Dang (Migration)

[2022] AATA 3789

Dang (Migration) [2022] AATA 3789 (21 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Vo Hong Dao Dang

CASE NUMBER:  2119174

HOME AFFAIRS REFERENCE(S):          BCC2020/2463082

MEMBER:Christine Kannis

DATE:21 September 2022

PLACE OF DECISION:  Perth

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

Statement made on 21 September 2022 at 7:49am

CATCHWORDS
MIGRATION – cancellation – Student Temporary (Class TU) visa – Subclass 500 (Student) not enrolled in full-time registered course – discretion to cancel visa – study difficulty and temporary loss of part-time job because of COVID – physical and mental health and treatment – multiple cancellations of enrolment for non-payment or non-commencement – new enrolments made before and after receiving department’s notice – no appearance at hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 362B
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

CASE
Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 December 2021 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. On 18 August 2022, the Tribunal sent the applicant an Invitation to Attend a Hearing letter (by email) which advised that a hearing had been listed for 20 September 2022 at 1.30 pm (SA time) . The Invitation informed the applicant that if she was unable to attend the hearing then she should advise the Tribunal as soon as possible. The Invitation advised that if she did not attend the hearing a decision may be made on the review without taking any further action to allow or enable her to appear before the Tribunal or that her application for review may be dismissed without any further consideration on the application and based on the information before the Tribunal. The Invitation also requested the applicant provide all documents on which she intended to rely to support her case by 13 September 2022.

5. On 25 August 2022, the applicant provided a Response to the hearing invitation in which she indicated that she would not participate in the hearing and consented to the Tribunal making a decision without taking further steps to allow her to appear. She also indicated that she had a health problem that would affect her ability to participate in a hearing and that she would have difficulty participating in a hearing due to “experiencing medical difficulty”. Therefore, on 26 August 2022 the Tribunal sent the applicant the following request:

   I refer to your correspondence of 26 August 2022 attaching the Hearing Response form. On the form you have advised that there is a medical condition that may impact on your ability to attend the hearing. Can you please provide the Tribunal with further information in relation to this?

6. In response, on 7 September 2022, the applicant advised the following by email:

   I am writing in relation to your request on providing the evidence of my current medical condition. Due to my current depression situation, it took me a while to prepare myself to be ready to see doctor and get the documents. Sorry for the delay. Please see the attached my evidence of an appointment with doctor and the doctor verification on my medical condition as well as the given prescription and information about the next booked appointment with the doctor. Please kindly contact me if you have any concerns.

7. On 7 September 2022, the applicant also provided a letter dated 7 September 2022 from Sunshine Health Medical Clinic which stated that the applicant had an appointment on 20 September 2022 to review her condition of depression. Two prescriptions dated 7 September 2022 were also provided.

8. On 12 September 2022, the Tribunal wrote to the applicant reminding her provide to all documents on which she intended to rely to by 13 September 2022.

9. In response, on 12 September 2022, the applicant advised by email:

   As clearly noted on my response to hearing invitation sent to you last time, I cannot attend the hearing on 20/9/2022 as invited because of current health problem, which I also provided the documents as evidence for my current health state on the previous email. As a result, I do not think it is relevant for me to answer whether I need an interpreter at the hearing on 20/9/2022 because I cannot attend anyway. Please kindly check through my previous emails and please allow me to have my hearing deferred to another day and time.

10. On 12 September 2022 the Tribunal sent the applicant the following:

    I am writing in relation to an application for review by the Migration and Refugee Division of the AAT.
    I refer to your correspondence of today's date requesting a postponement of the hearing scheduled for 20 September 2022.
    Your request was referred to the presiding Member for consideration. The Member has advised that the request to reschedule the hearing is refused.
    The Member also advises that medical evidence in support of a request to postpone the hearing must certify that you are unable to attend a two hour video hearing on 20 September 2022 and the reason for being unable to participate in a hearing must be clearly explained. The appointment with a general practitioner on 20 September 2022 is not sufficient reason for an inability to attend the hearing.

11. The applicant did not respond to the letter dated 12 September 2022 and did not provide any further documents by 13 September 2022.

12. On 13 September 2022 the Tribunal sent the applicant a SMS hearing reminder to the phone number provided in a Change of Contact Details form provided on 26 August 2022.. 

