Laheeru (Migration)

[2024] AATA 2199

Laheeru (Migration) [2024] AATA 2199 (17 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Hasara Nawshani Laheeru

REPRESENTATIVE:  Mr Richard Tan (MARN: 0429043)

CASE NUMBER:  2300914

HOME AFFAIRS REFERENCE(S):          BCC2022/3906707

MEMBER:Penelope Hunter

DATE:17 June 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 17 June 2024 at 3:15pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased enrolment for extended time – health issues – impact of the COVID-19 pandemic – financial hardship – decision under review affirmed

LEGISLATION

Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 48, 116, 140, 359
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 January 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 pursuant to s 116(1)(b) of the Act on the basis that the applicant was found not to have complied 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. The applicant appeared before the Tribunal on 17 May 2024 via MS Teams video to give evidence and present arguments. The applicant was represented in relation to the review, and her representative also attended the Tribunal hearing.

4. 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

5. 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.

6. The applicant is a 29 year old female citizen of Sri Lanka. She was granted a student visa on 23 January 2019 to undertake study in Australia in a Bachelor of Criminology and Criminal Justice at Griffith University in Victoria. This visa was subject to among others, condition 8202.

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

9. On 2 November 2022, the Department wrote to the Applicant with a Notice of Intention to Consider Cancellation (NOICC) under s 116(1)(b) of the Act, as the applicant was not enrolled in a course of study the applicant was informed that this may be a ground for cancellation of her visa and invited to comment.

10. With the assistance of an agent the applicant provided a submission in response to the Department on 8 November 2022, a copy of her academic transcript from Griffith University,  an application form for enrolment at MCIE VET International in a Diploma of Early Childhood Education and Care and a receipt for payment to her education agent. The applicant acknowledged that she had postponed her studies for three years and claimed that she had been impacted by depression, homesickness, financial pressure and the COVID-19 pandemic. Her application to return to study in early childhood education was being processed.

11. In considering the response of the applicant the delegate noted that they had had regard to the applicant’s Provider Registration and International Student Management System (PRISMS) records which set out that she had not been enrolled in a registered course since 7 August 2019. In assessing the response of the applicant it was noted that she had studied in Australia for over three years and five months and had only obtained a new enrolment after being contacted by the Department. The delegate commented that it appeared that the applicant had only enrolled in an attempt to avoid possible cancellation rather than any genuine attempt to study. After a consideration of the applicant’s submissions the delegate proceeded to cancel the applicant’s visa. The applicant has submitted to the Tribunal a copy of the delegate’s decision record.

12. The Tribunal received an application for review from the applicant on 25 January 2023.

13. On 10 May 2024, the Tribunal received the applicant’s hearing response form, a letter of submission, a statement of purpose from the applicant dated 8 November 2022, a letter of submission from her agent (undated), a copy of a letter of offer of enrolment dated 15 November 2022 in a Certificate III and Diploma of Early Childhood addressed to the applicant and a copy of her bridging visa grant notice dated 14 February 2023. In her letter of submission to the Tribunal the applicant has acknowledged that time passed and she did not attend class or pay fees.

14. In her evidence to the Tribunal on 17 May 2024, the Applicant did not dispute that her enrolment in the Bachelor of Criminology and Criminal Justice at Griffith University was cancelled on 7 August 2019. The applicant confirmed that she was aware that there were conditions upon the student visa she was granted. Pursuant to the provisions of s 359AA of the Act the Tribunal invited the applicant to comment that it was not until 16 January 2023, that her PRISMS records document that she commenced a further a course of study, being the Certificate III in Early Childhood Education and Care. The Tribunal explained the relevance of the information and identified that if relied upon it may go to a finding that she was in breach of a condition of her visa and that she did not enrol to study again until after the Department wrote to her on 2 November 2022 with a NOICC. The applicant elected to comment immediately and did not dispute the information, however she claimed that she was really struggling at the time, she was homeless and trying to find a job.

15. Therefore,  on the material before it, the Tribunal is satisfied that the applicant, as at the date of the delegate’s decision was not enrolled full time in a registered course. The applicant was not enrolled between the period 7 August 2019 and November 2022. Accordingly, the applicant has not complied with condition 8202(2)(a).

16. As the applicant has failed to comply with the visa condition, the ground for cancellation in s 116(1)(b) does arise.

    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. 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’.

