Dhawan (Migration)

[2022] AATA 4761

Dhawan (Migration) [2022] AATA 4761 (12 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Karan Dhawan

CASE NUMBER:  2119387

HOME AFFAIRS REFERENCE(S):          BCC2020/766024

MEMBER:Christine Kannis

DATE:12 December 2022

PLACE OF DECISION:  Perth

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

Statement made on 12 December 2022 at 12:12pm

CATCHWORDS  
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – Provider Registration and International Students Management System (PRISMS) – consideration of discretion – purpose of visa – length of non-enrolment – circumstances giving rise to non-compliance – ADHD – grief over uncle’s death – decision under review affirmed 

LEGISLATION 
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

CASES 
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 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.

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 on 22 November 2022 to give evidence and present arguments. The applicant was accompanied by a support person, Ms Leanne Milroy.

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 23 October 2018, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.

8. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

   ·be enrolled in a full-time registered course: 8202(2)(a)

   ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

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

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

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

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

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

12. The information from PRISMS shows that the applicant was not enrolled in a registered course of study from cancellation of his enrolment on 27 February 2019 until he obtained a CoE on 4 November 2021. 

13. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 27 February 2019 until 4 November 2021 and the Tribunal finds that he breached condition8202(2)(a) of his visa.

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

    Consideration of the discretion to cancel the visa

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

16. On 3 November 2021, 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 and was therefore failing to comply with condition 8202(2)(a) of his visa.

    Response to NOICC

17. On 8 and 18 November 2021, the applicant responded to the NOICC. His response included the following relevant information:

    ·After a few good months of study in Australia, he was happy. In 2019 everything changed when he heard the sad news that his uncle was sick, He was very close to the uncle. His uncle passed away and he his shock manifested as nervousness around all activities during his stay in Australia.  For a long time, he felt detached from his feelings. His  emotions appeared to be bottled up and were difficult to release. He felt alone and helpless.

    ·During a call from his brother, he mentioned that he needed him  One of his friends took over and was trying necessary travel arrangements and spoke to his family in India due to some reasons he could not travel.  

    ·He found himself avoiding friends and other associates. The pain would come and go and he often cried. He faced a lot of problems in his life emotionally and mentally. He had to consult doctors as there was always a war taking place in his mind with regular episodes of stress and fear and added on episodes of: difficulties in meeting new people, feelings of alienation, poor physical health and frailty, feelings of isolation, nervousness, lack of motivation, flashbacks of the traumatic event through intrusive memories or nightmares, feeling emotionally numb, feeling anxious and ‘jumpy’ for no reason and avoiding reminders of the event because they bring back painful memories. These 10 types episodes appear to be an extract from a professional publication however no reference was indicated. 

    ·Everyone reacts differently to death and employs personal coping mechanisms for grief. Research shows that most people can recover from loss on their own through the passage of time if they have social support and healthy habits.

    ·Six strategies to overcome adversity including channelling energies into positive action, moving on with life and get enough sleep were listed. These strategies appear to be an extract from a professional publication however no reference was indicated. 

    ·Nearly 300,000 international students are enrolled at Australian universities, making up 24.3 % of the total. Students from overseas may find it difficult adjusting to some aspects of Australian life. Whether social, academic or emotional, there are various issues that may affect an international student but that doesn’t mean there aren’t ways to overcome these problems. No reference for the basis of this information was provided.

    ·In 2016, international bachelor students failed 15% of all the subjects they attempted, compared to a 14% fail rate for domestic students.  Although international students overall fail a larger share of the subjects, they take than domestic students, this is at least partly because they mostly take IT, engineering or commerce courses. These fields have above-average fail rates for domestic students too, suggesting they are difficult or admission requirement issues affect both international and domestic students. In recent years international and domestic bachelor-degree IT commencing students have failed subjects at similar rates. In each case, more than 20% of all subjects were failed. Although fail rates are trending down, both student groups have strikingly high fail rates. No reference for the basis of this information was provided.

    ·Student mental health is a topic of increasing concern as burnout rates and depression have been on the rise. He has discovered that he has lower resiliency which means a mind-set and skill set which allows him to work through and overcome adversity is slower generally seen quite normal being an average human being. Stigma has prevented students like him from seeking mental health services when needed, which further complicates ability to be proactive in preventing these health issues. Therefore, Improvement in the reactivity to inner experience, a more attentive perception of internal and external experiences, and greater attention and awareness of actions and attitudes at every moment in university studies was no longer in his control.

