Ghale (Migration)

[2024] AATA 2200

Ghale  (Migration) [2024] AATA 2200 (5 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Roshni Ghale

REPRESENTATIVE:  Ms Indah Melindasri (MARN: 0961448)

CASE NUMBER:  2302766

HOME AFFAIRS REFERENCE(S):          BCC2022/4245122

MEMBER:Christine Kannis

DATE:5 April 2024

PLACE OF DECISION:  Perth

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

Statement made on 05 April 2024 at 7:49am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant had not been enrolled in a registered course of study– breached condition 8202 – applicant’s enrolment had been cancelled due to non-payment of fees by the due date – applicant was not enrolled in a course of study for a period of 14 months prior to the issuing of the NOICC – the breach did not occur in circumstances beyond the applicant’s control – decision under review affirmed  

LEGISLATION
Migration Act 1958, ss 101, 359

Migration Regulations 1994 (Cth), Schedule 8

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 17 February 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. 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 18 March 2024 to give evidence and present arguments.

5. The applicant was represented in relation to the review.

6. 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

7. 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?

8. On 9 November 2019, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.

9. 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).

10. 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.

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

12. 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.

13. The information from PRISMS shows that the applicant was not enrolled in a registered course from 23 November 2021.

14. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 23 November 2021 and the Tribunal finds that she breached condition8202(2)(a) of her visa.

15. 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

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

17. On 23 January 2023, the Department’s Character and Cancellation Branch sent the applicant an email regarding verification of her contact details and she responded on 24 January 2023.

18. On 1 February 2023, 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 from 23 November 2021 and had therefore failed to comply with condition 8202(2)(a) of her visa.

19. The applicant did not respond to the NOICC.

    Evidence provided prior to the hearing

20. On the morning of the hearing the applicant’s representative provided documentation which included but was not limited to statutory declarations, financial evidence and a written submission.

21. An undated statutory declaration made by the applicant in which the following relevant information was provided:

    ·She came to Australia to study a Bachelor of Science. She has been interested in health and medical science since she was a child.

    ·The education system in Nepal is behind Australia in terms of providing practical training.

    ·When she decided to study overseas her parents promised to sponsor her until she finished.

    ·She enjoyed her study until an emergency occurred in her family. During her first semester in 2021, her grandmother passed away in Nepal. She asked Curtin Connect for withdrawal or a deferral for the semester and also for the next semester in order to attend her grandmother's funeral rituals. At the same time, she was not in a great place mentally since she came to Australia when COVID-19 hit the world and as an underage student, she was alone in her Curtin accommodation without friends for almost a year in 2020 which made her feel isolated and homesick. Due to this condition, she was scared and wanted to take this opportunity to reunite with her family in Nepal and come back to study once everything was fine.

    ·She went to Curtin Connect to talk with Curtin International around the end of May 2021 and beginning of June 2021 regarding her plan to withdraw for the semester and deferral for next semester. She talked with a lady who said her withdrawal process for that semester and deferral process had been approved. The lady did not give proof or even any information and said everything should have been in her OASIS (Online Access to Student Information Services) Curtin so she (the lady) could get all the information from that if she needs. She also asked the lady whether she had to pay the tuition fees and the lady said she did not need to do anything as it had already been withdrawn but she would not be getting the amount back she had already paid for some of units for the semester.  “My bad, I don’t have any evidence of this”. She left Curtin Connect office and did not check her OASIS portal.

    ·As an international student during the pandemic she faced a heartbreaking situation when she couldn’t travel to her grandmother's funeral. As an eldest and closest grandchild who was brought up by her grandparents, the thought of not being able to say goodbye weighed heavily in her heart. However because of the uncertainty of when she would be able to return home and the limited time to hold the funeral rituals, she made the difficult decision to stay and attended the rituals virtually

    ·A month passed and she received notification of CoE cancellation on 6 October 2021 through her personal email instead of OASIS. The cancellation reason was due to non-payment of fees. She went to Curtin Connect on 13 October 2021 to clarify the reason for the cancellation due to non-payment of fees was different from what the lady talked with her about around the end of May 2021. She was given a reinstatement deadline of 19 October 2021 for Semester 2 however she could not make it and comply with the immigration requests to provide a new CoE within 28 days since the emails regarding her CoE cancellation were sent to her OASIS account and she could not access the account as her CoE has been cancelled. She did not have any clue about the reinstatement deadline.

