Khadgi (Migration)

[2024] AATA 3073

Khadgi (Migration) [2024] AATA 3073 (29 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Anixa Khadgi

REPRESENTATIVE:  Mr Deepak KC (MARN: 1700414)

CASE NUMBER:  2301824

HOME AFFAIRS REFERENCE(S):          BCC2022/3730808

MEMBER:Gabrielle Cullen

DATE:29 July 2024

PLACE OF DECISION:  Sydney

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

Statement made on 29 July 2024 at 4:56pm

CATCHWORDS
MIGRATION – cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – breached condition 8202 – applicant had not been enrolled in a registered course of study – unsatisfactory course progress – COVID had affected ability to enrol and study – mental health – no compelling need to remain in Australia  – decision under review affirmed

LEGISLATION 
Migration Act 1958, ss 116, 359
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 6 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 under s.116(1)(b) on the basis that the applicant did not comply with condition 8202 which requires the visa holder (hereinafter referred to as the applicant) to be enrolled in a registered course.

3. The applicant attached the Department’s decision to cancel the visa dated 8 February 2023 to the Application for Review which indicates that on 10 November 2022 the Department invited the applicant to comment on their intention to consider cancellation of her subclass 500 student visa granted on  8 June 2021 on the basis she had not been enrolled in a course of study since  6 July 2021. The applicant responded to the Notification of Intention to Consider Cancelling the Visa (NOICC) on 14 November 2022.

4. The applicant appeared before the Tribunal on 18 July 2024 to give evidence and present arguments. The applicant was represented in relation to the application for review by her registered migration agent. Her representative did not attend the hearing.

5. She was given until 24 July 2024 to provide evidence of current enrolment and course progress. The applicant has not provided any further evidence or comments following the hearing as at the date of this decision.

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 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

8. The information indicates she was granted a subclass 500 Student visa on 8 June 2021 valid to 6 February 2023  which included on it condition 8202.

   Did the applicant comply with condition 8202?

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 registered course, or in limited cases, a full time course of study or training: 8202(2);

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a); and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

10. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course: condition 8202(2).

11. The applicant was notified of the intention to consider cancellation (NOICC) of her visa on 10 November 2022. The Tribunal is satisfied that the NOICC was validly issued.

12. The delegate found on 6 February 2023 the applicant had not been enrolled in a registered course of study from  6 July 2021. She noted the applicant had submitted a COE dated 14 November 2022 to study a Diploma and  Advanced Diploma of Leadership and Management from 21 November 2022 after receiving the NOICC.

13. As raised with the applicant at hearing via s.359AA the applicant’s Provider Registration and International Student Management System (PRISMS) records contain information that the applicant had not been enrolled in a registered course of study from 6 July 2021 when her enrolment in the Diploma of Leadership and Management was cancelled for unsatisfactory course progress until when she enrolled in a course of study on 14 November 2022  to study a Diploma and Advanced Diploma of Leadership and Management to commence on 21 November 2022.

14. The applicant did not dispute in her response to the NOICC that she was not enrolled in the relevant period. At hearing she confirmed she was not enrolled in this period and that she had not complied with condition 8202(2) of his visa.

15. Therefore, on the evidence, the Tribunal finds that the applicant was not enrolled in and did not have a Confirmation of Enrolment (CoE) in a registered course or a full-time course of study or training from  6 July 2021 to 13 November 2022 while the holder of a subclass 500 student visa. Failing to maintain enrolment means that the applicant has not complied with condition 8202(2).

16. The Tribunal is therefore satisfied that the grounds for cancellation in s.116(2)(b) exist.

    Consideration of the discretion to cancel the visa

17. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

18. 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 Procedural Instruction ‘General visa cancellation powers.’

    Background

19. The applicant is a 25-year-old married citizen of Nepal. At hearing she said she is now separated and her former partner is offshore. She said she has no children.

20. She first arrived in Australia on a subclass 500 visa on 28 June 2018 and was granted a further Student visa on  8 June 2021 valid to 6 February 2023.

