Khamatham (Migration)

[2024] AATA 4015

Khamatham (Migration) [2024] AATA 4015 (10 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Akhil Khamatham

REPRESENTATIVE:  Manmir Singh Bawa (MARN: 2117648)

CASE NUMBER:  2314162

HOME AFFAIRS REFERENCE(S):          BCC2023/2164355

MEMBER:Christine Kannis

DATE:10 October 2024

PLACE OF DECISION:  Perth

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

Statement made on 10 October 2024 at 4:27pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-compliance with condition of visa – not enrolled in full-time registered course – enrolments cancelled because of unsatisfactory course progress and non-payment of fees – transition from classes to online study – family’s health and financial circumstances, and applicant’s mental health – new enrolment after receiving department’s notice of intention – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 359AA

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

CASES

Liu v MIMIA [2003] FCA 1170

Plaintiff M64/2015 v MIBP [2015] HCA 50

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 September 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of his 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 on 1 October 2024 to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Request for postponement of hearing

7. On 1 August 2024, the Tribunal sent the applicant an Invitation to attend a hearing on 1 October 2024. The Invitation included advice that if the applicant wished to seek to adjourn the hearing for a medical reason, he must provide a doctor’s certificate that states he is not able to attend the scheduled hearing. The Invitation further advised that if he cannot provide a medical certificate he must provide a convincing reason for this. He was advised that the Member will consider the request and advise of the outcome. The Invitation also advised that if he is seeking more time to present information after the hearing he should advise the Member at the hearing and provide strong reasons.

8. On 24 September 2024, the applicant requested that the hearing on 1 October 2024 be postponed and advised that he had been misguided by his previous legal representative and was in the process of finding a new representative which was taking some time as he did not want to be misguided and cheated again. 

9. The Tribunal considered the request however noting that the request was made nearly  8 weeks after the Invitation was sent and 4 working days prior to the scheduled hearing and that particulars of the claimed misguidance had not been provided, on 24 September 2024 the request for a postponement was refused.

10. 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?

11. On 15 February 2021, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.

12. 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).

13. 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.

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

15. 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.

16. The information from PRISMS shows that the applicant was not enrolled in a registered course from 11 August 2022 to 10 July 2023. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 11 August 2022 to 10 July 2023 and the Tribunal finds that he breached condition8202(2)(a) of his visa.

17. 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

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

19. On 28 June 2023, the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 11 August 2022 and had therefore failed to comply with condition 8202(2)(a) of his visa.

    Response to NOICC

20. On 12 July 2023, the applicant responded to the NOICC and provided the following information via his previous migration agent:

    ·The applicant has been dedicated to pursuing his academic goals but endured hurdles along the way. He has been able to pass numerous units but has been unable to complete his master’s degree.

    ·The applicant has suffered as a result of the impact of the COVID pandemic on his family back home. One of his parents became seriously ill and this affected the family business. The struggles of his family’s health and financial circumstances made him wrestle with fact that he wished to return home as well as his strong desire to continue his studies. This had a detrimental effect on his mental health and he became depressed and was unable to focus on his education.

    ·In addition to his debilitated mental health, the applicant needed to assist his family financially and this had a terrible impact on his education and this led to the cancellation of his CoE. These were circumstances beyond the control of the applicant’s and all he could do was deal with his health day by day whilst trying to be a strong moral and financial support to his family from afar.

    ·The applicant is now able to focus on his studies and has sorted out his financial issues and has a current CoE and has received 5 credit transfers from the previous transcripts already achieved in Australia. Therefore he only needs to study for just over a year to complete his Master of Project Management and Business.

