Imtiaz (Migration)

[2022] AATA 4914

Imtiaz (Migration) [2022] AATA 4914 (6 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Laviza Imtiaz

CASE NUMBER:  2202689

HOME AFFAIRS REFERENCE(S):          BCC2020/2003620 PNJ

MEMBER:Christine Kannis

DATE:6 December 2022

PLACE OF DECISION:  Perth

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

Statement made on 06 December 2022 at 8:47am

CATCHWORDS
MIGRATION – cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa –– breached condition 8202 – applicant was not enrolled in a full-time registered course – she continued to work – mental health – no compelling need for her to remain in Australia – breach did not occur in circumstances beyond the applicant’s control – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (ESOS Act), s 19
Migration Act 1958, ss 101, 103, 116, 359, 376
Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 February 2022 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 by MS Teams Video on 14 November 2022 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.

   Did the applicant comply with Condition 8202?

7. 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).

8. 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.

9. 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.

10. 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.

11. The information from PRISMS shows that the applicant has not been enrolled in a registered course of study since 1 July 2019.

12. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 1 July 2019 and the Tribunal finds that she breached condition8202(2)(a) of her visa.

13. 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

14. 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.

15. On 25 January 2022, 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 and was therefore failing to comply with condition 8202(2)(a) of her visa.

    Response to NOICC

16. On 10 February 2022, the applicant responded to the NOICC and provided the following information:

    • She had explained her circumstances and some unfortunate events she faced in the past 2 years, which distracted her from her daily routine life along with supporting documents. 

17. At the time of responding to the NOICC the applicant provided a Statement of Purpose in which she said:

    About my earlier academics I have done year 12 in science subjects after which I intended to continue my further studies in Australia. Initially I came to Australia with a start to my career from foundation studies at RMIT University City campus in February 2018. As I was almost done with my foundation program before the commencement of my last trimester I visited back home in Pakistan in January 2019.

    During the stay, something very unfortunate happened which completely shattered me into pieces. I was forced into marriage with my cousin, for which I was not willing at all. Though it’s not fair, but it’s a very common practice in Pakistan that parents decide their self instead of asking the concern of children. So, I was completely helpless, as I was not asked about what I want at any point. My passport was also hidden by parents, who told me we won’t give you your passport and you have to marry! After a month of the marriage, while living with my abusive partner I got into physical and domestic violence and threats of getting killed if I ever entered into my country. This reason is mentioned on my divorced papers. I somehow managed to get my hands on my passport and rushed backed to Australia right away without letting anyone know. Once I was back in February 2019, I was completely broken and depressed because of what had happened to me. I was helpless living alone dealing depression and anxiety alone was the toughness part of life. I took some session for therapy from RMIT counselling (Bourke Street). She helped me Little with that. but the trauma was so worst I can’t cope with. I got back to my studies and completed my foundation program. During the whole time I lodged my divorce. Soon after a while I decided to send divorce to my husband, which was totally a big issues back at my home which  was unacceptable for everyone in my family which got into a lot pressure  because it was a completely meaningless and a forced relationship, dealing physical violence and getting threats of being killed and because I stood for myself against the injustice done by parents and divorced against their will, they disowned me for years my family didn’t talk to me which made a great impact on me morally. I visited RMIT councillors and a psychologist in this regard for my counselling and mental peace as I was completely lost in life because of what had happened to me. It took me a while to get myself into a firm place again in life, now I have realised I have to be strong and be an independent strong woman myself.

    After so much trauma we got into corona virus (2020) situation and circumstances got even more which impact my life further not doing any work and I have to pay my rents and food was struggling period for me. You know how hard it was for everyone it gives tough times which affected people mental health. Somehow somewhere It impacted me miserably I left my house because I can’t be able to pay rent. During that time, I didn’t take regular therapy sessions as I can’t be able to afford.  It was tough time because it was hard for me to seek help from my parents as they were not in contact. Day by day time gets tougher which impact me mentally, I got injury in 2021 on my arm as I upload my image which was really bad and trauma become more severe because I was unable to do anything. I have all the documents as a proof to upload. I would like help regarding my circumstances.

