Maharjan (Migration)

[2024] AATA 3414

Maharjan (Migration) [2024] AATA 3414 (25 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rozee Maharjan

REPRESENTATIVE:  Mr Ajay Bansal

CASE NUMBER:  2312285

HOME AFFAIRS REFERENCE(S):          BCC2022/4019253

MEMBER:T. Quinn

DATE:25 August 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 25 August 2024 at 11:01am

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 travel and stay – prioritised work over study – circumstances giving rise to non-enrolment – mental health issues – financial hardship – degree of hardship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant arrived in Australia in 2018 on a student visa.  She sought and was granted a further student visa on 22 November 2021 with an expiry date of 15 March 2025 providing for more than three years during which the applicant would be permitted to reside in Australia for the purposes of full-time study.[1] 

   [1]           See delegate’s decision.

2. On 10 August 2023, a delegate of the Minister for Home Affairs (‘the delegate’) cancelled the applicant’s Subclass 500 (Student) visa (‘the visa’)[2] on the basis that the applicant had failed to comply with a condition of their visa.  In this case, the applicant breached subclause 2(a) of condition 8202 of her visa in that she failed to maintain enrolment in a full-time registered course. [3]  The applicant did not comply with this condition of her visa from 22 December 2021-30 July 2023.[4]  

   [2]under section 116(1)(b) of the Migration Act 1958 (‘the Act’). 

   [3]           As required by condition 8202(2)(a) of the Migration Regulations 1994 (‘the Regulations’).

   [4]See delegate’s decision.

3. On 15 August 2023, the applicant applied to this Tribunal for a review of the delegate’s decision to cancel the visa.[5]

   [5]Pursuant to sections 338(2) and 347 of the Act. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

4. The applicant appeared before the Tribunal via video hearing on 21 August 2024 to give evidence and present arguments.  The applicant was represented in relation to the review and her representative also attended the hearing of 21 August 2024.

5. The Tribunal exercised its discretion to hold the hearing by video conference.  The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant.  The Tribunal also considered its objective to provide a mechanism of review that is fair, just, economical and quick and the delay that would occur if the hearing were not be conducted by video in exercising its discretion.

6. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.

7. I have regarded all the information before me, including the Department and Tribunal files, and all information and evidence provided by the applicant to the Tribunal in concluding that the decision to cancel the applicant’s visa should be affirmed.  My reasons follow.

   STATUTORY FRAMEWORK

8. The issue in this case is whether the applicant, as the holder of a student visa, has breached condition 8202 of the Regulations. If so, the ground for cancellation is made out and the issue then becomes whether the visa should be cancelled pursuant to section 116(1) of the Act.

9. Under section 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in subsection 116(1)(b) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Does the ground for cancellation exist?

10. A visa may be cancelled under section 116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 of the Regulations attached to the applicant’s visa. This condition requires that the applicant:

    a.be enrolled in a registered course, or in limited cases, a full-time course of study or training and that the registered course be undertaken at the required AQF level: 8202(1) and (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

    c.has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

11. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full-time registered course of study or training.

12. The applicant was enrolled in a Bachelor of Community Services and then a Bachelor of Psychology.  The applicant’s enrolment in the Bachelor of Psychology ceased on 22 December 2021 and the applicant was not enrolled in a full-time registered course of study from that date until after she received a notice of intention to consider cancellation (‘NOICC’) on 31 July 2023. 

13. At the hearing, the applicant acknowledged and accepted that there are grounds for cancellation.

14. For these reasons, I am satisfied that the ground for cancellation in section 116(1)(b) of the Act exists. As that ground does not require mandatory cancellation under section 116(3) of the Act, I must proceed to consider whether the visa should be cancelled.

    Timeline of study and enrolment history

15. The applicant arrived in Australia in August 2018 on a student visa with an interest in the community services sector.  The applicant commenced and completed a Certificate IV in Ageing Support and a Diploma of Leadership and Management in her first two years onshore.  The applicant then enrolled in and completed a PTE- A Exam preparation course before enrolling in a Bachelor of Community Services which she studied for three months and then changed to a Bachelor of Psychology.  It was at this time the applicant’s new student visa was granted on 22 November 2021. 

