Wangmo (Migration)

[2023] AATA 1838

Wangmo (Migration) [2023] AATA 1838 (10 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Dechen Wangmo
Mr Sonam Norbu
Master Tashi Jurme
Master Khamsum Jigme Singye
Miss Jamjang Selden Dolma

CASE NUMBER:  2210498

HOME AFFAIRS REFERENCE(S):          BCC2022/1778554

MEMBER:Christine Kannis

DATE:10 March 2023

PLACE OF DECISION:  Perth

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

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 10 March 2023 at 7:00am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased enrolment – multiple health issues – maternity leave – multiple course cancellations – family bereavement – family members studying in Australia – poor academic progress – decision under review affirmed          

LEGISLATION

Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 78, 116, 140, 348, 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

1. This is an application for review of a decision dated 19 July 2022 made by a delegate of the Minister for Home Affairs to cancel the first named 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 first named applicant (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. For the purposes of the Tribunal’s jurisdiction under s 348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicants.

4. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

5. The applicant appeared before the Tribunal on 13 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the second named applicant and the applicant’s former employer, Ms Susan Abbott.

6. 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

7. 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?

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 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 PRISMS shows that the applicant was not enrolled in a registered course of study from 9 March 2020. The period of her non-enrolment is discussed below.

13. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 9 March 2020 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 7 June 2022, 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 13 and 16 June 2022, the applicant responded to the NOICC and provided the following information:

    • Despite her genuine interest in pursuing a marketing and communication course, she could not complete the courses in which she was enrolled.
    • Since April 2019, she had multiple health issues such as recurrent allergy and moderate to severe abdominal pain. She made repeated visits to the emergency department and as an outpatient. She has a few prescriptions and records however she had to take over the counter painkillers at time.
    • She enrolled for July 2019 course since her health improved however her pain and allergy recurred in the latter half of 2019.
    • From early 2020, she was pregnant and due to her age and the gap since her last pregnancy, she had one of the worst health issues since she got pregnant. She had several episodes of nausea and vomiting along with abdominal pain and she made repeated visits to emergency and OPD departments.
    • It was really difficult to attend the courses when she was pregnant.
    • She delivered her baby on 9 December 2020 and was on maternity leave for 6 months.
    • In addition, her 13 year old son who was with her in Perth was already enrolled in the college.
    • Having to take care of her baby and her son was difficult although her husband was always there by her side.
    • Her plan was to resume courses from July 2021 after her maternity leave.
    • However she was shocked to receive difficult news from Bhutan that her maternal grandfather passed away in June 2021. It was difficult because he was like a father to her and personally took care of her since her childhood.
    • To make matters worse, she could not travel back to her home country because of COVID-19.
    • It was a really difficult time for her but she had no choice but to discontinue the enrolled courses.
    • It was a very depressing weeks and months and she had to take advice and counselling from her husband, close relatives and friends.
    • On 17 May 2022, her whole family had to stay home because they had COVID-19.
    • She has a huge appreciation for the Home Affairs rules and regulations and is totally aware of it.
    • Due to the unavoidable circumstances set out above she could not complete/continue her enrolled courses.
    • She is really concerned not only about her visa cancellation but more so because her entire family is on a family visa. Her second youngest son is enrolled in college in Perth and her eldest son, who has just arrived from Bhutan, is looking forward to enrolling in college soon. Her husband also lives with her.
    • Initially her genuine purpose of travelling to Australia was to support her husband in pursuing his career in business, management and leadership which he successfully completed. Since they are interested in pursuing a business career, she enrolled into this course with much interest and enthusiasm. Since it is very difficult for her to continue with her studies at this time, instead her husband has enrolled to study at Skills Australia Institute.

18. At the time of responding to the NOICC the applicant provided the following documentation in relation to her medical conditions and treatment of the conditions:

    ·Western Diagnostic Pathology results dated 8 November 2018 in relation to allergy testing and referral letter dated 16 November 2018 from Dr Gordon Kendall to Dr Richard Nolan in relation to allergy treatment

    ·Tax invoices x 3 dated 11 April 2019 from Sir Charles Gairdner Hospital (SCGH) Emergency Medicine which referred to the applicant as a day patient and treatment for Pelvis or Abdomen, pregnancy related or pregnancy complication, fetal development and anatomy ultrasound scan

