Maddi (Migration)

[2023] AATA 4865

Maddi (Migration) [2023] AATA 4865 (12 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nikhil Maddi

CASE NUMBER:  2216340

HOME AFFAIRS REFERENCE(S):          BCC2022/2693376

MEMBER:Christine Kannis

DATE:12 December 2023

PLACE OF DECISION:  Perth

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

Statement made on 12 December 2023 at 2:16pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of visa – non-engagement in the study – mental stress – financial issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

CASES
Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 4 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).

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 video on 5 December 2023 to give evidence and present arguments.

5. 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

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.

   Did the applicant comply with condition 8202?

7. On 21 February 2022, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.

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. 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.

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

11. 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.

12. The information from PRISMS shows that the applicant was not enrolled in a registered course from 12 May 2022 to 1 September 2022.

13. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 12 May 2022 to 1 September 2022 and the Tribunal finds that he breached condition8202(2)(a) of his visa.

14. 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

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

16. On 14 September 2022, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 12 May 2022 to 1 September 2022 and had therefore failed to comply with condition 8202(2)(a) of his visa.

    Response to NOICC

17. On 30 September 2022, the applicant responded to the NOICC and provided the following information:

    ·He was a bright student with an outstanding educational background.

    ·He arrived in Australia in 2017 to study in a Master 's program. He completed a Master of Information Technology in February 2019 from Charles Sturt University. After that he had an opportunity to avail post study work visa to explore Australian workplace environment. He has also completed the Professional Year Program where he had an opportunity to work in a professional environment under the supervision of many experienced staff members.

    ·Before coming to Australia he completed year 10 in May 2010 and year 12 in March 2012 . He completed a Bachelor of Technology (Electronics & Instrumentation Engineering) from Gandhi Institute of Technology and Management, India in April 2016 and passed with first division.

    ·Before coming to Australia, he lived with his parents, grandparents, uncle and Aunt. He was attached to his grandmother; she died in India on 19th May 2021. He was in Australia at that time and due to COVID and travel restrictions he couldn’t see her a last time or attend her last rituals. He wanted to go to India but his family recommended he avoid travel. It was a devastating and difficult time as he was alone and was in guilt for not being there.

    ·He planned to go to India on his grandmother’s one year anniversary and perform rituals for her eternal soul. He travelled to India from April 2022 to 6 June 2022. He had applied for a deferment and assumed it would have been processed by college. However, upon arrival he found his CoE inactive. He went to the college for assistance but they had a lack of staff so it was not done straight away. He also brought to their attention that he didn’t receive notice of CoE cancellation. The staff member was new/untrained and she didn’t know how to handle it. She was not able to re-enrol him due to system error. He tried to communicate with them for a few days but due to the staff shortages they were unable to assist. After many attempts he decided to change course and went to an education agent to seek help in admission to another education provider. They assisted him in gaining admission and CoE for a registered course in Lennox college. He is currently enrolled and studying for a Diploma of Leadership and Management.

    ·Post COVID world is hard and it is not easy to adapt to new technological and environmental changes. Education institutions have changed. His education provider Greenwich College is no different. Classes and student support was online. He wanted to speak in person about his situation, but the institution kept referring him to student support through phone lines and virtual calls where he was not getting adequate help to sort out the situation. Prior to COVID these scenarios were easily handled but post COVID staff shortages are rife and international students are not getting enough help.

    ·Due to these unforeseen circumstances his mental health is affected. He consulted a GP who referred him to a psychologist. He doesn’t want his life / career to derail any further and he requests this opportunity to revive his career considering all the academic progress he has achieved and not let these past few months ruin his life.

    ·He is a person of good character and has always been law-abiding. Despite his difficulties he has tried to be a good student. He only lacks with his education in the past year because of the reasons mentioned. He has always wanted to go far in his education and has studied following qualifications for more than 10 years.

    ·He understands he was not enrolled in a registered course from May 2022 until September 2022 and breached a visa condition however he has invested his whole life in studies and has made good academic progress. He has learnt his lesson and will be vigilant and follow the visa conditions.

    ·He breached the visa conditions unintentionally. It was not in his plan and he has realised his mistake and tried to overcome it.  

18. At the time of responding to the NOICC, the applicant provided the following documents:

    ·Overseas education/qualification documents dated in 2010, 2012 and 2016

    ·Australian Qualifications documents dated 2019 and 2020

    ·Death Certificate for death on 19 May 2021

    ·Evidence of applicant’s travel from 11 April 2022  to 6 June 2022

    ·Psychology referral dated 15 September 2022 from Dr Brian McLaughlin stating that the applicant had noticed a dip in his mood with associated anxiety symptoms, a lot of which related to his family being back home and his grandparent passing while he was in Australia.

    Evidence provided at hearing

19. 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 Information Technology which was cancelled on 10 May 2018 due to non-payment of fees;

    b.He was enrolled in a Master of Information Technology which he finished on 4 October 2019;

    c.He was enrolled in a Diploma of Leadership and Management which was cancelled on 12 May 2022 due to unsatisfactory course progress;

    d.He was enrolled in an Advanced Diploma of Leadership and Management which was cancelled on 12 May 2022 due to non-commencement of studies;

    e.He was enrolled in a Diploma of Leadership and Management which commenced on 26 September 2022. The CoE was created 2 September 2022 and was subsequently cancelled.

20. The Tribunal explained to the applicant that this information was relevant because it indicates that from 12 May 2022 until 1 September 2022 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.

