia in 2022 with a view to returning when he would be able to pay his living and study costs. He did not provide a reason for not departing Australia in 2022.
The Tribunal put to the applicant that he would have known from 1 April 2021 that he was no longer enrolled in a course and was not abiding by the conditions of his visa. In response, the applicant conceded that he was aware of his non-compliance. The Tribunal asked him whether he contacted the Department about his changed circumstances. He said he did not contact the Department because he imagines he was not in the right headspace. The Tribunal asked the applicant whether he discussed a deferment of his study with his education provider in 2021 prior to cancellation of his CoE. In response he said he did not make any enquiries or attempts because he was not in the right headspace. As noted, apart from one therapy session at Torrens University, the applicant did not seek treatment for his mental health. 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.
The applicant told the Tribunal that he has worked at Resthaven since October 2021 and he continues to work there.
When asked about the purpose of his travel to Australia, the applicant told the Tribunal that he came to Australia to complete study and become a nurse. In response to the Tribunal asking whether he has a compelling need to remain in Australia, the applicant said aged care workers are greatly valued and his contribution is essential because of his skills. He said he is currently enrolled in a Bachelor of Nursing course and he will be very valuable to the healthcare industry workforce.
When asked about the hardship that may be caused by cancellation of the visa, the applicant said he will suffer mental and financial hardship. He said all his employment is in Australia and cancellation would therefore cause him financial hardship. The applicant said both he and his family would see him as a disappointment if his visa is cancelled.
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
The purpose of the applicant’s visa was to enable him to study. The applicant was not enrolled in a course of study for a period of 1 year 8 months prior to the issuing of the NOICC. In the representative’s written submission it was stated that the applicant’s intention in Australia has always been to study and on receiving a Bridging visa that imposed a no study condition, he took the correct steps to apply for study rights. The representative referred to the applicant’s attempts to enrol in a Bachelor of Nursing at the University of South Australia and the University of Adelaide for the 2023 academic year and his acceptance to Flinders University in 2024 for a Bachelor of Nursing. The Tribunal has considered the applicant’s attempts to study however these all occurred after he received the NOICC. The Tribunal finds the applicant’s breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.
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]
[3] Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31].
The Tribunal questioned the applicant as to whether there was a compelling need for him to remain in Australia. In response, he said aged care workers are greatly valued and his contribution is essential because of his skills. The Tribunal accepts that the applicant is a valued employee at Resthaven but does not consider this constitutes a compelling need.
In the NOICC response it was submitted there is a compelling need to remain in Australia because the applicant will greatly benefit from studying in Australia and completing his study which will further and advance his career in Nepal. The Tribunal does not consider this constitutes a compelling need.
The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.
The extent of compliance with visa conditions
The applicant has not complied with condition 8202 of his student visa because he has failed to maintain enrolment in a full-time registered course of study for a period of 1 year 8 months. There is no evidence before the Tribunal that he has not complied with the other conditions attached to his visa.
In the representative’s written submission it was stated that the applicant acknowledges he did not comply with condition 8202 however he has since complied with his visa conditions and taken correct steps in responding to the NOICC and requesting study rights. The representative referred to the applicant’s willingness to return to his studies.
The Tribunal accepts that after receipt of the NOICC the applicant took steps to comply with his visa conditions however this occurred after non-compliance for an extended period of 1 year 8 months and weighs in favour of visa cancellation.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal accepts that the cancellation of the applicant’s visa will be disappointing to him and his family and may cause mental and financial hardship.
In the representative’s written submission it was stated that cancellation will cause the applicant to experience hardship because he could not achieve his Bachelor of Nursing,. The representative referred to the applicant having spent a significant amount in education fees since arriving in Australia and said the financial implications which arise from cancellation will affect his family who support him. The representative referred to the applicant having created strong ties within the Australian community. The representative stated that if the applicant is not able to study or live in Australia he will suffer from financial and psychological hardship as he would not be able to pursue his studies and career goals.
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
The applicant’s visa was cancelled as a result of his failure to maintain enrolment. The applicant was not enrolled in a course for 1 year 8 months prior to the issuing of the NOICC. He told the Tribunal that this was due to COVID-19, financial hardship and marital problems. He said the isolation arising from COVID-19 caused him anxiety, his loss of and reduced employment caused financial hardship and the breakdown of his marriage resulted in the loss of emotional and financial support. He also said he had difficulty with online classes and this contributed to him ceasing his study.
The representative’s written submissions included the following:
·    The non-compliance occurred during the peak of the COVID-19 pandemic; Research shows status as a "student" during the pandemic was a significant risk factor for developing depressive symptoms and anxiety Loneliness and unemployment were found to be additional risk factors and during the period of non-compliance the applicant fell into these risk categories;
·     Due to border closures, the applicant was unable to return to Nepal;
·     These circumstances were out of the applicant's control and he did not know how to handle this with the Department;
·    During the period of non-compliance the applicant was going through a relationship breakdown and felt overwhelmed and unsure how to move forward;
·    The applicant’s young age and level of immaturity meant he did not have the emotional capacity to deal with an international pandemic, marital problems and financial hardship, all of which occurred at the same time;
·     There was no wilful malice or mischief behind his non-compliance;
·    During that time, he maintained his employment with TGI Friday's however his income was not sufficient to support himself as well as pay his tuition;
·    There was a paramount need for health-care workers in South Australia and in an effort to rectify his financial hardship, the applicant sought employment in the nursing industry. He secured employment in the nursing/care industry in October 2021; and
·    The applicant intended returning to his studies once he was able to save enough money for his tuition and he acknowledges that some time has passed since he was able to gain secure employment and that he could have re-enrolled into a course sooner however as there was an overwhelming need for nurses in South Australia and he was focused on providing his skills to combat the skills shortage in the health industry and lost focus on his studies.
With respect to the impact of COVID-19, the Tribunal accepts that the pandemic caused many people to feel isolated which resulted in mental health conditions including anxiety. The applicant said he did not contact his education provider about deferring his study and did not contact the Department about his change in circumstances because he was not in the right headspace. No medical evidence was provided to substantiate the nature or severity of the applicant’s contended poor mental health and he said did not seek medical treatment. As noted, 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. The applicant’s evidence was that he continued to work during the period from 1 April 2021 until receipt of the NOICC. The applicant maintained employment during the time he ceased to be enrolled in a registered course. Therefore, despite the claimed mental health issues caused by COVID-19 and his marital problems, the applicant was able to maintain employment. This has strongly invited the Tribunal to consider that the applicant did not take condition 8202 seriously as a Student visa holder.
Regarding the applicant’s claim that he 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 given Australia’s border restrictions at the time, there was uncertainty as to when the applicant would be able to return to Australia. This uncertainty does not negate the expectation that the applicant should have departed Australia until he had the financial capacity to support his study in Australia. The applicant told the Tribunal that he could not depart in Australia in 2021 due to airports being closed however he also did not depart in 2022 when he would have been aware that border restrictions had eased.
The representative submitted that the applicant’s youth contributed to his non-compliance. In the Tribunal’s view, if the applicant was old enough to be married, travel to and live and work in a foreign country and undertake study, he would have sufficient life experience to ensure compliance with his visa conditions.
The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The applicant’s enrolment was cancelled because he ceased to be enrolled in a registered course from 1 April 2021. The applicant did not attempt to enrol in a course in the remainder of 2021 or in 2022 until after he received the NOICC on 22 November 2022. He said he suffered from emotional problems during that time however no medical evidence was provided to substantiate the claim and as noted, he was able to maintain employment at Resthaven from October 2021 and throughout 2022.
The applicant and the representative referred to the applicant’s contribution to the aged care sector at a time when staff shortages existed. The Tribunal accepts this however the applicant did not contact the Department in 2021 or in 2022 to investigate other possible visa options more suitable to his circumstances which may have prevented non-compliance of his visa condition and allowed him to continue working in an industry that is short of essential staff.
While the Tribunal accepts there were some extenuating circumstances, cumulatively considered, it does not accept they were so severe or significant, cumulatively considered, to be beyond the applicant’s control. Furthermore the applicant was knowingly aware of the risk of breaching condition 8202 in April 2021 and that he had ample opportunity to avoid or mitigate this breach over of a period of 1 year 8 months before the visa was cancelled. Based on this overall finding, the Tribunal gives the evidence some but not considerable weight towards the visa not being cancelled.
Past and present behaviour of the visa holder towards the Department