21. The evidence indicates she was first enrolled in a Certificate IV in Business Administration  and then a Diploma of Business from 16 July 2018 to 6 December 2019. At hearing the applicant said she successfully completed these courses. She then enrolled in the Diploma and Advanced Diploma of Leadership and Management from 20 April 2020 which were cancelled for unsatisfactory course progress on 6 July 2021[1]. After receiving the NOICC she enrolled again in a Diploma and Advanced Diploma of Leadership and Management to commence on 21 November 2022 but enrolment ceased on 28 March 2023 when it was deferred on compelling and compassionate grounds. Following the decision to cancel her visa by the Department on 6 February 2023 a no study condition was placed on her bridging visa until 21 August 2023. At hearing she said she had sought to have the no study condition lifted, which was granted and was currently enrolled in the Diploma and Advanced Diploma of Leadership and Management. The Tribunal questioned this raising via s.359AA that the PRISMS record indicates enrolment had ceased in the Diploma of Leadership and Management on 28 April 2024 and enrolment in the Advanced Diploma of Leadership and Management had been cancelled on 5 June 2024 for non-commencement of studies. It gave her time to provide evidence of enrolment in these courses. As at the date of this decision no evidence was provided as to her current enrolment and course progression in the Diploma and Advanced Diploma of Leadership and Management as claimed at hearing.

    [1] As raised with her via s.359AA at hearing.

22. In a statement responding to the NOICC she provided the following reasons for her non-enrolment in the relevant period and change in past course studies.

    ·When her visa was granted in 2018 to study a Diploma in Business Management  she was going well for a month but then had to move and live by herself. It took a week to find a new place and she was not prepared for the new environment and she was new to the country and had no friends and no relatives, she was very shy and had no confidence to speak with people so that it was very hard to finish her diploma but somehow she completed this.

    ·In the time of Covid, she joined AHIC and she claims everything was shattered she had much stress about her family and herself and her mind was very disturbed and her physical health was not good. There were also no face-to-face classes for year and it was hard and confusing to study online and she was unable to complete a course. Slowly the impact of Covid reduced and she wanted a fresh start.

    ·In 2021 she was hospitalised for five days and her health condition worsened. A test found she had a kidney infection in both her kidneys and her doctor told her to take bed rest as much as she could and again she was not able to study and she had to go to medical check-ups every few weeks. She had no one to look after her during this period.

    ·She took a wrong turn and lost her way, but she cannot go back and change the past and she must look forward and now she wants to study and has submitted new COEs to restart her studies. She promises to give her full effort to complete her courses.

    ·After completing the courses she is planning to go back to her country.

    ·Her family is supporting her economically and she is composed and determined to finish her studies.

23. In response to the NOICC she provided :

    ·A medical certificate dated 16 April 2021 noting she was admitted to hospital  for 4 days for pyelonephritis.

    ·COES to study the Diploma and Advanced Diploma of Leadership and Management.

24. At hearing, as to why enrolment in the Diploma of Leadership and Management was cancelled for unsatisfactory course progress and then she was not enrolled; she referred to Covid and everything being closed, classes being online, she was not able to focus and was living by herself, she was financially weak and her family were having problems. She said after July 2021 she was unable to focus, she felt hopeless, She wanted to go back and see her family but could not and had no hope to build a career.

25. As to her work in Australia, she said she worked as a cleaner in 2018 and 2019 and did not work in 2020. She said she started in customer service in early 2021 and has worked there to date. The Tribunal questioned if her purpose was to be in Australia to study why she was able to work but not study. She said she had gaps in her work too and referred to her kidney issues which began long before she was hospitalised for four days.

26. The Tribunal asked having successfully completed a Diploma of Business why she now needed to study a Diploma of Leadership and Management. She said she needs it to build her career, so she can create a business, lead a team and to gain knowledge of decision making. She said she cannot study a similar course in Nepal as they do not have diploma courses and it is hard to get in. The Tribunal questioned why if she wanted to gain a Diploma of Leadership and Management, her enrolment was cancelled for unsatisfactory course progress. She said she had health problems; she was emotionally up-and-down and she was supporting her family financially as it was hard for them. She said referring to her kidney illness and that for about a year before she was hospitalised in 2021 she was getting repeated UTIs, she was treating it herself and then she went to the GP who hospitalised her. She said when she worked she would get back problems from standing until late. She said she never spoke to her GP about mental stress.

