Shrestha (Migration)

[2024] AATA 2478

Shrestha (Migration) [2024] AATA 2478 (23 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Usha Shrestha

CASE NUMBER:  2303125

HOME AFFAIRS REFERENCE(S):          BCC2022/4636894

MEMBER:Christine Kannis

DATE:23 June 2024

PLACE OF DECISION:  Perth

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

Statement made on 23 June 2024 at 12:54pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 500 visa –– applicant was not enrolled in a full-time registered course – breached condition 8202 – the breach did not occur in circumstances beyond the applicant’s control – long Covid – there was non-compliance by the applicant in the way described in the notice – decision under review affirmed  

LEGISLATION
Migration Act 1958, ss 116

Migration Regulations 1994 (Cth), Schedule 8

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 27 February 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).

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 on 17 June 2024.  

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 7 December 2021, 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 that she 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 PRISMS shows that the applicant was not enrolled in a registered course from 5 April 2022. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 5 April 2022 and the Tribunal finds that she breached condition8202(2)(a) of her visa.

13. 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

14. 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.

15. On 2 February 2023, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because she had ceased to be enrolled in a registered course from 5 April 2022 and had therefore failed to comply with condition 8202(2)(a) of her visa.

    Response to NOICC

16. On 8 February 2023, the applicant responded to the NOICC and provided the following information:

    ·The conditions that occurred for her not to study for almost a year were:

    oShe had been suffering from long COVID since April and had COVID twice, in April and in December.  She has been unable to focus on her studies or work since then. She has gone to the doctor numerous times.

    oShe has studied diligently in Australia ever since her arrival. She has completed many courses.

    oShe has been under severe mental stress and has started to recover and wants to continue her course and finish her studies before returning to Nepal.

    oShe has enrolled in another college and wants to finish her studies.

17. At the time of responding to the NOICC the applicant provided the following documents:

    ·Medical certificate dated 10 May 2022 certifying the applicant having carer leave for her son with acute viral infection for the period from 2 May 2022 to 12 May 2022 and she will be unfit to continue her usual occupation. 

    ·Medical certificate dated 10 May 2022 certifying the applicant’s son is receiving medical treatment (Acute Viral Illness) during the period from 2 May 2022 to 12 May 2022 and that she will be unfit to continue her usual occupation.  NB Carer was in attendance for the entire period.

    ·Medical certificate dated 11 May 2022 certifying the applicant received medical treatment for COVID infection/post recovery for the period from 2 May 2022 to 11 May 2022 and she will be unfit to continue her usual occupation and can return to work on 12 May 2022.

    ·Medical certificate dated 18 August 2022 certifying the applicant received medical treatment for the period from 18 August 2022 to 20 August 2022 and she will be unfit to continue her usual occupation.

    ·Medical certificate dated 27 October 2022 certifying the applicant received medical treatment for the period from 27 October 2022 to 22 October 2022 and that she will be unfit to continue her usual occupation.  

    ·Medical certificate dated 3 November 2022 certifying the applicant received medical treatment for the period from 3 November 2022 to 5 November 2022 and that she will be unfit to continue her usual occupation. 

    Evidence provided 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 an Advanced Diploma of Hospitality Management which she finished on 12 February 2010;

    b.She was enrolled in a Bachelor of Business which was cancelled  on 1 May 2013 due to Non-commencement of studies;

    c.She was enrolled in a Bachelor of Business which she finished on 15 January  2014;

    d.She was enrolled in a Master of Professional Accounting which was cancelled on 31 January 2014 due to Change to CoE/Student Details;

    e.She was enrolled in a Bachelor of Business which she finished on 2 March 2014;

    f.She was enrolled in a Bachelor of Business which she finished on 11 July 2014;

    g.She was enrolled in a Master of Professional Accounting which was cancelled on 12 August 2014 due to Non-commencement of studies;

    h.She was enrolled in a Bachelor of Business which she finished on 7 November 2014;

    i.She was enrolled in a Bachelor of Business which she finished on 20 March 2015;

    j.She was enrolled in a Master of Business Administration which was cancelled on 28 November 2014 due to Non-commencement of studies;

    k.She was enrolled in a Master of Business Administration which was cancelled on 8 December 2015 due to Student Notifies Cessation of Studies;

    l.She was enrolled in a Graduate Diploma of Business which was cancelled on 21 December 2016  due to Unsatisfactory course progress;

    m.She was enrolled in a Diploma of Salon Management which was cancelled on 30 June 2017 due to Unsatisfactory attendance;

    n.She was enrolled in a Diploma of Leadership and Management which was cancelled on 17 April 2020 due to Non-payment of fees;

    o.She was enrolled in a Diploma of Human Resources Management which she finished on 28 February 2021;

    p.She was enrolled in a Diploma of Leadership and Management which was cancelled on 5 April 2022 due to Unsatisfactory course progress;

    q.She was enrolled in an Advanced  Diploma of Leadership and Management which was cancelled on 5 April 2022 due to Non-commencement of studies.

