Goro (Migration)

Goro (Migration) [2024] AATA 3396 (4 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Rebecca Goro
CASE NUMBER:  2314233
HOME AFFAIRS REFERENCE(S):          BCC2023/2237748
MEMBER:T. Quinn
DATE:4 September 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 04 September 2024 at 7:34pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-compliance with condition of visa – not enrolled in registered full-time course – cessation of studies and non-payment of fees – attempt to enrol in different course, no further study, and ongoing work – no evidence of mental health provided – new relationship and effect of cancellation on possible application for partner visa – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 338(2), 347
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(1)(a)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant was granted a Subclass 500 (Student) visa (‘the visa’) on 12 January 2022 on the basis of an enrolment in a Bachelor of Project Management with course dates from January 2022-December 2023. The applicant’s enrolment was cancelled in February 2022 for cessation of studies and she re-enrolled in a second Bachelor of Project management with course dates from May 2022-April 2024. The applicant’s enrolment in this course was cancelled in July 2022 for non-payment of fees.
The expiry date of the applicant’s student visa was 15 March 2024, providing for more than two years during which the applicant would be permitted to reside in Australia for the purposes of full-time study.[1]
[1] See delegate’s decision.
On 6 September 2023, a delegate of the Minister for Home Affairs (‘the delegate’) cancelled the applicant’s visa the basis that the applicant had failed to comply with a condition of their visa.[2] In this case, the applicant breached subclause 2(a) of condition 8202 of her visa in that she failed to maintain enrolment in a full-time registered course.[3] The applicant did not comply with this condition of her visa from 8 July 2022 until her visa was cancelled on 6 September 2023.[4]
[2]under section 116(1)(b) of the Migration Act 1958 (‘the Act’).
[3] As required by condition 8202(2)(a) of the Migration Regulations 1994 (‘the Regulations’).
[4]See delegate’s decision.
On 15 September 2023, the applicant applied to this Tribunal for a review of the delegate’s decision to cancel the visa.[5]
[5]Pursuant to sections 338(2) and 347 of the Act. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.
The applicant appeared before the Tribunal via video hearing on 3 September 2024 to give evidence and present arguments. The applicant’s partner Ethan James Latham, also attended the hearing of 3 September 2024 to give evidence.
The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also considered its objective to provide a mechanism of review that is fair, just, economical and quick and the delay that would occur if the hearing were not be conducted by video in exercising its discretion.
It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.
I have regarded all the information before me, including the Department and Tribunal files, and all information and evidence provided by the applicant to the Tribunal in concluding that the decision to cancel the applicant’s visa should be affirmed. My reasons follow.
STATUTORY FRAMEWORK
The issue in this case is whether the applicant, as the holder of a student visa, has breached condition 8202 of the Regulations. If so, the ground for cancellation is made out and the issue then becomes whether the visa should be cancelled pursuant to section 116(1) of the Act.
Under section 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in subsection 116(1)(b) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
CONSIDERATION OF CLAIMS AND EVIDENCE
Does the ground for cancellation exist?
A visa may be cancelled under section 116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 of the Regulations attached to the applicant’s visa. This condition requires that the applicant:
a.be enrolled in a registered course, or in limited cases, a full-time course of study or training and that the registered course be undertaken at the required AQF level: 8202(1) and (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
c.has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
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 of study or training.
The applicant was enrolled in a Bachelor of Project Management. The applicant’s enrolment was cancelled in February 2022 for cessation of studies and she re-enrolled in a second Bachelor of Project management with course dates from May 2022-April 2024. The applicant’s enrolment in that course was cancelled on 8 July 2022 for non-payment of fees and the applicant was not enrolled in a full-time registered course of study from that date until her visa was cancelled in September 2023.
At no stage has the applicant contested the fact that she was not enrolled for this period. Therefore, there are grounds for cancellation.
For these reasons, I am satisfied that the ground for cancellation in section 116(1)(b) of the Act exists. As that ground does not require mandatory cancellation under section 116(3) of the Act, I must proceed to consider whether the visa should be cancelled.
Timeline of study and enrolment history
The applicant was granted a student visa on 12 January 2022 on the basis of an enrolment in a Bachelor of Project Management with course dates from January 2022-December 2023. The applicant arrived in Australia on this visa in or around January 2022. However, the applicant’s enrolment was cancelled in February 2022 for cessation of studies and she re-enrolled in a second Bachelor of Project Management with course dates from May 2022-April 2024. The applicant’s enrolment in this course was cancelled on 8 July 2022 for non-payment of fees.
The applicant has remained unenrolled since this time.
In July 2022 the applicant returned to her home country.
On 21 July 2023, the applicant was sent a notice of intention to consider cancellation (‘NOICC’). The applicant did not respond to the NOICC.
The applicant gave evidence at hearing that her parents encouraged her to return to Australia to keep trying to study and she did that in March 2023. She gave evidence at hearing that she attempted to enrol in a course in the disability sector without success. She has remained onshore and has been working onshore from September 2023-present.
