Movono (Migration)

Movono (Migration) [2024] AATA 3916 (31 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Make Liku Movono
CASE NUMBER:  2307524
HOME AFFAIRS REFERENCE(S):          BCC2022/4636798
MEMBER:Christine Kannis
DATE:31 August 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 31 August 2024 at 12:51pm
CATCHWORDS
MIGRATION – cancellation – Student (Class TU) visa – Subclass 500 (Student) – non-compliance with condition of visa – not enrolled in full-time registered course – discretion to cancel visa – COVID restrictions limited travel for research and on-campus study – lack of support from academic supervisors – scholarship withdrawn and candidature cancelled – significant period of non-enrolment – physical and mental health – abusive relationship after enrolment cancelled, now ceased – limited medical evidence provided – work and intention to apply for skilled visa – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 359AA
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)
Education Services for Overseas Students Act 2000 (Cth), s 19(3)
CASE
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 23 May 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).
The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of her visa. The issue 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 on 6 August 2024. The Tribunal also received oral evidence from Pastor Justin Torrossian and Ms Rosemary Bowry.
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 28 December 2018, 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).
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 9 August 2021. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 9 August 2021 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, the witnesses and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below.
On 6 March 2023, 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 9 August 2021 and had therefore failed to comply with condition 8202(2)(a) of her visa.
Response to NOICC
On 21 March 2023, the applicant responded to the NOICC via her migration agent and provided the following information:
·The applicant arrived in Australia in 2019 to pursue a PhD at University of Newcastle in Environmental Engineering. She had been offered a scholarship for her PhD. The applicant is a renowned scientist in environmental engineering and sustainability. Her project involved collaboration between a Fijian university and an Australian university. She carried out work for her project between 2019 until early 2020 before COVID-19.
·Since the applicant arrived in Australia in 2019, as part of her PhD project, she travelled frequently between Sydney and Fiji to coordinate research activities and collect data. In spite of the challenges of moving between two countries, she continued with her PhD and was making academic progress.
·The first COVID-19 case was reported in Australia in early March 2020 and by 20 March 2020 the government banned international travel and the applicant was not able to travel overseas to continue her research. There were lockdowns in Sydney and the educational institution stopped holding physical classes and studies were online. The applicant was not able to go the university and work on her research. She was expected to present her confirmation proposal which she attempted and failed. There was barely any support from her professors. The lockdowns continued until March 2021.
·Between June and December 2020, the applicant was undergoing severe mental depression and anxiety as she was not able to carry out the work for her studies. She received counselling from the university’s student support centre and saw her GP to discuss her mental health and well-being.
·The applicant did not get enough support from her PhD supervisor. She attempted changing her supervisor but was unable to do so.
·These circumstances affected the applicant’s academic progression and she was not able to pass her presentation. She attempted a second presentation in March 2021 although there was no support from supervisors and she failed. She continued to present her plea to student advocacy services for a change in supervisor or making something out of the work already done. Her PhD scholarship was withdrawn by the university and she was not enrolled by 9 August 2021.
·The applicant did not want to study a PhD as she did not have a good experience with her supervisor and she wanted to move to another visa and consulted three registered migration agents between May and December 2021. In her first consultations she was told she should wait to hear from the Department because nothing could be done while her Student visa was still valid .
·When the applicant arrived in Australia her focus was on her research work. Later, along with her studies she joined as a customer assistant in the hospitality industry, retail, customer service and aged care and has continued working in these industries. During COVID-19 she was working in hospitality. She volunteers at the local church and in the community.
·The applicant holds a strong background in environmental engineering and sustainability. Her skills are highly required in Australia. She is currently preparing documents to have her skills assessed to apply for a Skilled visa. If her visa is cancelled it will affect her visa prospects and Australia will lose a dedicated scientist who could contribute to the Australia economy.
·When the applicant came to Australia to pursue her PhD in 2019, she left her young son in her home country. She hoped to complete PhD and add another qualification to her name. Her visa cancellation will affect her future severely.