    ·Tax invoice dated 12 April 2019 from SCGH Emergency Medicine

    ·Tax invoices x 2 dated 13 April 2019 from SCGH Emergency Medicine which referred to Abdomen, ultrasound scan of  (including scan of urinary tract   when performed), for rnerphological asse – not  for comparison In patient

    ·Tax invoice for 13 April to 18 April 2019 from SCGH Emergency Medicine and referred to Overseas Student Accommodation - In patient

    ·Tax invoice dated 14 April 2019 from SCGH Emergency Medicine which referred to Pelvis, ultrasound scan of, by any or all approaches

    ·Medical Certificate from Dr Gordon Kendall dated 5 December 2019, certifying the applicant is unfit for her usual occasion from 5 December 2019 to 6 December 2019

    ·Referral letter dated 5 December 2019 from Dr Gordon Kendall to Dr Benjamin McGettingan in relation to allergy treatment

    ·Tax invoice dated 18 February 2020 from King Edward Memorial Hospital for Women (KEMH) Emergency Medicine which referred to an outpatient attendance

    ·Tax invoice dated 9 March 2020 from KEMH which referred to Pelvis, ultrasound scan of, by any or all approaches, if (a) the service is not soley: (i) a service Outpatient occasion of service.

    ·Tax invoice dated 7 April 2020 from KEMH which referred to an outpatient attendance

    ·Negative HIV test result dated 25 April 2020

    ·Ultrasound report dated 1 May 2020

    ·Obstetric ultrasound including QDOS Ultrasound -, 2 first trimester Screening ultrasound report dated 8 June 2020

    ·Tax invoices dated  27 July 2020, 24 August 2020 and 21 September 2020 from KEMH which referred to an outpatient attendance

    ·Tax invoice dated 16 November 2020 from KEMH which referred to Pelvis or Abdomen, pregnancy related or pregnancy complication, fetal development and anatomy, ultra outpatient occasion of service

    ·Tax invoice dated 12 December 2020 from KEMH which referred to an outpatient attendance

    ·Discharge summary dated 25 August 2021 from SCGH Emergency Medicine which referred to the applicant presenting to the Emergency Department with a sore throat, rash and nausea. Possible allergic reaction to amoxicillin or possible virus

    ·Positive COVID-19 test results dated 18 and 19 May 2022 for all the applicants

    ·Medical Certificate from Dr Jessica Wang dated 9 June 2022, certifying that the applicant was pregnant and was seen at that practice 4 times between 25 April 2020 to 22 July 2020; had documented morning sickness and headaches on her visits; delivered her baby on 9 December 2020 and managed antenatal and confinement at KEMH.

19. At the time of responding to the NOICC the applicant also provided the Birth Certificate of the fifth named applicant (born on 9 December 2020) and a Notification of Death - Phuentsholing General Hospital - Royal Government of Bhutan documents dated 10 June 2022 which indicated that Wandi-ID No: 11107006,41 Died: I6/06/2021.

    Pre-hearing evidence

20. Prior to the hearing the applicant provided:

    ·A written submission which included information not materially different to the information in the applicant’s response to the NOICC and the following additional information:

    oRegarding the gap in her course, firstly it was during COVID-19 when there were lockdowns and social distancing requirements and all institutions as well as colleges were shut down. Before the pandemic she attended the college and received a Statement of Attainment which showed she completed two units of a course in 2019 (Statement of Attainment provided).

    oEarlier she and her husband went to the institution for a meeting with an advisor or manager and they shared her health issues and the difficult situation about the course which was hard for her to attend class so they asked if she could defer or change her course but unfortunately the manager or advisor said she could not change of defer her course.

    oShe also went through depression because her eldest son was in Bhutan and it was hard to be apart as COVID-19 spread in Bhutan. She was stressed about this and this made her ill and she had to visit hospital and counselling. She was admitted to hospital  for a minimum of a week.  She was also stressed about whether COVID-19 would affect her and her unborn child so she had to visit hospital regularly.

    oSo for the remainder of her course study from the institution she didn’t receive any email notification or phone call from the institution as she frequently had to go to hospital and through a lot of check ups and was admitted so was not able to get in touch and couldn’t check the email notification. Also she had provided her husband’s emergency contact details if the institution had any concerns regarding her course but her husband did not receive any email regarding her course and unfortunately between the gap the institution cancelled her CoE.