    Now I have applied for several institutes in my relevant field, hopefully till next week I will be enrolled in my studies too. Because now after all this trauma and bad times, I feel like finally I have moved past all of it. And now I am in a better shape to carry myself forward in all aspects of life. I have tried to get a hold of the proof of visits to RMIT counsellor, but because of covid campus is closed and I can’t get through to them on phone. But I’m still trying as soon as I get them will upload those as well.

    If we summarise, last 2 years were the toughest and most difficult time of my life. My final intention now is to complete my bachelor degree and retune back to my home hoping things get better in future . I faced so many unfortunate and uncalled for circumstances. Which completely took me off path. But it is a fact, that time is the best healer. Yes, it took time to digest everything and move past it but now I feel that I am back on my pace. So, I request for a chance to be given to me, so that I can live my life back as normal people.

18. At the time of responding to the NOICC, the applicant also provided:

    ·A Medical Certificate dated 16 October 2018, certifying the applicant is suffering from a  medical condition and is unable to attend school from 16 October 2018 to 17 October 2018.

    ·A Medical Certificate dated 31 October 2018, certifying the applicant is suffering from a  medical condition and is unable to attend school from 21 October 2018 to 1  November 2018.

    ·A Medical Certificate dated 21 November 2018, certifying the applicant is suffering from a  medical condition and is unable to attend her usual occupation from 21 November 2018 to 21 November 2018.

    ·Marriage Registration Certificate showing the applicant was married on 4 January 2019 in Lahore.

    ·A Medical Certificate dated 20 May 2019, certifying the applicant is suffering from a  medical condition and is unable to attend school from 20 May 2019 to 20 May 2019.

    ·Documents evidencing the dissolution of marriage on 16 October 2019. The proceedings were instituted on 13 July 2019. The decision refers to the applicant being beaten by the husband.

    ·A Medical Certificate dated 2 January 2020, certifying the applicant is suffering from a  medical condition and is unable to attend her usual occupation from 2 January 2020 to 7 January 2020.

    ·A Medical Certificate dated 21 November 2020, certifying the applicant is suffering from a  medical condition (bruises on right shoulder) and is unable to attend her usual occupation from 21 November 2020 to 23 November 2020.

    ·Transport Accident Compensation Certificate of Capacity dated 8 May 2021 which states that the applicant suffered burns to her left forearm and right forearm pain and swelling. The treatment was indicated to be cream, rest and painkillers. The injury was indicated to have been suffered on 7 May 2021 and certification for time off work from 8 May 2021 to 22 May 2021 was made. In the Capacity Assessment section of the document, the impact of the injury was indicated to be in relation to physical function and in relation to her mental health function ‘Not Affected’ was indicated. The document was signed by Dr Shafia Bhatti.

    ·A Medical Certificate dated 2 June 2021, certifying the applicant is suffering from a  medical condition and is unable to attend her usual occupation from 2 June 2021 to 9 June 2021.

    ·Transport Accident Compensation Certificate of Capacity dated 4 August 2021 which states that the applicant suffered burns to her left forearm and right forearm pain and swelling. The treatment was indicated to be cream, rest and painkillers. The injury was indicated to have been suffered on 7 May 2021 and certification for time off work from 20 July 2021 to 18 August 2021 was made. In the Capacity Assessment section of the document, the impact of the injury was indicated to be in relation to physical function and in relation to her mental health function ‘Not Affected’ was indicated. The document was signed by Dr Jasmine Ghaemi.

    ·A letter dated 17 September 2021, from Dr Jasmine Ghaemi, which stated that the applicant attended on 7 May 2021 due to an injury at work when she suffered burns to her arm from spitting oil. The burns were treated with cream and gel. Her employer did not allow her to leave work and this made her upset and affected her mental health. She was referred to psychological treatment under the mental health act. The injury affected her physically and mentally and she was under treatment from her general practitioner (Dr Ghaemi) and a psychologist.

    ·A Mental Health Care Plan which was indicated to be dated 4 August 2022 completed by Dr Jasmine Ghaemi. The Problem/Diagnosis was indicated to be stress after burn-related work injury and ASD. The Initial Action Plan was indicated to be cognitive Behaviour Therapy and Relaxation strategies.  

    ·Two Photographs showing what appeared to be an injured arm.

    Pre-hearing evidence

19. Prior to the hearing the applicant provided:

    ·A Medical Certificate dated 21 December 2021, certifying the applicant is suffering from a medical condition and is unable to attend her usual occupation from 21 December 2021 to 23 December 2021.