    ·She went back to university and through a couple of agents during that time and asked if she could apply for courses again. She did not get much help but tried applying as well and sent through some personal statements she prepared for courses. She asked one agent to help her apply for a new course but they told her to apply for pathway course and study in a college for 2 years and transfer to university for the 3rd year of Bachelor but they asked her to go for Business study while she still wanted to continue study in Health Care. Going around all these places and going through the process for a year did not really help her in any way.

    ·When she received the NOICC she was shocked and did not respond to the grounds of cancellation. She had no idea what she could do when her student visa was cancelled. She sought advice from a migration agent.

    ·During her time studying at Curtin she paid the fees on time. However, due to a miscommunication with Curtin, her immigration matters have been more complex.

    ·It has been devastating for her parents to know her student visa was cancelled. Her parents work very hard to provide her with a comfortable environment where she does not have to worry about anything except her studies. She is also a role model for her younger sister to study hard overseas.    

    ·Once she completes her study she would like to return to Nepal and dedicate her skills and abilities in the field of community health service.

    ·She is confident her father is able to afford her living costs during her further studies and stay in Australia

22. Email dated 6 October 2021 from Student Services – Student Fees advising that the applicant’s enrolment had been cancelled due to non-payment of fees by the due date. The email advised the applicant she was now in breach of her visa conditions and that it is her responsibility to seek advice from the Department of Home Affairs regarding the impact on her student visa. The email advised that if she wished to continue with her studies, she must apply for reinstatement.

23. Text message screenshot dated 13 October 2021 advising that the receiver was in the Curtin International queue.  

24. Undated document described as an Affidavit but referred to as a declaration (qualification of witness not indicated) made by the applicant’s father, Mr San Bahadur Ghale, in which he declared he is willing to sponsor the applicant in her studies in Australia.

25. An undated statutory made by the applicant’s friend, Khanh Linh Li, in which Ms Li describes meeting the applicant in 2019 and the applicant’s support of her when she was experiencing homesickness despite the applicant’s own feelings of longing for home. She said the applicant put aside her own needs to prioritize hers, showing her the true meaning of friendship and selflessness.

26. The representative’s written submission provided information which was not materially different from the evidence provided by the applicant in her statutory declaration.

    Evidence provided at hearing

27. The Tribunal adopted the procedure in s 359AA of the Act to put to the applicant information from a copy of her 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 her PRISMS enrolment record,  she was enrolled in the following courses of study:

    a.She was enrolled in an English Language Bridging course which she finished on 7 February 2020; and

    b.She was enrolled in a Bachelor of Science (Health Science) course  which was cancelled on 23 November 2021 due to Non-payment of fees.

28. The Tribunal explained to the applicant that this information was relevant because it indicates that from 23 November 2021 she did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether she breached the conditions of her student visa by not maintaining enrolment in a registered course of study. The Tribunal explained that the information may also be relevant in considering the discretion to cancel the student visa, including in considering her purpose for remaining in Australia.

29. 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 she had any comments in relation to her PRISMS enrolment records.

30. The applicant told the Tribunal that she disagrees with the PRISMS record which showed the reason for cancellation of the Bachelor of Science (Health Science) was due to non-payment of fees. She referred to the maters raised in her statutory declaration (above) and said she was advised that she did not need to pay fees for the second semester in 2021 as a deferral had been approved.  In response to the Tribunal asking whether she appealed the reason for cancellation of the CoE, the applicant she did not because she did not realise she could appeal. The Tribunal notes that there is no evidence of the applicant’s discussion with the lady in late May 2021/early June 2021 about her withdrawal from the current semester and deferral of the second semester. In her statutory declaration the applicant said: “My bad, I don’t have any evidence of this”. In the absence of any persuasive evidence to the contrary, the Tribunal accepts the PRISMS record of cancellation of the Bachelor of Science (Health Science) due to non-payment of fees is correct.