27. The Tribunal also asked her questions with regard to the factors below in the evidence where relevant is outlined below.

    The purpose of the applicant’s travel and stay in Australia, whether the applicant has a compelling need to travel or remain in Australia

28. The purpose of the first visa grant was for the applicant to travel and stay in Australia for the purposes of study. The applicant first arrived in Australia on a subclass 500 visa on 28 June 2018 and was granted a further Student visa on  8 June 2021 valid to 6 February 2023.The evidence indicates she was first enrolled in a Certificate IV in Business Administration  and then a Diploma of Business from 16 July 2018 to 6 December 2019. At hearing the applicant said she had successfully completed these courses. The Tribunal accepts that as she successfully completed the Certificate IV and Diploma of Business from 16 July 2018 to 6 December 2019 the purpose while holding her first visa while studying these courses was to travel to and stay in Australia for study.

29. With regard to the second visa granted on 8 June 2021, where in the application for that visa she indicated her purpose was to study, of concern is that she did not achieve course progress with enrolment in the Diploma of Leadership and Management being cancelled for unsatisfactory course progress on 6 July 2021[2]. She was also not enrolled in a course of study from 6 July 2021, until after receiving the NOICC when she enrolled to study the Diploma and Advanced Diploma of Leadership and Management to commence on 21 November 2022. The Tribunal accepts enrolment ceased in that course when her visa was cancelled and a no study condition was placed on her visa.

    [2] As raised with her via s.359AA at hearing.

30. As to the reasons for this poor study record leading to her enrolment being cancelled for unsatisfactory course progress on 6 July 2021 she referred to Covid and everything being closed, classes being online, she was not able to focus and was living by herself, she was financially weak and her family were having problems. She referred to having kidney issues for about a year, including UTIs which ultimately led to her being in hospital for 4 days in April 2021. She also said she lost her way. Due to the initial impact of Covid, including lockdown in 2020,  transferring to classes online, being unable to work as she due to Covid and difficulties with her kidneys to April 2021, the Tribunal is prepared to accept that there were conditions beyond her control that led to a lack of course progress and cancellation of her enrolment in the Diploma of Leadership and management on 6 July 2021.

31. However, the Tribunal is not satisfied on the evidence before it that she has provided evidence that circumstances beyond her control led to her lack of enrolment from July 2021 until she submitted enrolment on 14 November 2022 and that her purpose was to study in the period of non-enrolment and until her visa was cancelled.

32. With regard to her kidney issues the evidence indicates that from July 2021 to November 2022 these were no longer a concern. At hearing she said she had troubles one year before she went to hospital and the medical certificate refers to her attending hospital in April 2021. It therefore does not accept this affected here ability to enrol and study in the period of non-enrolment.

33. She also said after July 2021 she was unable to focus, she felt hopeless, she wanted to go back to Nepal and see her family but could not and had no hope to build a career. She also referred to being emotionally up and down, feeling hopeless, being unable to focus, being worried for her family and the continued impacts of Covid lockdown. She also said she was not earning a good salary in 2021 and it being difficult to pay the fees.

34. The Tribunal is of the view if her mental health was impacted to the extent she could not study she would have sought medical help in the period of non-enrolment. The evidence at hearing was that she did not. The Tribunal is therefore of the view the lack of any evidence that she sought medical help, undermines her claims she could not study due to  her mental health issues for all the reasons she claims in the period of non-enrolment. It is of the view that if she were in Australia to study and could not due to mental health issues she would have sought medical assistance in the 16 month period.

35. Further of concern and in contrast to her claim that these circumstances led her being unable to study, including as a result of her mental health, was her evidence at hearing that she worked in customer service from early 2021 to date. The Tribunal is of the view that if she were able to work in this non-enrolment period she would be able to enrol and study, if her purpose of being in Australia was to study. This undermines that her purpose was to study in this period.

36. The Tribunal is of the view while COVID may have impacted her study in 2020 and in person, by 2021 and in 2022 there were many online courses available in leadership and management for the applicant to enrol in. It is of the view she would have attempted to enrol in these courses even if she found online study difficult if her purpose in Australia was to study. It does not accept that her failure to maintain enrolment was as a result of the COVID pandemic and its effects on her in the period of non-enrolment.

