GC (Migration)

[2024] AATA 3339

GC (Migration) [2024] AATA 3339 (2 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Manila GC

CASE NUMBER:  2310771

HOME AFFAIRS REFERENCE(S):          BCC2022/4150309

MEMBER:Christine Kannis

DATE:2 September 2024

PLACE OF DECISION:  Perth

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

Statement made on 02 September 2024 at 2:02pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased enrolment – mental health issues – family bereavement – multiple course cancellations – limited academic progress – decision under review affirmed          

LEGISLATION

Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 116, 140, 189, 198, 359, 362
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

1. This is an application for review of a decision dated 11 July 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of her visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The Department’s records show that on 5 January 2023 the Character and Cancellation Branch contacted the applicant and requested she confirm her contact details. She did not respond to this request. On 5 January 2023, the Department also contacted the applicant’s education provider and requested her contact details. On 5 January 2023, the education provider responded and confirmed the applicant’s email address.

4. On 20 February  2023, the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC). The NOICC was sent to the applicant by email and by post. The applicant responded by email and requested an extension of time within which to respond to the NOICC, which was granted. On 3 March 2023, the applicant responded to the NOICC by email.

5. On 17 July 2024, the Tribunal sent the applicant an Invitation to attend a hearing on 2 September 2024 at 11.00 am (NSW time). The Invitation advised the applicant that if she was not able to attend the hearing he should advise the Tribunal as soon as possible. The invitation further advised:

   If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.

6. On 19 August 2024, the Tribunal sent the applicant an email advising as follows:

   I am writing in relation to an application for review by the Migration and Refugee Division of the AAT.

   On 17 July 2024 the Administrative Appeals Tribunal (AAT) sent you an invitation to attend a hearing on 2 September 2024. This invitation included a Hearing Response form for your completion, to be returned to us within 7 days. To date, we have not received the Hearing Response form or any accompanying submissions.

   The Tribunal requires that the Hearing Response form is submitted to us immediately.

7. The Invitation to attend a hearing and the emails dated 19 August 2024 and 26 August 2024 were sent to the applicant at her email address provided by her in her Application for review form. This email address is the same address as her education provider advised the Department on 5 January 2023 and is the same address used by the applicant when she responded to the NOICC.

8. The applicant failed to appear at the hearing and did not contact the Tribunal prior to the scheduled hearing to advise of an inability to attend. The applicant did not contact the Tribunal after the scheduled hearing time to advise the reason she did not attend the hearing.

9. The Tribunal is satisfied that the applicant has been given an opportunity to attend the hearing. In making this determination the Tribunal has placed weight on the Invitation to attend a hearing and the email dated 19 August 2024 sent to the applicant, both of which were sent to the email address provided by the applicant in the Application for review form. There is nothing before the Tribunal to indicate that the emails were not delivered. As noted, this address was the same email address provided to the Department by the education provider and was the email address from which the applicant responded to the NOICC.

10. 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.

11. The Tribunal makes a decision having had regard to all the information before it, including the information provided by the applicant to the Department. In these circumstances the Tribunal considers that the applicant was aware of the scheduled hearing and has had a fair opportunity to provide relevant information.

12. 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

13. 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?

14. On 19 September 2020, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.

15. 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).

16. 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.

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

18. 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.

19. The information from PRISMS shows that the applicant was not enrolled in a registered course from 3 December 2021.

20. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 3 December 2021 and the Tribunal finds that she breached condition8202(2)(a) of her visa.

21. 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

22. 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.

23. As noted, on 5 January 2023 the Department sent the applicant an email regarding verification of her contact details and on 20 February 2023 the Department issued her with a NOICC because she had ceased to be enrolled in a registered course from 3 December 2021 and had therefore failed to comply with condition 8202(2)(a) of her visa.

24. On 3 March 2023, the applicant responded to the NOICC and provided the following information:

    • She came to Australia to pursue an Advanced Diploma in Accounting and completed the course. She applied for further studies and was going well and a tragedy happened which affected her mental health severely and she couldn't submit assignments which led to cancellation of her CoE.
    • She has been depressed since childhood. Her parents used to fight all the time. When she was four months old her father while trying to hit her mother accidently hit her with a knife and she has a scar on her face. She grew up seeing her parents verbally and physically abusing each other. She was helpless, too young and scared to say anything or stop the fights. Her mother's drinking problem and father's anger issues got worse. They didn't care about her or her brother. After every fight her father would leave the house for days and her mother would drink and take out her frustration by throwing things at her or hitting her and wouldn't remember abusing her the next morning. Her mother kept saying sorry but never stopped. Her dad supported her but never did anything to stop her mother or the fights between them. She felt alone and depressed and it affected her studies. She became emotionally and mentally weak and started to fear meeting people and locked herself in the house. Her parents did not care about her wellbeing. Eventually, her relationship with her father improved but when she started to feel a little better he suddenly passed away on her 12th birthday. For a long time she did not accept his death and blamed herself for his death. She felt completely alone. Her mother’s drinking never stopped. She built a wall from her mother and brother and stayed in silence. She was too young to understand about depression and professional help. It took 3 years to live a normal life.
    • She completed middle school and joined high school. She met a guy, Sushant, in year 12. He was a talkative, good looking and social person. She was introverted and had only three friends and found it harder to communicate and make friends. Sushant wanted her to help him  with his studies for exams. She wanted to help him but he was always surrounded by his friends which made her feel anxious. She helped him with his studies and they started to like each other. He added meaning to her life and helped with her depression. She ignored him during final exams and after exams she couldn't see him. She feared going outside the house and had no phone or social media to contact him. Time passed and she graduated from high school and was confused about what and where she should study after high school.
    • Her mother wanted her to get married. She was 16 and very young to oppose her mother but she wasn't ready to marry Her mother and relatives chose a man for her. He was settled in the United States and was 9-10 years older. She told her mother she wanted to study but her mother wanted her to marry this man. She understood her mother wanted a secure future for her but she knew she would not be happy.
    • She contacted her uncle in Australia and told him her situation. He suggested she study in Australia and helped through the application process. She received her Student visa and was happy to be away from the toxic thoughts of her family but at the same time she was freaked out thinking whether would be able to survive with her anxiety and introverted behaviour.  
    • She came to Australia and was focusing on her studies and achieving high distinctions in her advanced diploma course. After a while Sushant contacted her and  they started talking and soon they were in a relationship. He introduced her to his family. His mother didn't like her. Two years passed and she completed her advanced diploma. She applied for a bachelor 's in accounting but after first semester realised she had no interest in accounting. She wanted to change and study nursing. She was late and couldn't get a seat till next year. She was pursuing a Bachelor in Community Services. Sushant wanted to get married. She loved him but was not ready for marriage. Sushant and his family started to force her to go to Nepal and marry. She wasn't able to go due to corona.  Soon after the relationship started to fall apart but still they were together. His family began to force him to end the relationship and marry someone else who could bring him to Australia. 
    • She was only 20 years old. She knew she wasn't ready but agreed to the marriage. She planned to go to Nepal around mid-January however on 11 November she received news that Sushant had passed away, She was very shocked. They had a conversation the night before and everything was fine. His friends told her the reason was accidental drug overdose. She had no idea about him taking drugs. The next day his sister called and blamed her for his death because she was the last person to speak to him over the phone. His family started to harass her and her family, abused her over social media and made her life hell. They accused her and kept harassing her for months. She was very depressed and suffered anxiety attacks, had suicidal thoughts and locked herself in a room for months. She slept 15-16 hours a day due to increased depressive symptoms. She stopped going to work or to study. She didn't know what she was doing with her life and felt no motivation for staying alive. She  turned off her phone for months. She locked herself in a hotel room for months where no one would come looking and was not in contact with anyone. She didn't realise 9  months passed and her CoE was cancelled. She didn't know where to go for help. She had no money as she had sent almost all the savings to Sushant for the marriage arrangements. His parents refused to give this money back and kept harassing her when she tried to contact them. She was too afraid to ask her mother and was scared and didn't know what to do. 
    • Sushant's death was a tragedy and her savings were gone and CoE cancellation frightened her. As she was recovering from depression she met a friend and shared everything about her past except the CoE cancellation. When she received the NOICC she shared this and her friend advised her to enrol in a course.
    • She is keen to complete her study as she always had interest in cooking and has now found a right course maintaining her visa AQF level. She has received a CoE for a Certificate IV in Kitchen Management and Diploma in Hospitality Management which will enhance her knowledge and move towards her dream of becoming a chef. She has one goal, to be chef and open a restaurant in her home country.
    • She needs support from the Department as she is a young girl with a purpose and wants to learn more to stand independently. She feels lucky she is in a country where mental freedom and equality is given to all. She regrets her mistakes doesn’t want to spoil her future due to these mistakes. She has achieved good grades during her academic years and wants to continue her studies.  
    • She has now completely healed and came to her senses and want to move ahead with her studies and life. She will not repeat the mistakes that happened in the past. 

25. As the applicant did not attend the hearing or provide written submissions prior to the hearing, the Tribunal has relied on the information contained in the Department’s file including the Decision Record and the applicant’s response to the NOICC.

26. The applicant’s PRISMS record shows she has completed one course, an Advanced Diploma of Accounting in 2020. PRISMS shows she had three courses cancelled prior to the NOICC, an Advanced Diploma of Accounting cancelled on 6 July 2018 due to Provider unable to deliver course, a Bachelor of Applied Finance and Accounting cancelled on 30 August 2021 due to Student Notifies Cessation of Studies and a Bachelor of Community Services cancelled on 3 December 2021 due to Unsatisfactory course progress;

27. PRISMS shows the applicant was enrolled in three courses after the Department contacted her on 5 January 2023, all of which were cancelled on 19 June 2023. The courses were a Certificate IV in Kitchen Management, a Diploma of Hospitality Management  and a Graduate Diploma of Management (Learning).

28. Relevant to the decision under review is the applicant’s enrolment in the Bachelor of Community Services which cancelled on 3 December 2021 due to Unsatisfactory course progress.

29. Given the applicant’s failure to attend the hearing, the Tribunal was not able to put her PRISMS record to her for her comment or response under s 359AA of the Act.  Accordingly, the Tribunal places no weight on the applicant’s PRISMS record save for the enrolment in a Bachelor of Community Services which cancelled on 3 December 2021 due to Unsatisfactory course progress. This enrolment was discussed in the NOICC and in the delegate’s decision and the Tribunal considers that the applicant has been given an opportunity to respond to this enrolment cancellation and has not disagreed with the information.

30. 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

31. The purpose of the applicant’s visa was to enable her to study. The delegate referred to the applicant obtaining a new CoE dated 3 March 2023. This means that the applicant was not enrolled in a course of study for a period of  1 year 3 months prior to the issuing of the NOICC. 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.

32. 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]  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. In her response to the NOICC she said she is a young girl with a purpose and wants to learn more to stand independently. She said she wants to continue her studies. The Tribunal does not consider this to be a compelling reason to remain in Australia.

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

33. The applicant’s non-engagement in the study for which her visa was granted for an extended period of 1 year 3  months, 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

34. 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 from 3 December 2021 to 3 March 2023. There is no evidence before the Tribunal that she has not complied with the other conditions attached to her visa. The requirement to maintain enrolment is a fundamental condition for the grant of a Student (Subclass 500) visa. There is no evidence before the Tribunal that he has not complied with the other conditions attached to his visa.

1. The applicant’s non-compliance for a period of 1 year 3 months from cancellation of her enrolment until the issuing of the NOICC weighs in favour of visa cancellation.

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

2. 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. In her response to the NOICC the applicant said she regrets her mistakes, she doesn’t want to spoil her future due to these mistakes and she wants to continue her studies. The Tribunal accepts that cancellation of her visa is likely to be disappointing for the applicant.

3. 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

4. The applicant’s visa was cancelled as a result of her failure to maintain enrolment. The applicant was not enrolled in a course for 1 year 3 months prior to the issuing of the NOICC.

5. In her response to the NOICC the applicant referred to her difficult childhood due to her parents’ marriage which she claimed included verbal and physical abuse and excessive alcohol use. She referred to her father’s death on her 12^th birthday, a relationship with Sushant in high school and her family’s wish for her marry after high school. The applicant also referred to being depressed and introverted during these years. When the applicant came to Australia her relationship with Sushant was rekindled and she was pressured by him and his family to return to Nepal to marry him. However approximately 2 months prior to her return to Nepal, Sushant died of a drug overdose. The year this occurred was not stated in the NOICC response however, based on er cessation of study on 3 December 2021, it appears this occurred in November 2021.

6. In her NOICC response the applicant said Sushant’s  family blamed her and harassed her after his death. She said she was very depressed and suffered anxiety attacks, had suicidal thoughts and locked herself in a room for months. She said she slept 15-16 hours a day due to increased depressive symptoms and stopped going to work or to study. The applicant did not provide any medical evidence to support her claim that her mental health issues prevented her from enrolling for an extended period of 1 year 3 months.  

7. In her NOICC response the applicant said she didn't realise 9  months passed and her CoE was cancelled. She said didn't know where to go for help. In the Tribunal’s view it is the responsibility of a visa holder to be aware of the conditions of their visa, to notify the Department of changes in their circumstances that affect their visa and remain compliant with visa conditions.

8. There is no medical evidence before the Tribunal regarding the applicant’s mental health including a diagnosis or treatment undertaken at any time including all of the year 2022. In the absence of such evidence the Tribunal finds the applicant’s non-compliance with the visa condition was not due to circumstances beyond her control and there are no extenuating or compassionate circumstances and this weighs in favour of visa cancellation.

   Past and present behaviour of the visa holder towards the Department

9. 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

10. 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

11. 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

12. 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

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

    Conclusion

14. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of her visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant was not fulfilling the purpose of her travel to and stay in Australia as she was not undertaking the study for which her visa was granted. The Tribunal has found that 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.

15. 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

16. 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.