Rongwang (Migration)

[2024] AATA 943

Rongwang (Migration) [2024] AATA 943 (22 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ajchara Rongwang

REPRESENTATIVE:  Mr Varun Hudson (MARN: 1685696)

CASE NUMBER:  2216475

HOME AFFAIRS REFERENCE(S):          BCC2022/2199669

MEMBER:Michael Bradford

DATE:22 April 2024

PLACE OF DECISION:  Sydney

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

Statement made on 22 April 2024 at 12:49pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – COVID restrictions, online study and physical and mental health – no medical consultation until after receiving department’s notice of intention and limited health reports – no current enrolment – consent to decision without hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 2, condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

Introduction

1. This is an application to review a decision 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 (the Act).

2. The delegate cancelled the visa for breach of the enrolment condition (8202) because the applicant had not been enrolled in a registered course of study from 4 December 2020 to 12 September 2022, a period of about 22 months.

3. As far as I can tell, there is no issue in this review that the ground for cancellation exists, the only issue is whether the visa should be cancelled.

4. The decision under review was made and notified on 4 November 2022, the Review Application was filed on 10 November 2022 (the RA) and is thus within time but, for the following reasons, I have concluded that the delegate’s decision should be affirmed.

   Procedural aspects

5. A video hearing in this case was scheduled to take place on 15 December 2023 but, in her Hearing Response form filed on 12 December 2023, the applicant elected to forgo a hearing and to have the review conducted on the papers.

6. In a submission filed in the Tribunal on that date her representative, Mr Varun Hudson from Sydney Migration Agency, confirmed that the applicant would not be attending the hearing because he (the representative) was of the view that the review would be unlikely to succeed given that the applicant was not then enrolled in any course of study. He also indicated in his submission that, despite having given the applicant advice to that effect, she wanted to press ahead with the review because the pandemic had (she said) a substantial impact on her ability to maintain continuous enrolment.

7. On 14 December 2023 the Tribunal wrote to the representative confirming that the hearing would be cancelled and that the review would be conducted on the papers.

   Documentary aspects, approaching the issues in the case.

8. Apart from providing to the Tribunal a copy of the decision under review at the time the RA was filed the only other document which the applicant has put forward to support her review case is the submission. Although I am not bound to regard that submission as evidence from the applicant, I will treat it as such if only because there is nothing else in the way of evidence to support her case. This of course does not mean that I am bound to accept the submission, or any part of it, only that I am prepared to treat it as evidence.

9. That said, the applicant having elected to forgo the opportunity of giving sworn oral evidence to support her review case at a hearing, I will proceed on the basis that her untested assertions in the submission should only be accepted at face value if they are consistent with the objective features, are inherently plausible, are corroborated by other credible sources or amount to admissions against interest.

10. Another curious aspect of her documentary case is the fact that she does not, in the submission refer to, let alone adopt, any of the documentary evidence she provided to the delegate in response to the NOICC.

11. I have also seen a Department paper file which contains, among other documents, the NOICC dated 20 September 2022, a statement from the applicant sent in response dated 3 October 2022, two medical certificates, one from a General Practitioner, Dr Jason Ngui of 12 September 2022, and the other from a Psychologist, Mr Jeffrey Lai of 6 October 2022, two COEs for Project Management courses at AIBT, courses in which she enrolled on 13 September 2022 shortly after the Department sent to her the initial email requesting provision of contact details, and some academic records relating to earlier vocational studies (which she did not complete) at the Australian International Academy.

12. In addition to those files, I have seen a PRISMS record and Movements Details for the applicant the information in which does not appear to be controversial.

    The material before the delegate and reasons given for the cancellation 

13. The correspondence in the Department’s paper file indicates that it made initial contact with the applicant by an email sent on 31 August 2022 when it sought verification of her contact details for the purpose of giving her what it described in the email as an important notice regarding the visa. Although she apparently did not respond to this initial email her response to the later one sent on 19 September 2022 confirms that the initial email would have been received by her on the date it was sent.

14. In the NOICC the delegate recited the fact that the applicant had not been enrolled in a registered course of study during the period from 4 December 2020 until 12 September 2022, a period of about 22 months, and that consequently she had been in breach of visa condition 8202(2)(a).

15. In her statement in response to the NOICC the applicant did not dispute that she was in breach of that condition during that period. Indeed, she accepted that the subject visa had been granted to her for the purposes of enabling her to study a package of Leadership and Management courses, said she could not cope because of the effects of COVID and, more particularly, her inability to engage with on-line studies, the consequent onset of an anxiety and/or depressive condition and other personal issues, including menopause. She said that these issues had led to the cancellation of her enrolments and the eventual breach of the enrolment condition.

16. The applicant went on to say that she had sought professional treatment for her condition, had been referred by her doctor to Mr Lai who would shortly provide a report. She also alluded in her statement to the fact that she had managed to enrol in the Project Management courses, although she did not say when, that these were being conducted face-to face, and that she had a renewed interest in completing them and that she would be returning to her home country of Italy once she did. She said that cancelling her visa in these circumstances would involve hardship and that such an outcome would have a detrimental effect on her mental health. She wanted the delegate to give her the chance to rectify what she had done.

17. To further support her NOICC response the applicant provided the two medical reports referred to earlier in these reasons.

18. In his report Dr Ngui states that she was experiencing depression, that a health care plan had been put in place for her which included a referral to Mr Lai for six psychology sessions, and that a review should take place within a period of 6 months. According to the Consent form in the plan, the need for these sessions and review had been discussed with her and agreed to but no medical history is recorded in either of these documents, nor was any medication prescribed.

19. In his report Mr Lai merely refers to a single consultation which had taken place with the applicant on 6 October 2022. He expresses no opinion on her mental condition, nor does he suggest that any further treatment was considered necessary.

20. In his decision the delegate refers to the matters which he was required under the legislation to consider, including the applicant’s response.

21. Having found that the ground referred to in the NOICC for cancelling the visa existed, the delegate went on to consider the issue of whether the visa should be cancelled. Put shortly, he was mainly concerned about the extent of the non-compliance, the fact that the effects of the pandemic had come to an end by October 2021, and that the applicant had the option of seeking help from the College with her online studies, deferring them entirely during COVID, or contacting the Department to investigate other possibilities. He considered in her favour the fact that hardship might result if the visa was cancelled but felt that the other factors were more influential.

22. In the result, the delegate was satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel it.

    Other evidence and findings

23. As noted earlier, apart from the formal documents listed in the RA, the only evidentiary document which the applicant has provided to support her review case is the representative’s submission, a document which consists of 1.5 pages. Although some of this submission consists of a reiteration of her NOICC response it also contains other assertions which did not find their way into the response.

24. In the submission it is said that after studying the Diploma of Leadership and Management for about 4 weeks the applicant decided to postpone her education because she could not adapt to the online format. It also asserts that, at that time, she was unaware of the consequences of doing so and, indeed, believed that deferring her studies until the pandemic had subsided was permissible. She goes on to assert that she had limited access to professional guidance and that this had led to a misunderstanding of her visa position.

25. The applicant acknowledges in the submission that she was no longer enrolled in any course of study, a fact which PRISMS confirms, and that her enrolments in the Project Management courses at AIBT were cancelled by the provider on 2 March 2023, following the visa cancellation. This was seen by her representative to be fatal to her review, Mr Hudson conceding that this was the reason for her electing to have the review decided on the papers.

26. The submission goes on to recite that the pandemic was beyond the applicant’s control, that it had a substantial impact on her ability to maintain continuous enrolment, that her circumstances are exceptional, and that compassionate allowances should be made for them. It was said that she wants to resume her studies.

27. Of course, this being a cancellation case under Sec 116 of the Act, the fact that the applicant is not currently enrolled in a course of study at the time of the review is not, of itself, fatal to her case.   

28. I do not accept the applicant’s assertion that she was unaware of the need to maintain enrolment in a registered course of study. This strikes me as inherently implausible, particularly for an experienced student such as this one, and indeed such an assertion has in this case all the hallmarks of recent invention given that it was not made to the delegate and, insofar as the evidence goes, was not made to any other person prior to December 2023.  

29. Her case before the delegate was that she was unable to engage with on-line studies, that this and other personal issues led to the onset of an anxiety condition which evolved into a full-blown depression.

30. The problem with this case, if indeed the applicant still maintains it for the purposes of her review, is that the specialist medical evidence simply does not support it, nor does her conduct in failing to adhere to the health plan which her General Practitioner had devised in consultation with her.

31. I do not accept, on what little evidence there is, that the applicant suffered from a depressive illness at any stage during or after the pandemic, let alone one which prevented her from engaging productively with her vocational studies, or from functioning effectively in the community.

32. The bare statement in the report from her General Practitioner that she was suffering from a depression lacks credibility given that it is quite unsupported by any foundational findings, was not apparently based on the application of any recognised medical tests or procedures, no reasoning process is exposed, nor is it a view endorsed by Mr Lai on referral. The applicant’s post-consultation inactivity, left unexplained as it is, contains an implied admission that she did not seek any ongoing treatment for her asserted condition because she did not need to.

33. The timing of these events also does nothing to enhance the cogency of these assertions. That she apparently did nothing to seek medical help until after she received the initial email from the Department on 31 August 2022, about 11 months after the re-introduction of face-to-face learning, is strongly suggestive of a strategic response to the notice rather than a genuine step taken by her for legitimate medical reasons.

34. I broadly agree with the delegate’s findings as expressed in his decision and with the weight which he attributed to the various factors under consideration in this case. I would add that, as a broad rule of thumb, the longer the period of non-enrolment the greater the need to provide an acceptable explanation for it. In this case there is none.

35. There is nothing in the circumstances of this case which could possibly mitigate or otherwise ameliorate the legal consequences of this extensive breach. To make the decision to postpone her studies without taking any steps to defer them or investigate other options was irresponsible and, indeed, quite foolish. According to her submission she is an experienced student of mature age who came out to Australia to upgrade her skills to enhance employment opportunities in her home country. An initial student visa was granted to her for that purpose in 2018, the subject visa in February 2020.

36. On any view of the evidence led, such as it is, the applicant was given opportunities to study in Australia but did not take them, preferring instead to set an agenda during COVID, if not before, which involved among other things a prolonged period of voluntary non-enrolment in breach of a mandatory, fundamental and well-known condition, and a belated decision to re-enrol in an acceptable course of study only when she came under notice.

37. COVID is not and never has been of itself, absent credible medical evidence or other exceptional circumstances, an excuse for an international student not to engage in study in Australia.

38. To make matters worse, in this case the applicant has attempted to explain her conduct by fabricating a submission that she believed she could unilaterally abandon her studies and recommence them when it suited her, and by making other insubstantial assertions regarding her inability to engage in effective study on medical grounds.

39. I am by no means convinced that the applicant is in these circumstances a genuine student who has remained here for legitimate academic reasons and in pursuit of realistic occupational goals. There is certainly no credible documentary or oral evidence from her along these lines apart from rolled up assertions in the form of a submission to this broad effect.

40. Nor is there any credible evidence that she, or any member of her family, would suffer any real financial or emotional hardship in the event of cancellation.   

    Conclusion   

41. The delegate was correct in his decision to cancel her visa, and insofar as the evidence goes, nothing has occurred since his decision was made to warrant a different outcome.

42. It must in these circumstances be affirmed.

    DECISION

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

    Michael Bradford
    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.