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

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).
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.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal by MS Teams Video on 14 November 2022 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.
Did the applicant comply with Condition 8202?
Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
·be enrolled in a full time registered course: 8202(2)(a)
·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Imtiaz (Migration)

Details

AGLC: Imtiaz (Migration) [2022] AATA 4914
Case: [2022] AATA 4914
Decision Date: 6 December 2022

CaseChat Overview and Summary

This matter concerned an application by a student visa holder to review the cancellation of her Student (Temporary) (Class TU) visa, subclass 500. The applicant's visa was cancelled on the grounds that she had breached condition 8202 of the Migration Regulations 1994 by failing to maintain enrolment in a full-time registered course. The applicant contended that a series of personal difficulties, including forced marriage, domestic violence, mental health issues, and financial hardship exacerbated by the COVID-19 pandemic, explained her non-compliance.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of her visa, and if so, whether the discretion to cancel her visa should be exercised. Condition 8202 requires a student visa holder to be enrolled in a full-time registered course and to maintain satisfactory course progress and attendance. The Tribunal was required to determine if the applicant's enrolment status constituted a breach and, if a breach was found, to consider the applicant's personal circumstances in deciding whether to affirm the cancellation.

The Tribunal found that the applicant had breached condition 8202(2)(a) as evidence from the Provider Registration and International Students Management System (PRISMS) indicated she had not been enrolled in a registered course since 1 July 2019. While acknowledging the significant personal trauma and hardship the applicant had experienced, including mental health struggles and financial difficulties, the Tribunal concluded that these circumstances did not constitute a compelling need for her to remain in Australia, nor did they arise in circumstances beyond her control that would warrant excusing the breach. The Tribunal noted that the applicant had not provided sufficient evidence to demonstrate ongoing engagement with mental health services or a clear pathway to re-enrolment at the time of the decision.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa. Despite recognising the applicant's difficult circumstances, the Tribunal determined that, on balance, the visa cancellation was justified.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.Did the applicant comply with Condition 8202? Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:·be enrolled in a full time registered course: 8202(2)(a)·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii). The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full-time registered course. Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2] [1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).[2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act. The information from PRISMS shows that the applicant has not been enrolled in a registered course of study since 1 July 2019. 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. 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

Decision

Reasons for decision

The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Class TU visa.Christine KannisMemberATTACHMENTMigration Regulations 1994…Schedule 88202(1) The holder must be enrolled in a full time course of study or training if the holder is:(a)a Defence student; or(b) a Foreign Affairs student; or(c) a secondary exchange student.(2) A holder not covered by subclause (1):(a) must be enrolled in a full time registered course; and(b) subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and(c) must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:(a) is enrolled in a course at the Australian Qualifications Framework level 10; and(b) changes their enrolment to a course at the Australian Qualifications Framework level 9.

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.Consideration of the discretion to cancel the visa There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below. On 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 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. 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.