Patel (Migration)

Patel (Migration) [2024] AATA 1937 (11 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Deval Rajnikant Patel
REPRESENTATIVE:  Mr Sagar Shrestha (MARN: 2217871)
CASE NUMBER:  2219058
HOME AFFAIRS REFERENCE(S):         BCC2022/2237798
MEMBER:Christine Kannis
DATE:11 June 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 11 June 2024 at 11:05am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – gap in enrolment – serious health issues – applicant and his wife divorced – applicant changed to vocational course – multiple course cancellations – poor academic progress – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 116, 140, 189, 198, 359
Migration Regulations 1994, Schedule 8, Condition 8202; r 1.03
CASES
Liu v MIMIA [2003] FCA 1170
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 16 December 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of his visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
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 20 May 2024 to give evidence and present arguments.
The applicant was represented in relation to the review. His representative did not attend the hearing.
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 24 May 2019, 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).
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.
In the present case, the applicant’s visa was cancelled on the basis that he 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 May 2021 to 15 August 2022.
On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 9 May 2021 to 15 August 2022 and the Tribunal finds that he breached condition8202(2)(a) of his 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 and his representative, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below.
On 12 August 2022, the Department of Home Affairs Character and Cancellation Branch sent the applicant an email regarding verification of his contact details and he responded on 12 August 2022.
On 13 September 2022, the Department of Home Affairs (the Department) issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 9 May 2021 and had therefore failed to comply with condition 8202(2)(a) of his visa.
On 19 September 2022, the applicant responded to the NOICC via his migration agent and provided the following information:
- The grounds for cancellation are acknowledged however there are compelling reasons and events beyond the applicant’s control that lead to this situation.
- The applicant and his wife divorced on 1 October 2019 and this caused the applicant difficulties concentrating on his studies.
- The applicant was diagnosed with Crohn’s disease in India in December 2019. After this he had to take regular leave due to his health issues. On 31 May 2021, during his final placement to complete a Diploma in Nursing, he fainted. He then took a series of leaves due to his medical condition. He was offered a second placement starting on 26 July which he started but couldn’t continue due to his health issues. He was able to attend two weeks out of four weeks placement. Later, he requested the college to allow him to complete his study and a lab session was approved for February 2022 to revise his skills to attend next placement. His condition flared up again and he was admitted to emergency for a day and discharged with a sick certificate for a week. He was recommended by Royal Adelaide Hospital to book an appointment with a specialist but due to COVID-19 he couldn’t book an appointment with a specialist in Australia and he booked online with a specialist in India.
- On 22 March 2022, the applicant was notified the Academic Progression Committee had reviewed him as having unsatisfactory academic progress. Due to his health issues, he couldn’t appeal and his CoE was cancelled. He was going through a stressful situation with illness and medical treatments. He looked to return to study but due to his unsatisfactory record he could not get admission into the desired course.
- After this the applicant was taking care of his health and had the option to return to India but he had lost so much and had undergone a lot of stress and he felt ashamed to return without any qualification. He considered studying related courses in India but education there is not the practical approach and quality of education in Australia. As he couldn’t pursue the same course, he decided to enrol for a hospitality related course. On 16 August 2022 he was issued a CoE for a Certificate IV in Commercial Cookery and Diploma of Hospitality Management.
- Cancellation will have extreme consequences for the applicant psychologically. After having spent years in Australia it will be a matter of shame for him if he returns to India without any qualification. He will not be able achieve his objective to develop his own career pathway.
- The applicant wants to complete a course in Australia because he didn’t have an option to enrol in the same course. He did some research and has taken suggestion from family and friends to decide on the career he wants to pursue. With his current health he may not be able to work for the entire adulthood so he wants to work while he can and establish a business in future. He was inspired by the hospitality field in Australia and plans to introduce such cuisines in his own country. Therefore, he decided to enrol for certificate and diploma courses in hospitality which he believes will provide him the opportunity to learn a variety of topics quickly. His focus will remain on the Diploma in Hospitality Management.