    ·After the episodes of hardship and misery, he was less satisfied with the content and learning outcomes of the university course. Limitations increased as he tried to improve his studies, mine interpersonal reactivity and tolerance for ambiguity of course outcome due to study intervals and lower progress alleviated levels of self-accusations around him as he was unable to accomplish. It forced him to opt for lighter studies with nearest possible relevant outcome compared to previous studies.

    ·Opting for new course was not ever a laidback choice, as it was hard to adapt a transformation but one thing, he comprehended that, he tried his best energies to complete a Graduate Diploma. He understood that committing million-time mistakes will lead him nowhere, instead he would moderately focus on something which is flatboat in studies and benefits him to increase his goals.

    ·He had worked hard while deciding variation in his course, against his fear of failure by developing following the following habits - Analyzing Potential Outcomes,  Think Positively and Worst case scenario.

    ·He does not have many options with course and colleges and cautiously he has selected the best course which suits his plans. He could have chosen cookery or Automotive or carpentry which many students happily take because these courses are below their current academic standard and he has seen they achieved a lot of stability in life and have good jobs. He still enrolled himself in a very competitive course as compared to the other courses for which he may have opted. He is presently seeking a place in a Graduate Diploma of Management (Learning) course.  

    ·His parents have high hopes for him and any adverse outcome will leave him in an awkward situation. He will struggle in supporting his dream of having his own business and it will be the biggest disappointment of his life. His family morale will be down as they cannot face his small community.

    ·He intends to study and he respects the Australian immigration and education system.

    ·He assures Australian authorities that he will leave and return to his country at the completion of his desired course.

18. At the time of responding to the NOICC the applicant provided a CoE for a Graduate Diploma of Management (Learning), created on 4 November 2021, the day after the NOICC was issued.

    Evidence at hearing

19. 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.During the period from January 2015 to August 2018 he finished 5 courses and 5 courses were cancelled due to Change to CoE/Student details or non-commencement of studies.

    b.He was enrolled in an Advanced Diploma of Leadership and Management, but this enrolment was cancelled on 17 August 2017 due to non-commencement of studies.

    c.He was enrolled in an Advanced Diploma of Business, but this enrolment was cancelled on 7 September 2018 due to non-commencement of studies.

    d.He was enrolled in an Advanced Diploma of Business, but this enrolment was cancelled on 27 February 2019 due to Student Notifies Cessation of Studies.

    e.He was enrolled in a Bachelor of Business, but this enrolment was cancelled on 27 February 2019 due to Student Notifies Cessation of Studies.

    f.He was enrolled in a Graduate Diploma of Management (Learning), but this enrolment has been cancelled.

    g.He was enrolled in a Certificate III in Carpentry but this enrolment was cancelled on 25 May 2022 due to non-commencement of studies.

20. The Tribunal explained to the applicant that this information was relevant because it indicates that from 27 February 2019 until 4 November 2021, he did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether the applicant breached the conditions of his student visa by not maintaining enrolment in a registered course of study. The Tribunal also 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.

21. 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. The applicant told the Tribunal that he did not dispute the PRISMS records.

22. When asked the reasons for not maintaining enrolment during the period from 27 February 2019, the applicant told the Tribunal that his uncle passed away in January 2019 however he was not told of his uncle’s death until his parents visited him in March 2019 and told him in person. He said he was close to his uncle and it was his uncle who motivated him to study. He said his uncle’s death distracted him and he was unable to study. The Tribunal pointed out that his enrolment was cancelled prior to when he was told about his uncle’s death in March 2019 and asked him the reason. He said he was also distracted and unable to concentrate on his study because he suffers from attention deficit hyperactivity disorder (ADHD). He said he was diagnosed with the condition earlier this year. The Tribunal noted that it had not received any medical evidence to verify that the applicant suffers from ADHD. In response, the applicant said that he has only seen his psychiatrist once because it is difficult to get an appointment. In response to the Tribunal asking him about his treatment for the condition, the applicant said,  “it is still going on” and he has to have other health checks such as an electrocardiogram before he is prescribed treatment.

23. In relation to the grief he experienced due to his uncle’s death, the Tribunal asked the applicant whether he sought a deferment of studies on compassionate grounds. He said he was not aware that he could request a deferment. 