·The applicant is now focussed on getting her skills assessed and moving to a Skilled visa. Her mental health has improved however she does not want to complete her PhD. She did not have a good experience with her supervisors and was left alone without academic support.
·The applicant accepts she breached her visa condition but due to compelling and compassionate circumstances arising out COVID-19 leading to mental stress and non-support from her PhD supervisors, the circumstances under which she became non-compliant were beyond her control and she should be given the opportunity to get a Skilled visa in Australia which would benefit her and Australia.
At the time of responding to the NOICC the applicant provided the following documents:
·Written statement covering the period from June 2019 to March 2023;
·Copy of applicant’s passport, applicant’s resume and evidence of scholarship offer;
·Evidence of applicant’s communication with her PhD supervisor;
·Applicant’s statement detailing her communication with her supervisor;
·Confirmation Report for a PhD in Environmental Engineering dated 1 January 2020, Monitoring and Modelling Tools for Ecosystems Based Adaptation– Dreketi Watershed, Fiji Islands;
·Evidence of consulting a registered migration agent about her visa situation and not holding CoE;
·Letter dated 30 November 2020 from Dianne Kirby Counsellor/Clinical Psychologist in support of the applicant having medical leave from her studies due to Health (Psychological) Grounds. Ms Kirby said the applicant had been consulting Counselling and Psychological Services since the 23 July 2020 and experiencing symptoms of severe depression and anxiety which interfered significantly with her academic functioning since mid-June 2020. Ms Kirby said she supports an additional period of one-month medical leave from 17 September 2020 to 15 October 2020;
·Evidence of consultation with migration agent for Skilled visa: letter dated 2 November 2022 from Ayers Group in relation to Business 482 visa sponsorship;
·Reference letter dated 18 November 2022 from Dr Isoa Korovulavula of Institute of Applied Sciences the University of the South Pacific which included a statement that the applicant is capable, responsible, hardworking and reliable; and
·Reference letter dated 20 March 2023 from Pastor Seventh-Day Adventist church which referred to assistance provided by the applicant since June 2021;
The written statement for the period June 2019 to March 2023 provided information under the headings barriers affecting the progression and completion of your Higher Degree by Research; An account of the relationship you have with your supervisors, specifically how often you meet with them in person and the frequency of contact via email, telephone and videoconferencing; An honest account of your commitment to your HDR; realistic and detailed plan for the completion of your HDR including a planned submission date and Changes that you plan to make to aid completion by your intended submission date.
Under the heading barriers affecting the progression and completion of your Higher Degree by Research, the applicant referred to various matters including but not limited to: lack of a structured plan with supervisors; thrown in the project work initially and lack of support and training offered; no office and internet not good so operating from mobile internet data that affected communication and research online; health issues; differences in models to be used; moving accommodation which caused stress and anxiety and mental health.
Under the heading An account of the relationship you have with your supervisors, specifically how often you meet with them in person and the frequency of contact via email, telephone and videoconferencing the applicant said the relationship with supervisors had been a one-way stream and she does not feel they are understanding of reality on the field and provided some reasons for her dissatisfaction with her supervisors.
Under the heading An honest account of your commitment to your HDR, the applicant stated she gave up work opportunities to come and learn. She left her son, family and friends to achieve something and was open with her supervisors that she did not have modelling background but would like to learn but now they say she was expected to have it. She was told bluntly by the committee that she doesn’t have the skills and should move on with her life but that statement is not fair. She might have some disabilities which put her at some disadvantage and it does not mean she doesn’t have the capacity to learn.
Under the heading realistic and detailed plan for the completion of your HDR including a planned submission date, the applicant stated she would complete the modelling aspect to scenario projection so it is useful for community, write up the report on that modelling and attempt at confirmation: but a change in panel new set of eyes and a balanced one that covers the areas of the work not just the engineering.
