Lee (Migration)

Lee (Migration) [2024] AATA 3071 (23 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Ansuk Lee
REPRESENTATIVE:  Mr Jonghyon Sohn
CASE NUMBER:  2217454
HOME AFFAIRS REFERENCE(S):          BCC2022/2199805
MEMBER:Christine Kannis
DATE: 23 April 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 23 April 2024 at 6:59am
CATCHWORDS
MIGRATION – cancellation – Student (Class TU) visa – Subclass 500 (Student) – breach of condition – not enrolled in full-time registered course – discretion to cancel visa – study history – multiple previous cancellations of enrolment – continued employment during period of non-enrolment – new enrolment made after receiving department’s notice of intention – mental and physical health and treatment, death of father and COVID restrictions – extended period of non-enrolment – health progress, return to study, academic support, course progress and intention to complete – part-time work related to study – supporting statements – employment prospects in home country – 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

This is an application for review of a decision dated 21 November 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of her visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal by MS Teams video on 15 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.
Did the applicant comply with condition 8202?
On 16 June 2020, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.
Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
·be enrolled in a full-time registered course: 8202(2)(a)
·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than the course in relation to which the visa was granted: 8202(2)(b)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.
In the present case, the applicant’s visa was cancelled on the basis that she was not enrolled in a full-time registered course.
Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2]
[1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).
[2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act.
The information from PRISMS shows that the applicant was not enrolled in a registered course from 6 August 2020 until 23 October 2022.
On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 6 August 2020 until 23 October 2022 and the Tribunal finds that she breached condition8202(2)(a) of her visa.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.
Consideration of the discretion to cancel the visa
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 her representative, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below.
On 18 October 2022, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because she had ceased to be enrolled in a registered course from 6 August 2020 and had therefore failed to comply with condition 8202(2)(a) of her visa.
Response to NOICC
On 24 October 2022, the applicant responded to the NOICC and provided the following information:
·In 2017 she was treated for depression and panic. Her symptoms worsened during the semester and she had a meeting with her lecturer who suggested she see an international student counsellor. Upon seeing a counsellor, she was referred for medical treatment. The doctor at Queensland University of Technology (QUT) suggested she see a psychiatrist.
·She began having sessions in 2018 with Dr Williams at Toowong Special Clinic, where she was prescribed medications for depression, anxiety and panic. Her condition stopped her from socialising and she became isolated. She was unable to focus on her course because of her social phobia. Treatment was slowly helping her.
·In December 2018 her father became seriously ill. His doctor said she should visit him in Korea as soon as possible but her parents did not want to interrupt her studies. Her parents’ situation worsened her anxiety and depression. Her father passed away in December 2018.
·She returned to Korea to see her family, where she attended her father’s memorial ceremony in December 2019. After coming back to Australia, COVID--19 lockdowns began. Her classes changed to online and she could only see her doctor by phone. She felt isolated and did not have friends who could help her.
·She received a CoE cancellation notice from QUT in August 2020 and asked about re-enrolment but admissions were delayed due to COVID-19 lockdowns and she missed the enrolment period. She was issued a Letter of Offer for the 2021 intake by QUT but her new medication caused her symptoms to deteriorate and she had a stomach problem and was not able to have meals. She had an endoscopy and the doctor was concerned her stomach issues were caused by her mental condition. She had been taking medication along with psychiatry medication for 8 months.
·She contacted QUT and she was still permitted to start her course but her doctor advised that she should focus on treatment and recovery. This is the reason she did not accept the QUT Letter of Offer.
·She is much healthier and her doctors have said she is ready to study. She has ambition to continue her course and has completed 3 semesters at QUT and has 5 semesters to complete the course.
·When she has completed her course she will be able to help people who suffer from depression and panic disorder based on her experience.
·The past 2 years have had a number of difficulties and she has managed through them and intends to return to university to begin her studies.
At the time of responding to the NOICC, the applicant provided the following documents:
·Prescription for Melatonin dated 7 December 2017;
- Better Life Centre tax invoices dated 6 January 2018 and 13 January 2018;
·Prescription for Lexam dated 24 January 2018;
·Appointment Schedule Better Life Centre showing 6 appointments in January and February 2018;
·Prescription for Circadin dated 4 May 2018 and 25 May 2018;
·Pharmacy receipts for Mometasone, Cefalexin and Lyclear supplied 26 October 2018;
- Death certificate for Kyoung-Seok Lee dated 13 December 2018;
·Prescription for Escitalopram dated 12 January 2018 and 27 February 2019;
·Pathology report dated 30 May 2019;
·Prescription for Desven ER dated 11 November 2019, 18 December 2019, 15 January 2020 and 12 February 2020;
·Letter dated 12 March 2020 from Dr Georgia Williams stating the applicant would not likely successfully complete a full time course given her current mental illness;
·Letter dated 25 March 2020 from Dr Georgia Williams asking that the applicant be given an extension for her assignment because she is suffering from a mental illness which impacts on her ability to study and complete assignments;
·Letter dated 7 December 2020 from Dr Georgia Williams stating the applicant suffers from a major depressive disorder which impacts on her ability to study and complete assignments;
·Graceville Village DDS report dated 18 March 2021;
·Referral letter dated 17 November 2021 from Doctors@Brisbane Markets for consideration of endoscopy;
·Receipts dated 1 December 2021 from Mater Private Hospital Brisbane;
·Gastroscopy Reports dated 1 December 2021 from Dr Yoon-Kyo An;
·Letter dated 20 October 2022 from Chao (Iris) Huang, Clinic Psychologist of Dimension Psychology Clinic stating the applicant reported she deferred her university course in 2021 and 2022 and that she was currently working on a casual basis at Rocklea Market;
·Letter dated 21 October 2022 from Dr Georgia Williams to Australian Immigration Office stating the applicant’s attendance since 2019 and that she suffers from Major Depressive Disorder and Mixed Anxiety Disorder and that her symptoms have significantly impacted on her ability to study and was the cause of her withdrawing from university this semester;
·Letter of Offer from QUT dated 24 October 2022;
·Undated report from psychologist Shanling Su regarding applicant’s mental health which refers to sessions in 2018 and 2020;
·Transfer of Medical Records (undated)
·Invoices from Toowong Specialist Clinic dated 27 June 2019, 11 July 2019, 25 July 2019, 22 August 2019, 12 September 2019, 26 September 2019, 15 October 2019,06 November 2019, 11 November 2019, 18 December 2019, 15 January 2020,12 February 2020, 11 March 2020, 22 April 2020, 02 June 2020, 10 June 2020, 06 July 2020, 5 August 2020, 14 October 2020, 10 November 2020, 7 December 2020, 4 January 2022, 26 April 2022, 11 May 2022, 14 June 2022, 12 July 2022 and 15 September 2022;
·Shanling Su Psychology tax invoices for appointment dates 28 July 2020, 14 April 2020, 12 May 2020, 24 April 2020, 05 May 2020, 08 June 2020, 7 November 2020, 7 December 2020, 12 May 2020, 22 June 2020, 16 November 2020,12 October 2020, 12 October 2020, 31 August 2020, 19 September 2020 and 12 October 2020;
·Consent form and Financial Consent form;
·Graceville Medical tax invoices dated 16 November 2020, 10 February 2021, 9 November 2021 and 16 March 2022;
·Letters from Dr Miriam Wellauer dated 16 November 2020, 10 February 2021, 9 November 2021 and 16 March 2022;
·Dimension Psychology Clinic invoices dated 21 January 2022, 10 February 2022, 4 March 2022, 30 March 2022, 27 April 2022,09 June 2022, 7 July 2022, 11 August 2022, 8 September 2022 and 6 October 2022;
·Hand written notes dated 23 January;
·Queensland Government fact sheets for Fluoxetine and Sertraline; and
·Sertra Consumer Medicine Information leaflet.