21. 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 he had any comments in relation to his PRISMS enrolment records. The applicant told the Tribunal that he agreed with the information in PRISMS.

22. The Tribunal asked the applicant about the information provided in the NOICC response in relation to his request for a deferment of his study prior to travelling to India in April 2022.  In response to the Tribunal asking whether he had any evidence to substantiate that he had requested a deferment, the applicant said he had no proof of the request.

23. The Tribunal asked the applicant about the information provided in the NOICC response in relation to not being able to re-enrol on his return to Australia due to a new/untrained staff member and a system error. Despite the Tribunal asking about this a number of times, the applicant did not provide a response.

24. The applicant told the Tribunal that to be honest, he had given up on his study and his life before he returned to India in April 2022. He said he had given up his study because he felt stuck. When asked to clarify what he meant the applicant said he felt pressured because he was not with his family, he had lost his grandmother in 2021 and because he was under financial pressure. He said he was under financial pressure in relation to payment of fees because he was not managing his money well. The Tribunal pointed out 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.  

25. The Tribunal put to the applicant that he would have known that he was no longer undertaking study from April 2022. He conceded he was aware and said he was under stress mentally because of his grandmother’s death, financial pressure and being away from his parents.

26. The Tribunal put to the applicant that he would have known from 12 May 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 but said he was not able to make any decisions because of his mental state. The Tribunal asked the applicant whether he contacted the Department when his enrolment circumstances changed. He said he did not contact the Department because of his mental state. 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.

27. In response to the Tribunal asking whether he sought medical assistance for his mental health, the applicant said he was referred to a psychologist by his general practitioner. The Tribunal noted that the referral provided is dated after the NOICC and asked the applicant whether he sought medical assistance earlier and whether he had seen the psychologist. The applicant said he has not seen a psychologist because in his culture they do not believe in therapists or psychologists.

28. The Tribunal noted that on 25 August 2022, the Department’s Character and Cancellation Branch sent the applicant an email regarding verification of his contact details. Noting that the applicant provided a CoE for a Diploma of Leadership and Management course which was created on 2 September 2022, the Tribunal asked him the reason for obtaining the CoE within days of the Department’s email. The applicant told the Tribunal that when he received the email he knew it was time to take some action and the email motivated him to do so.

29. Noting that the applicant returned to Australia in June 2022 and did not re-enrol in a registered course until after he received the Department’s email on 25 August 2022, the Tribunal asked the applicant how he spent his time from his return in June 2022. He said he stayed in his room because he was depressed.  In response to the Tribunal asking whether he worked during the period from June 2022 to September 2022, the applicant said he worked as a delivery driver for 16 to 20 hours per week.

30. The Tribunal noted that on 25 August 2022, the Character and Cancellation Branch of the Department sent the applicant an email regarding verification of his contact details. Noting that the applicant provided a CoE for a Diploma of Leadership and Management course which was created on 2 September 2022, the Tribunal asked him the reason for obtaining the CoE within days of the Department’s email. The applicant told the Tribunal that when he received the email he knew it was time to take some action and the email motivated him to do so.

31. When asked about the purpose of his travel to Australia, the applicant told the Tribunal that he came to Australia to complete his education. In response to the Tribunal asking whether he has a compelling need to remain in Australia, the applicant said he wants to finish the study he started.

32. When asked about the hardship that may be caused by cancellation of the visa, the applicant said if he returns to India without completing the Diploma of Leadership and Management course his whole life will be affected because if he is asked about what he has done during the past few years, he will have to say he has achieved nothing.

33. 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

34. 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 4 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.

35. The Tribunal questioned the applicant as to whether there was a compelling need for him to remain in Australia. In response, he said he wants to complete his study. The Tribunal does not consider this constitutes a compelling need.

36. The applicant’s non-engagement in the study for which his visa was granted, 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

37. 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 12 May 2022. There is no evidence before the Tribunal that he has not complied with the other conditions attached to his visa.

38. The applicant’s non-compliance for a period of 4 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)

39. The Tribunal accepts that the cancellation of the applicant’s visa will be disappointing to him he will not be able to complete his study and will have attained no further Australian academic qualification since 2019. 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

1. The applicant’s visa was cancelled as a result of his failure to maintain enrolment. The applicant was not enrolled in a course for 4 months prior to the issuing of the NOICC. He told the Tribunal that this was due to having given up on his study and life because of  personal and financial issues. He said being away from his family, his grandmother’s death and not managing his finances caused him mental stress.

2. The Tribunal accepts that being away from his family and his grandmother’s death would have caused the applicant emotional hardship.  In relation to his financial issues, the applicant was not forthcoming other than to say that he did not manage his money well because of lifestyle choices. The applicant’s evidence was that he did not seek medical assistance for his mental health until after he received the NOICC and said he continued to work during the period from June 2022 to receipt of the NOICC. The applicant maintained employment at the time he ceased to be enrolled in a registered course. Therefore, despite the claimed mental stress, 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.

3. The Tribunal notes that the applicant was able to obtain a CoE on 2 September 2022, after being contacted by the Department on 25 August 2022.

4. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The applicant’s enrolment was cancelled because he ceased to be enrolled in a registered course from 12 May 2022. He referred to suffering mental stress however as noted, he  was able to maintain employment and he did not seek medical assistance until after he received the NOICC.  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

5. 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

6. 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

7. 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

8. 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

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

   Conclusion

10. 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.

11. 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

12. 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.