13. On 19 September 2022 the Tribunal sent the applicant a SMS hearing reminder to the phone number provided. 

14. On 20 September 2022, the Tribunal attempted to contact the applicant on the phone number provided at 1.30 pm (SA time) and on four subsequent occasions over a 15-minute period. Each attempted call went to message bank.

15. The applicant failed to appear at the hearing and did not provide the requested medical  information supporting an inability to attend to the hearing.

16. The Tribunal is satisfied that the applicant has been given an opportunity to attend the hearing. The Tribunal proceeds to make a decision in this case without taking any further action to allow or enable the applicant to appear before it as it is empowered to do under s.362B of the Act.

17. 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

18. 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?

19. 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).

20. 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.

21. In the present case, the applicant’s visa was cancelled on the basis that she was not enrolled in a full time registered course from 14 August 2020.

22. 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, 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.

23. The delegate decided that PRISMS showed that the applicant has not been enrolled in a registered course of study since 14 August 2020.

24. The Tribunal noted that PRISMS indicates that the applicant was enrolled in courses until 22 March 2021.

25. On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course from 22 March 2021 and the Tribunal finds that she breached condition8202(2)(a) of her visa.

26. 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

27. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below.

28. On 23 November 2021 the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because she had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of her visa. 

    Response to NOICC

29. On 6 December 2021, the applicant responded to the NOICC and provided the following information in a Letter of Explanation:

    ·She studied diligently until August 2020 when her course was in the final stage and required more in-depth research. She was overwhelmed by the number of assignments, presentations, reports. Also, there had been the appearance of the coronavirus which frightened the world.

    ·She temporarily lost her part-time job due to the epidemic which made her worried because she needed a job to make a living in order to support her studies in Australia.

    ·She felt under a lot of pressure and stress and became isolated from everyone. She knew she had a psychological problem and could not focus her mind to study well.

    ·She tried to continue to study by applying for courses, but her mental health had become worse. After holding on for a while, she could not take it anymore and at the beginning of this year she had decided to take her life. That was the main reason why her last CoE was cancelled on 22 March 2021.

    ·After not being able to reach her for some time, a friend convinced her to meet with professionals. Because mental health is considered taboo in her country, she did not think about this option at first. During this gap period, she went through many consultations with therapists and doctors to receive advices and treatment for depression. She met clinical psychologist, Ms Crystal Bozar,  however, she found counselling was not suitable for her as she felt uncomfortable talking about her problems to others. As a result, her health  did not improve at the time. Then she went to see a Vietnamese doctor, Dr Ngoc Tho Nguyen.  She felt easier to share her condition and decided to follow the treatment with Dr Nguyen who prescribed Aerius 5mg, Prednisolone 25mg, etc. to boost sleep quality, stabilise mood swings, regulate menstrual cycle as well as increase resistance to treat anxiety disorders and mental insecurity.

    ·During her treatment with Dr Nguyen, she realised she had a painful rash and felt sluggish, fatigue and exhausted all of the time. In May 2021 she underwent a blood test, allergy test and other health checks and was diagnosed with hepatitis B.

    ·On 2 December 2021 she went to another psychological consultation and is trying to get back on her feet. Her mental state has improved so much. Therefore, she decided to return to her studies as soon as possible and registered in a package course in Business Administration and Leadership beginning from Certificate III to Advanced Diploma at Australian Ideal College (AIC). On 10 November 2021 she received Letter of Offer from the college.  

    ·On 23 November 2021, the Department sent her the NOICC and she was requested to give explanation for her study gap. She planned return to study before getting the letter.

    ·Her health condition has now improved. She thinks people like her deserve a second chance to prove themselves, because of all the effort she has made.

30. At the time of providing the Letter of Explanation the applicant also provided four CoEs, all of which had been created on 6 December 2021, following receipt of the NOICC. A Letter of Offer from Australian Ideal College dated 10 November 2021 was also provided. The Tribunal notes that a Letter of Offer is not evidence of enrolment. Medical evidence which included copies of prescriptions, test results, an invoice dated 24 November 2021 and a receipt dated 24 November 2021 were provided.  The prescriptions were dated in March 2021 and included medication for birth control, skin conditions, allergies and cold and flu symptoms. A referral letter dated 2 December 2021 from Dr Ngoc-Tho Nguyen was provided which stated that the applicant had been having anxiety and depression and was taking medication but still feeling unwell.

31. As noted, on 7 September 2022 the applicant provided a letter dated 7 September 2022 from Sunshine Health Medical Clinic which stated that the applicant that an appointment on 20 September 2022 to review her condition of depression and two prescriptions, dated 7 September 2022, for depression and contraception medication.