    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 purpose of the applicant’s travel and stay in Australia was for her to undertake study for three years in the Bachelor of Criminology and Criminal Justice at Griffith University. The applicant was granted her visa on 23 January 2019, she arrived in Australia on 13 February 2019 and attended the first semester of study of this course. Although she claimed to have applied herself to her study initially, the transcript that she submitted to the Department does not document that the applicant successfully completed any of her units of study. The applicant told the Tribunal that she did sit for the first semester.

19. These studies are no longer the purpose of the applicant to stay in Australia and prior to the cancellation of her visa, the applicant obtained a new enrolment in a Certificate III leading to a Diploma of Early Childhood Education. This course commenced on 16 January 2023, the applicant’s visa was cancelled on 30 January 2023, and she claims to have attended a few weeks of study before her bridging visa was granted without study rights. The applicant has submitted that she wishes to return to study in early childhood education, she claims that she wishes to work with disabled and autistic children. She told the Tribunal that she really wanted to study in the future, she acknowledged that she had made a huge mistake and she claimed that she really needed a second chance.

20. The applicant claimed that with her studies she intended to set up an autistic Montessori style daycare centre in Colombo. When the Tribunal asked the applicant about the career opportunities working with autistic children or in childcare in her home country the applicant said that there were not many childcare centres established and further that her country did not appreciate autistic children but if she had a chance she could show how talented these children were.

21. The Tribunal has considered the claim of the applicant that she wishes to return to study and that she has acknowledged that she has made a mistake in the past and wishes for another change. It also notes that the applicant did not engage in any study for approximately two years and five months before her visa was cancelled and there is limited evidence of progress in her initial studies. The applicant will have to start afresh in any further studies in Early Childhood Education. While the Tribunal accepts that there is value in an Australian qualification, and that she may be able to find course modules focusing on autistic children in Australia it has considerable reservations as to stated career prospects for the applicant in opening her own childcare centre, given that she has acknowledged the area is not well paid, and her family resources appear to fluctuate. It is considered that the application is not without study future options in her home country or elsewhere.

22. Overall the Tribunal gives this factor neutral weight.

    The extent of the applicant’s compliance with visa conditions

23. As set out above the duration of the applicant’s non-compliance was considerable from August 2019 to at least November 2022. The applicant was acknowledged that she was aware it was a condition of her visa that she maintain enrolment. The duration of the applicant’s non-compliance is a matter of considerable concern.

24. There is no evidence before the Tribunal that the applicant has not complied with any other conditions of her visa.

25. The Tribunal gives this factor some weight in favour of not cancelling the visa.

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

26. The applicant told the Tribunal that prior to her visa cancellation that she had really struggled. She struggled to find employment, then could not afford her course fees, then lost her accommodation and was homeless and only able to stay with friends a couple of day. Even after the cancellation of the visa she had tried several times to have the conditions on her bridging visa varied so she could study but was unsuccessful. The applicant has claimed that she has suffered mentally and will suffer more if her visa is cancelled.

27. The applicant maintained that she needs to have something to show for herself upon her return to Sri Lanka and that she wishes to demonstrate to her mother that she has not failed. The applicant’s representative submitted that the applicant’s family was strict and had put a lot of hope on the applicant achieving qualifications, and that she had mistakenly tried to do everything herself and had suffered greatly. He argued the applicant had very compelling reasons to at least be allowed to complete her proposed qualifications.

28. The Tribunal has considered the applicant’s evidence and her representative’s submissions. There is no medical evidence before the Tribunal as to any psychological impact that the Tribunal could have regard to in considering further hardship to the applicant. The Tribunal is satisfied that she would still have study options in her home country, although they may not be as specialised as she would find in Australia. It is accepted that the applicant will be disappointed that she did not complete any qualifications in Australia, and that her family may also be disappointed. Yet the applicant has also told the Tribunal that she is now open with her family about her past circumstances, and they have accepted her struggles, and will support her in the future. It is nevertheless acknowledged that any cancellation will have an emotional toll on the applicant.

29. With respect to financial hardship, it is not the case that the applicant will have lost the benefit of studies for which she has already paid. If granted the visa, the applicant would be starting her courses again. It is also not satisfied on the evidence that the applicant’s studies would sufficiently improve her remuneration, the applicant would be put to considerable future expense if she was to establish a childcare centre for autistic children in circumstances where she claims her country does not appreciate the value of their education.

30. Overall, the Tribunal gives this factor low weight in favour of the applicant.

    The circumstances in which the ground for cancellation arose

31. The applicant told the Tribunal, and set out in her submissions several difficulties with her initial studies. She initially wrote to the Department that she had never been apart from her parents. The language barrier, culture shock and feelings of being alone away from family and friends led to her starting to feel depressed. She told the Tribunal that she was trying to find part-time work when she first arrived in Australia and was unable to find any employment, instead she focused on her studies and was making good progress through her first semester. So despite the culture shock and language barrier she would have the Tribunal understand that she was initially a successful student. In her letter of submission to the Tribunal she has set out that after three months she received an email stating she needed to pay the next instalment of course fees she did not have the funds. She claimed that she went to the student services and asked for a payment plan but they would not assist her. She claimed that she was trying to find work, so stopped her enrolment and planned to return the next semester. Then as she could not find work she also lost her accommodation. She tried to find a job, lost her way, was depressed and even anxious and there were days when she could not eat. The applicant claimed she used to hang around the library or a bus stop, just so she had a safe space.

32. The Tribunal invited the applicant to comment on the requirement that she demonstrate sufficient funds for her first year of study for the initial grant of her student visa, the applicant was asked what representations she had made for the payment of her course fees and living expenses prior to being granted the visa. The applicant replied that her parents demonstrated financial support and that they would assist her with fees. The applicant claimed that her mother became sick with a stroke in January 2020 and required physiotherapy. She said that she wished to reduce the financial pressure on her family. The Tribunal noted that the applicant’s initial enrolment was cancelled five months before her mother’s illness, and raised this with the applicant that she should have had sufficient funds for her living expenses and course fees for the first year. the applicant said that she had thought she could do it herself and that she did not have a good relationship with her mother who was extremely strict and she did not think that she could ask for money. She is now more open with them and they will support her.

33. Although she ceased studying in August 2019, so she could focus on employment the applicant said that she was unsuccessful with many attempts. She had one cleaning job for $150 a fortnight which was not enough for her to live on and she relocated to Melbourne to find work. What little money she had went to pay debts and rent. Then the pandemic hit and it was not a good time for her to study. She started working full-time as a cleaner and the relaxation of conditions for student visa holders allowed her to work full-time. She claimed that she was saving to start studying again, but just when she was about to enrol she received the NOICC from the Department.

34. The applicant further claimed that in the period she was not enrolled that she suffered considerably mentally. When asked what assistance she had sought the applicant said that she had approached student services at Griffith University but they were of little assistance and told her to start journaling or to go for a walk. In addition she maintained that on several occasions she had called Lifeline, but she was so overwhelmed with her situation that she could not talk and was unable to explain her problems to the counsellor on the line. Although a lot of time passed, the applicant has claimed that she did not know what to do. She claimed to have had suicidal thoughts in the past, but through hard work finally got a job and saved money to continue her studies. She has been training at the gym for the last 18 moths and this had made her stronger emotionally.

35. The applicant confirmed that she was aware it was a condition of her visa that she remained enrolled, yet she stopped after her first semester as she claimed that she had no financial resources for her fees. This extended to her inability to afford her accommodation. The fact is that she was required to demonstrate that she had sufficient funds for at least the next semester of her studies as part of her visa grant. The Tribunal had difficulty with the evidence of the applicant that she could not ask her family for assistance when she also claimed that they had undertaken to support her. The applicant stopped studying several months before her mother’s illness and it is not demonstrated to the Tribunal  that this was a factor that led to the initial cancellation of her enrolment.

36. The applicant maintained that it was her intention to resume studying at the beginning of 2020. There is no evidence that she took steps to re-enrol. However, had she done so, it is acknowledged that the illness of her mother in January 2020 and the outbreak of the COVID-19 pandemic in March 2020 could have impacted her ability to study. Yet, it is not persuaded that for these reasons the applicant was not engaged in studies up until January 2023.

37. The applicant has set out in submissions that she worked as a cleaner from October 2019 to January 2020 for Hudor Cleaning Services. Upon relocating to Melbourne, she found a further cleaning position with Bruith Contract Cleaners. It is accepted that the applicant spent some time paying rent and debts she had accumulated, she claims she was also able to work full-time during this period. The evidence is also that her employment was ongoing during the pandemic and she has submitted she worked very hard during this period to contribute to Australian society as a frontline cleaner. If the applicant has sufficient ability to devote herself to full-time work it is a considered she could have obtained enrolment, and returned to studies earlier than January 2023.

1. The Tribunal has considered the claims of the applicant that she was suffering mentally and it is accepted that her situation would have been distressing and mentally challenging. It has considered her evidence that she spoke with student counselling services and rang lifeline on several occasions but was unable to speak. The applicant claimed that she could not seek counselling assistance because she did not have the funds for such treatment. The Tribunal also acknowledges the applicant’s initial straightened financial circumstances, however, as was discussed with her at the hearing, there is limited evidence that she made reasonable attempts to access free services and it was a requirement of her visa that she had medical insurance for the duration of her intended stay, which should have assisted with the costs of access to a general practitioner. As the applicant was able to work for a considerable period of the time she was not studying, the Tribunal is not satisfied that her mental health was a barrier to her studies for the duration of the period that the applicant remained without enrolment.

2. The Tribunal has also considered the evidence of the applicant that she was taking steps to re-enrol when the Department contacted her with the NOICC. It is accepted that the applicant has provided to the Department evidence that she engaged an education agent in October 2022, prior to the NOICC was issued she did not actually obtain enrolment after the NOICC or commence her studies until January 2023. The Tribunal has some concerns that she was motivated to re-enrol with studies again only for the purposes of maintaining the visa.

3. In balancing all of the evidence, the Tribunal is not satisfied that the reasons the applicant ceased studying were beyond her control. It takes a poor view of her evidence that she could not ask her family for assistance with fees after she had been studying for three month, in circumstances where she had represented that they would support her studies. It is accepted that during some of the period that the applicant was not enrolled she faced challenges financially and mentally. It is accepted that her mother’s illness and the COVID-19 pandemic were events outside her control. Overall, the Tribunal is not satisfied on balance that this explains or excuses the almost two years and three months that the applicant was not enrolled or studying, when this was the purpose of her visa.

4. Therefore the Tribunal attributes this factor low weight in favour of the applicant.

   Past and present behaviour of the visa holder towards the Department

5. There is no evidence that the applicant had not been cooperative in her dealings with the Department. The Tribunal gives this consideration some weight in the applicant’s favour.

   Whether there would be consequential cancellations under s 140

6. The applicant claimed to be single with no dependants. She claimed to have been in a relationship with another student who has been her friend for over 11 years. At times she claimed this partner had helped her financially, as well as mentally, however he was not dependent upon her. He had his own visa.

7. It follows that in assessing this factor, there is no evidence that her partner or any other person’s visa would or may be cancelled if the applicant’s visa was cancelled. There is no weight attributed to this factor.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

8. There are mandatory legal consequences that may apply in the case of visa cancellation, including a difficulty obtaining a further visa. 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 obtaining any further visas in Australia. Due to the operation of PIC 4013, the applicant would also be unable to be granted further visas offshore for three years from the date of cancellation.

9. The applicant told the Tribunal that if the visa remained cancelled and she had exhausted or ceased all lawful avenues of review, she would abide by any lawful direction to depart. The Tribunal is satisfied in these circumstances that the likelihood of the applicant being detained is remote.

10. It is accepted that cancellation would have further consequences and these would limit her options to immediately return to Australia or applying for a different kind of visa. These are also the intended and legitimate consequences of cancellation.

11. The Tribunal gives this consideration neutral weight.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

12. The applicant is a citizen of Sri Lanka and there is no information that her visa cancellation would impact on Australia’s international obligations. 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.

13. The Tribunal aske the applicant if she had any fears upon returning to Sri Lanka and she identified that she would be afraid to disappoint her mother if the visa was cancelled, but once she had obtained her qualification she intended to return.

14. The applicant has no children whose interests the Tribunal is to consider.

15. There is no weight attributed to this factor.

    Conclusion

16. The Tribunal has considered all of the evidence and the relevant circumstances of the applicant. The Tribunal is satisfied that there are limited aspects that are favourable to the applicant. Although it is accepted that there were events that occurred outside the applicant’s control, the Tribunal does not accept that the evidence demonstrates this was the reason her enrolment ceased in the first instance and neither does it account for the extended time she was in breach of her visa condition. The Tribunal has placed a low weight on the evidence before it in relation to the circumstances giving rise to the cancellation. It is not persuaded by the material advanced by the applicant that it should be greater than this. 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. It is accepted that the applicant wishes to remain in Australia, yet the for the reasons set out above, it is not demonstrated that she has a compelling need do so, nor that there is a degree of hardship that would weigh in favour of the visa grant. The other considerations are generally of low or neutral weight, and the Tribunal is not satisfied that they weigh in favour of the exercise of the discretion not to cancel.

17. Overall, the Tribunal finds, considering the material before it as a whole, the that the visa should be cancelled

    DECISION

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

    Penelope Hunter
    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.