19. The Tribunal explained to the applicant that this information was relevant because it indicates that from 5 April 2022 she did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether she breached the conditions of her student visa by not maintaining enrolment in a registered course of study. The Tribunal explained that the information may also be relevant in considering the discretion to cancel the Student visa, including in considering her purpose for remaining in Australia.

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 record. The applicant told the Tribunal she agreed with her PRISMS enrolment record.

21. The Tribunal referred to PRISMS recording the reason for cancellation of her enrolment on 5 April 2022 in the Leadership and Management course was unsatisfactory course progress and asked the applicant about her progress in April 2022. She told the Tribunal that she could not keep up with the assignments because she was sick and weak.

22. The Tribunal asked the applicant about the statement in the NOICC response regarding experiencing long COVID and having COVID in April and December and asked the year/s she had COVID. In  response the applicant said she first had COVID in April 2019 and the second time may have been in December 2021. In response to the Tribunal pointing out that the pandemic commenced in Australia in March 2020 (after April 2019) the applicant consulted her diary but could not provide any further information regarding the years she had COVID-19.

23. In response to the Tribunal asking the applicant about her long COVID symptoms, she said experienced back pain and weakness.  

24. The Tribunal asked the applicant about the statement in the NOICC response that she has been under severe mental stress and has started to recover. The applicant told the Tribunal that her mental stress was caused by worry about not being able to pay her tuition fees because she was not earning much and by her poor health. In response to the Tribunal asking whether she sought medical treatment for her mental health she said she went to her general practitioner and the treatment she received was that she was advised to exercise.

25. The Tribunal asked the applicant about the statement in the NOICC response that she wants to continue her course and finish her studies before returning to Nepal. The applicant told the Tribunal that she wants to undertake a course in sterilisation of equipment in hospitals but said she does not want to return to Nepal.

26. Noting that PRISMS indicates the applicant’s most recent enrolment is the subject of the current review, the Tribunal asked her about the statement in the NOICC response that she has enrolled in another college and wants to finish her studies. The applicant said she told her migration agent to enrol her in a course but conceded that she was not enrolled in any course at the time she responded to the NOICC.

27. The Tribunal asked the applicant about the medical certificates she provided certifying her unfit to continue her usual occupation for 10 days in May 2022 and for 3 days in August 2022 and November 2022. The medical certificate dated 27 October 2022 appears to contain an error and refers to Thursday 27 October 2022 however the Thursday prior to the end date of the applicant’s certified unfitness period was 20 October 2022. Based on this, the Tribunal considers that certificate also certified the applicant was unfit to continue her usual occupation for 3 days in October 2022.  The Tribunal noted that only the medical certificate dated 11 May 2022 said the applicant’s medical treatment was for COVID infection/ post recovery and the medical certificates dated 18 August 2022, 27 October 2022 and 3 November 2022 only say she received medical treatment. The applicant told the Tribunal that in August, October and November 2022 she was unfit for work because of her back pain.

28. Noting that the medical certificates refer to unfitness for work, the Tribunal asked the applicant about her employment in 2022. She said she worked 1 or 2 days per week in a nursing home as a catering assistant. She said she worked 7 hour shifts. She continued in this employment until May 2024 when she lost her work rights. She said she is currently able to support herself financially because of the annual leave she accrued during her employment.

29. The Tribunal notes that the medical certificates do not refer to unfitness for study however the applicant’s evidence was that she was unable to study because of her mental stress, weakness caused by long COVID and back pain.

30. The Tribunal put to the applicant that she would have known from 5 April 2022 that she was no longer enrolled in a course and was not abiding by the conditions of her visa. In response, the applicant conceded that she was aware of her non-compliance. The Tribunal asked her whether she contacted the Department about her visa status. In response she said she didn’t know how to deal with these things. The Tribunal referred to her earlier oral evidence that she talked to a migration agent when she received the NOICC and asked her whether she contacted a migration agent when her enrolment was cancelled. In response the applicant said she did not know migration agents deal with these matters. Noting that her evidence was that ill health caused her to cease study, the Tribunal asked the applicant whether she discussed a deferment of her study with her education provider. In response she said she should have but she did not discuss it with her college. 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.

31. When asked about the purpose of her travel to Australia, the applicant told the Tribunal that she initially came to Australia to study and now she wants to stay here. In response to the Tribunal asking whether she has a compelling need to remain in Australia, the applicant said she has been here for so long and has nothing to return to in Nepal.

32. When asked about the hardship that may be caused by cancellation of the visa, the applicant said she has nothing to fall back on in Nepal and explained that she could live with her mother and her brother in the short-term but she does not have a house in her name in Nepal. She confirmed that she does not own property in Australia either. The applicant said returning to Nepal would be difficult emotionally as well as financially. She told the Tribunal that she could find work in Nepal but said she would have to start at the beginning.