    ·A Medical Certificate dated 8 March 2022, certifying the applicant was in isolation due to Covid19 infection from 24 December 2021 to 2 January 2022.

    ·A letter dated 7 November 2022 from “New View Psychology Admin”, certifying that the applicant attended an appointment on 7 November 2022.

    Evidence at hearing

20. 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 a Bachelor of Science (Food, Technology and Nutrition) course but this enrolment was cancelled on  28 November 2017 due to Change to CoE/Student details.

    b.She was enrolled in Foundation Studies: Science, Engineering and Health course but this enrolment was cancelled on 13 December 2018 due to unsatisfactory attendance and on 1 February 2019 due to Change to course in the same sector, gap created at either start or end of course OR the study period of the new CoE shorter than the original.

    c.She was enrolled in a Bachelor of Science (Food, Technology and Nutrition) course  but this enrolment was cancelled on 9 January 2019 due to Non-commencement of studies.

    d.She was enrolled in Foundation Studies: Science, Engineering and Health course but this enrolment was cancelled on 16 May 2019 due to unsatisfactory attendance and Change to  course in the same sector, gap created at either start or end of course OR the study period of the new CoE shorter than the original.

    e.She was enrolled in Foundation Studies: Science, Engineering and Health course which she completed on 30 June 2019.

21. The Tribunal explained to the applicant that this information was relevant because it indicates that from 1 July 2019, 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 also 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.

22. 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. The applicant did not take issue with the information from the PRISMS record.

23. The applicant told the Tribunal the reason she ceased to be enrolled from 1 July 2019 was because she was suffering mental trauma resulting from her abusive marriage. She confirmed that she lived with her husband for one month before returning to Australia on 2 February 2019. She said when she returned to Australia, her father stopped providing financial assistance. She said her husband told her that if she returns to Pakistan, she will be dead.

24. The Tribunal asked the applicant about the Medical Certificates she had provided. She said she obtained the Medical Certificates dated 16 October 2018, 31 October 2018  and 21 November 2018 because at that time she was living with her uncle and aunt and her relationship with them was not going well. She said they expected her to study and work.  The applicant said she obtained the Medical Certificate dated 20 May 2019 because she was unable to attend school or work on 20 May 2019 as she felt down and experiencing mental trauma due to her abusive marriage. The applicant said she thinks she obtained the Medical Certificate dated 2 January 2020 because she needed psychological help due to the mental trauma from her abusive marriage. The Tribunal noted that the Medical Certificate dated 2 January 2020 certified her unable to attend her usual occupation and did not refer to an inability to attend school.  The applicant said she thinks she obtained the Medical Certificate dated 21 November 2020 because she had an injured nerve.  The Tribunal noted that the Medical Certificate dated 21 November 2020 certified her unable to attend her usual occupation and did not refer to an inability to attend school. The applicant said she thinks she obtained the Medical Certificates dated 2 June 2021 and 21 December 2021 because she suffered a burn injury at work on 7 May 2021 and when she looked at the burn on her arm she was reminded of the abuse she suffered during her marriage. She said the burn was treated with cream and counselling sessions.

25. The Tribunal noted that the evidence provided in relation to the applicant receiving psychological assistance was limited to a letter from “New View Psychology Admin” certifying that the applicant attended an appointment on 7 November 2022. The applicant told the Tribunal that she attended counselling at RMIT however she was unable to obtain the reports. The Tribunal pointed put that in her response to the NOICC she said she had been unable to obtain the reports  because of covid campus is closed and I can’t get through to them on phone. But I’m still trying as soon as I get them will upload those as well. At the hearing the applicant told the Tribunal that RMIT told her that some of her reports are missing and that the doctor she attended had left. No reports have been provided to the Tribunal.

1. The Tribunal notes that the letter dated 17 September 2021, from Dr Jasmine Ghaemi, said the applicant was referred to psychological treatment under the mental health act. She said the burn injury affected her physically and mentally and she was under treatment from her general practitioner (Dr Ghaemi) and a psychologist. No evidence of psychological assistance in 2021 or in 2022 prior to 7 November 2022 was provided.