    ·Letter dated 14 December 2022 from the President of the Association of Bhutanese in Perth stating that the applicant was not able to attend classes from 9 March 2020 until the completion of her Certificate III  Marketing and Communications course because during that time she was pregnant and undergoing postpartum depression and was also caring for her newborn baby during the COVID-19 lockdown.

    ·CoE created on 8 June 2022 for the second named applicant’s enrolment in an Advanced Diploma of Information Technology course

    ·CoE created on 9 June 2022 for the third named applicant’s enrolment in an Advanced Diploma of Information Technology course

    Evidence at hearing

21. 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 Certificate IV in Marketing and Communication course but this enrolment was cancelled on 7 May 2019 due to Change to CoE/Student details.

    b.She was enrolled in a Certificate IV in Marketing and Communication course but this enrolment was cancelled on 7 February 2020 due to Unsatisfactory course progress.

    c.She was enrolled in a Certificate IV in Marketing and Communication course but this enrolment was cancelled on 9 March 2020 due to Unsatisfactory course progress.

    d.She was enrolled in a Diploma of Marketing and Communication course but this enrolment was cancelled on 9 March 2020 due to Non-commencement of studies.

    e.She was enrolled in an Advanced Diploma of Marketing and Communication course but this enrolment was cancelled on 9 March 2020 due to Non-commencement of studies.

    f.Her enrolments in a Certificate III in Commercial Cookery (2020/21), a Certificate IV in Commercial Cookery (2021) and a Diploma in Hospitality Management (2021/22) are marked as “Inactive”.

22. The Tribunal explained to the applicant that this information was relevant because it indicates that from 9 March 2020, 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.

23. 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. The applicant did not take issue with the information from the PRISMS record in relation to the cancelled courses.

24. In relation to the courses marked as “Inactive”, the applicant told the Tribunal that she did not enrol in or undertake study in these courses. She said when she found the Marketing and Communication courses too difficult, she went to her education provider to discuss whether she could change her courses. She said the education provider refused to enrol her in another course.  However, the evidence before the Tribunal included CoEs for these courses, all of which were created on 26 May 2020. The Tribunal put this evidence to the applicant however she did not agree that she had ever been enrolled in these courses.

25. The applicant has two PRISMS Student Id numbers. Her PRISMS record relevant to one of Student Id numbers shows only the cancelled courses referred to in paragraph 20 and the other Student Id number PRISMS record shows the cancelled and the Inactive courses.

26. The status of an “Inactive” course was not clear to the Tribunal however despite the applicant’s oral evidence that she has never been enrolled in the Inactive courses, the Tribunal accepts the PRISMS records and finds that she was not enrolled in a registered course from 9 March 2020 to 25 May 2020. It was not clear when the enrolments were marked “Inactive: and whether this means she was no longer enrolled.

27. The applicant told the Tribunal the reason she ceased to be enrolled from 9 March 2020 was because the Marketing and Communication course was too difficult and because she was sick. She said she attended hospital every 2 weeks or every month because of her health problems which included allergies, abdominal pain and pregnancy. She said she could not attend her course because she had morning sickness for the whole 9 months of her pregnancy. Noting that her response to the NOICC included a statement that she intended to take 6 months maternity leave after her daughter was born in December 2020, the Tribunal asked the applicant whether she worked prior to December 2020. She said she worked as a cleaner from 2014 until September 2020. She said she worked Monday to Friday for 5 hours a day. She returned to work in June 2022 and currently works Monday to Friday 4 hours a day.

1. Noting her written and oral evidence that she suffered from multiple health issues and was pregnant in 2020, the Tribunal asked the applicant whether she asked her education provider to defer her studies. She said that she thinks she made a telephone call requesting a deferment and her education provider would not accept her request. The Tribunal noted that in her pre-hearing evidence she claimed she and her husband had a meeting with her education provider. The Tribunal noted that no evidence of the deferral request (in a meeting or otherwise) or of the refusal had been provided and that the delegate had also noted the absence of this evidence and asked the applicant if she could provide any evidence to confirm the request for a deferment or the refusal. She said she thought there might be a message on her husband’s mobile telephone and the Tribunal informed her that she could provide this evidence following the hearing. At that point in the hearing the applicant said her husband may have changed mobile telephones. Regardless, the Tribunal allowed the applicant additional time to provide this evidence. Following the hearing the applicant provided the following  information:

   Unfortunately, we have not been able to locate the texts that I had in mind, so I am unable to provide you with that information. At the time, I was unwell band experiencing many difficulties with my pregnancy and I may have misunderstood the requirements for my enrolment and the deferring of this until I was able to attend.