31. The applicant told the Tribunal that after she was told of her grandmother’s death she requested the withdrawal of the current semester and the deferral of the next semester and tried to find a flight to travel to Nepal. She said she could not find a flight and decided to attend the rituals virtually. In response to the Tribunal asking when she knew she would not be travelling to Nepal, the applicant said at the end of June 2021. The Tribunal asked the applicant whether, given she had decided to stay in Australia, she considered study in the second semester in 2021. In response the applicant said when she discussed the withdrawal and deferral with the lady in late May/early June 2021, she was told the deferral had been processed and so she could take “time off” in the next semester. She said during the second half of 2021 she also helped her friend (Ms Li ) with her study and her homesickness.

32. The Tribunal asked the applicant about the email dated 6 October 2021, which she claimed she was not able to read until 13 October 2021 when she contacted Curtin Connect. The email advised that her CoE had been cancelled and she was in breach of her visa conditions and that it is her responsibility to seek advice from the Department of Home Affairs regarding the impact on her student visa. The email advised that if she wished to continue with her studies she must apply for reinstatement. In response to the Tribunal asking whether she contacted the Department, the applicant said she did not read that section of the email. She said she asked Curtin International what she could do and they advised her to find a migration agent. She said at the end of 2021 she talked with a migration agent located in Northbridge who advised her to apply for an offer later. The Tribunal asked the applicant whether “later” meant 2022, to which to she replied that it did.

33. The applicant told the Tribunal that at the end of 2021/start of 2022 she was advised by a migration agent to apply for courses in 2022 in the finance and business field however she said she wanted to study in health care. She said the migration agent told her to take what they were suggesting or not take it and no alternatives were discussed.

34. The applicant told the Tribunal that she went to Curtin International in 2022 and asked if there was anything she could do and she was advised to apply for enrolment online herself. She said this was a bit tough because she did not receive any response from Curtin to her emails. In response to the Tribunal asking whether she talked to Curtin about the lack of response the applicant said she discussed this at the start of 2022 and was told it was difficult to enrol her because she failed to pay her fees in 2021. She said she explained that this was due to a misunderstanding.

35. In the response to the Tribunal asking what she did during the remainder of 2022, the applicant said she tried to talk to Curtin but received no response to her emails. She said she talked to a migration agent in Northbridge and to Curtin International but they could not help her.

36. The Tribunal asked the applicant the reason she did not respond to the NOICC. She said she changed phones during February 2023 and by the time she recovered her emails, the 5 day deadline had passed. The Tribunal noted that she responded to the Department’s email dated 23 January 2023 on the following day. The Tribunal pointed out that the NOICC advised that an extension of time could be requested however she said she relied on a migration agent and was not advised that an extension could be requested.

37. The Tribunal put to the applicant that she would have known from 23 November 2021 that she was no longer enrolled in a course and was not abiding by the conditions of her visa. She conceded she was aware and said she tried to enrol at Curtin and other universities but was unable to do so because they saw her previous enrolment had been cancelled for non-payment of fees. She said in 2022 she discussed her circumstances with a migration agent but they said they could not help her.

38. In response to the Tribunal asking whether she notified the Department of the change in circumstances when her enrolment was cancelled, the applicant  said she talked to migration agents and because she was young she accepted their advice that she had to find a new enrolment, which she tried to do but did not receive any responses.

39. The Tribunal noted that the applicant has been on a Bridging visa E since 18 May 2023 and asked her how she has spent her time in Australia since then. She said it has taken her since 18 May 2023 to gather her documents for this review, which as noted, were provided on the morning of the hearing. 

1. When asked about the purpose of her travel to Australia, the applicant told the Tribunal that she came to Australia to obtain a higher education qualification in the health sector. She said Australian education includes practical learning whereas in Nepal education is theoretical. In response to the Tribunal asking whether she has a compelling need to remain in Australia, the applicant said the main reason she came to Australia was to study and she wants to complete her study.