33. The applicant told the Tribunal that she finished the course she came to Australia to study and she has been trying to stay here permanently. In response to the Tribunal asking about whether she has made enquires with the Department about other visa options that may be available to her, the applicant said she has not made any enquires to date but she might do so after the hearing.

34. 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

35. The purpose of the applicant’s visa was to enable her to study. The applicant was not enrolled in a course of study for a period of 10 months prior to the issuing of the NOICC. The Tribunal finds the applicant’s breach of condition 8202 to be significant because she was not engaging in the study for which her visa was granted and was not fulfilling the purpose of her travel to and stay in Australia.

36. There is no specific definition of 'compelling' in either the Act or the Regulations. To be ‘compelling’, the reasons in question must force or drive the decision-maker irresistibly to some end.[3]  

    [3] Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31].

37. The Tribunal questioned the applicant as to whether there was a compelling need for her to remain in Australia. In response, she said has been here for so long and has nothing to return to in Nepal. The Tribunal accepts that the applicant does not want to return to Nepal but does not consider this constitutes a compelling need to remain in Australia.

38. 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

39. The applicant has not complied with condition 8202 of her student visa because she has failed to maintain enrolment in a full-time registered course of study for a period of 10   months. There is no evidence before the Tribunal that she has not complied with the other conditions attached to her visa.

40. The applicant’s non-compliance for a period of 10 months from cancellation of her enrolment until the issuing of the NOICC weighs in favour of visa cancellation.

    The degree of hardship that may be caused (financial, psychological, emotional or other hardship)

41. The Tribunal accepts that the cancellation of the applicant’s visa will be disappointing because she expressed a strong wish not to return to Nepal and said she will suffer emotional and financial hardship

1. The Tribunal gives the hardship that may be caused to the applicant some weight against cancellation.

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

2. The applicant’s visa was cancelled as a result of her failure to maintain enrolment. The applicant was not enrolled in a course for 10  months prior to the issuing of the NOICC. She told the Tribunal that this was due to mental stress caused by worry she could not pay her tuition fees and worry about her health. She said she suffered long COVID and was unable to complete her assignments because she had back pain and was weak.

3. The medical certificates certified the applicant unfit to work for a total of 19 days in the period from 2 May 2022 to 5 November 2022. Only one of the certificates referred to COVID-19 recovery and the remaining certificates said she received medical treatment however a condition/illness was not specified. The applicant’s evidence was that apart from the certified periods of unfitness to work, she continued to work 1 or 2 days a week up until May 2024. There is no medical evidence before the Tribunal regarding a diagnosis of back pain however it appears the pain was not so debilitating that she had to cease working in 2022 and 2023. There is no medical evidence before the Tribunal in relation to the applicant’s claimed mental stress and treatment for mental or physical illness. The applicant told the Tribunal that her general practitioner told her to exercise but no other treatment was prescribed or undertaken.

4. The applicant told the Tribunal she did not contact her education provider about deferring her study and did not contact the Department about her change in circumstances. She said she did not know how to deal with the Department and did not know she could ask a migration agent for assistance. The applicant’s claimed inability to deal with Department is not an acceptable  reason to knowingly remain in breach of her visa conditions. Regarding her evidence that she did not know she could ask a migration agent for assistance, the Tribunal considers this unlikely given her evidence that she instructed a migration agent to enrol her in study when she received the NOICC. As noted, in the Tribunal’s view it is the responsibility of a visa holder to be aware of the conditions of their visa and remain compliant with them. The applicant’s evidence was that she continued to work during the period from 5 April 2022 until after receipt of the NOICC. The applicant maintained employment during the time she ceased to be enrolled in a registered course. Therefore, despite the claimed mental stress, back pain and weakness issues caused by COVID-19, the applicant was able to maintain employment. This has strongly invited the Tribunal to consider that the applicant did not take condition 8202 seriously as a Student visa holder.

5. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The applicant’s enrolment was cancelled because she ceased to be enrolled in a registered course  from 5 April 2022. The applicant did not attempt to enrol in a course in the remainder of 2022 however her evidence was that she told a migration agent to enrol her in study when she received the NOICC. She referred to suffering health issues and provided medical certificates however as noted, she was able to maintain employment during the period of non-compliance despite her evidence that she was weak and suffering back pain.  The Tribunal finds that the applicant knowingly remained in breach of her visa conditions and did not contact her education provider or the Department to defer her study or change her visa status. 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

6. 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

7. 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

8. 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

9. 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

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

    Conclusion

11. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of her visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant was not fulfilling the purpose of her travel to and stay in Australia as  she was not undertaking the study for which her visa was granted. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa. It will not be in breach of Australia’s international obligations. The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

12. 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

13. 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.