2. The Tribunal also asked the applicant whether, when she ceased her study in March 2020, she contacted the Department about her immigration status. She said she did not and said she was probably too unwell and maybe she was depressed because she was sick and was looking after a child at home. The Tribunal asked the applicant whether she sought any medical assistance and/or professional counselling in relation to her depression. She said she did not.

3. The Tribunal referred the applicant to the delegate’s decision which stated that according to PRISMS, her education provider contacted her in early February 2020 concerning the possible cancellation of her Certificate IV in Marketing and Communication CoE due to unsatisfactory course progress and that she was given 20 working days to respond. PRISMS shows she did not appeal the decision to cancel her CoE on 7 February 2020. In response the applicant told the Tribunal that she did not receive any email form the education provider about this cancellation. The Tribunal confirmed her email address which was the email address recorded in the relevant Student Course Variation in PRISMS. The Tribunal referred the applicant to the delegate’s decision which stated that according to PRISMS, she had not attended classes since 25 August 2019. The Tribunal was unable to find this information in PRISMS however put the delegate’s statement to her. In response she said she stopped attending classes in February 2020.

4. Noting her response to the NOICC referred to her grandfather’s death in June 2021 and the difficulty it caused her, the Tribunal asked her about the impact of his death on her. She said he was like a father to her and she was upset. 

5. In response to the Tribunal asking how she spent her time from the date she ceased to be enrolled in a registered course on 9 March 2020 until the NOICC was issued on 7 June 2022,  the applicant said she worked 5 days a week until September 2020. The applicant told the Tribunal that she intended returning to work in June 2021 after her planned 6 months maternity leave, however there was nobody to look after her newborn daughter and so she did not return to work until June 2022.

6. The Tribunal put to the applicant that she remained in Australia for 2 years 3 months, from 9 March 2020 to 7 June 2022 (the date the NOICC was issued), as the holder of a student visa during which time she wasn’t undertaking study and she would have been aware that she was in breach of her visa conditions. The applicant conceded that she was aware that she was in breach of her study condition but said she was sick, she didn’t know where to go about her visa and she was depressed.  As noted, there is no evidence before the Tribunal to substantiate her claim that she sought deferment of her study on compassionate grounds and she did not contact the Department to advise of the change in her circumstances and seek to regulate her immigration status.  

7. In response to the Tribunal asking the purpose of her travel to Australia, the applicant said she came to Australia in 2013 as a dependent on her husband’s student visa. In relation to her Subclass 500 (Student) visa granted on 9 July 2019, the applicant said she wanted to study Marketing and Communication so that she could help her husband in his Art/Painting/Handicraft business when they return to Bhutan. As noted, the applicant said she found the course too difficult and told the Tribunal she no longer intends to undertake this study.

8. When asked whether there is a compelling need to travel to or remain in Australia, the applicant told the Tribunal that her husband and her two sons are studying in Australia. She said her husband is undertaking a Network Telecommunications course. The Tribunal asked the applicant how this study would assist him in his Art/Painting/Handicraft business. She said he might be able to network and communicate with other countries. The applicant said her older son (the third named visa applicant), who is 22 years old, has recently been granted an individual visa and her younger son is currently in year 10 at school.

9. When asked about the hardship that may result from cancellation of her visa, the applicant said if her visa is cancelled her husband and her younger son and daughter will have to return to Bhutan. She said her younger son will suffer hardship because an Australian education is superior to the education he will receive in Bhutan. She said her younger son would like to stay in Australia because he has been here almost 3 years. She said her older son, who has been here since March 2022, would be left alone in Australia without his family and that would cause him hardship.

10. In response to the Tribunal asking what study she intends undertaking in Australia if her visa is not cancelled, the applicant said she would like to study a Diploma of Community Services after her husband has completed his study in August 2024.  The Tribunal asked the applicant whether she had made any enquiries with education providers about the course. She said she had not.

11. Ms Abbott told the Tribunal that the applicant worked for her for 10 years. She said she last worked for her in October 2020. Ms Abbott told the Tribunal that the applicant and her husband are honest hard working people who have always done what was required of them in relation to their visa. She said any non-compliance is likely to have been due to English being a second language for the applicant. Ms Abbott said it would be a hardship for the family if they were separated because the applicant’s older son would remain in Australia if the applicant and the rest of the family are required to depart Australia.