16. The applicant’s enrolment in the Bachelor of Psychology was cancelled on 22 December 2021, just one month after her student visa was granted and she was not enrolled for a period of 19 months.  The applicant remained unenrolled until after she received the NOICC in July 2023. 

17. On 31 July 2023, five days after the date of the NOICC, the applicant enrolled in a Diploma of Community Services and a Graduate Diploma of Management.  These enrolments were cancelled when her student visa was cancelled in August 2023, and she enrolled in a Certificate III in Individual Support and a Diploma of Community Services shortly after her bridging visa was grated in relation to her present application for review.

18. The applicant has filed a course progress report dated 16 August 2024 indicating she has completed one unit, has continuing activity in ten units and has yet to commence four units in her Certificate III in Individual Support.

    Consideration of discretion to cancel the visa

19. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. I have 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’.

    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

20. I refer to and repeat paragraphs 15-18 above.

21. The applicant gave evidence at hearing that she commenced working onshore in November 2018 at a café and worked there for one and a half years.  She gave evidence that during the COVID19 Pandemic the café shut down and she got a job in Aged Care in 2020 which she had to leave because of an incident they tried to blame on her.  She gave evidence that she worked in Aged Care until some time after June 2021.  She returned to work in a restaurant working as a barista in or around August or September 2022.  Later in the  hearing she also gave evidence of moving to Newcastle to work in aged care for a few months in 2023 but said she had to leave that job because of her visa cancellation.

22. The applicant has given and filed evidence about the impact of her father’s unexpected death in June 2021 and her inability to travel to see him or attend his funeral due to the COVID19 Pandemic and the impact of her divorce in February 2022 on her mental and emotional health.  I empathise with the applicant in this regard.  The applicant gave evidence about how difficult her mother’s financial situation has been, saying that the government support for a widow in her mother’s situation is minimal and that her mother is relying on the applicant financially, as the only child.  The applicant gave evidence that her mother has never worked.  I deeply empathise with the applicant and her mother’s situation.  However, if an individual is residing onshore based on an intention to study, such study should take priority over work.  There are financial requirements before such visas are granted.  It raises concerns about an individual’s true intentions in residing onshore if when doing so they are working but not studying, in breach of the conditions of a student visa upon which their right to reside is based.  The has remained in Australia on a student visa for 19 months and has given evidence she was able to work but not study.  This evidence raises concerns for the Tribunal about the true nature of the applicant’s intentions.

23. The applicant gave evidence that work distracted her from her emotional and mental difficulties but that she could not concentrate on study.  Submissions were also made that the applicant was not working for the entire 19-month period of un-enrolment.  I acknowledge this evidence and these submissions but remain concerned by the evidence before me.

24. The applicant has filed a psychologist report regarding a mental health assessment undertaken on 27 July 2023, the day after the date of the NOICC.  This report describes the applicant as moderately depressed, mildly anxious and with a moderately stressed mood with periodical low mood and occasional stress and worry.  This report is dated 29 July 2023 and sets out a long list of symptoms the applicant has suffered which commenced in March 2021 as her marriage deteriorated and improved from the end of 2022.  I empathise with the applicant in this regard and acknowledge that she has been undergoing stress in her personal life in relation to her marriage and divorce and the death of her father.

25. The applicant gave evidence at hearing that she was married to her ex-husband shortly after meeting him under an arranged marriage in October 2017.  The applicant then moved to Australia in 2018 and the couple had a distance relationship.  She sought to bring her husband to Australia as a dependent student visa holder which was unsuccessful and gave evidence that their relationship began to deteriorate after that.  The applicant applied for divorce which was granted in February 2022.  The applicant gave evidence that she did not return to Nepal between August 2018 and June 2022.