2. When asked about the hardship that may be caused by cancellation of the visa, the applicant said if she does not obtain a higher education qualification in the health sector, she will be devastated and her parents will also be devastated. She said her father has financially supported her stay in Australia and has the capacity to pay her living and study expenses for the duration of her intended study in Australia. She said her father gives her an allowance to pay her rent, groceries and living expenses. She is currently living with her boyfriend.

3. The representative made the following oral submissions:

   ·The applicant was only 19 years old when she came to Australia.

   ·When the applicant came to see her she was stressed by her grandmother’s death and about feeling excluded in her student accommodation which she shared with 5 others.

   ·The applicant did not receive proper guidance to get a CoE in 2021 and in 2022.

   ·The applicant’s father is able to support her financially.

   ·Cancellation of the applicant’s visa would add stress to the applicant’s family.

   ·It is difficult to get the level of education offered in Australia in Nepal.

   ·The applicant’s lack of enrolment was unintentional and she tired to enrol but she was young.

4. 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

5. The purpose of the applicant’s visa was to enable her to study. The applicant was not enrolled in a course of study for a period of 14 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.

6. The Tribunal questioned the applicant as to whether there was a compelling need for her to remain in Australia. In response, she said wanted to finish her study in Australia because that is the main reason she is here. The Tribunal does not consider this constitutes a compelling need.

7. 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

8. 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 23 November 2021. There is no evidence before the Tribunal that she has not complied with the other conditions attached to her visa.

9. The applicant’s non-compliance for a period of 14 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)

10. The Tribunal accepts that the cancellation of the applicant’s visa will be disappointing to her and to her family. 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

11. The applicant’s visa was cancelled as a result of her failure to maintain enrolment. The applicant was not enrolled in a course for 14 months prior to the issuing of the NOICC. She told the Tribunal that this was due to her inability to enrol because her CoE had previously been cancelled for non-payment of fees. She said this cancellation reason was due to a misunderstanding between her and Curtin Connect. No evidence of any communication with Curtin Connect in late May/early June 2021 was provided. No evidence that the applicant approached Curtin Connect in October 2021 after her CoE was cancelled to dispute the reason for cancellation was provided.

12. No evidence of the applicant’s claimed attempts to enrol and/or email Curtin and other universities in 2022 was provided. In the absence of any evidence to substantiate any of her claims, the Tribunal does not accept that the applicant attempted to enrol in any courses on an ongoing basis in 2022.

13. The applicant did not notify the Department when she was no longer enrolled in a course from 23 November 2021. She did not notify the Department during the whole of 2022. The applicant claimed the failure was unintentional as she placed trust in a migration agent. The Tribunal considers it was the applicant’s responsibility to ensure she understood the conditions attached to her visa and to ensure that she complied with those conditions. In addition, the Tribunal notes that there is no evidence before it to substantiate the applicant’s claims that she relied on the advice of a migration agent.

14. The Tribunal accepts the applicant’s evidence at hearing that she supported her friend in her study and personal issues in 2021. This is consistent with the evidence in Ms Li’s statutory declaration. There is no suggestion that the support the applicant provided precluded her from enrolling in 2021 and 2022. In her statutory declaration the applicant said when she received the news about her grandmother’s death she was not in a great place mentally since she came to Australia as an underage student when COVID-19 occurred. The applicant did not raise any mental health issues with the Tribunal during the hearing and there was no evidence provided to demonstrate that the applicant experienced any mental health problems in 2021.

15. The representative submitted that the applicant’s youth and lack of guidance in Australia contributed to her non-compliance with her visa conditions. In the Tribunal’s view, if the applicant was old enough to travel to and live in a foreign country and undertake study, she would have sufficient life experience to ensure compliance with her visa conditions . 

16. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The applicant’s enrolment was cancelled because she ceased to be enrolled in a registered course from 23 November 2021. There was no evidence before the Tribunal to substantiate the applicant’s claim that she attempted to enrol in any course after she received the CoE cancellation in 2021 or in 2022. 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

17. 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

18. 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

19. 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

20. 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

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

    Conclusion

22. 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.

23. 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

24. 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.