2. The Tribunal noted that the applicant provided a Mental Health Care Plan which was indicated to be dated 4 August 2022. She said she did not obtain an appointment with New View Psychology until 31 October 2022 because she waited to see a doctor who was from Pakistan. She said she has had two appointments with New View Psychology, on 31 October 2022 and 7 November 2022. 

3. The Tribunal noted that the Transport Accident Compensation Certificates of Capacity indicated that the applicant’s injury did not affect her mental health function. However, after Dr Jasmine Ghaemi signed a Certificate on 4 August 2021, she stated in a letter dated 17 September 2021, that the injury affected the applicant physically and mentally.

4. Noting that it was the applicant’s contention that she experienced mental trauma in 2019, 2020 and 2021 due to her abusive marriage and work related burn, the Tribunal asked the reason she did not obtain counselling prior to the issuing of the NOICC.  She said she was not in a financial position to pay for counselling. The applicant told the Tribunal that the COVID-19 pandemic also affected her employment and her ability to pay for counselling because there were periods when she did not earn much money.

5. In response to the Tribunal asking how she spent her time from the date she ceased to be enrolled in a registered course on 1 July 2019 until the NOICC was issued on 25 January 2022, the applicant said she worked to survive. Initially she lived in shared accommodation with friends however since January/February 2021 she has lived with her boyfriend. She told the Tribunal that during the period from 1 July 2019 to 25 January 2022, she worked many jobs and changed jobs every so often. She told the Tribunal that during this period she worked 20 to 30 hours per week. The Tribunal pointed out that her visa conditions included permission to work only 20 hours per week. The applicant conceded that she was aware that she breached her work condition.

6. The Tribunal put to the applicant that she remained in Australia for 2 years 7 months, from 1 July 2019 to 25 January 2022, as the holder of a student visa during which time she wasn’t undertaking study and she would have been aware that she was in breach of her visa conditions. The applicant conceded that she was aware that she was in breach of her study condition. The Tribunal asked her whether she sought deferment of her study on compassionate grounds. In response she said she was unable to do so after she ceased to be enrolled at RMIT and her agent told her that if she enrolled with another education provider it would be a “whole process”. The Tribunal asked her whether she contacted the Department to advise of the change in her circumstances and seek to regulate her immigration status. She said she thought she should inform the Department but she was worried about what would happen to her if she did. She also said she was not mentally able to contact the Department. The Tribunal pointed out that she continued to work during this period and appeared to have formed a serious relationship (having commenced cohabitation with her boyfriend). She said she had the support of her boyfriend however because of her abusive marriage, she had relationship trust issues.

7. In response to the Tribunal asking the purpose of her travel to Australia, the applicant initially said she came her to change her life and build herself up and do something better for herself. When the Tribunal pointed out that she arrived in Australia in 2018 as the holder of a student visa, she said in 2018 she wanted to finish her study and return to Pakistan with  a good degree and to have a big impact on her country. She said she wanted to study nursing. Noting that her PRISMS record did not include enrolments in nursing courses, the Tribunal asked her about this study. She said decided she was interested in this field of study after she arrived in Australia.

8. When asked whether there is a compelling need to travel to or remain in Australia, the applicant told the Tribunal that there is no compelling need for her to remain in Australia. She said she wants to finish her studies and return to Pakistan. Noting that she is a relationship with her boyfriend and her claim that she would be killed if she returns to Pakistan, the Tribunal asked her whether she intends to return to Pakistan. She said 4 years ago she received death threats from her ex-husband. The Tribunal asked whether she had received any further threats since 2019. She said she hears from her sisters that she is still being discussed by others. She did not provide further details in this respect.

9. The applicant told the Tribunal that her agent has advised her to depart Australia and apply for a Partner visa from offshore. However the applicant did not claim that her relationship with her boyfriend constitutes a compelling need to remain in Australia.

10. When asked about the hardship that may result from cancellation of her visa, the applicant said she will be lost if she returns to Pakistan and her life will end.

11. In response to the Tribunal asking what study she intends undertaking in Australia if her visa is not cancelled, the applicant said she plans to study a Bachelor of Nursing and a Bachelor of Psychology. The Tribunal asked which education providers offered the courses she wished to undertake. She said the Victorian University, RMIT and Deakin University offer the courses. The Tribunal asked the applicant whether she had discussed enrolment in these courses with any of these providers. She said she had not discussed it with any of the providers.