12. 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

13. On 9 July 2019, the applicant was granted a Student visa to study in Australia. She ceased to be enrolled in a registered course from 9 March 2020 to 25 May 2020. The courses in which the applicant enrolled on 26 May 2020 are recorded in PRISMS as “Inactive” and the meaning of this status is unclear to the Tribunal. However the applicant’s clear evidence was that she did not believe she was ever enrolled in the courses and did not undertake any study in the courses.

14. The applicant told the Tribunal that she most recently attended classes in February 2020. She said she has plans to study after her husband completes his study in August 2024 however she has not made any enquiries about relevant courses.

15. At the time the NOICC was issued, on the applicant’s own evidence she had not attended classes for a period of 2 years 3 months. There is no evidence to substantiate her contention that she sought a deferment of her study at any time during that period.

16. PRISMS shows that the applicant has not completed any course in which she was enrolled and she confirmed this was correct at the hearing.

17. 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 for an extended period and was not fulfilling the purpose of her travel to and stay in Australia. 

18. The Tribunal questioned the applicant as to whether there was a compelling need for her to remain in Australia. In response, she said her husband and her sons are currently studying in Australia. The Tribunal notes that the applicant told the Tribunal that she first came to Australia in 2013 as a dependent on her husband’s Student visa. The CoE provided to the Tribunal  shows he is enrolled in an Advanced Diploma of Information Technology which commenced on 11 July 2022 and will end on 7 July 2024. No evidence was provided regarding what courses the applicant’s husband has undertaken and/or completed since he arrived here in 2013. However, the Tribunal notes that in her response to the NOICC, the applicant said her initial purpose in travelling to Australia was to support her husband in pursuing his career in business, management and leadership which he successfully completed. In the Tribunal’s view it is likely that the applicant’s husband has had sufficient time in Australia to complete his study and therefore the Tribunal gives his current study limited weight as a compelling need to remain in Australia.

19. In relation to the applicant’s older son, the CoE provided to the Tribunal shows he is enrolled in the same course as the applicant’s husband. No evidence as to how the applicant’s older son would use the qualification was provided. The Tribunal notes that the applicant told the Tribunal that her older son has his own individual visa and will remain in Australia if the rest of the family depart. Accordingly, the Tribunal gives his study limited weight as a compelling need for the applicant to remain in Australia.

20. In relation to the applicant’s younger son, the applicant told the Tribunal that he is currently in year 10 and would like to continue his education in Australia. The Tribunal accepts that this may be his preferred outcome however does not consider this constitutes a compelling need for the applicant to remain in Australia.

21. The applicant’s failure to maintain enrolment in a registered course, her evidence that she has not attended classes since February 2020 and her evidence that she does not have a pathway to an educational qualification, indicate she is not fulfilling the primary purpose for which the visa was granted. This together with the absence of compelling need for her to remain in Australia, weighs in favour of visa cancellation.

    The extent of compliance with visa conditions

22. The applicant did not comply with condition 8202(2)(a) from 9 March 2020 to 25 May 2020 because she was not enrolled in a full time registered course . It is not clear from PRISMS whether the CoEs created on 26 May 2020 for the courses marked as “Inactive” have been cancelled. However the Tribunal notes that the end dates for the courses have passed, the latest having ended on 20 May 2022. She told the Tribunal she is not currently enrolled in any course. Therefore she has also not been enrolled in a full time registered course since 21 May 2022.

23. The applicant’s non-compliance from 9 March 2020 to 25 May 2020  and from at least 21 May 2022, weighs in favour of visa cancellation.

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

24. The applicant told the Tribunal that her husband and her two sons will suffer hardship if her visa is cancelled. She said her husband and her younger son will suffer hardship because they will not be able to continue their study in Australia. She said her older son will suffer hardship because he will remain in Australia without the family.

25. The Tribunal accepts that the applicant’s husband and younger may suffer some hardship if they are not able to continue their study in Australia. The Tribunal also accepts that the applicant’s older son may suffer some hardship if his family depart Australia however notes that it appears he has lived apart from the family for several years prior to arriving in Australia in March 2022.