32. The applicant’s PRISMS record shows:

    a.She was enrolled in a Real World General English 4 Skills course but this enrolment was cancelled 17 December 2019 for non-payment of fees.

    b.She was enrolled in a Certificate IV in Marketing and Communication, but this enrolment was cancelled in 2020 due to non-payment of fees and unsatisfactory course progress.

    c.She was enrolled in and completed a Real World English for Academics course from 20 January 2020 to 24 April 2020 and an ILETS Preparation course from 11 May 2020 to 14 August 2020, both of which she finished.

    d.She was enrolled in a Diploma of Marketing and Communication, but this enrolment was cancelled on 8 May 2020 due to non-commencement of studies.

    e.She was enrolled in an Advanced Diploma of Marketing and Communication, but this enrolment was cancelled on 8 May 2020 due to non-commencement of studies.

    f.She was enrolled in a Certificate IV in Marketing and Communication, but this enrolment was cancelled on 22 March 2021 due to non-payment of fees.

    g.She was enrolled in a Diploma of Marketing and Communication, but this enrolment was cancelled on 22 March 2021 due to non-commencement of studies.

    h.She was enrolled in an Advanced Diploma of Marketing and Communication, but this enrolment was cancelled on 22 March 2021 due to non-commencement of studies.

    i.She was enrolled in a Certificate III in Business Administration and she finished this course on 29 May 2022.

    j.She was enrolled in a Certificate IV in Business, but this enrolment was cancelled on 7 June 2022 due to non-commencement of studies.

    k.She was enrolled in a Diploma of Leadership and Management, but this enrolment was cancelled on 7 June 2022 due to non-commencement of studies.

    l.She was enrolled in an Advanced Diploma of Leadership and Management, but this enrolment was cancelled on 7 June 2022 due to non-commencement of studies.

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 applicant was granted a Student Visa to study in Australia. At the time the NOICC was issued the applicant had only finished a Real World English for Academics course and an ILETS course in 2020. At that time she had not been enrolled in a registered course for more than seven  months. The Tribunal accepts that the applicant has finished a Certificate III in Business Administration course however this was undertaken after receiving the NOICC. PRISMS indicates that the applicant is not currently enrolled in a course.

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

36. Given the applicant’s failure to appear at the hearing, the Tribunal was unable to ask her whether there was a compelling need for her to remain in Australia.  

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

    The extent of compliance with visa conditions

38. The applicant has not complied with condition 8202 of her Student visa because she has failed to maintain enrolment in a full-time registered course of study. There is no evidence before the Tribunal that she has not complied with the other conditions attached to her visa.

39. The applicant’s non-compliance for an extended period of more than seven months prior to the NOICC weighs in favour of visa cancellation.

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

40. Given the applicant’s failure to appear at the hearing, the Tribunal was unable to ask her whether hardship may be caused by the cancellation of her visa.  However her Letter of Explanation says she thinks people like her deserve a second chance to prove themselves and the Tribunal accepts that cancellation will likely be disappointing to the applicant. The Tribunal gives this some weight against cancellation.

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

41. The applicant’s visa was cancelled as a result of her failure to maintain enrolment. In her Letter of Explanation the applicant said she ceased study because of the pressure of her study and because of psychological problems she was experiencing. The Tribunal accepts the medical evidence provided and accepts that the applicant sought and received medical treatment however notes that the mental health medical evidence is dated 24 November 2021 and 2 December 2021, after the NOICC was issued.

1. The Tribunal notes that there is no indication in PRISMS that the applicant sought deferment of her study for compassionate or compelling reasons at any time.

2. Given the absence of medical evidence to substantiate the claim that the applicant’s mental health problems precluded her from study from 22 March 2021 until the NOICC was issued, the Tribunal  finds that the breach did not occur in circumstances beyond the applicant’s control. The Tribunal finds there are no extenuating or compassionate circumstances in this case and this weighs in favour of visa cancellation.

   Past and present behaviour of the visa holder towards the department

3. Nothing adverse is known about the applicant’s past and present conduct towards the Department.  The Tribunal gives this some weight in the applicant’s favour.

   Whether there would be consequential cancellations under s.140

4. 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

5. 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

6. 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

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

   Conclusion

8. 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 is not fulfilling the purpose of her travel to and stay in Australia as she is not undertaking the study for which the 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.

9. 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

10. 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.