Mwaura (Migration)

[2022] AATA 5096

Mwaura (Migration) [2022] AATA 5096 (16 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Grace Mwaura

CASE NUMBER:  2005050

HOME AFFAIRS REFERENCE(S):          BCC2019/5072730

MEMBER:Christine Kannis

DATE: 16 August 2022

PLACE OF DECISION:  Perth

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

Statement made on 16 August 2022 at 10:42am

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 for travel and stay in Australia – significant breach – extent of the breach – non-commencement of studies – psychological trauma – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 359AA

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 25 February 2020 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 her 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 8 August 2022 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 12 April 2017 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 the applicant 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 the PRISMS shows that the applicant has not been enrolled in a registered course of study since her enrolment in a Bachelor of Health Science was cancelled on 16 July 2018.

13. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 16 July 2018 and the Tribunal finds that she breached condition8202(2)(a) of her 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 matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below.

16. On 10 February 2020 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 and was therefore failing to comply with condition 8202(2)(a) of her visa.

    Response to NOICC

17. On 17 February 2020 the applicant responded to the NOICC and provided the following information:

    ·In May 2017 she came to Adelaide to pursue a Diploma in Health Science at the University of South Australia. Before she joined university she did a Certificate III in Aged Care and Disability and completed it in November including placement for self-development.

    ·She was drugged and raped in June 2018 but did not report it to the authorities. She was unsure of what happened as it was “but a vague memory” and she could not identify the man. This incident resulted in a pregnancy she later terminated.

    ·She was psychologically traumatised by the termination of her pregnancy which went against her religious and personal values. An invoice dated 4 September 2018 addressed to the applicant from SA Pathology for the services undertaken on 25 July 2018 was provided. A receipt for payment of the invoice was provided. A Pharmacy Patient Invoice dated 31 July 2018, from Flinders Medical Centre indicating the purchase of medication for pregnancy termination and a copy of Emergency Care Following Termination of Pregnancy from Flinders Medical Centre indicating follow-up appointments on 2 August 2018 and 10 August 2018 were provided.

    ·She undertook extensive research and advice from mentors during her time away from school and was able to inquire into the study of Early Childhood Development and subsequently furthering this study. The course is set to begin in March 2020, after her current visa expires. This pathway will ensure that she does not have any significant study gaps during her temporary stay in Australia as well as give her parents ample time to prepare before she enrols into the bachelor program.

    ·She has chosen to study in Adelaide due to its strong prospects in career opportunities. Studying and gaining this qualification from a reputable South Australian education provider such as Southern Academy of Business Technology would put her at an advantage in gaining employment back home.

    ·Her parents have agreed to fund her course and accommodation for the duration of her stay in Australia.

    Evidence at hearing

18. 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 courses of study:

    a.She was enrolled in a Diploma of Health Science, but this enrolment was cancelled on 31 March 2017 because of a Change to CoE/Student Details.

    b.She was then enrolled in a Diploma of Health Science, and according to this record she finished this enrolment on 2 February 2018.

    c.She was enrolled in a Bachelor of Health Science but this enrolment was cancelled on 15 March 2018 due to non-commencement of studies.

    d.She was enrolled in a Diploma of Health Science which was cancelled on 16 July 2018 due to Student Notifies Cessation of Studies.

    e.She was enrolled in a Bachelor of Health Science but this enrolment was cancelled on 16 July 2018 due to non-commencement of studies.

19. The Tribunal explained to the applicant that this information was relevant because it indicates that from 16 July 2018, she did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether the applicant breached the conditions of her student visa by not maintaining enrolment in a registered course of study. The Tribunal also 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.

20. 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 records and advised that she may be granted time to comment on the information if needed. The applicant told the Tribunal that she had no comment to make.

21. The applicant told the Tribunal that when she came to Australia in 2017 she was overwhelmed and she had to learn how to balance life and work. She said she was in a “bad place” and school should have, but did not, come first.

22. The Tribunal asked the applicant about the cancellation of her enrolment in a Bachelor of Health Science on 15 March 2018 due to non-commencement of studies. She said that an incident distorted her mindset and led to her not commencing her studies. She said the incident was that she was nearly raped in January or February 2018. The applicant said she did not tell anyone about the incident because she was ashamed. The Tribunal noted that she did not refer to this incident in her response to the NOICC.