Evidence provided prior to the hearing
Written submission dated 4 April 2024 from the applicant in which she said:
·She has good reasons to finish this course and can't stop at this point with only 4 semesters to get her Bachelor. Her academic performance in 2023 was different than before and her attitude towards her studies was different. She participated in all classes and emailed professors when she had questions. She studied actively and enthusiastically, unlike before.
·She has also benefited from the contact with her unit coordinator at the beginning of the semester and has had conversations with them about preparing for a subject. She has written to professors about what she needs for a subject When she was writing her essay she asked the professor what to add and through the questions and answers of other students she got to know other students' perspectives and found this study interesting and fun and got to know the system that is different from her country. Some parts are necessary immediately, and there are many parts that she needs to know and she learned more about how this study is used in various fields in society. She realised that research was something she wanted to do.
·She realised her university experience was different to what she was used to and her goals became clearer. She wanted to be a social worker and help and impact people.
·She made sure to use the various QUT student academic support services as often as possible, including online counselling which helped with report writing styles, essay writing and research. With support from these services she has improved the quality of her assignments and her marks have been getting better.
·She has been counselled on time management by SUCCESS SUPPORT, which helps her during the semester and she also sees a counsellor provided by QUT once every two weeks to help manage her mind and body better.
·She needs to have field experience while studying and is preparing for a part-time job to learn and gain more field experience while studying.
·While studying she can do casual work in other parts of her life but now feels it is possible to try to work in the field she is studying. She got the necessary certifications or qualifications she needs. NDIS card,blue card, first aid, CPR, and training on how to treat clients. From December 2023 to January 2024, she had experience as a social supporter with a client who needed help with behavioural issues. Her manager said in the future second-generation Korean immigrants and immigrants need a lot of help in this field and said her identity would be helpful.
·She hopes to complete the remaining 4 semesters and use her learning to contribute to society in a positive way to help those in need and to do that she has to do this bachelor's degree. She wants to help people, hear their stores and help them not be left out of society. Learning in Australia will help not only the Australian society but also the Korean society, which is currently about 10 years behind in this area.
·Also, after graduating from her undergraduate programme, she has been thinking about a Master's programme and would like to learn more about research and counselling. She would like to further her studies in this area and has discussed these plans with her professors who have given her a lot of encouragement.
Submission from representative which included the following information:
·The applicant’s mental health issue is relatively in remission and she resumed her study in the Bachelor of Social Work in the first semester of 2023. Her study plan shows she may be able to finish her bachelor in 2025 and can be a social worker with a multicultural background. According to the Skilled visa processing priorities from the Department of Home Affairs, the occupation of social worker is a prioritised occupation and if she can finish her study and become a social worker, it would be beneficial not only to her, but to Australian society as well.
·The applicant now studies enthusiastically, unlike before. Her academic record shows her current academic achievement is vastly different from the result before 2020. She has a Distinction in a subject and passed all the required subjects without any Fails. Her attitude and her health condition changed from 2023.
·Letters of support from her lecturers, tutors, and colleagues, including her employer and a Queensland solicitor and lecturer Ms Christine Jones express hopes the applicant’s visa situation will be resolved due to her dedication to her academic achievement and to the community.
·The applicant is 47 years old. Unlike Australia, a middle-aged woman without a proper qualification and extensive work experience struggles to find a job other than manual labour or simple ‘permanent minimum-wage’ jobs in South Korea. If she is forced to quit her study and return to South Korea, she would end up being a minimum wage worker instead of being a highly-valuable social worker in Australia with multicultural background.
·This might be the applicant’s last chance to continue her study. If her study is interrupted by visa cancellation and a 3-year ban from Australia, it would be hard for her to resume her study, due to her age and economic hardship.