At the time of responding to the NOICC the applicant provided the following documents:
·Divorce Order dated 1 October 2019;
·Pathology report dated 11 December 2019 indicating a diagnosis of inflammatory bowel diseases including Crohn’s disease;
·Lyell McEwan Hospital Ward Surgical Placement letter for 24 May 2021 to 20 June 2021;
·Torrens University Incident Form dated 3 June 2021 indicating applicant suffered a fall on 31 May 2021 for reason unknown;
·Port Broughton District Hospital Placement letter for 26 July 2021 to 22 August 2021;
·Hampstead Health Family Practice receipt dated 11 August 2021;
·Emails between applicant and Torrens University/Think Education dated in February and March 2022 with respect to the applicant’s non-attendance at a lab and clinical skills refresher including emails from Torrens University which advised:
On 11 February 2022
The lab schedule is attached. I am happy to meet with you on Monday at 11am ready for lab skills with Karen.
Your attendance is mandatory and being closely monitored. I appreciate you have the appointment on Monday that cannot be moved and of course you must attend, however we will expect you to return to campus afterwards and complete the designated hours on campus as per the plan after your appointment.
I will be on campus to give you some self-directed work and lab skills to complete in the afternoon when you return. Please note that your hours will be deducted if you are absent and if you fall below the 80% attendance agreement you will not be eligible for a final placement as per the agreement made.
On 15 February 2022
My prior understanding was that you were due to come to campus and meet with me at 11 yesterday. You would then attend SP3 lab skills until you had to leave for your 1pm specialist appointment, after which you would come straight back to complete what was left of the 3 hours clinical skills planned for Monday 14/02 on your schedule.
Unfortunately, what happened was that you came at 11am dressed inappropriately for the clinical workspace (trendy ripped T shirt and jeans) and said you could not stay to attend labs at all prior to your appointment. We organised that you would return straight after your appointment, but I texted you around 15.20 (as I had not heard from you to) to say it was really too late at that point to commence lab skills. You did not message back.
and
Thank you for informing me of your absence from labs today and providing me with a sick certificate. Unfortunately, as part of your agreement to attend these mandatory labs you will still be considered as missing the total of 9 hours from your allocation for your practical lab refresher (3 hours from Monday and 6 hours from today).
On 1 March 2022
Just wanting to summarise attendance at the mandatory clinical skills refresher sessions to date.
Over the past 2 weeks you attended a total of 6 hours out of a possible 40 (Monday 21/02 3 hours and Friday 25/02 for 3 hours).
You came into campus yesterday and worked in the computer lab rather than with the class practicing clinical skills as was the plan.
In any case as discussed, you are not now able to complete the mandatory 80% attendance requirement set by the Academic Progression Committee last month to be eligible for a placement to be organised.
I have informed the Academic Progression Committee at our national meeting yesterday.
·Document described as the applicant’s Clinical simulation practical lab refresher sessions (80% mandatory attendance) dated February 2022.
·Referral letter dated 15 February 2022 stating the applicant was diagnosed with Crohn’s disease 2 years ago in India, that he is not on medication and now has a flare up with diarrhoea, abdominal pain and weight loss.
·Central Adelaide Local Health Network Certificate of Sickness dated 28 February 2022 certifying the applicant’s unfitness of work from 28 February 2022 to 5 March 2022;
·Royal Adelaide Hospital Discharge Letter dated 1 March 2022 stating that after diagnosis of Crohn’s diseases in 2020, the applicant had steroids and remained in remission in the last few years and eliminated dairy element from his diet.
·Think Education email dated 22 March 2022 to the applicant advising that:
oa review of assessment results and academic progress identified him as having unsatisfactory academic progression;
ohe was notified of this risk via email on 2 February 2022 and that he was currently in breach of the terms and conditions of his enrolment and student visa;
oTHINK Education will now be required to report him to the Department of Home Affairs and the Department of Education, Skills and Employment (DESE) for unsatisfactory course progress; and
ohe can request a review of the decision and he had 20 working days to lodge an internal appeal
·Think Education email dated 30 April 2022 to the applicant advising as follows:
Please be advised that your enrolment has been cancelled from Think Health due to unsatisfactory academic/course progression
As a consequence, the Department of Home Affairs has been notified via PRISMS that you are no longer enrolled as a student of Think: Colleges Pty Ltd. Therefore, you have a period of 28 days to make alternative visa arrangements, or depart Australia.
We recommend that you contact the Department of Home Affairs to see how this may impact on your current visa status.
·CoE for Certificate IV in Commercial Cookery and Diploma of Hospitality Management created on 16 August 2022;
Additional evidence provided prior to the hearing
Emails between the applicant and Torrens University/Think Education during the period from January 2022 to April 2022, most of which were provided at the time of responding to the NOICC.