21. At the time of responding to the NOICC the applicant provided:

    ·     Victoria University Online Statement of Results as at 15 July 2020 showing the courses enrolled and grades achieved for the applicant in 2019 and 2020;

    ·     Victoria Institute of Technology Interim Academic Progress Report dated 2 September 2022 showing the courses enrolled and grades achieved/ withdrawn status for the applicant in 2021 and 2021;

    ·     CoE for Master of Project Management and Business created on 11 July 2023; and

    ·     Statement of Purpose made by the applicant in which he said:

    o   He was keen to gain knowledge of business administration and management skills through his course to apply by starting his own business. He had a chance of going back to his country and apply his skills to his family business and settle down there but few circumstances avoided him to secure his Post graduation degree and progress in career. Mainly as a result of COVID breakdown, one of his parents had serious health issues that effected his family business. He was deeply depressed and couldn’t focus on his academics leaded to failing a few units. His situation also forced him to provide some support to his family at that point and had no other way.

    o   His parents wanted him to go back and provide personal support but his time and effort invested to reach this point of his career would be an absolute waste.

    o    He was always a good student in prior education and also at Australian institutions but his lack of focus lead to failure in submitting assignments on time.

    o   He is happy to go back to his country and help his parents but his concern is about the time and money invested in achieving some academic progress till now.

    o   He requests to stay to finish the rest of the course and secure his Post graduation degree before going back as that could help him progress in life and career and help establish his own firm back home.

    o   He had a good character background in Australia and never involved in any crime.

    Evidence provided prior to hearing

22. Torrens University Transcript dated 13 April 2021 showing applicant was enrolled in a Master of Business Information Systems and results of courses passed, failed and credit transfers in Semester 2 2020.

23. Referral Letter dated 30 September 2024 to a psychologist  from Dr Md Harun Ar Rashid which advised that the applicant has been suffering from mixed anxiety and depression for 4 months and that he has a K10 Score 45 and GAD7 Score18.

24. Document in relation to General visa cancellation powers regarding Exceptional circumstances (applies to mandatory cancellation for 828 breaches).

25. Australia Government Department of Education Standard 9 Deferring, suspending or cancelling the overseas student’s visa enrolment and Standard 10 Complaint and appeals information sheets.

26. Documents evidencing the applicant’s parent’s financial capacity to pay his fees.

27. Representative’s written submission dated 1 October 2024 which included the following information:

    • The applicant has always complied with visa conditions in the past and is embarrassed and remorseful about his conduct of not complying with visa conditions.
    • The education provider failed Facilities, Infrastructure ,Student Grievances and Complaints : The CoE Cancellation reason was unsatisfactory course progress however the education provider failed to give opportunity and information regarding the appeal process. According to Standard 9 & 10 of the National Code a registered provider must notify the overseas student in writing of the intention to suspend or cancel their enrolment. Give an option for an internal review process and told to seek advice from the Department of Home Affairs on the potential impact on their visa if enrolment is deferred, suspended or cancelled. In this case, the education provider failed to inform the student about his CoE status or the options available to him. Notice to Cancel CoE was given on 14 July 2022 by email which explained that applicant had 20 working days from 18  July 2024. As required 20 working days to apply for appeal was give; however, in 18 working days Student CoE was cancelled on 11 August 2022. Under s499 direction no. 61, exceptional circumstances beyond a visa holder's control may include circumstances where the education provider has failed to give the student access to a complaint handling and appeals process as required under standard 8 of the National Code 2007 Due to the COVID-19 pandemic lockdown and in the event of a natural disaster severely affected his mental health.
    • Background and the circumstances in which the non-compliance occurred:

    Due to the COVID-19 lockdown and the natural disaster worldwide, he could not gain experience. Isolation, lockdown, loss of job and multiple COVID infections severely affected his mental health. COVID-19  caused the applicant to suffer severe emotional, financial and psychological hardship. As per the email communication between education provider and student regarding TEQSA’s decision to cancel CRICOS for institute was the major concern for delay in fee payment and course progress.  Although he responded to college that he is attending class on 22 July 2022 and college acknowledgement they will record in system on 27 July 2022. College failed to record and update student progress. Evidence of miscommunication by education provider.  Actual reason for CoE cancelation was delay in fee but unethically recorded for unsatisfactory course progress

    • The visa holder’s past and present behaviour towards the Department : Apart from an unwantedly visa condition breach, there is no other evidence suggesting that the applicant has previously breached or misled the Department at any point in the past.
    • Current Intention of the Applicant :The applicant is a genuine student and is worried about his future. He wants to complete master degree, He does not have any study rights, which stopped him from studying during the review process period.

28. Documents evidencing communication between the applicant and the education provider as referred to in the representative’s written submission.