24. The Tribunal asked the applicant whether he sought any professional assistance such as counselling to manage his grief. He said he did not but gave no reason for not doing so.

25. The Tribunal put to the applicant that he would have known that from 27 February 2019  he was no longer enrolled in a course and was not abiding by the conditions of his visa. This non-enrolment period extended over a period of 2 years 8 months.  He conceded that he was aware that he was in breach of his visa conditions but said he did not focus on that because of his grief and ADHD. 

26. The applicant told the Tribunal that another reason he did not maintain enrolment was because he was misled by friends who told him he did not need to study and by migration agents who suggested he do courses he was not interested in doing.

27. The Tribunal asked the applicant what he did during the 2 years 8 months from the cancellation of his enrolment until receipt of the NOICC. He told the Tribunal that he sat home and was depressed. The Tribunal asked the applicant how he financially supported himself during that period. He said he worked as a night filler at IGA and his parents helped him also.

28. The applicant told the Tribunal that he is currently in a partner relationship. He said he met his partner in October 2020 and they commenced cohabitation in January 2021.

29. The applicant told the Tribunal that he came to Australia to study business so that he could use the knowledge gained to help his father with his business in India.  The Tribunal asked the applicant whether there was a compelling need for him to remain in Australia. In response, he said he wants to stay to finish his study and because his partner of 2 years is here and his 2 cats are here.

30. When asked about any hardship that might be caused by cancellation of his visa, the applicant told the Tribunal that if he returns to India without a business qualification his family will be in shock and will be disappointed. He also said his partner will be homeless because they support each other and she would not be able to support herself alone. He said she is in receipt of a partial disability support pension and also earns income from employment. He said her parents and sister live here.

31. In response to the Tribunal asking what further study he wishes to undertake in Australia, the applicant said he wants to study business. He said he wants to marry his partner and settle here. He said he will visit his father and help him in his business.

32. 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

33. The purpose of his visa was to enable the applicant to study. The applicant was not enrolled in a registered course of study from 27 February 2019 until 4 November 2021.

34. He is not currently enrolled in study due to cancellation of his visa. He obtained two CoEs   after the NOICC was issued however those enrolments were subsequently cancelled.

35. 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 for a period of 2 years 8 months and was not fulfilling the purpose of his travel to and stay in Australia.

36. The Tribunal questioned the applicant as to whether there was a compelling need for him to remain in Australia. In response, he said he wants to study and referred to his partner and 2 cats being in Australia.  

1. The applicant’s non-engagement in the study for which his visa was granted weighs in favour of visa cancellation. The Tribunal gives the applicant’s some weight against cancellation to the applicant’s compelling reason in relation to his partner of 2 years.

   The extent of compliance with visa conditions

2. 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 from 27 February 2019 until after the NOICC was issued. There is no evidence before the Tribunal that he has not complied with the other conditions attached to his visa.

3. The applicant’s non-compliance for an extended period of 2 years 8 months 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 of the applicant’s visa will be disappointing to him and to his family  because he wishes to obtain a business qualification. The Tribunal gives this some weight against cancellation.

5. The Tribunal does not give weight to the contended hardship that the applicant’s partner will be homeless if his visa is cancelled. No evidence was provided to substantiate this contention.

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

6. The applicant’s visa was cancelled as a result of his failure to maintain enrolment for a period of 2 years 8 months. The applicant said this failure was due being distracted and unable to concentrate because of the grief he experienced over his uncles’ death and because he suffers from ADHD. He also claimed to have been misled by friends and migration agents.

7. No evidence including medical was provided to substantiate the impact of the applicant’s grief over the extended period of 2 years 8 months. No medical evidence was provided to substantiate the diagnosis of ADHD or the impact the condition on the applicant over the extended period of 2 years 8 months. The Tribunal notes that during the extended period the applicant was able to continue working and commenced a partner relationship which indicates that he was able to function and concentrate in some areas of life.

8. In relation to his claim that he was misled by others, the Tribunal is of the view that it is the visa holder’s responsibility to be aware of their visa conditions and to ensure that they comply with the conditions.

9. Given the absence of evidence to substantiate the applicant’s claimed reasons for the breach of condition 8202, the Tribunal does not accept that the claimed circumstances were beyond the applicant’s control.

10. 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

11. 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

12. 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

13. 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 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

14. 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

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

    Conclusion

16. 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 during a 2 year 8 month period. 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.

17. 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

18. 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.