Certificate from Siddhi Inayak Hospital dated 15 March 2022 certifying the applicant has taken online consultations on 15 March 2022 for his health concerns and listing his medications and stating he is experiencing a flare up of Crohn’s disease. The document stated the applicant should take the prescribed medication for 3 months and if he still experiences symptoms he should seek further treatment.
Document dated 18 May 2022 from Dt Sanjay Lalchansingh Rajput which refers to the applicant’s complaints of abdominal pain, loss of weight and frequency of stools and lists his medications.
Representative’s written submissions:
·The applicant received correspondence from the education provider on 30 April 2022 notifying of the cancellation of enrolment due to unsatisfactory progress. The email indicated the CoE was terminated on 30 April 2022. If the applicant is actively engaged in completing their placement, continued enrolment is necessary. Therefore, the provider ought to have extended enrolment beyond 9 May 2021 until the anticipated completion date. Alternatively, if progress was unsatisfactory, timely notification should have been provided before the CoE expiration on 9 May 2021.
·It is the responsibility of the university or education provider to accurately update PRISMS with changes to enrolment status, including extensions to placement durations. As per the guidelines in the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 and the Education Services for Overseas Students Act 2000, education providers are required to take responsibility for determining and monitoring the course progress and attendance requirements of overseas students.
·The applicant was struggling with his medical condition around the time when he was not able to continue his last placement and was receiving medical consultation from offshore to maintain his condition. The applicant acknowledges he couldn’t take prompt action after 30 April 2022 when he received notification from university as he was recovering from his health condition.
·Evidence including email communications has been included to support his claim of ongoing efforts to complete the course requirements. Further evidence is provided to support his claim of health issues throughout the study period.
·It is clear the applicant demonstrated genuine dedication in striving to meet the requirements of his coursework, despite encountering health obstacles. Contrary to misconceptions, he did not remain inactive academically for a duration of as long as 15 months.
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 his enrolment record from the PRISMS database, a copy of which is on the Tribunal file. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal put to the applicant that according to the information from his PRISMS enrolment record, he was enrolled in the following courses of study:
a.He was enrolled in an Academic English Elementary to Advanced course which he finished on 18 December 2015;
b.He was enrolled in an Academic English Elementary to Advanced course which was cancelled on 28 January 2016 due to non-commencement of studies;
c.He was enrolled in Certificate II Spoken and Written English course which he finished on 4 March 2016;
d.He was enrolled in Bachelor of Nursing course which was cancelled on 21 January 2016 due to non-commencement of studies;
e.He was enrolled in Bachelor of Information Technology course which was cancelled on 23 January 2018 due to Unsatisfactory course progress;
f.He was enrolled in Bachelor of Applied Public Health course which was cancelled on 15 March 2019 due to Change to CoE/Student details;
g.He was enrolled in a Diploma of Nursing course which he finished on 16 August 2019;
h.He was enrolled in a Diploma of Nursing course which he finished on 2 February 2020;
i.He was enrolled in Bachelor of Applied Public Health course which was cancelled on 1 May 2020 due to Non-commencement of studies;
j.He was enrolled in a Diploma of Nursing course which he finished on 14 August 2020;
k.He was enrolled in a Diploma of Nursing course which he finished on 6 September 2020;
l.He was enrolled in a Diploma of Nursing course which he finished on 30 November 2020;
m.He was enrolled in a Diploma of Nursing course which he finished on 9 May 2021;
n.He was enrolled in a Certificate IV in Commercial Cookery course which was cancelled;
o.He was enrolled in a Diploma of Hospitality Management course which was cancelled on 25 January 2024 due to Change to CoE/Student details; and
p.He is enrolled in a Diploma of Hospitality Management course which commenced on 26 February 2024.

The Tribunal explained to the applicant that this information was relevant because it indicates that from 9 May 2021 to 15 August 2022 he did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether he breached the conditions of his student visa by not maintaining enrolment in a registered course of study. The Tribunal explained that the information may also be relevant in considering the discretion to cancel the student visa, including in considering 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 he had any comments in relation to his PRISMS enrolment records. In response the applicant said he continued to attempt to finish his last placement for the Diploma of Nursing until 22 March 2022. He said he continued to be enrolled until 22 March 2022 and did not finish the Diploma of Nursing on 9 May 2021 as recorded in PRISMS.