·Visa cancellation might adversely affect the applicant’s mental health. The psychological and emotional hardship from the visa cancellation might cause a deterioration to her mental health, which is now in remission with her doctor’s extensive effort.
·In response to the NOICC the applicant stated she had mental health problems of depression, anxiety and panic disorder. Her conditions caused her social phobia and she felt isolated. Her mental health deteriorated since she could not visit Korea for her father’s funeral due to her health condition. These circumstances caused her CoE to be cancelled and when she attempted to re-enrol her symptoms deteriorated and she experienced stomach issues due to medication. Her doctor/psychologist recommended she focus on recovery.
·Due to her mental condition, the fact that she contact the Department and the University to resolve her situation could not be able to come to her mind. It is common that a person suffers from depression cannot maintain even basic function of everyday life, such as eating and self-care.
·There is some compassionate ground for the applicant.
Applicant’s QUT Academic Record showing completion of units in 2017,2018, 2019 and 2023 and current enrolment in 2024.
Letter dated 12 March 2024 from Dr Joanne Clarke who stated she was the applicant’s lecturer at QUT in 2023. She said the applicant regularly attended lectures and tutorials and is now in a position to focus her attention on completing her degree.

Letter dated 13 March 2024 from Dr Michelle Newcomb who stated she was the applicant’s lecturer at QUT in 2023. She said the applicant in the past struggled with her studies but is now on an upward trajectory.
Letter dated 28 March 2024 from Ms Bronwyn Dendle who stated she was the applicant’s tutor at QUT in 2023. She said the applicant is a motivated and dedicated student.
Letter dated 5 April 2024 from Ms Christine Jones of SJP Law who stated she was the applicant’s lecturer and tutor at QUT in 2023. Ms Jones said the applicant impressed her as having integrity and commitment to her studies and that she is an asset to the Australian community.
Email dated 8 April 2024 with the subject line Ansuk LEE study plan in relation to a placement for semester 2, 2024.
Letter dated 8 April 2024 from Darcy Peters who stated they met the applicant in March 2023 and she is their friend and classmate and it would be a shame if the applicant was not able to complete her studies.
Letter (undated) from Joanne Yang, Occupational Therapist & Director who stated that the applicant was a disability support worker with her organisation.
Email dated 15 March 2024 from William Hesler in which he stated he had known the applicant for 7 years and she is an honest and trustworthy person and deserves the chance to complete her studies.
Article dated 5 March 2024 Women’s Labour Participation Challenges in Japan and South Korea.
Evidence provided at hearing
The Tribunal adopted the procedure in s 359AA of the Act to put to the applicant information from a copy of her enrolment record from the PRISMS database, a copy of which is on the Tribunal file. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal put to the applicant that according to the information from her PRISMS enrolment record, she was enrolled in the following courses of study:
a.She was enrolled in English language related courses in 2016, two of which were cancelled and two of which she finished;
b.She was enrolled in Diploma of Community Services courses in 2016, two of which were cancelled and one of which she finished;
c.She was enrolled in a Bachelor of Social Work course which was cancelled on 29 March 2018 due to Deferment/Suspension- Compassionate or compelling circumstances;
d.She was enrolled in a Bachelor of Social Work course which was cancelled on 18 April 2019 due to Deferment/Suspension- Compassionate or compelling circumstances;
e.She was enrolled in a Bachelor of Social Work course which was cancelled on 6 August 2020 due to non-payment of fees and non-commencement of studies;
f.She was enrolled in a Bachelor of Social Work course which was due to commence on 27 February 2023 which was cancelled on 22 November 2022.
The Tribunal explained to the applicant that this information was relevant because it indicates that from 6 August 2020 until 23 October 2022 she did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether she breached the conditions of her student visa by not maintaining enrolment in a registered course of study.
The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether she had any comments in relation to her PRISMS enrolment records. The applicant told the Tribunal that she agreed with the information in PRISMS.