    Evidence provided at hearing

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

    a.He was enrolled in a Master of Business Analytics (Professional)  which was cancelled on 12 April 2021 For Non-payment of fees;

    b.He was enrolled in a Master of Business Information Systems which was cancelled on 13 July 2021 For Student Notifies Cessation of Studies;  

    c.He was enrolled in a Master of Business Administration which was cancelled on 11 August 2022 for Unsatisfactory course progress; and

    d.He was enrolled in a Master of Project Management and Business which was cancelled on 29 January 2024 due to Non-payment of fees. This CoE was created on 11 July 2023.

30. The Tribunal explained to the applicant that this information was relevant because it indicates that from 11 August 2022 until 10 July 2023 he did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether he breached the conditions of his student visa by not maintaining enrolment in a registered course of study. The Tribunal explained that the information may also be relevant in considering the discretion to cancel the Student visa, including in considering his purpose for remaining in Australia.

31. 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 and asked him whether he had any comments in relation to his PRISMS enrolment record. The applicant told the Tribunal he agreed with his PRISMS enrolment record.

32. The Tribunal asked the applicant the reason he ceased to be enrolled from 11 August 2022. In response he told the Tribunal that the cancellation was incorrect because he continued to attend classes and submit assignments however suddenly, on 14 July 2022, he received an email from the education provider advising they would be reporting him to the Department for unsatisfactory course progress. The email set out that he was previously identified as an At-Risk student who had not satisfied course requirements and that he was offered an implementation strategy to which he had not responded. The email advised that he could appeal the decision to report him to the Department and referred to an attachment setting out the appeal procedure. The email advised that he had 20 working days from 18 July 2022 to make his appeal. The applicant told the Tribunal that on 22 July 2022 he responded that he had enrolled and would be continuing the course. On 27 July 2022 the education provider confirmed receipt of the applicant’s response and advised it would be recorded in the system.

33. The Tribunal asked the applicant about the statements in the NOICC response regarding the impact of COVID-19 on cancellation of his enrolment. He told the Tribunal that both his parents had COVID-19 and in particular his father’s illness resulted in loss of income because he could not work in his business. The applicant said he had to pay for his living expenses in Australia but also provided financial support to his family including payment of their hospital bills. He said it was a very stressful time. The applicant told the Tribunal that he also found the transition from in person classes to online classes difficult. He referred to achieving a distinction result in a subject in 2019 when in person classes were conducted.

34. The applicant told the Tribunal that the stress regarding his parents’ health, the financial support he provided to them and online classes caused him to not be able to focus on his studies. He said he was depressed and failed some subjects. He also said an uncle with whom he had a close relationship passed away from COVID-19.

35. The Tribunal referred the applicant to his statement in his NOICC response that he was ‘deeply depressed’ and asked whether he sought medical assistance. He told the Tribunal that he is very strong mentally and that his mother provided emotional support. He said he believed he could cope by himself and also said that obtaining medical assistance would have been an added expense.

36. Noting that a letter of referral to a psychologist has been provided prior to the hearing, the Tribunal asked the applicant the reason for obtaining the referral. The applicant confirmed that he had obtained the referral the day before the hearing and that it was his first attendance with the referring doctor.

37. The Tribunal put to the applicant that he would have known from 11 August 2022 that he was no longer enrolled in a course and was not abiding by the conditions of his visa. In response the applicant conceded that he was aware of his non-compliance. The Tribunal asked him whether he contacted the Department about his visa status. In response he said he did not contact the Department because he has been in Australia for 3 years, had not completed a course, had spent a lot of money and he was afraid. He also said he did not contact the Department because he wanted to re-enrol in a course. The Tribunal pointed out that he did not enrol in another course for 11 months and did so only after he received the NOICC. In response he said when his CoE was cancelled he was devastated, mentally unwell and for 1 or 2 months he stayed at home because he was depressed. The Tribunal asked him the reason he was able to enrol within days of receiving the NOICC. In response he said it was his migration agent’s idea that he enrol in the Master of Project Management and Business. Noting that his evidence was that he enrolled in a course after receiving the NOICC on his migration agent’s advice and his earlier evidence that he did not contact the Department when his CoE was cancelled because he intended to re-enrol in a course, the Tribunal asked him when he had intended to re-enrol. In response the applicant told the Tribunal that he was about to enrol in a Master of Business Administration just before he received the NOICC.