26. The applicant gave evidence at hearing that her father had been diagnosed with liver cancer prior to her arrival in Australia and also had issues with his blood pressure and sugar levels.  The applicant’s father died in June 2021 from liver related issues.  The applicant gave evidence that her family did not let her know how serious her father’s health was while she was in Australia, and she still feels uninformed about what actually happened.  She could not return to Nepal to say goodbye to her father or attend the funeral because of the COVID19 Pandemic and associated travel restrictions.  I empathise with the applicant in this regard.

27. The applicant’s mother has had issues with her mental health since the applicant’s father has passed away which has also been stressful for the applicant.

28. I empathise with the applicant’s and the applicant’s family’s personal and financial difficulties, but I also note that the applicant successfully applied for a second student visa in November 2021, five months after her father passed away and four months before her divorce.  I also note the psychological report filed indicates the applicant’s mental  health improved towards the end of 2022, yet she remained un-enrolled until after the NOICC in late July 2023.  I have considered all of the evidence before me and am very troubled by the applicant’s failure to remain enrolled in a course of study for 19 months, particularly when she was working onshore for much of that period and there are financial requirements that must be met before an individual is granted a student visa.

29. The applicant has given evidence and filed submissions that she wishes to complete her current courses in Individual Support and Community Services and work in the health field where she can earn a good income and support her mother.

30. I understand that a visa cancellation can be disappointing for visa holders and their families, but I do not consider this constitutes a compelling need to remain in Australia.  Further, the applicant has been onshore for six years on student and associated bridging visas. 

31. I note the applicant’s desire to complete her study and to also support her mother financially by working onshore. 

32. I have considered all the evidence before me and do not consider the applicant has a compelling need to remain in Australia.  I place some weight in favour of cancelling the applicant’s visa in this regard.

    Circumstances in which ground of cancellation arose

33. I refer to and repeat paragraphs 20-28 above.

34. I accept that the applicant and her family have faced health and financial difficulties and that the applicant has been suffering from mental ill health to some extent during her period of breaching her student visa conditions.

35. I empathise with the applicant and her family in relation to their suffering and accept this must have been challenging for all of them.  However, the option to return to Nepal to avoid breaching her visa conditions was open to the applicant at all times.  Instead, she failed to resume any study at all for 19 months, was issued with a NOICC and her visa was subsequently cancelled.  This is not the conduct one would expect of a genuine student who takes their responsibilities in residing onshore on the basis of a student visa seriously.

36. I am also troubled by the evidence that the applicant did not attend upon the psychologist who wrote the Psychologist Report until after the date of the NOICC. When I asked why she had not sought professional mental health assistance prior to July 2023, the applicant gave evidence that at that time she was not sure what to do and her mother was going through issues, and she was not sure if she wanted to go there.  She gave evidence that her Aged Care work provided counselling and she tried to go there but was scared to do it.  There is no corroborating evidence in this regard.  I note there are written submissions suggesting the applicant could not afford to seek professional support for her mental health and that this is not common in her culture.  I do not find these submissions persuasive and am concerned the applicant sought the Psychologist Report dated 29 July 2023 in order to bolster her prospects of avoiding visa cancellation.  I note there is no evidence that the applicant has continued with any sort of mental health treatment and no other contemporaneous medical or psychological evidence during the applicant’s 19-month period of nonenrolment in relation to her mental health.  I find it difficult to accept that the applicant was finding her personal circumstances too challenging to study but that she was still able to work.  I note the applicant’s response at hearing in relation to this (set out above) but do not find it persuasive.

37. I acknowledge the applicant’s family’s health and financial positions were out of the applicant’s control and the applicant’s marital dynamic and her mental health may also have been out of her control to a significant extent.  However, I consider that if an applicant is not in a position to comply with the conditions of their visa, it is their responsibility to take appropriate action to avoid breach of same.  It is the responsibility of a visa holder to ensure they are complying with the conditions of their visa.  I give equal weight in favour and against cancelling the applicant’s visa in this regard.