23. The applicant told the Tribunal in July 2018 she was raped, and this resulted in a pregnancy which was terminated in August 2018. Regarding the applicant’s claim that she was unable to maintain the required enrolment due to psychological trauma, the applicant said she did not tell anyone or seek counselling or psychological assistance because she was ashamed. She said she was not able to “get back up” and return to her studies.

24. The applicant told the Tribunal that during the 20 months from cancellation of her enrolment in July 2018 until she received the NOICC in February 2020, she worked in an aged care facility and also had other short-term employment positions. She said she worked 40 hours per fortnight and confirmed that she worked during the whole of the period from July 2018 to February 2020.

25. The Tribunal asked the applicant the reason she was able to work during that period but was not able to study. She said work did not require the same concentration and she needed to work to pay for her rent and food. The Tribunal noted 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 their stay in Australia. In response the applicant said that because of something that happened back home in 2019, her parents were no longer able to provide 100% financial support.

26. The Tribunal put to the applicant that she would have known in July 2018 that she was no longer enrolled in a course and was not abiding by the conditions of her visa. She conceded that she was aware of this and said she did not know what to do. The Tribunal asked the applicant whether she contacted the Department when her enrolment circumstances changed. She said she did not contact the Department because she had no idea what to do. The Tribunal asked the applicant whether she contacted her education provider to seek a deferment. She said she did not know anything about seeking a deferment.

27. The applicant told the Tribunal that she came to Australia to study and advance her education, to learn about a different culture and to financially assist her family back home. She said there are more opportunities for employment in Australia and she can ease her family’s financial burden by sending money to them, which she does occasionally.

28. The applicant told the Tribunal that she wishes to study Social Work at Torrens University. She said she has undertaken more research since responding to the NOICC and no longer intends to study Early Childhood Development.

29. When asked about any hardship that might be caused by cancellation of her visa, the applicant told the Tribunal that she would suffer psychological hardship if she returns home because she is used to her Australian way of life which includes getting up and going to work. She said she would not find employment easily in her country. The applicant said cancellation would cause financial hardship because she would not be able to send money to her family and her family would have to financially support her. She said she would not suffer emotional hardship if the visa remains cancelled because she would be at home with her family.

30. The applicant told the Tribunal that she has learned her lesson and now knows how to balance life, work and study. She conceded that she made a mistake in not contacting her education provider to seek a deferment and not telling anyone she was feeling overwhelmed.

31. 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

32. The applicant told the Tribunal her purpose in coming to Australia was to study, to learn a different culture and to financially assist her family through her employment income.

33. The purpose of her visa was to enable the applicant to study. At the time the NOICC was issued the applicant had not been enrolled in a registered course for 20 months.

34. 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.

35. The Tribunal questioned the applicant as to whether there was a compelling need for her to remain in Australia. In response she said there are many employment opportunities in Australia compared to her country. The Tribunal does not consider this constitutes a compelling need.

36. 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

37. 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 since 16 July 2018. There is no evidence before the Tribunal that she has not complied with the other conditions attached to her visa.

38. The applicant’s non-compliance for an extended period of 20 months prior to 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 her in that she will not be able to undertake study and will not be able to continue to work and send money to her family. The Tribunal gives this some weight against cancellation however is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

    Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control

40. The applicant’s visa was cancelled as a result of her failure to maintain enrolment. The applicant said she was unable to maintain enrolment because she was overwhelmed with trying to balance life, work and study. She also said she was nearly raped in January or February 2018 and in July 2018 she was raped which resulted in a pregnancy she subsequently terminated. She said she did not tell anyone about the sexual assaults.

41. The Tribunal accepts that the applicant may have initially felt overwhelmed and that she underwent a termination of pregnancy in August 2018. However, her evidence was that she continued to work during the period from July 2018 to February 2020. No medical evidence was provided to demonstrate that she was unfit for study and the maintaining of employment throughout the period indicates that the applicant prioritised work over study. This has strongly invited the Tribunal to consider that the applicant did not take condition 8202 seriously as a student visa holder.

42. The Tribunal put to the applicant that she remained in Australia for 20 months as the holder of a student visa during which time she wasn’t studying and did not make any attempt to enrol in a course. She said she made a mistake and has learned her lesson.

43. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. 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

44. 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

45. 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

46. 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

47. 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

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

   Conclusion

2. 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 is not fulfilling the purpose of her travel to and stay in Australia as she is 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.

3. 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

4. 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.