1. The Tribunal asked the applicant how he had spent his time from cancellation of his enrolment on 11 August 2022 until receipt of the NOICC on 28 June 2023. In response the applicant said he mostly stayed home except for when he was working. He told the Tribunal that he works as a retail assistant at a 7/11 shop. He said he works 20 or 24 hours per week and he commenced this employment on 7 November 2021 and has continued in this employment to the present day without interruption. He said this employment enables him to pay his living expenses and during the period from November 2022 to January 2023 he also provided some financial support to his family back home.

2. When asked about the purpose of his travel to Australia, the applicant told the Tribunal that his father’s business is in construction and he would like to take over the business one day. He said their plan was to invest money in his education through a Master of Business Administration so he could implement the knowledge and skills gained in the course. In response to the Tribunal asking whether he has a compelling need to remain in Australia, the applicant said he needs to finish his education before leaving Australia because he has invested time and money and he will not be respected if he does not finish his study.

3. When asked about the hardship that may be caused by cancellation of the visa, the applicant said his parents will not understand what he has been through and he will not be welcomed back by them. He said because of the visa cancellation he has not had a conversation with his father in 10 months. The applicant said 3 or 4 months ago he broke up with his girlfriend and this was stressful because they wanted to marry. He said if he completes his study he will be able to take over the family business and talk to his ex-girlfriend’s parents and they can then marry.

4. The applicant referred the Tribunal to the Torrens University Australia Academic Transcript dated 13 April 2021 which shows he passed a subject (Data Modelling and Database) on 19 September 2020 and failed 3 subjects in December 2020. He said he was originally given a fail for Data Modelling and Database however he disputed this with the education  provider and was subsequently passed. The applicant said he was failed the 3 subjects in December 2020 because he had disputed his original fail for the Data Modelling and Database subject. The applicant explained that when continued registration issues with respect to the Victorian Institute of Technology arose in 2022, they suggested the applicant re-enrol at Torrens University. He told the Tribunal he was not minded to so because he was traumatised by his previous experience at Torrens University in relation to the failure of 3 subjects in December 2020.

5. The representative made the following oral submisions:

   ·The applicant was attending classes in 2022 despite PRISMS indicating his enrolment had been cancelled.

   ·The email dated 14 July 2022 notifying the applicant of the intention to report him to the Department for unsatisfactory course progress did not attach the form said to be attached, the applicant was not advised of the process to appeal the decision and was not given the stated 20 working days before cancellation of the CoE. Therefore the process was unfair and the applicant was not given the chance to appeal.

   ·The Victorian Institute of Technology Interim Academic Progress Report indicated that the applicant withdrew from 2 subjects in Term 3 2022 however he was attending classes during the cancellation process.

   ·Standards 9 and 10 of the National Code prescribe requirements for deferral, suspension and cancellation of overseas student’s enrolment and internal complaints and appeal processes.

   ·Direction no 61 refers to exceptional circumstances beyond a visa holder’s control and includes examples where an education provider has failed to accurately monitor the student’s course progress or attendance; or the education provider has failed to give the student access to a complaints and handling process.

6. At the conclusion of the hearing the representative requested additional time to provide a report from a psychologist. The applicant had not attended a psychologist at the date of the hearing and the representative indicated that he was uncertain as to when a report could be provided and he required at least one month. The Tribunal considered the request and allowed only 2 weeks. In making this decision the Tribunal took into account that the applicant did not attend a psychologist before, during or after the period of non-compliance and therefore any report provided after the hearing would be based on the applicant’s self-report. In addition, the Tribunal placed significant weight on the absence of any current claimed mental health condition including his response when asked about the hardship that may be caused by cancellation of his visa. He referred to his parents not understanding and not welcoming him home and referred to a break-up with a girlfriend however he did not claim these cause him any degree of distress beyond what can be expected from  disappointing life events.