    Extent of compliance with visa conditions

38. The applicant has otherwise complied with student visa conditions.  However, on the evidence supplied, the applicant made no academic progress from the time her second student visa was granted in November 2021 until July 2023.  This is not what one expects of a genuine student who has been onshore on the basis of a student visa.  Further, the applicant’s breach of the condition of the visa is extensive, being nineteen months.  I consider the nineteen month breach a significant breach and gives weight in favour of cancelling the applicant’s visa in this regard.

    The degree of hardship that may be caused to the visa holder and any family members

39. The applicant gave extensive evidence at hearing about how difficult her mother’s financial situation is and this evidence taken together suggests the applicant’s mother is relying on her financially and that the benefit for the applicant’s mother of funds in Australian dollars is very significant for life in Nepal.  I empathise with the applicant and her mother in relation to the financial difficulties faced, particularly after the applicant’s father passed.  However, there are financial requirements that must be met before a student visa is granted and I do not consider the need to work and earn money in Australia while onshore on a student visa justifies the grant of a student visa in the context of the law in relation to student visas.

40. The applicant wishes to complete her study and work in the health field and support her mother. 

41. I accept that the cancellation of a visa is disappointing and that a significant amount of money may be invested in a person in order to set them up in a country to live independently in order to study.

42. I recognise that the hardship is felt by family members who may also feel let down and disappointed.

43. I am, however, mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition of that visa.  Whilst appreciating the hardship the applicant and her family may face regarding a cancelled visa, it does not outweigh the breach and I give these reasons limited weight in my considerations.

    The visa holder’s past and present behaviour towards the Department

44. There is nothing before the Tribunal to indicate any other adverse conduct by the applicant to the Department.  I give some weight against cancelling the applicant’s visa in this regard.

    Whether there are persons in Australia whose visas would, or may, be cancelled under section 140 of the Act

1. This is not relevant to the applicant.

   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 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

2. If the visa is cancelled, this will result in the following:

   a.the applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act;

   b.the applicant will have limited options to apply for further visas in Australia;

   c.the applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed.  The applicant could therefore be subject to a three (3) year exclusion period where they will not be eligible to have any temporary visa application approved if they apply for a visa that requires Public Interest Requirement 4013 to be met.

   I give little weight to this consideration in favour of the applicant because:

   ·these are the intended consequences of the legislation when a visa is cancelled under these grounds;

   ·it reflects the seriousness with which the Department takes this type of cancellation ground;

   ·the applicant will be eligible to apply for a bridging visa while they make arrangements to depart Australia and therefore the likelihood of detention is only in the event that they do not co-operate in applying for a bridging visa.

   Australia’s international obligations

3. There is nothing before the Tribunal to suggest that the cancellation of the visa would breach any international obligations.  I place no weight on this in favour of or against the applicant.

   Any other relevant matters

4. The Tribunal undertook a PRISMS search in relation to the applicant on 21 August 2024 which is consistent with the applicant’s submissions, and I have placed no weight against the applicant in this regard.[6]

   [6]           See attachment.

   CONCLUSION

5. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

6. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

   T. Quinn
   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.

   Attachment – PRISMS search

   All registered courses and course providers are listed in the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’), an online register kept in accordance with the requirements of the ESOS Act.[7]  Details of courses listed in CRICOS are integrated into the Provider Registration and International Student Management System (‘PRISMS’), a database maintained by the Australian government.[8] The PRISMS database is the principal means by which registered course providers comply with legislative requirements relating to the monitoring of international students studying in Australia. Upon enrolling an international student into a registered course of study, the course provider enters the details of that enrolment into the PRISMS database. The database then records a Confirmation of Enrolment (‘COE’) for the student. The COE functions as a record of the student’s enrolment status in the course and as proof of enrolment for the purposes of the Regulations.

   [7]Section 10 of the ESOS Act.

   [8]See generally, Department of Education and Training, Provider Registration International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018).

   ATTACHMENT – Extract from reg 2.43 of the Migration Regulations 1994

   …

   (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

   (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

   (a)because of the conduct of the holder; or

   (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

   (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

   (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.