As noted, PRISMS indicates the applicant ceased to be enrolled when he finished a Diploma of Nursing course on 9 May 2021. The emails from Torrens University/Think Education refer to the applicant’s completion of placements and attending for lab and clinical skills in 2022. The email dated 30 April 2022 advised the applicant that his enrolment had been cancelled. The applicant told the Tribunal he ceased to be enrolled after 22 March 2022. Following the hearing the Tribunal made several attempts to obtain clarification from Torrens University about the date the applicant ceased to be enrolled however no response was received. Accordingly, in the absence of evidence contradicting the information recorded in PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course from 9 May 2021. For completeness the Tribunal notes that in the applicant’s response to the NOICC the grounds for cancellation were acknowledged and in his oral evidence at the hearing the applicant conceded a period of non-enrolment although he said it was from 22 March 2022.
The Tribunal put the emails from Torren University/Think Education as set out above to the applicant for comment. In response to the Tribunal asking the reason he did not attend or make contact on 15 February 2022 when he failed to attend after a specialist appointment at 1 pm, the applicant said the appointment took 30 minutes and after that he was too stressed to attend or make contact with the education provider despite having advised earlier in the day that he would return straight after his appointment.
In response to the Tribunal asking about the email dated 1 March 2022 and in particular the reason he worked in the computer lab rather than with the class practising clinical skills as was the plan, the applicant said in the morning he had symptoms of falling down and because he couldn’t stand up he stayed in the lab and undertook theoretical knowledge.
In response to the Tribunal asking about the email dated 22 March 2022 and the reason he did not seek a review of the decision based on his medical issues, the applicant said he was very sick and was trying to arrange an endoscopy but due to COVID-19 he was having difficulties. He said he was very stressed about his health issues and was not in the state of mind to do anything about his study. He referred the Tribunal to the Certificate of Sickness dated 28 February 2022 certifying his unfitness of work from 28 February 2022 to 5 March 2022.
In response to the Tribunal asking about the email dated 30 April 2022 and the reason he did not depart Australia within 28 days or contact the Department about his visa status, the applicant said at that time he was sick and without any family support in Australia. In response to the Tribunal asking whether he considered returning to India to recover before undertaking further study in Australia, the applicant said medical treatment is too expensive in India and he chose to stay in Australia because the health insurance attached to his visa made treatment affordable.
In response to the Tribunal asking the applicant the reason he did not seek to defer his study on compassionate or compelling grounds, he said he did not ask the college about that because he was too stressed. He said he was very sick and his physical strength did not allow him to contact the college.
The Tribunal put to the applicant that he would have known from 9 May 2021 that he was no longer enrolled in a course and was not abiding by the conditions of his visa. He said he was aware that he was no longer enrolled when he received the Think Education email dated 22 March 2022. The Tribunal noted that the email dated 30 April 2022 made it clear that his CoE had been cancelled and advised him to contact the Department. In response to the Tribunal asking whether he notified the Department of the change in circumstances when his enrolment was cancelled, the applicant said he did not contact the Department because was very sick and his physical strength did not allow him to contact the Department.
Noting that the applicant was able to obtain a CoE four days after the Department contacted him on 12 August 2022, the Tribunal asked him the reason he obtained that CoE. In response he said when he received the email from the Department he knew he had to take action immediately so he contacted his migration agent who suggested he enrol in a cookery course. The applicant told the Tribunal that although he had wanted to complete his Bachelor of Nursing, his health issues did not allow it. He said he had experience working in a hotel in India and so he decided to undertake study in the hospitality field.
Noting that the Certificate of Sickness dated 28 February 2022 certified the applicant’s unfitness of work, the Tribunal asked him about the work he undertook in 2021 and 2022. He said he worked as a courier driver for 20 or 21 hours per week. He said he was not always able to attend work and had frequent periods of sickness. The Tribunal notes that only one certificate has been provided to evidence unfitness for work. The applicant said he finished work as a courier driver in May/June 2022.
When asked about the purpose of his travel to Australia, the applicant told the Tribunal he came to Australia to complete his education. He said initially he studied nursing to learn new skills and help people. In response to the Tribunal asking whether he has a compelling need to remain in Australia, the applicant said he has spent 9 years in Australia and hasn’t been able to complete a course. He said he wants to complete his study and work in Australia or alternatively use his skills in the future in India.