Under the heading Changes that you plan to make to aid completion by your intended submission date, the applicant said:
I plan to work closely with a supervisor that can look objectively at my writing and help on directions to go. I am suggesting maybe a change in principle supervisor as I feel the principal supervisor is too busy, and inflexible with a lot going on to give me help and support I need. I need one that is empathetic and could help me on this journey.
I will work closely with someone that knows about community data and the aspect of this in modelling- I was suggested a name by one of the panel of judges committee.
Look at slight changes to the topic- as I have raised this before as this does not cover the gist of the work and I had also bought this up with HDR on our last meeting.
I will work on my writing aspect so that I reference properly and if I have the support, I need to point this out and read the work I give.
I will address my health issues and manage my illness as best as possible and am open to any suggestions to help me move forward if given the chance.
The following were also provided to the Department:
·Email dated 13 April 2021 from the applicant to Student Advocates in which she referred to uncertainties including finding accommodation especially when the supervisors were not sure when she would return to Fiji, that she had internet problems, office etc, her physical and mental problems for which she sought help out with the counsellors at the UON and also has been seen by physicians where she also had been trying to manage and treat her premenstrual dysphoric disorder. She said she took time off from studies after the first confirmation due to her mental health. She said the relationship with her supervisors had not improved, and they had told her a few times that she was not cut out for a PHD.
·Email dated 10 May 2021 from the applicant to Student Advocates in which she said she had been getting psychological treatment for nearly a year and had recently seen a psychiatrist that has diagnosed her with bipolar for which she is now on medication.
Evidence provided prior to the hearing
Prior to the hearing the applicant provided documents and information, most of which had been previously provided to the Department. In addition the applicant provided a statement in which she said:
·She was in a vulnerable position having no one at that time and had entered into a domestic abusive relationship where the person forcefully moved into her place and stayed for 5 months. There were incidences of police and her pastor from church thankfully with their support she got out of this However, this person took her passport and her identity cards which took a while to recover and she had filed a police report.
·She had enquired with several migration lawyers and engaged Mr Mohinder Singh. She thought she should do a humanitarian visa as she thought her circumstances were dire however Mr Singh advised her to take this route as she had valid reasons, was educated and had met with bad circumstances. Within this time she was hoping to apply for independent Skills visa as she has experience and expertise in her field.
·She had applied for a skills assessment and sat the PTE test however on a Bridging visa E she cannot apply for any other visa and financially all these payments with visas and having to survive has been dire.
·She has spent 2 years and has 9 months of field data on her work. She explored turning it into a Masters and emailed her previous supervisor but has not received a response. If given the chance to explore this with another university or supervisor she is sure useful data and work and efforts will not go to waste.
·She has family in Cairns (Dr Vince Bowry and Rosemary Bowry) that have offered to support her while she looks at options of studying in Cairns.
The applicant provided documentation evidencing her reporting a lost property incident to police on 10 December 2021 in which she states that she believes her partner moved all her personal things including her passport and driver’s licence and packed them elsewhere.
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 course of study:
A Doctor of Philosophy (Environmental Engineering) commencing on18 February 2019 and ending on 17 February 2023 which was cancelled on 9 August 2021 due to Disciplinary reasons.
The Tribunal explained to the applicant that this information was relevant because it indicates that from 9 August 2021 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 that the information may also be relevant in considering the discretion to cancel the Student visa, including in considering her purpose for remaining in Australia.

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 record. The applicant told the Tribunal she agreed with her PRISMS enrolment record regarding the date the course commenced and the date of cancellation but she did not understand the Disciplinary reasons cited for cancellation.
Prior to the hearing the Tribunal contacted International Admissions at the University of Newcastle seeking clarification of the cancellation reason of ‘disciplinary reasons’. The University’s response was put to the applicant utilising the procedure under s 359AA of the Act. The information put to the applicant was:
This former student failed to meet an academic requirement of their Higher Degree by Research (Doctor of Philosophy (Environmental Engineering) which was grounds for termination of their candidature (termination of their degree).