    Non-disclosure certificate

12. At the hearing the Tribunal informed the applicant of the existence of a s 376 certificate and explained the effect of such a certification is that the Tribunal is given discretion whether to disclose the document and/or information covered by the certificate. The Tribunal found the certificate to be valid because the document and/or information covered by the certificate had been given to the Minister, or to an officer of the Department in confidence. The applicant made no comment on the validity of the certificate.

13. The Tribunal informed the applicant that it would disclose the information covered by the s 376 certificate in the hearing. The information consisted of allegations received by the Department in relation to the applicant’s employment.  Utilising the procedure in s 359AA of the Act, the Tribunal put the information covered by the s 376 certificate to her for her comment or response.

14. The Tribunal put to the applicant that an allegation was received in 2020 that she had been working more than her eligible hours while studying and she had worked for numerous employers and she was paid cash in hand. It was also alleged that she may also not be going to university.The informant wished to remain anonymous and said the information was obtained from the applicant.  In response, the applicant conceded that at times in 2018, 2019 and 2020 she had worked for more than the 20 hours per week permitted as a condition of her visa and that she had worked for cash.

15. The Tribunal put to the applicant that an allegation was received in 2021 that she was working illegally and living here on a student visa that expired 3 years ago and sending money back to Pakistan. The informant wished to remain anonymous and said the information was obtained because they know the applicant personally. In response, the applicant conceded that at times in 2020 and 2021 she had worked for more than the 30 hours per week in breach of her visa work condition. She said she sent money to her mother and sisters in Pakistan and nominated an amount of $1,000  sent on one of those occasions.

16. The Tribunal put to the applicant that based on the evidence, she was not studying for a period of 2 years 7 months and during that period she also breached her work condition at times. In response, the applicant conceded that she breached her visa conditions but said she did not know what would happen to her if she contacted the Department about her changed circumstances. 

17. 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

18. The applicant was granted a Student Visa to study in Australia.  At the time the NOICC was issued the applicant had not been enrolled in a course for a period of 2 years 7 months. She did not seek a deferment of her study on compassionate grounds at any time during that period. At the time of hearing, she has not made enquiries of education providers about possible enrolment in the future.

19. 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 for an extended period and was not fulfilling the purpose of her travel to and stay in Australia.  

20. The Tribunal questioned the applicant as to whether there was a compelling need for her to remain in Australia. In response she said she wants to complete her study and return to Pakistan. She also said she will be killed if she returns to Pakistan. The Tribunal does not consider the applicant’s wish to complete study constitutes a compelling need. In relation to her evidence that she will be killed if she returns to Pakistan, the Tribunal notes that in her response to the NOICC she said: My final intention now is to complete my bachelor degree and retune back to my home hoping things get better in future. There was no evidence to substantiate her contention that she will be killed if she returns to Pakistan. Further, any contention that she cannot return to Pakistan does not demonstrate that there is a compelling need to remain in Australia.

21. The applicant’s failure to maintain enrolment in a registered course 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

22. The applicant has not complied with condition 8202(2)(a) since 1 July 2019. In addition, the applicant’s evidence at hearing was that she has also been non-compliant with her work condition and the Tribunal so finds.  

23. The applicant’s non-compliance for period of 2 years 7 months prior to the NOICC, and her evidence that at times she worked in excess of 20 hours per week, weighs in favour of visa cancellation.

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

24. The applicant told the Tribunal that she will be lost if she returns to Pakistan. The Tribunal accepts that the applicant will be disappointed if she returns to Pakistan having only completed the Foundation Studies: Science, Engineering and Health course.

25. The applicant said if she returns to Pakistan, her life will end. As noted, in her response to the NOICC she said her intention is to complete a Bachelor degree and return to Pakistan. Whilst the Tribunal accepts that the applicant may suffer psychological or emotional hardship if she returns to Pakistan due to her ex-husband residing there also, the Tribunal does not accept her contention that she will be killed if she returns to Pakistan.

26. The Tribunal notes that the applicant is currently in a partner relationship. Although she did not say she would suffer hardship if she and her partner are separated, the Tribunal accepts that she will likely suffer emotional hardship if she departs Australia and her partner remains in Australia.