37. As to financial issues preventing her from enrolling and studying,  if this were the case the Tribunal is of the view she would have raised this in her response to the NOICC, which she did not.

38. Further, to indicate she is in Australia to study she enrolled in the leadership and management courses again from November 2022, however this was only after the NOICC was received. The Tribunal accepts she could not continue to study these courses as a no-study condition was placed on her bridging visa. At hearing she gave evidence that after a request to the Department her no study condition was lifted and she is currently enrolled and achieving course progress, including completing units in the Diploma of  Leadership and Management. However, as raised with her via s.359AA at hearing the evidence from PRISMS indicates that she is not currently enrolled. She was given time to provide evidence to confirm her current enrolment but did not provide this evidence. PRISMS is a business record of the Department of Education, Skills and Employment and is used by the Department of Home Affairs as evidence of enrolment for the purposes of assessing the grant of student visas. While it is possible providers may not update PRISMS as required, the Tribunal accepts that PRISMS is a reliable record of enrolments unless there is specific evidence to the contrary in relation to a particular case. Despite the applicant  being given time to provide evidence she is currently enrolled she did not. The Tribunal therefore does not accept her claim that her current course progress and enrolment as evidence that she is and was in Australia to study.

39. Her lack of current enrolment following the no study condition being lifted also undermines her claim she is currently in Australia for the purpose of study. It therefore does not accept that her purpose to stay in Australia was to study during the period of non-enrolment nor currently.

40. As to why there is a compelling need for her to stay in Australia, she referred to wanting to finish the courses she is enrolled in for her bright future. She said she is giving 200% and referred to her current enrolment in the Diploma and Advanced Diploma of Leadership and Management. As she is not currently enrolled in these courses and there is no evidence of course progression despite being given time to provide such evidence, and her no-study condition being lifted, the Tribunal does not accept there are compelling reasons for her to remain in Australia,

41. The Tribunal gives this factor weight in favour of exercising its discretion to cancel the visa.

    The extent of compliance with visa conditions

42. The applicant did not comply with condition 8202(2) as she was not enrolled in a registered course of study from 6 July 2021 to 13 November 2022. The Tribunal considers this period of 16 months of non-enrolment to be of significant concern, and the Tribunal is mindful that it is expected that all visa holders adhere to the conditions of their visa. The Tribunal has considered above the reasons which she claims led to this non-compliance but as outlined above does not accept the mental health issues, Covid and other circumstances she faced was the reason for this non-compliance.

1. There is also evidence that enrolment was cancelled for unsatisfactory course progress in the Diploma of Leadership and Management on 6 July 2021, which may indicate a breach of condition 8202(3), although the Tribunal has accepted above her reasons for her lack of course progress at this time.

2. The Tribunal acknowledges that there is no other evidence the applicant did not comply with any other conditions on her previous work and holiday visas.

3. The Tribunal gives this factor some weight in favour of exercising its discretion to cancel the visa.

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

4. At hearing the applicant referred to being unable to complete her studies in Australia, achieving the Diploma and Advanced Diploma of Leadership and Management, the effects not completing these courses will have on her future, and as a result she will be hopeless and she will suffer the same mental health issues as she did in the past. She said not achieving her current study would lead to emotional and mental difficulties. As the Tribunal has found she is not currently enrolled in these courses and achieving course progression, even though the no study condition has been lifted and she is able to study; it does not accept her claim as to the hardships she will face as to being unable to finish these courses. It is of the view if this were the case she would be currently enrolled in these courses and achieving course progression.

5. She also referred to the shame for her and her family if she was unable  complete her study as her family has invested much time and money for her future. The Tribunal notes her claim she has already completed a Diploma of Business. Notwithstanding, it accepts there is a degree of disappointment, and shame for her and her family in not being able to return with further Australian qualification if the visa remains cancelled. In making this assessment it has considered that while she is currently able to study she has chosen not to.