Per University policy, they were provided the opportunity to Show Cause to a committee. The decision was that their candidature be terminated effective 7 June 2021. Their COE was not cancelled on this date. Per University policy, they were afforded 20 working days to appeal the termination of their candidature. No appeal was received, so their COE was cancelled on 9 August 2021.
In response the applicant told the Tribunal she did appeal the termination through Student Advocates. The Tribunal referred the applicant to the emails with Student Advocates which were dated in April and May 2021, prior to her being advised of the right of appeal on 7 June 2021.
The Tribunal asked the applicant about the statement in the NOICC response that since 2019 she travelled frequently between Sydney and Fiji as part of her PhD project. The applicant confirmed she travelled on one occasion only when she departed Australia in May 2019 and returned in March 2020.
The Tribunal asked the applicant about the statement in the NOICC response that due to COVID-19 her educational institution stopped holding physical classes and studies went online. She said during COVID-19 we all had to work from home and it was isolating.
The Tribunal referred the applicant to the information provided in the NOICC response in relation to her dissatisfaction with her PhD supervisors and her two failed confirmation proposal presentations. In response she said initially she had two supervisors in Australia and one in Fiji. Later she had a third supervisor in Australia. She said the initial two supervisors in Australia were not supportive. She said the Fiji supervisor met with her once only and said he wanted her in the field as quickly as possible despite her telling them of her skills weakness and wanting to learn the engineering part and then go into the field. She said these three supervisors provided very little support. The applicant said she was told she would have office space in Fiji but this was not provided and she had to find her own space and set up an internet connection. She did have an office in Australia however she returned just before COVID-19 commenced and so she did not use it and worked from home. She told the Tribunal that the third supervisor in Australia provided some support.
The Tribunal asked the applicant about the statement in the NOICC response that from June to December 2020 she was undergoing severe mental depression and anxiety and received counselling. The applicant told the Tribunal she saw a psychologist from July 2020 to August 2021 and it was not a good time for her. The Tribunal noted emails to Student Advocates dated 13 April 2021 in which she said she had lived with a mental health condition more than half her life and an email dated 10 May 2021 in which she said she had recently seen a psychiatrist who diagnosed her with bipolar and is now on medication. The Tribunal asked her about her medication history. She said previously she always worked through mental health issues herself however around the end of 2020 she was trialled on different medications for a few months and later a psychiatrist prescribed her medication for bipolar disorder. The Tribunal pointed out a number of times that there was no evidence of this diagnosis or prescribed treatment before it. In response the applicant said she had not been able to obtain this evidence because the doctor had left the university.
The Tribunal asked the applicant about the statement in the NOICC response that she consulted three registered migration agents between May and December 2021 because she did not want to study her PhD due to the lack of support. The Tribunal put to the applicant that from 9 August 2021 she was aware that she was not complying with the condition to remain enrolled and asked her whether she contacted the Department. She said in August 2021 she tried telephoning the Department but her call was not answered. She said she thinks she made more than one attempt to call the Department. The applicant told the Tribunal that when she could not get through to the Department she relied on the migration agents’ advice that she should wait to hear from the Department before applying for another visa. 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 visa conditions.
The Tribunal put to the applicant that she was also aware that she was not enrolled throughout the whole of 2022 and up until she received the NOICC on 6 March 2023 and asked her if she contacted the Department. She said she did not attempt to contact the Department during 2022 because she was waiting to hear from the Department.
The Tribunal asked the applicant how she spent her time in Australia from cancellation of her enrolment until the present day. She said from May/April 2021 to February 2022 she worked in a fast food business and a restaurant. The applicant said she worked in retail from February 2022 to September 2022 and in aged care from September 2022 to November 2022. She said she worked as a cleaner from November 2022 to early 2023 and as a telemarketer for 8 weeks in early 2023. The applicant told the Tribunal that she worked in a charity for a couple of weeks in early 2023 and in disability services/caring/home care from March or April 2023 to January 2024. On 1 January 2024 she commenced working for another carer/disability service and was hired to train support workers, compile rosters and other tasks. She left this employment in April/May 2024 to have a break and has not worked since then.