27. The Tribunal gives this factor some weight against cancellation  .

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

28. The applicant’s visa was cancelled as a result of her failure to maintain enrolment in a registered course. She told the Tribunal that she was unable to study because of the mental trauma she suffered as a result of her abusive marriage in January 2019. She said when she was injured at work in May 2021, the injury caused her to experience mental trauma because it reminded her of the abuse she suffered in January 2019.

29. The Tribunal accepts that the applicant is likely to have suffered emotional distress in relation to her marriage and divorce in Pakistan in 2019. The Tribunal accepts that the applicant experienced mental health issues in 2021 which resulted in her general practitioner referring her to a psychologist. However no medical evidence was provided to substantiate the contention that her mental health issues precluded her from undertaking study. The Tribunal notes that the Medical Certificates dated in 2020 and 2021 indicate that the applicant continued working during this time.

30. In relation to the Medical Certificates provided, four pre-dated the cancellation of the applicant’s enrolment on 1 July 2019. In addition they do not provide details of the applicant’s medical condition. Accordingly the Tribunal accords this evidence minimal weight.

31. In relation to the Medical Certificates dated in 2020 and 2021, the certification is that the applicant was unable to attend her usual occupation and they do not certify an inability to attend school. In addition they do not provide details of the applicant’s medical condition. Further, the total days certified were several days only. Accordingly the Tribunal accords this evidence minimal weight.

32. The Tribunal accepts that the Medical Certificate dated 8 January 2022 evidenced the applicant’s inability to attend school during the period from 24 December 2021 to 2 January 2022 however notes that educational providers are generally closed during this period. Accordingly the Tribunal accords this evidence minimal weight.

33. Further, despite the applicant’s contention that she experienced mental trauma in 2019, 2020, 2021 and 2022, the is no evidence of her obtaining psychological assistance until she attended an appointment with New View Psychology on 7 November 2022. She told the Tribunal that she first attended an appointment on 31 October 2022 and the Tribunal accepts this evidence. However, in her response to the NOICC, she said she feels like she has finally moved past her bad times and said: I am in a better shape to carry myself forward in all aspects of life and now I feel that I am back on my pace. The applicant told the Tribunal that she received counselling for free when she was at RMIT however some of the reports were missing and the doctor she saw had left. There was nothing to substantiate these contentions and the Tribunal does not accept this evidence. The only explanation the applicant gave the Tribunal for not seeking psychological assistance before November 2022 was that she could not afford counselling. The Tribunal notes that the applicant conceded that at times she was working in excess of 20 hours per week and that she had the capacity to send money to her family in Pakistan. Further, the costs of psychological assistance under a Mental Health Care Plan are limited.

34. The applicant told the Tribunal that the COVID-19 pandemic was also a reason she could not pay for psychological assistance. The Tribunal notes that the applicant ceased to be enrolled in a registered course on 1 July 2019 and that the onset of COVID-19 in Australia occurred in March 2020.

35. Although the applicant did not contend at the hearing  that the COVID-19 pandemic caused her mental trauma, in her response she said COVID-19 gives tough times which affected people mental health. No evidence was provided prior to or during the hearing to demonstrate that COVID-19 precluded the applicant from undertaking study. As noted, the applicant had not been enrolled in a registered course for 8 months prior to the onset of the pandemic.

36. The Tribunal decided that the medical evidence provided does not demonstrate that the mental trauma the applicant contended she experienced prior to the issuing of the NOICC, precluded her from undertaking study.

37. The Tribunal takes the view that it is the visa holder’s responsibility to ensure compliance with visa conditions and put to the applicant that she remained in Australia 2 years 7 months  as the holder of a student visa during which time she was not enrolled in a registered course. She told the Tribunal that she was aware that she was in breach of her visa conditions but was worried about what would happen to her if she notified the Department of her changed circumstances .

38. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The Tribunal finds there are no extenuating or compassionate circumstances in this case and this weighs in favour of visa cancellation.

    Past and present behaviour of the visa holder towards the department

39. Nothing adverse is known about the applicant’s past and present conduct towards the Department.  The Tribunal gives this some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

40. 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

41. 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

42. 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

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

    Conclusion

44. 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 is not fulfilling the purpose of her travel to and stay in Australia as she did not undertake the study for which is visa was granted from during a 2 year 7 month period. The Tribunal has found that the applicant also breached the work condition of her visa. 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.

45. 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

1. 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.