The Tribunal noted that the evidence provided prior to the hearing included that the applicant was undertaking study in 2023 and is currently studying however PRISMS does not show this study. Prior to the hearing, the Tribunal requested confirmation of the applicant’s enrolment from QUT. In response QUT advised that the applicant completed 3 units in semester 1 in 2023 and 3 units in semester 2 2023 and that she is currently enrolled in semester 1 2024.
The Tribunal asked the applicant about the information provided in the NOICC response in relation to her depression in 2018 and 2019. She said because of her depression and her father’s death in 2018 she was unable to concentrate on her study. She said her condition worsened and her medication did not work.
The Tribunal asked the applicant about the information provided in the NOICC response in relation her receipt of a CoE cancellation notice from QUT in August 2020 and a Letter of Offer for the 2021 intake. She said when she received the CoE cancellation she was depressed and in a state of panic and was not willing to ask for help or make enquiries.
Noting that PRISMS showed the applicant’s enrolment was cancelled in 2018 and in 2019 due to Deferment/Suspension- Compassionate or compelling circumstances, the Tribunal asked her the reason she did not seek a deferment in 2020. In response she said her thought system almost stopped and she could not have a conversation with other people.
The Tribunal referred to the letter from Chao (Iris) Huang, Clinic Psychologist which said the applicant was currently working on a casual basis at Rocklea Market and asked her about her employment. In response the applicant said she worked at Rocklea Market from 2019 until November 2022. She said she needed to pay her rent, her course fees and her medical treatment costs. She said if she didn’t work she would not have been able to pay for her monthly psychologist appointment or her fortnightly doctor appointments. She said working was an unavoidable act to survive. The applicant said she has always worked for not more than 20 hours in Australia. She said her work at Rocklea Market required limited involvement with other people.
The applicant told the Tribunal that she worked in a factory from November 2022 until November 2023 and as a disability support worker from December 2023 until February 2024. She said she has always financially supported herself in Australia.
The Tribunal asked the applicant about PRISMS showing her enrolment in a Bachelor of Social Work course was cancelled on 6 August 2020 due to non-payment of fees. In response she conceded she was short of money and did not pay her fees.
The Tribunal asked the applicant about her written submission provided prior to the hearing in which she said her attitude towards her studies is now different and she studied actively and enthusiastically, unlike before. In response she said since 2022 her condition has been improving because of changes in her medication. She said prior to 2023 she struggled with her studies and did not ask questions however last semester she contacted her lecturer and course co-ordinator for assistance.
In response to the Tribunal asking the applicant the reasons she was not enrolled from 6 August 2020 until 23 October 2022, she said her major issue was her medical issues and also the impact of her father’s death which was difficult and stressful.
The Tribunal noted that on 18 October 2022, the Department sent the applicant the NOICC. Noting that the applicant provided a CoE for a Bachelor of Social Work course which was created on 24 October 2022, the Tribunal asked her the reason for obtaining the CoE 4 days after receiving the NOICC. The applicant told the Tribunal that from the end of September 2022 she had been intending to return to study. She said she sent QUT emails every week in October 2022 and until the end of November 2022 to check on her enrolment.
The Tribunal put to the applicant that she would have known from 6 August 2020 that she was no longer enrolled in a course and was not abiding by the conditions of her visa. In response the applicant conceded that she was aware of her non-compliance but said her depression meant that there was a discrepancy in her mental and physical actions and although she could have thoughts, her physical body did not move. She said this was also the reason she did not contact the Department when her enrolment circumstances changed. In the Tribunal’s view it is the responsibility of a visa holder to be aware of the conditions of their visa and remain compliant with them.
When asked about the purpose of her travel to Australia, the applicant told the Tribunal that she came to Australia to study. In response to the Tribunal asking whether she has a compelling need to remain in Australia, the applicant provided the following evidence:
·She would like to complete her course next year and her study results are improving. She wants to use her knowledge of Korean culture and Australian culture to help the Korean migrant community.
·She has clients who have Down Syndrome, autism and dementia and if she has to leave Australia they will be disadvantaged because they will have to establish a new relationship with care workers and their safety may be at risk. She is supportive of her clients and if she has to leave Australia she will feel guilty and sad.
·She has the support of her lecturers, tutors and colleagues and if she has to stop her study, they will not be happy.
·She has been away from Korea for more than 10 years and there has been a big gap in her career and the only job she could get would be a minimum wage job.
When asked about the hardship that may be caused by cancellation of the visa, the applicant said she is currently suffering from depression and a panic disorder and if she has to depart Australia her symptoms will deteriorate. She said Dr Williams is concerned about a deterioration. The applicant said she wants to get back to good mental health and she is sure it will worsen if she has to depart Australia and she might even become suicidal.
The representative submitted that if the applicant’s visa remains cancelled, the 3 year ban on her returning to Australia would mean that she would not be able to return to complete her study because of her age. He said the only hardship the applicant would suffer is her own hardship.
Post hearing evidence
The representative provided the applicant’s work history which confirmed she was employed from November 2018 to March 2024 with various employers. The representative also provided invoices for the applicant’s medical treatment in 2021.
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
The purpose of the applicant’s visa was to enable her to study. The applicant was not enrolled in a course of study for a period of 2 years 3 months prior to the issuing of the NOICC. The Tribunal finds the applicant’s breach of condition 8202 to be significant because she was not engaging in the study for which her visa was granted and was not fulfilling the purpose of her travel to and stay in Australia.
The Tribunal accepts the evidence that the applicant commenced study again in 2023 and has had improved results however this does not outweigh the extended period during which she was not enrolled in any course.
There is no specific definition of 'compelling' or 'compassionate' 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]
[3] Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31].
The Tribunal questioned the applicant as to whether there was a compelling need for her to remain in Australia. In response, she said she would like to finish her course and help the Korean migrant community. The Tribunal does not consider this constitutes a compelling need to remain in Australia. The applicant also referred to her patients suffering various disabilities and said they would be disadvantaged and their safety may be at risk. No evidence was provided to support this contention. The applicant said her lecturers, tutors and colleagues will not be happy if she has to stop her study. The Tribunal does not consider this constitutes a compelling need to remain in Australia. The applicant said she would only be able to obtain employment in a minimum wage job in Korea. The Tribunal does not consider this constitutes a compelling need to remain in Australia.
The applicant’s non-engagement in the study for which her visa was granted for an extended period of 2 years 3 months, and the absence of compelling reasons for her to remain in Australia, weighs in favour of visa cancellation.
The extent of compliance with visa conditions
The applicant has not complied with condition 8202 of her student visa because she has failed to maintain enrolment in a full-time registered course of study from 6 August 2020 to 23 October 2022. There is no evidence before the Tribunal that she has not complied with the other conditions attached to her visa.
The applicant’s non-compliance for a period of 2 years 3 months from cancellation of her 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)
The Tribunal accepts that cancellation of the applicant’s visa will be disappointing to her because she will not be able to complete the course she commenced in 2018. The Tribunal accepts that cancellation of her visa may adversely impact her employment prospects in Korea. The Tribunal accepts that cancellation is likely to adversely affect the applicant’s mental health although no evidence was provided to substantiate this contention. The Tribunal gives the hardship that may be caused to the applicant some weight against cancellation.
The Tribunal noted that the evidence provided prior to the hearing included an Article dated 5 March 2024 Women’s Labour Participation Challenges in Japan and South Korea. The article discussed maternal leave from the workforce and gender discrimination based on the reproductive question. The article did not appear to be relevant to the applicant’s circumstances however as noted, the Tribunal accepts cancellation of her visa may impact her employment prospects in Korea.
Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control
The applicant’s visa was cancelled as a result of her failure to maintain enrolment. The applicant was not enrolled in a course for 2 years 3 months prior to the issuing of the NOICC. She told the Tribunal that this was due to her mental health and her grief following her father’s death in 2018.
An abundance of documentary evidence was provided to demonstrate that the applicant suffered from mental health and some physical health issues during the period 2017 to 2022. The question is whether these health conditions precluded her from undertaking the study for which her visa was granted. Letters dated in 2020 and 2022 from Dr Georgia Williams refer to the applicant’s mental health impacting on her ability to study and a letter dated 21 October 2022 said her symptoms caused her to withdraw in that semester. The Tribunal noted that the applicant was not enrolled in any course in 2022 prior to 21 October 2022 and therefore Dr Williams’ reference to the applicant’s withdrawal is not correct.
The Tribunal accepts the applicant suffered various mental and physical health issues during the period from 6 August 2020 to 23 October 2022. She said her mental health stopped her contacting QUT to request a deferment or contacting the Department to notify her change in study circumstances. As noted, in the Tribunal’s view it is the responsibility of a visa holder to be aware of the conditions of their visa and remain compliant with them. The applicant’s evidence was that she continued to work during the period from 6 August 2020 to receipt of the NOICC. The applicant maintained employment at the time she ceased to be enrolled in a registered course. Therefore, despite the claimed mental health issues, 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. The Tribunal gives some weight to the medical evidence and in particular Dr Williams’ letters however this is outweighed by the applicant’s ability to maintain employment throughout the non-compliance period of 2 years 3 months. The evidence was that she was also able to arrange and attend various medical and treatment appointments during the period of non-compliance.
In the representative’s written submission it was submitted that due to her mental condition, the applicant could not contact the Department and the University and that it is common that a person who suffers from depression cannot maintain even basic function of everyday life, such as eating and self-care. As noted, the applicant was able to maintain employment and attend to her mental and physical health treatment. There was no evidence to suggest she was not capable of performing activities of daily living.
The applicant told the Tribunal she needed to work to pay for her living expenses including her medical treatment and this meant she was unable to pay her course fees in 2020. The Tribunal notes that it is a requirement for the grant of a Student visa that visa holders can financially support themselves for travel, living costs and tuition fees during the stay in Australia. If a visa holder is experiencing financial difficulties it is reasonable to expect the visa holder to temporarily depart Australia until their financial situation improves rather than remain in Australia and continue to not comply with their visa conditions.
The Tribunal notes that the applicant was able to obtain a CoE on 24 October 2022, 4 days after being contacted by the Department on 18 October 2022. She said she had been intending to return to study since September 2022 however no evidence was provided to substantiate this contention and in any event she did not take action until after she received the NOICC.
The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The applicant’s enrolment was cancelled because she ceased to be enrolled in a registered course from 6 August 2020. She referred to suffering depression however as noted, she was able to maintain employment throughout the period of non-compliance. She was also able to attend various medical appointment for both physical and mental health issues despite her evidence that there was a discrepancy in her mental and physical actions and although she could have thoughts, her physical body did not move. The Tribunal finds there are no extenuating or compassionate circumstances in this case and this weighs in favour of visa cancellation.
Past and present behaviour of the visa holder towards the Department
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
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
The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s 189 and removed from Australia pursuant to s 198. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant and gives this some weight against cancellation.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

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
In the representative’s written submission it was submitted that the occupation of social worker is a prioritised occupation by the Department. The Tribunal accepts this may be the case but the issue before the Tribunal is cancellation of a visa and not rejection of a visa application. Accordingly, the Tribunal gives this limited weight against cancellation.
Conclusion
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of her visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant was not fulfilling the purpose of her travel to and stay in Australia as she was not undertaking the study for which her 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.
The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Christine 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.

[2024] AATA 3071

23 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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