The applicant told the Tribunal that she did not contact the Department in 2022 or prior to receiving the NOICC on 6 March 2023 because she was trying to survive.
The Tribunal put to the applicant the information in the NOICC response and her pre-hearing statement that indicates she intends applying for a Skilled visa. She said that she would like to earn some money so she can pay for further study and upskill herself.
The Tribunal referred the applicant to the written statement for the period June 2019 to March 2023 provided at the time of responding to the NOICC. The Tribunal put to the applicant the information set out in paragraphs 18 to 23 hereof and noted that some of it had already been covered in the hearing and some of it referred to her future plans with respect to completion of her course. The Tribunal asked whether there was anything she wished to add. In response the applicant said she is now in a better mental state and it would be good to work with a supervisor and learn better and stay in one place.
The Tribunal referred the applicant to the information in her pre-hearing statement that she was in a domestic abusive relationship for 5 months and there were police incidents. The applicant said she met her former partner online just after her CoE was cancelled in August or September 2021. The Tribunal noted that the Police Report showed she made a lost property report but there was no evidence of the claimed abusive relationship. In response the applicant said the police were called a couple of times because of the abuse but she did not want to proceed with any charges. The Tribunal notes that generally reports are made as a record of an incident whether or not a matter proceeds to a charge. The applicant told the Tribunal that the relationship ended after a few months because she could not tolerate her former partner’s alcoholism.
When asked about the purpose of her travel to Australia, the applicant told the Tribunal that she initially came to Australia to get a PhD and training. In response to the Tribunal asking whether she has a compelling need to remain in Australia, the applicant said she has been absent from Fiji for 5 years and Australia is her home now. She said her parents and two siblings live in Fiji and her 21 year old son lives in the United States.
When asked about the hardship that may be caused by cancellation of the visa, the applicant said she would not have any work and therefore would not survive in Fiji. She said prior to 2019 she worked as a Senior Officer in an organisation.
Pastor Justin Torrossian told the Tribunal that he was aware of the applicant’s abusive relationship with her former partner because members of his congregation had expressed concerns about his behaviour at times. He said the applicant had been locked out of her house and had been locked in her bedroom. When asked if he had witnessed these incidents Pastor Torrossian said he had not but when he discussed them with the former partner, they were not denied. He said he is aware that the applicant experienced financial abuse because her former partner was not truthful when he told her he had paid the rent and she nearly lost her accommodation. Pastor Torrossian told the Tribunal that the applicant has a strong, encouraging and positive influence on his congregation.
Mrs Rosemary Bowry told the Tribunal she is a long standing family friend of the applicant. She lives in Cairns and not near the applicant. Mrs Bowry told the Tribunal that she had not witnessed the claimed abuse by the former partner but had been told by the applicant of the verbal abuse and physical threats. She said the applicant told her she suspected he might be using drugs because his behaviour was erratic. Mrs Bowry said the applicant is creative, inspirational, well-travelled, intelligent, loyal, respectful, honest and hard working.
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 1 year 8 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.
There is no specific definition of 'compelling' 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 has been absent from Fiji for 5 years and Australia is her home now. The Tribunal accepts that the applicant has been here for 5 years and wishes to stay but 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, 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 for a period of 1 year 8 months. The requirement to maintain enrolment is a fundamental condition for the grant of a Student (Subclass 500) visa. 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 1 year 8 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 applicant told the Tribunal that if her visa is cancelled she will not be able to survive in Fiji because she will not be able to find work. The Tribunal notes that it appears that the applicant held a senior organisational position prior to 2019 and that she has worked in various employment roles in Australia from 2019 to 2024. However the Tribunal accepts that the applicant has not been employed in Fiji for 5 years and this may adversely affect her employment prospects.
The Tribunal gives the possible hardship that may be caused to the applicant some weight against cancellation.
Circumstances in which ground of cancellation arose; whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.
