Mughkerhegl (Migration) - [2024] AATA 3707

Mughkerhegl (Migration) [2024] AATA 3707 (27 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Shane Ross Mughkerhegl
REPRESENTATIVE:  Mrs Li Kiska
CASE NUMBER:  2304790
HOME AFFAIRS REFERENCE(S):          BCC2022/1760851
MEMBER:Wendy Banfield
DATE:27 September 2024
PLACE OF DECISION:  Canberra
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 27 September 2024 at 3:20pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased enrolment – mental health issues – multiple universities denied enrolments – impact of the COVID-19 pandemic – subsequent academic progress – decision under review set aside
LEGISLATION
Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, Schedule 8, Condition 8202
CASES
Wan v MIMA (2001) 107 FCR 133
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 31 March 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 the visa holder had not been enrolled in a registered course for a period of 13 months and therefore did not comply with the requirements of subclause (2)(a) of condition 8202. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 6 September 2024 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
The Tribunal considered the following evidence provided to the and the Tribunal:
·     Department of Home Affairs (the Department) notification and decision record dated 31 March 2023.
·     Applicant’s PNG passport biometric information.
·     Applicant’s written statement in support of the application for review dated 30 August 2024.
·     Written statement of Ruth Mughkerhegl, the mother of the applicant dated 30 August 2024.
·     Medical evidence from the applicant’s General Practitioner.
·     Copies of prescriptions for medication.
·     Signed Letters of Offer from James Cook University (JCU) dated 4 July 2023.
·     Letter from JCU dated 30 January 2024 advising the applicant of being awarded a scholarship.
·     Confirmation of Enrolment certificate (COE) for Diploma of Information Technology (IT) from 30/10/2023 to 05/07/2024.
·     COE for a Bachelor of IT from 16/09/2024 to 07/09/2026.
·     Evidence of the applicant’s previous enrolments and applications to re-enrol.
·     Representative’s submission dated 30 August 2024.
·     Enrolment advice and academic transcript from JCU dated 9 September 2024.
The Tribunal had regard to the information contained on the Department file, including the applicant’s responses to the Notice of Intention to Consider Cancellation.
Evidence at the hearing – 6 September 2024
The applicant attended the Tribunal hearing and made submissions in his case. He advised he first came to Australia to attend secondary school and completed Year 12 in 2018. He began studying a Foundation course leading to a Bachelor of Engineering at QUT. The applicant claimed he had difficulty making the adjustment from school to university and did not commit himself to his studies as he should. He said QUT eventually gave him a notice to withdraw from the university.
The applicant referred to COVID-19 and being alone in Australia at the time. He said he did not maintain much contact with his parents and his mental health began to suffer. When his parents visited Australia, the applicant said they knew he was troubled. According to the applicant he did not “buy into” issues around mental health. He said it is not an area that is generally recognised in his home country. However, in 2022 the applicant said he began seeing a medical practitioner and was prescribed medication. He claimed to have been suffering from social anxiety and depression.
It was claimed the applicant was ready to resume studying in 2023 and re-enrolled at QUT. However, the applicant said the university was not convinced he would be able to progress in his studies and did not let him re-commence with a clean slate. The applicant declared he tried to enrol at Griffith University, Sunshine Coast University, TAFE, and James Cook University. He said he received an offer from Griffith but by then his student visa had been cancelled. Finally, the applicant was offered enrolment with James Cook University despite his study history.
The applicant claimed he was waiting for his commencement course, a Diploma of IT to start but after filling the gap with an English course, he was able to go straight into a Bachelor of IT in early 2024. The evidence indicates the applicant continued to face study problems in the first semester of his course. However, the applicant provided evidence that he has begun to make some progress having passed the units in his second semester of study. The applicant gave evidence that his mental health has improved, and he is more mature.
The Tribunal put to the applicant that the gap in his studies was significant and that he would be expected to depart if he was unable to study. The applicant agreed the breach of his visa condition was significant. He was asked why he did not seek advice about his situation. The applicant claimed his problems started during COVID-19 and he had been cut off. Then his visa was cancelled, and he had difficulty trying to re-enrol and resume studying.
Regarding a compelling need to remain in Australia, the applicant explained his parents sent him to Australia for schooling from Grade 8 through to 12 because he comes from a poorer country, and they wanted a better life for him. The applicant referred to the deficiencies in the education system in PNG. He said his parents wanted him to go to university, but they are “not the best” in his home country. When asked about any hardship that would result from his visa being cancelled, the applicant said he has spent 10 years in Australia, and it would be very hard for him to go back to PNG without a degree. The applicant submitted he really wants to make something of his time in Australia.
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?
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 the applicant was not enrolled in a full-time registered course.
The applicant agreed he was not enrolled in a registered course of study from 1 February 2021 to 25 August 2022 when the Department issued a Notice of Intention to Consider Cancellation. He provided submissions to the Department and the Tribunal regarding the reasons for his non-compliance with visa conditions.
On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).
Consideration of the discretion to cancel the visa
Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedural Instruction ‘General visa cancellation powers’.