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
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
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 he could also be subject to a three-year exclusion period unless he 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
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
In the representative’s written submissions it was stated that the applicant has not been deliberately malicious or tried to circumvent the migration system and on cancellation of his Student visa he sought to regularise his status and followed the correct procedure to obtain study rights. The Tribunal accepts this however the applicant conceded that he was aware that he was not complying with his visa conditions from 1 April 2021. He said he did not contact the Department because of his ‘headspace’ however as noted, the period of non-compliance was over a period of 1 year 8 months and he maintained employment during that period. Accordingly, the Tribunal does not give this any weight against cancellation.
The representative also referred to the applicant’s payment in January 2022 of his outstanding fees and said he knew he wanted to study in the future and took steps to pay his fees to keep his options open. The representative also referred to the applicant’s unsuccessful attempts to enrol in study for the 2023 academic year and successful enrolment for the 2024 academic year. These actions all occurred after receipt of the NOICC and the Tribunal does not give this any weight against cancellation.
The representative submitted that the Aged Care Industry is currently facing a critical skills shortage and referred to an Australian Bureau of Statistics report. The representative submitted since October 2021, the applicant has been employed by Resthaven and he provides valuable work in an industry in which there is a skills shortage and he is completing a degree that will allow him to upskill within the industry. The representative submitted that the applicant’s continued presence in Australia would result in his ability to contribute to the Australian community through his work and his ability to continue contributing in addressing the needs of the Australian labour market. The Tribunal accepts this may be the case but the issue before the Tribunal is cancellation of a visa and not rejection of a visa application. Accordingly, the Tribunal gives this limited weight against cancellation.
The representative submitted that the applicant has lived in Australia for 4 years and has not been convicted of any offences and is not a person of poor character. Whilst the Tribunal accepts that the applicant has no criminal convictions in Australia, the Tribunal gives this limited weight against cancellation.
Conclusion
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of his 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 his travel to and stay in Australia as he was not undertaking the study for which his 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 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.
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
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.

[2024] AATA 1085

3 May 2024

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