   Post hearing submissions

7. On 10 October 2024, the Tribunal received the following written submission from the representative requesting that the following be considered in the applicant’s favour:

   ·The applicant understands enrolling and attending class does not mean meeting satisfactory course progress however he enrolled and completed subjects at Victoria University and received satisfactory outcomes. While studying at Torrens University, he was enrolled in 4 subjects and as per his claim, he faced discrimination/conflict with the course coordinator, which caused course progress, and he unwantedly had to change the course provided. Many students struggled to adopt online study methods during the COVID-19 pandemic.

   ·At the Victorian Institute of Technology Term 3 and Term 2021, the applicant completed a few subjects, Term 2 2022 he cleared both subjects and in Term 3 he failed 2 subjects however, from December 2021 till his academic, VIT institute was facing challenge and he was not sure that institute will be able to provide education to students.

   ·VIT Institute's cancellation of the COE in 18 days, despite the 20 days stated for the appeal process was a source of great frustration for the applicant. This action by the VIT Institute further added to the applicant's stress and uncertainty.

   ·The applicant does not have access to the college portal or email; however, he claimed he was participating in the online lecture, and his video recording of attending a course and active participation can be evidentiary. His academic performance was severely affected because he got scared that VIT CRICOS would be cancelled, and he again needed to start the course.

   ·The applicant is disappointed with VIT's standard of education, negligence in emailing online study material, and failure to provide required support to students. For instance, he was studying for a Master's Degree and admin staff sent him a commercial cookery class table and when he requested a result he was results of some other students.

   ·The applicant suffered multiple challenges, and his mental health was affected adversely as explained his circumstances during the hearing.

8. 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

9. The purpose of the applicant’s visa was to enable him to study. The applicant was not enrolled in a course of study for a period of 11 months prior to the issuing of the NOICC. The Tribunal finds the applicant’s breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.

10. There is no specific definition of 'compelling' in either the Act or the Regulations. To be ‘compelling’, the reasons in question must force or drive the decision-maker irresistibly to some end.[3]  The Tribunal questioned the applicant as to whether there was a compelling need for him to remain in Australia. In response he said he needs to finish his education before leaving Australia because he has invested time and money and he will not be respected if he does not finish his study. The Tribunal accepts that the applicant does not want to return to his home country without completing a course but does not consider this constitutes a compelling need to remain in Australia.

    [3] Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31].

11. The applicant’s non-engagement in the study for which his visa was granted for an extended period of 11 months and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

    The extent of compliance with visa conditions

12. The applicant has not complied with condition 8202 of his student visa because he has failed to maintain enrolment in a full-time registered course of study from 11 August 2022 to 10 July 2023. The requirement to maintain enrolment is a fundamental condition for the grant of a Student (Subclass 500) visa. There is no evidence before the Tribunal that he has not complied with the other conditions attached to his visa.

13. The applicant’s non-compliance for a period of 11 months from cancellation of his enrolment until the issuing of the NOICC weighs in favour of visa cancellation.

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

14. The Tribunal accepts that the cancellation of the applicant’s visa will be disappointing to him and to his parents. The Tribunal gives the hardship that may be caused to the applicant some weight against cancellation.

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

15. The applicant’s visa was cancelled as a result of his failure to maintain enrolment. The applicant was not enrolled in a course for 11 months prior to the issuing of the NOICC. In his NOICC response and his oral evidence at the hearing, the applicant provided several reasons for not maintaining enrolment including COVID-19 which affected the health of his parents, the financial circumstances of his parents and his difficulty with online classes, all of which he claimed caused him to experience stress. The applicant claimed that these matters caused him to be ‘deeply depressed’ to the extent that he could not focus on his studies. No evidence to substantiate the claims that COVID-19 affected his family’s health and financial circumstances was provided. The Tribunal accepts that if these claims are true, the health and financial consequences of COVID-19 on his parents and the adjustment to online classes would have caused him some distress and hardship however does not consider these matters preclude enrolment in a registered course. In relation to his mental health, the applicant’s oral evidence was that he did not seek medical assistance at any time prior to, during or after the period of non-compliance and that he maintained employment during and after the time he ceased to be enrolled in a registered course. Therefore, despite the claimed mental health issues caused by COVID-19 (as noted above), the applicant was able to maintain employment. This has strongly invited the Tribunal to consider that the applicant did not take condition 8202 seriously as a Student visa holder. In addition, the Tribunal notes that the applicant was able to obtain a new CoE 12 days after he was contacted by the Department on 28 June 2023.