· 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 applicant came to Australia in 2014 as a high school student. After completing Year 12, the applicant intended to progress to university. On the evidence before it, the Tribunal is satisfied that the applicant’s intention in travelling to and staying in Australia was to study. According to the Department delegate, since the applicant was not enrolled in any registered course of study for over 24 months as of the date of decision, they concluded the purpose of his stay in Australia during this time was not in line with the purpose of his student visa. The Tribunal agrees with this assessment. However, the applicant has since re-enrolled to study an undergraduate degree and has demonstrated he does have the capacity to make complete subjects and make progress. On that basis, the Tribunal is satisfied the purpose of the applicant’s stay in Australia has been and is now to study.
The Tribunal considered whether the applicant has a compelling need to remain in Australia. In his evidence at the hearing, the applicant made the following submissions: his parents sent him to Australia to attend secondary school, he comes from a poorer country [PNG]; his parents wanted a better life for him; and there are deficiencies in the education system in PNG. The Tribunal considered the claims made but notes the applicant’s parents continue to live in PNG. If he were unable to continue studying in Australia, the applicant would need to return to his family in his home country and either continue his education there or consider another direction for his future. The Tribunal is not persuaded the circumstances described by the applicant reach the level of a compelling need to remain in Australia.
· the extent of compliance with visa conditions
The applicant conceded he did not comply with visa conditions while holding a student visa. During the hearing the applicant readily admitted he had not applied himself to his education in the past which led to a protracted period when he was not enrolled to study. He did provide evidence that supported his claim of having attempted to re-enrol but having difficulty due to his study history and subsequent visa cancellation. There is no evidence before the Tribunal that the applicant has not complied with any other visa conditions. The Tribunal has given this consideration neutral weight in assessing whether to cancel the applicant’s visa.
· degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal considered any hardship that may arise because of the applicant’s visa being cancelled. The applicant is currently enrolled in a Bachelor of IT at James Cook University, Brisbane Campus. He provided evidence that he has been attending the course and has successfully completed some units. The Tribunal considered that the applicant will face a degree of financial and psychological hardship if he has to abandon the course and return to PNG. The representative submitted that the applicant has lived in Australia for more than 9 years and spent his formative years onshore. The Tribunal accepts the applicant has progressed through the education system in Australia and despite difficult tertiary experiences, has demonstrated some academic capability. If the applicant’s visa is cancelled and he is required to return to PNG to study, he would undoubtedly encounter hardship. The Tribunal has given this consideration weight in assessing whether to cancel the applicant’s visa.
· circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
The applicant explained in his written submissions and in oral evidence at the hearing, the circumstances in which the grounds for cancellation arose. The Tribunal also received submissions from the applicant’s mother about the applicant’s situation during the relevant period. In summary, the applicant did not adjust to a university environment after high school, he did not attend and study as he needed to be a successful tertiary student, and as a result he became anxious and depressed. The Tribunal notes the applicant did not provide any evidence of having sought help or advice about his mental health or his visa other than visits to his GP who prescribed medication. The Tribunal is not satisfied the circumstances in which the ground for cancellation arose were beyond the applicant’s control, however, the Tribunal has had regard to the applicant’s subsequent behaviour.
The Tribunal found the applicant to be open and honest about his previous shortcomings when he attended QUT after secondary school. He admitted he had not adjusted well, had withdrawn physically and psychologically and had not taken the necessary steps to ensure he did not breach visa conditions. Nevertheless, the applicant has since re-enrolled in a Bachelor of IT and has made some progress. Although he had initially enrolled in a Diploma of IT at JCU, when the university advised he could go straight into a degree course he did so. This demonstrates a level of commitment to achieving academic qualifications in Australia. The Tribunal has given these circumstances some weight in the applicant’s favour.
· past and present behaviour of the visa holder towards the department
The applicant provided several written responses to the Department’s Notice of Intention to Consider Cancellation that was sent to him on 25 August 2022 and provided reasons for his failure to maintain enrolment as required. The applicant subsequently re-enrolled to study at the same level as he had attempted previously. The Tribunal gives the applicant’s engagement with the Department and Tribunal since receiving the NOICC some weight in his favour.
· whether there would be consequential cancellations under s 140
There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.
· 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 detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. There is no evidence to indicate the applicant may be subject to indefinite detention because of cancellation. The Tribunal has assessed the applicant’s claims and evidence and considers the mandatory legal consequences of cancellation would impact the applicant’s current course of study.
· whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)
There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations.
· if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The Subclass 500 Student Visa is not a permanent visa.
· any other relevant matters.
The Tribunal placed positive weight on the applicant’s current enrolment in a higher education course of study and the fact he has made some academic progress since re-enrolling. The Tribunal considers the applicant understands the significance of his past failure to comply with visa conditions and considers he should be given a chance to demonstrate a commitment to further education in Australia.
The Tribunal considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects of the applicant’s case that weigh against him, on balance, the Tribunal considers he should be given the opportunity to complete a bachelor’s degree. The Tribunal is satisfied that in the applicant’s particular case, his subsequent behaviour is sufficient reason for the visa not to be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
Wendy Banfield
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.