When asked about the hardship that may be caused by cancellation of the visa, the applicant said if his visa is cancelled he will suffer an emotional breakdown because he was hoping to study and build a career. He said if he has to return to India it will be hard on his family because they have spent lots of money on his education in Australia. He said it would impact his family emotionally and financially. The applicant said because he has been absent from India for 8 or 9 years it would be hard to restart his career there.
The applicant told the Tribunal that after his diagnosis with Crohn’s disease in 2019, he came back to Australia with medication for 6 months. He said he felt better however in January/February 2022 the condition flared up again and he lost weight and strength,. He said he was admitted to Royal Adelaide Hospital for 1 day but he did not get proper treatment so he consulted a doctor in India for medication.
The applicant told the Tribunal that when he was unwell he was stressed, he was not getting any help and he could not make decisions because of his health issues. He said this was the reason he did not seek a review within 20 days of receiving the email on 22 March 2022. He said he has abided by all the other conditions of his visa.
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 him to study. The applicant was not enrolled in a course of study for a period of 1 year 3 months prior to the issuing of the NOICC. The Tribunal finds the applicant’s breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.
The Tribunal questioned the applicant as to whether there was a compelling need for him to remain in Australia. In response, he said he has spent 9 years in Australia and hasn’t completed a course and wants to complete his study and work in Australia or in the future in India. The Tribunal does not consider this constitutes a compelling need.
The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.
The extent of compliance with visa conditions
The applicant has not complied with condition 8202 of his student visa because he has failed to maintain enrolment in a full-time registered course of study from 9 May 2021 to 15 August 2022. There is no evidence before the Tribunal that he has not complied with the other conditions attached to his visa.
The applicant’s non-compliance for a period of 1 year 3 months from cancellation of his enrolment until the issuing of the NOICC weighs in favour of visa cancellation.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
There was no medical evidence to support the applicant’s contention that if his visa is cancelled he will suffer an emotional breakdown however the Tribunal accepts that the cancellation will be disappointing to him and his family.
The Tribunal gives the hardship that may be caused to the applicant and his family some weight against cancellation.
Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control
The applicant’s visa was cancelled as a result of his failure to maintain enrolment. The applicant was not enrolled in a course for 1 year 3 months prior to the issuing of the NOICC. He told the Tribunal the reason for not maintaining enrolment was because of his health issues. He said this was also the reason he did not seek a deferment of his study from his education provider. He said this was also the reason he did not seek a review of the decision when he was assessed as having made unsatisfactory course progress. He said this was also the reason he did not contact the Department when his enrolment circumstances changed.
The Tribunal accepts that the applicant was diagnosed with Crohn’s disease in December 2019 and he received treatment for the condition. The Tribunal accepts that the applicant suffered a flare up in February 2022 and was hospitalised for 1 day. There was no evidence to substantiate the applicant’s contention that the severity of his health issues precluded him from maintaining enrolment or contacting his education provider or the Department. The medical evidence demonstrated that he was able to arrange and attend medical appointments in person or online during the period of non-enrolment. His evidence was that he continued to work as a courier driver until May/June 2022. He said he had frequent periods when he did not work however as noted, only one certificate was provided to evidence unfitness for work and this period ended on 5 March 2022. In addition, the Tribunal notes that despite the claimed severity of his health issues, the applicant was able to obtain a new CoE four days after he was contacted by the Department’s Character and Cancellation Branch.
In his response to the NOICC the applicant referred to his divorce on 1 October 2019 causing him difficulties with study. He did not raise this at the hearing and given that the divorce occurred some years prior to him ceasing to be enrolled and in the absence of evidence substantiating the claimed impact of the divorce on his study, the Tribunal gives this evidence no weight.
The representative’s written submissions provided prior to the hearing included submissions in relation to the responsibilities of education providers. The Tribunal finds in the present case the education provider did determine and monitor the applicant’s course progress as required. 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.
The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The applicant’s enrolment was cancelled because he ceased to be enrolled in a registered course from 9 May 2021. He referred to suffering health issues however as noted, he was able to maintain employment during the period of non-compliance and was also able to attend various medical appointments despite his evidence that he was not physically strong enough to contact his education provider or the Department. 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
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 he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant and gives this some weight against cancellation.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
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 Tribunal is not aware of any other considerations in relation to the cancellation.
Conclusion
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of his visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant was not fulfilling the purpose of his travel to and stay in Australia as he was not undertaking the study for which his visa was granted. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa. It will not be in breach of Australia’s international obligations. The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.
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 1937

11 June 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction