Lkhagvaa (Migration)

[2023] AATA 4527

Lkhagvaa (Migration) [2023] AATA 4527 (18 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Boldbaya Lkhagvaa

REPRESENTATIVE:  Mr Philip Lee (MARN: 0746785)

CASE NUMBER:  2300333

HOME AFFAIRS REFERENCE(S):          BCC2022/3726901

MEMBER:Jennifer Cripps Watts

DATE:18 December 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 18 December 2023 at 11:21am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-compliance with condition – not enrolled in full-time registered course – non-compliance conceded – difficulty with online classes during COVID restrictions, family’s financial position and home country’s travel restrictions – application for further visa refused because of current cancellation and exclusion period – joint hearing of reviews – new enrolments and current course progression – financial and emotional hardship – mandatory legal consequences – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 4 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 under the power of s 116(1) on the basis that the applicant had not complied with a condition (8202) 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. The applicant appeared before the Tribunal by MS-Teams on 18 December 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages.

4. This was a combined hearing for both this cancellation case together with the applicant’s Tribunal matter number 2307276, which was a refusal relating to a further application for a student visa made by the applicant, essentially because his previous student visa had been cancelled and he is subject to an exclusion period.  The Tribunal must first make a decision in the current cancellation matter a before going on to review the applicant’s student visa refusal matter. 

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. The applicant was granted the subclass 500 student visa that is the subject of this review on 9 December 2019, expiring on 15 March 2023. The visa was cancelled under s 116(1) of the Act because the applicant was non-compliant with condition 8202 of the visa, which requires, essentially, that he must be enrolled in a full-time course of study. The applicant was notified of the intention to consider cancelation (NOICC) on 29 November 2022 and responded to the NOICC on 3 December 2022. He agreed that there were the relevant grounds for cancellation, and provided reasons why his visa should not be cancelled. On 4 January 2023, a delegate of the Minister cancelled the applicant’s subclass 500 student visa that was granted on 9 December 2019.

   Did the applicant comply with Condition 8202?

8. 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).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course.  In his response to the Department’s NOICC, submitted with attached documents on 2 December 2022 the applicant did not dispute his non-compliance with condition 8202.  He was not enrolled in a course of study for more than two years.  His last enrolment at the time was up to 1 June 2020 and he did not re-enrol in a course of study until August 2022.

10. The applicant claims, in written statements he has provided to both the Department and the Tribunal and in his oral evidence, that COVID-19 meant that all of his classes went online, which he found difficult to navigate because he was enrolled to study the English language and it was very confusing.  He was not able to work and this also affected his ability to study, or be enrolled in a course as his financial position was such that he could not pay the course fees.  In addition, the applicant submitted that his family’s business in Mongolia had its income reduced by 50 percent during COVID-19 and they could no longer continue to support him financially. 

11. In addition to his own written statement, the applicant included with his NOICC response Confirmation of Enrolment (CoE) from Queens College; three CoE’s for a package or suite of courses, Certificate IV/Diploma/Advanced Diploma of Business; and a statement of his Commonwealth Bank balance, which was around $35,000 in credit on 2 December 2022.  A letter from Queens College dated 2 December 2022 confirms that the applicant was enrolled in the Certificate IV in Business, commencing 1 August 2022 and finishing on 29 January 2023.  At the Tribunal hearing, the applicant confirmed that had completed the Certificate IV in Business at Queen’s College and is currently studying the Diploma of Business which he should complete in February 2024. He will then go on to study the Advanced Diploma.

12. On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course from June 2020 to August 2022.

13. Accordingly, the applicant has not complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

14. 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’.

    Purpose of the visa holder’s travel and stay in Australia

15. The applicant was granted his first student visa in December 2019.  The COVID-19 was declared a pandemic soon after the applicant’s arrival onshore.  The applicant is from Mongolia.  The first course he was enrolled in was an English language course.  The education provider changed the course from in-person to online and the applicant had trouble navigating the new mode of study.  Understandably, he found this very confusing.

16. The applicant gave oral evidence that he considered returning to Mongolia but that travel restrictions in Mongolia, even for re-entry of its own citizens, were such that he could not return.  He stayed in Australia, but could not afford his course fees.  While the applicant’s non-compliance relating to the purpose of his travel and stay in Australia holding a student was significant and for an extended period of time, the Tribunal considers there to have been compelling circumstances that mitigate his non-compliance with condition 8202, essentially brought about by the COVID-19 pandemic.  Mongalia’s travel restrictions were lifted in June 2021, so it is of some concern that the applicant remained unenrolled in a course of study, while he held a student visa, until August 2022.  However, he has been enrolled since August 2022, and the evidence provided to the Tribunal indicates that he is achieving good grades and that he is a genuine student.

    The extent of the applicant’s compliance with his visa conditions

17. With the exception of condition 8202, there is no evidence before the Tribunal that indicates the applicant has been non-compliant with any other of the visa conditions.

    Degree of hardship that may be caused to the applicant as a result of the cancellation

18. Fortunately the applicant has been able to enrol and continue to study while holding a bridging visa while he awaits merits review.  He is nearly halfway through his Business course at Queen’s College and, on the evidence, has applied himself to his studies and incurred the cost of course fees and other expenses residing in Australia while he studies.  It would cause the applicant significant financial and emotional hardship, particularly in the context of the negative impact the COVID-19 pandemic had on the delay to his start in the course, if he was not able to continue and complete the suite of courses.

    Circumstances in which the ground of cancellation arose

19. The Tribunal has referred earlier to the reasons given by the applicant as to why he was non-compliant with condition 8202.   He does not dispute that he was non-compliant.  The Tribunal accepts that his confusion in relation to the English language course suddenly going online in early 2020, and the financial problems he had paying his fees during the COVID-19 pandemic, were to a large degree out of his control. 

    Past and present behaviour of the visa holder towards the Department

20. There is no information before the Tribunal that suggests the applicant has not engaged with the Department when required to do so.

    Whether there would be any consequential cancellations under s 140

21. On the evidence, the Tribunal is satisfied that there would be no consequential cancellations under s 140 of the Act.

    Mandatory legal consequences

22. As a result of cancellation, the visa holder will become an unlawful non-citizen and may be liable for detention under s 189 of the Act and removal under s 198 of the Act if they do not voluntarily depart Australia.

23. The visa holder would also be affected by section 48 of the Act, which would cause them to have limited options if applying for further visas while in Australia, and Public Interest Criterion 4013, which may prevent them from being granted particular temporary visas for a specific period. 

24. The visa holder has remained in Australia holding a bridging visa and has been able to study while awaiting review of his applications before the Tribunal, in the cancellation matter and the refusal of the subsequent student visa application in May 2023.

25. When the visa holder lodged the application for a Student (subclass 500) visa, they were granted an associated Bridging Visa A. If I decide to cancel this visa, the Bridging Visa A will be automatically cancelled as a result. I note the visa holder may be eligible to apply for a Bridging visa, which may allow them to stay lawfully in Australia whilst a decision is made on this application.

    Australia’s international obligations

26. There is no information before the Tribunal, and no claim has been made, that Australia’s international obligations are engaged.

27. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

28. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Jennifer Cripps Watts
    Senior Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.