26. The Tribunal gives this factor some weight against cancellation  .

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

27. The applicant’s visa was cancelled as a result of her failure to maintain enrolment in a registered course. She told the Tribunal that she was unable to study because she the course was too difficult.  She told the Tribunal she did not contact the Department about her migration status because she was sick, she did not know what to do and because she was depressed.

28. The applicant told the Tribunal that she attended hospital once a fortnight or once a month. The Tribunal accepts the various medical evidence which indicates that the applicant suffered ill health in relation to allergies and abdominal pain in 2019, 2020 and 2021. The Tribunal accepts that the applicant suffered with morning sickness during her pregnancy however notes that she was able to continue to work 5 days per week up until at least September 2020. Accordingly, the Tribunal does not accept that her illnesses or her pregnancy precluded her from maintaining her enrolment. Whilst the applicant’s health issues may have been beyond her control, they were not the reason she failed to comply with the conditions of her visa.

29. Regarding her contention that she did not know what to do about her study when she found the course too difficult and stopped attending classes, the applicant did not provide any evidence that she contacted her educational provider.  In relation to her claim that she did not know what to do, the Tribunal notes that the applicant has been in Australia since 2013 and has held several visas.  The onus rests on a visa holder to contact the Department before they take any action to significantly change their circumstances (such as ceasing studies without obtaining alternative enrolment or not commencing further studies) and to clarify any consequences that may result from such a change. The applicant  did not contact the Department to advise her circumstances.

30. The applicant told the Tribunal that she suffered with depression in 2019, 2020 and 2021 however she did not seek medical assistance or counselling. In the absence of any evidence to substantiate her claimed condition, the Tribunal is unable to make any findings as to the nature and severity of her depression including whether it precluded her from maintaining her enrolment.

31. 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

32. Nothing adverse is known about the applicant’s past and present conduct towards the Department.  The Tribunal gives this some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

33. The applicant’s partner and her sons are secondary visa holders. Cancellation of the applicant’s visa means they will be subject to consequential visa cancellation of their visas, which were granted to them as members of the family unit of the applicant. The applicant’s daughter’s visa would also be cancelled because under s 78 of the Act, she was granted a student visa.

34. The applicant told the Tribunal that her older son now has his individual visa.

35. The Tribunal accepts that there would be consequential cancellations in this case.  The Tribunal gives this factor some weight against exercising its discretion to cancel the visa.

    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

36. 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

37. The applicant is a citizen of Bhutan and has made no claim for a protection visa. There is no evidence and no suggestion that removal of the applicant would lead to a breach of Australia’s non-refoulement obligations. The Tribunal considers this factor neutral in the exercise of its discretion.

38. The Tribunal has considered Article 3 of the Convention on the Rights of the Child (Convention) which requires that in all actions involving children, the best interests of the child shall be the primary consideration. The Tribunal has also considered the family unity principles under International Covenant on Civil and Political Rights (ICCPR).

39. In this case, the applicant has three children, none of whom are Australian citizens. The oldest child is 22 years old and the youngest child was born in Australia and is 2 years old.

40. The applicant told the Tribunal that if her visa is cancelled, she, her husband, her younger son and her daughter will return to Bhutan. She said her 22 year old son will remain in Australia. The Tribunal accepts that if the applicant’s visa is cancelled, the two younger children will likely be separated from their older sibling and the older sibling will be separated from the family.  However as noted, it appears that the applicant’s older son lived apart from the family for several years prior to March 2022.

41. The Tribunal considered whether to cancel or not cancel the applicant’s visa would be in the children’s best interests.  While the Tribunal accepts that the best interests of the children require that the children not be separated and therefore that the visa not to be cancelled, it considers on the available evidence, including that the older sibling lived apart from the family for several years prior to March 2022,  that the damage that would flow to the children from cancellation would be slight or moderate.

42. The Tribunal, on balance, considers that any cancellation outcome would not result in a breach of Australia’s international obligations under the CRC or ICCPR.

43. The Tribunal gives this consideration overall limited favourable weight against cancellation.

    Any other relevant matters

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

    Conclusion

45. 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 did not undertake the study for which is visa was granted from at least February 2020.  The Tribunal has found that there are no extenuating or compassionate circumstances in this case. The Tribunal accepts that there will be consequential cancellations in this case.  The Tribunal has found that  a cancellation 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.

1. 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

2. The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa. The Tribunal has no jurisdiction with respect to the other applicants.

   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.