16. The representative’s pre-hearing written submission referred to COVID-19 causing the applicant to suffer severe emotional, financial and psychological hardship. No evidence was provided to substantiate this claim. The Tribunal accepts the referral letter dated 30 September 2024 includes anxiety and depression test scores however these results were based on the applicant’s self-report at his only attendance with the doctor administering the tests and appear to be current test results rather than results relevant to the period prior to or during non-compliance with the visa condition.

17. Regarding the representative’s submissions in relation to the Victorian Institute of Technology notification of the intention to report the applicant to the Department for unsatisfactory course progress not attaching a form, that the applicant was not advised of the process to appeal the decision and was not given the stated 20 working days before cancellation of the CoE, the Tribunal has no evidence before it that the form was not attached. In the Tribunal’s view, the email dated 14 July 2022 clearly sets out the appeal process and if the form was not attached and the applicant wanted to appeal the decision , he could have followed up this omission with the education provider. Regarding the 20 working days, it appears that the applicant was afforded only 18 days however no evidence was provided by the applicant prior to, during or after the hearing that he intended to appeal the decision at any time. His evidence was that he emailed the education provider on 22 July 2022 advising he was enrolled and was attending lectures however this email appears to also be in response to the education providers emails dated 20 and 21 July 2022 advising the applicant that he was not enrolled in Semester 2 2022.

18. Regarding the representative’s submissions in relation to the Standards 9 and 10 of the National Code, the Tribunal accepts that a notice of intention to report and 20 working days to access internal complaints and appeal processes are prescribed however as noted, the provision of 18 working days in the applicant’s case before cancelling his CoE did not appear to disadvantage the applicant because he did not seek to appeal the decision.

19. Regarding the representative’s submissions in relation direction no 61, as noted at the hearing, the exceptional circumstances beyond a visa holder’s control applies to mandatory cancellation for condition 8202 breaches. As also noted, the current review requires the Tribunal to consider exercise of discretion and cancellation is not mandatory. Having said that, the Tribunal has considered the claimed unfairness to the applicant because of the contended failures of the education provider and has found that the applicant was offered an academic intervention strategy, was provided with sufficient notice of the intention to report for unsatisfactory course progress and was advised of the appeals process. Accordingly the Tribunal does not accept that the applicant was treated unfairly by the education provider.

20. Regarding the representative’s post hearing submissions in relation to the applicant’s  disappointment with the Victorian Institute of Technology’s standard of education, negligence and lack of support to students, the applicant told the Tribunal that his reasons for ceasing to be enrolled were primarily due to COVID-19 which affected the health of his parents, the financial circumstances of his parents and his difficulty with online classes, all of which he claimed caused him to experience stress. The Tribunal has discussed the failure to allow 20 days for the applicant to appeal the education provider’s decision to report him to the Department in paragraph 54 (see above).

21. The Tribunal accepts the difficulties faced by the applicant and his family arising from the COVID-19 pandemic including the emotional and financial stress. Despite the emotional difficulties caused by these matters, the applicant continued to work, did not contact the Department during an extended period during which he conceded he was aware he was in breach of his visa condition and only enrolled in a course after he received the NOICC. The  Tribunal finds the applicant’s non-compliance with the visa condition was not due to circumstances beyond his control and there are no extenuating or compassionate circumstances and this weighs in favour of visa cancellation.

    Past and present behaviour of the visa holder towards the Department

22. There is no evidence before the Department that the applicant has behaved inappropriately with the Department and the Tribunal gives this factor no weight in its considerations.

    Whether there would be consequential cancellations under s 140

23. 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

24. 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 he could also be subject to a three-year exclusion period unless he 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

25. 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

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

    Conclusion

27. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of his visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant was not fulfilling the purpose of his travel to and stay in Australia as he was not undertaking the study for which his visa was granted. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa. It will not be in breach of Australia’s international obligations. The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

28. 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

29. 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.