The applicant’s visa was cancelled as a result of her failure to maintain enrolment. The applicant was not enrolled in a course for 1 year 8 months prior to the issuing of the NOICC. She told the Tribunal that this was due to her being unable to successfully provide a confirmation proposal presentation for her PhD studies. She attributed the failures to a lack of adequate supervision, difficulties associated with not having an office in Fiji and the internet not being provided, COVID-19 and mental health issues.
The applicant told the Tribunal that her two supervisors in Australia and the one supervisor in Fiji did not provide her with adequate support and said she was made to undertake work in the field which is not what she wanted to do. The information provided by the University of Newcastle was that the applicant failed to meet an academic requirement of the Higher Degree by Research (Doctor of Philosophy (Environmental Engineering) which was grounds for termination of the candidature. The Tribunal accepts that the applicant did not feel supported in her study however places significant weight on the information provided by the education provider that she did not meet the academic requirement for her course. In addition, the Tribunal notes that the information provided by the university was that the applicant did not appeal the termination of the candidature. The applicant told the Tribunal she believed she did appeal through Student Advocates however as noted, the emails between the applicant and Student Advocates pre-date when the applicant was advised of her appeal rights.
Regarding the applicant’s grievances with respect to a lack of an office and the provision of the internet in Fiji , the Tribunal accepts that the applicant experienced frustration with these issues.
Regarding the applicant’s claim that COVID-19 contributed to the cancellation, she did not explain how it impacted on her study. She told the Tribunal that working from home was isolating but also said everyone had to do it.
The applicant told the Tribunal that she experienced mental health issues in 2020 and 2021. She said she saw a psychologist for counselling and a psychiatrist diagnosed bipolar and prescribed medication. The Tribunal noted that the only medical evidence before it was from Dianne Kirby Counsellor/Clinical Psychologist which advises she had first seen the applicant in July 2020 and indicated the applicant required medical leave from her study up to 15 October 2020. The Tribunal accepts that the applicant attended counselling in 2020 however her enrolment was not cancelled until 9 August 2021 and there is no medical evidence regarding her mental health in 2021 including whether any condition precluded her from being able to study. When questioned about the lack of medical evidence the applicant said she had been unable to obtain it because the doctor had left the university The Tribunal notes that the applicant’s evidence was that she continued to work during the period 2019 to 2024 and therefore it appears her claimed mental condition was not so debilitating that she had to cease working.
The applicant told the Tribunal she did not contact the Department about her change in circumstances because migration agents told her to wait to hear from the Department. 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.
For the reasons stated, 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 9 August 2021. The Tribunal finds that the applicant knowingly remained in breach of her visa conditions and did not contact the Department about her visa status. The Tribunal finds there are no extenuating or compassionate circumstances in this case and this weighs in favour of visa cancellation. Many students face difficulties with their education provider and /or course, have worked through COVID-19 and managed mental health conditions and achieve satisfactory results. Accordingly, the Tribunal cannot be satisfied as to what was the cause of the applicant’s failing to meet an academic requirement which led to the cancellation of her enrolment.
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
The applicant and the witnesses told the Tribunal that the applicant was previously in an abusive partner relationship. The applicant said the relationship commenced after her CoE was cancelled and lasted 5 months. There was no evidence to substantiate the claimed abuse however the Tribunal accepts that the applicant’s former partner was verbally abusive towards her. The applicant did not claim that the relationship affects her now and as noted, the claimed abuse was said to have occurred after the applicant’s CoE was cancelled.

The witnesses attested to the applicant’s good character and the Tribunal accepts their evidence.
The Tribunal attempted to obtain evidence from the applicant regarding whether she wishes to remain on a Student visa or apply for a Skilled visa. While the applicant did refer to wishing to study in the future, she said she wants to earn money to pay for her study and on this basis it appears her intention is to apply for a Skilled visa.
The Tribunal gives these matters limited weight in its considerations.
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 3916

31 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Remedies

Statutory Construction

Jurisdiction