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

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).
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 22 November 2022 to give evidence and present arguments. The applicant was accompanied by a support person, Ms Leanne Milroy.
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 23 October 2018, 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dhawan (Migration)

Details

AGLC: Dhawan (Migration) [2022] AATA 4761
Case: [2022] AATA 4761
Decision Date: 12 December 2022

CaseChat Overview and Summary

This matter concerned an appeal by an applicant against the cancellation of their Subclass 500 (Student) visa. The applicant's visa was cancelled on the grounds that they had breached condition 8202 of the Migration Regulations 1994 by not being enrolled in a full-time registered course. The Provider Registration and International Students Management System (PRISMS) indicated a period of non-enrolment from 27 February 2019 until 4 November 2021.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202(2)(a) of their visa, which mandates enrolment in a full-time registered course. If a breach was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, notwithstanding that the ground for cancellation did not mandate it.

The Tribunal found that the applicant had indeed breached condition 8202(2)(a) as evidenced by the PRISMS records showing a significant period of non-enrolment. In considering the exercise of discretion, the Tribunal acknowledged the applicant's explanation for the non-enrolment, which included experiencing grief and mental health challenges following the death of his uncle, and difficulties in adjusting to life in Australia. However, despite these personal circumstances, the Tribunal concluded that, on balance, the visa should be cancelled. The Tribunal affirmed the decision to cancel the applicant's visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 23 October 2018, 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 the applicant 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 of study from cancellation of his enrolment on 27 February 2019 until he obtained a CoE on 4 November 2021. 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.

Decision

Reasons for decision

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 KannisMemberATTACHMENTMigration Regulations 1994…Schedule 88202(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.

Ratio Decidendi

Legal Principle Established

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