6. The Tribunal give this factor low weight in favour of its discretion not to cancel the visa.

   Circumstances in which the ground of cancellation arose

7. The ground for cancellation arose as a result of the applicant’s breach of condition 8202, as she was not enrolled in a course of study between 6 July 2021 to 13 November 2022. It notes that she only enrolled in a course of study after receiving the NOICC, which indicates enrolment was prompted by the NOICC.

8. The applicant has advanced several matters that impacted on her ability to study as outlined above. She has referred to the mental health difficulties she suffered, the impact of Covid and her kidney health. For the reasons outlined above it does not accept that these matters led to her suffering such mental health issues which rendered her being unable to be enrolled and study from July 2021 to November 2022. As noted above, the Tribunal is of the view if she were so mentally unwell she could not study she would have sought medical assistance, which she did not and been unable to work. It also does not accept her kidney issues led to her being unable to enrol in the relevant period as these were resolved by April 2021.

9. The Tribunal is of the view while COVID may have impacted her study in person and did so in 2020, however by 2021 and in 2022 there were many online courses available in leadership and management for the applicant to enrol in. It is of the view she would have attempted to enrol in these courses even if she found online study difficult if her purpose in Australia was to study. It does not accept that her failure to maintain enrolment was as a result of the COVID pandemic and its effects on her.

10. As to financial issues preventing her from enrolling and studying,  if this were the case the Tribunal is of the view she would have raised this in her response to the NOICC, which she did not.

11. Therefore, the Tribunal gives this neutral weight.

    Past and present behaviour of the visa holder toward the Department

12. There is no evidence that the applicant has not been co-operative in her dealings with the Department in the past. The Tribunal gives this consideration neutral weight.

    Whether there would be any consequential cancellations under s.140

13. The applicant claimed to be in Australia with no dependants. Her husband with whom she is separated from is not with her in Australia. There is therefore no evidence that any other person’s visa would or may be cancelled if the applicant’s visa were cancelled. The Tribunal gives this factor neutral weight.

    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

14. There are mandatory consequences in the case of the cancellation of the visa, including detention and removal from Australia, as well as difficulties in obtaining any further visas.

15. If the visa remains cancelled, the applicant would continue to hold a bridging visa for a short period of time to allow her to finalise her affairs before returning to Nepal, subject to any appeal of the Tribunal decision. If the applicant remained in Australia without a valid visa, she would be residing unlawfully and liable to detention and removal. The applicant, however, provided oral evidence to the Tribunal that she intended to comply with any lawful direction to depart Australia, and therefore the likelihood of the applicant being detained is remote.

16. If the visa is cancelled, the applicant may be subject to a restriction under s.48 of the Act and the applicant would have difficulties in obtaining any further visas in Australia. Under PIC 4013 she also may not be granted a further visa for three years from the date of cancellation. The cancellation may also restrict the applicant’s future ability to  make a valid application for any visa other than those prescribed in reg 2.12. There is no restriction on which visa she can apply for once she leaves Australia. However, those are also intended and legitimate consequences of cancellation.

17. The Tribunal gives this consideration neutral weight.

    Whether Australia’s international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

18. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations, nor has the applicant applied for refugee status or invoked Australia’s protection obligations. When asked by the Tribunal whether she had any fear of returning to Nepal the applicant said she did not.

19. There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child (CROC) or that it would be in contravention of the Convention Against Torture.

20. The Tribunal gives this consideration neutral weight.

    Any other relevant matter

21. The applicant said this was her last chance, and she did not want to let her family down.

22. The Tribunal has considered the applicant’s circumstances individually and cumulatively. The Tribunal is satisfied that there are few aspects that are favourable to the applicant. It has considered the hardship on her and her family and the reasons she claims led to the non-enrolment as well as her claim she is in Australia to study.

23. The Tribunal is mindful of the seriousness of breaching a visa condition and remaining in Australia on a student visa for a considerable period without studying or maintaining enrolment. Further, the cancellation of the visa is the intended consequence of breach of the relevant condition. Overall, the Tribunal considers that the limited aspects favourable to the applicant do not outweigh the reasons to cancel the visa. The breach of condition 8202(2) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study in Australia.

24. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Gabrielle Cullen
    Senior 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.