The applicant gave evidence that she does not presently have study rights on the bridging visa she has held since her visa was cancelled in September 2023.
There is no evidence before me that the applicant has completed any units or certificates in any area of study in Australia.
Consideration of 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. I have 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’.
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
I refer to and repeat paragraphs 16-22 above.
The applicant gave evidence at hearing that she started four units in her Bachelor of Project Management but did not complete them. She gave evidence that she was trying to adapt to a new environment and although she can read and understand English, she found it difficult to talk or start a conversation and found the things necessary to study such as working on a computer very difficult.
I asked why the applicant did not defer her course or change courses and she gave evidence that she was too shy to talk to people and she does not talk a lot, especially in English and it was hard for her to start a conversation or ask for help. She gave evidence that she knew she was onshore on a student visa. She gave evidence that she knew she was breaching her student visa by not studying. She gave evidence that she withdrew from her course and went back to her home country in July 2022, but her family was disappointed with her, so she returned to Australia in March 2023 and tried to switch her course to the disability field without success and then her visa was cancelled.
When I asked why the applicant had not responded to the NOICC she gave evidence that she did not know what to say.
The applicant claims that she is a genuine de facto relationship with Mr Latham, and they wish to make a partner visa application. She gave evidence that her agent is trying to get her the right to work full time onshore so she can save for the application fee. She later gave evidence that she does still wish to study in the disability field onshore.
The applicant and Mr Latham both gave evidence at hearing about the nature of their relationship. Some documents have also been filed in this regard. The couple met through work, the relationship commenced in November 2023 and the couple commenced living together in the bungalow of the house which Mr Latham’s parents live in shortly thereafter. They gave evidence that they have a joint account from which they pay rent/board to Mr Latham’s parents.
The applicant was able to answer questions about Mr Latham’s brothers and parents and his work. Mr Latham had the level of knowledge of the applicant one would expect of a partner of 10 months, being a relatively short relationship to date.
The applicant gave evidence that she did not work in Australia at all until after her visa was cancelled in September 2023. She gave evidence that her parents were supporting her financially onshore.
I empathise with the applicant in relation to the aforementioned challenges she faced. However, language and cultural barriers are to be expected when an individual elects to study in a different country. The vast majority of student visa holders are forced to contend with such difficulties during their stay in Australia. They are all burdened in a similar way in that they have to deal with adapting to a new cultural and language environment while away from their families in their home country. At the same time, they are obviously burdened with having to maintain their studies in Australia in order to comply with the strict visa conditions attaching to student visas. Many such students are young adults, just like the applicant. There is no psychological evidence, beyond the evidence of the applicant herself, that provides an adequate account of her mental state during her time of breaching her student visa. I am therefore unable to form any view as to whether the applicant was suffering any clinically diagnosable mental health condition that put her suffering to an extent that it may have been a cause of her remaining unenrolled for a period of six months onshore.
The applicant seemed to be of the understanding that if her student visa is cancelled, she cannot apply for a partner visa onshore and/or that she is prohibited from making a partner visa for three (3) years. The provisions requiring visa applicants to go offshore to make a further visa application (section 48 of the Act) do not apply to partner visas. The provisions that impose a three-year prohibition on further visa applications (PIC4013) do not apply to partner visa applications. The applicant will have a higher burden in making a partner application onshore in circumstances where she has not held a substantive visa in the 30 days prior to the time of application but it is not impossible, and she is not bound by any three-year restraint on a partner visa application.
I understand that a visa cancellation can be disappointing for visa holders and their families, but I do not consider this constitutes a compelling need to remain in Australia.
I understand that a visa cancellation will make a partner visa application more difficult and possibly more expensive in relation to the Schedule 3 waiver provisions. I also understand that a visa cancellation of a non-resident will impact Mr Latham who is an Australian citizen. However, I do not consider this constitutes a compelling need for the applicant to remain in Australia, particularly given the infancy of her relationship with Mr Latham and the fact that they are not engaged or married, do not have children and are not expecting children.
I have considered all the evidence before me and do not consider the applicant has a compelling need to remain in Australia. I place equal weight in favour of and against cancelling the applicant’s visa in this regard.
Circumstances in which ground of cancellation arose
I refer to and repeat paragraphs 24-35 above.
I accept that the applicant found the culture shock and language barriers difficult. I also acknowledge that she did return to her home country for nearly eight months after withdrawing from her course.
I empathise with the applicant in relation to the challenges she found onshore. However, she returned to Australia in March 2023 and remained unenrolled until her visa cancellation in September 2023, she did not respond to the NOICC, and her visa was necessarily cancelled. This is not the conduct one would expect of a genuine student who takes their responsibilities in residing onshore on the basis of a student visa seriously.
I do not consider the circumstances in which the ground of cancellation arose were out of the applicant’s control. I acknowledge the applicant’s parent’s reaction to her return to her home country was out of her control but her response to this reaction was within her control. I consider that if an applicant is not in a position to comply with the conditions of their visa, it is their responsibility to take appropriate action to avoid breach of same. It is the responsibility of a visa holder to ensure they are complying with the conditions of their visa.
I place some weight in favour of cancelling the applicant’s visa in this regard.
Extent of compliance with visa conditions
The applicant has otherwise complied with student visa conditions. However, there is no evidence before me that the applicant many any meaningful academic progress from the time her student visa was granted in January 2022. This is not what one expects of a genuine student who has been onshore on the basis of a student visa. Further, the applicant’s breach of the condition of the visa is not insignificant, being six months. I consider the six month breach a not insignificant breach and give some weight in favour of cancelling the applicant’s visa in this regard.
The degree of hardship that may be caused to the visa holder and any family members
The applicant gave evidence at hearing that she does not want to return to her home country, she cannot find work there and the circumstances would be very difficult, and it would be financially very difficult for her relationship. She also gave evidence that she wants to work more in Australia to save for her partner visa application and to engage in further study in the disability field.
The applicant and Mr Latham both gave evidence about how challenging it would be if the applicant was forced to depart Australia, emotionally and financially.
I empathise with the applicant and Mr Latham. However, the provisions requiring visa applicants to go offshore to make a further visa application (section 48 of the Act) do not apply to partner visas. The provisions that impose a three-year prohibition on further visa applications (PIC4013) do not apply to partner visa applications. The applicant will have a higher burden in making a partner application onshore in circumstances where she has not held a substantive visa in the 30 days prior to the time of application but it is not impossible, and she is not bound by any three-year restraint on a partner visa application.
I understand that a visa cancellation will make a partner visa application more difficult and possibly more expensive in relation to the Schedule 3 waiver provisions. I also understand that a visa cancellation of a non-resident will impact Mr Latham who is an Australian citizen. However, I do not consider this hardship warrants a reversal of the decision to cancel the applicant’s visa given: the circumstances of the applicant’s breach of her student visa as set out above; the infancy of the relationship with Mr Latham; the fact that the couple are not engaged or married, do not have children and are not expecting children.
I accept that the cancellation of a visa is disappointing and that a significant amount of money may be invested in a person in order to set them up in a country to live independently in order to study.
I recognise that the hardship is felt by family members and partners who may also feel let down and disappointed.
I am, however, mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition of that visa. Whilst appreciating the hardship the applicant, Mr Latham and the applicant’s family in Papua New Guinea may face regarding a cancelled visa, it does not outweigh the breach.
The visa holder’s past and present behaviour towards the Department
There is nothing before the Tribunal to indicate any other adverse conduct by the applicant to the Department. I give some weight against cancelling the applicant’s visa in this regard.
Whether there are persons in Australia whose visas would, or may, be cancelled under section 140 of the Act
This is not relevant to the applicant.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, 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
If the visa is cancelled, this will result in the following:
a.the applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act if she does not make a further visa application within the requisite time periods;
b.the applicant will have limited options to apply for further visas in Australia;
c.the applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed. The applicant could therefore be subject to a three (3) year exclusion period where they will not be eligible to have any temporary visa application approved if they apply for a visa that requires Public Interest Requirement 4013 to be met.
I give little weight to this consideration in favour of the applicant because:
·these are the intended consequences of the legislation when a visa is cancelled under these grounds;
·it reflects the seriousness with which the Department takes this type of cancellation ground;
·the applicant will be eligible to apply for a bridging visa while they make arrangements to depart Australia and therefore the likelihood of detention is only in the event that they do not co-operate in applying for a bridging visa.
Australia’s international obligations

There is nothing before the Tribunal to suggest that the cancellation of the visa would breach any international obligations. I place no weight on this in favour of or against the applicant.
CONCLUSION
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 Subclass 500 (Student) visa.
T. Quinn
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.

[2024] AATA 3396

4 September 2024

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Immigration

Administrative Law

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Judicial Review

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