1616885 (Migration)

1616885 (Migration) [2018] AATA 5912 (16 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1616885
DIBP REFERENCE(S):  BCC2016/2618966
MEMBER:Rachel Westaway
DATE:16 October 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 16 October 2018 at 3:58pm
CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa –not enrolled in a registered course of study – breached condition 8202 – claimed serious health problem – common medical problem – medical certificate doesn’t cover period of non-enrolment – pending protection visa review application – decision under review affirmed
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), Schedule 8
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 28 September 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The applicant was granted a student visa on 25 November 2014 and arrived in Australia [in] February 2015.The applicant is from Ethiopia and came to Australia with the intention to study a Master of Agricultural Science.
The applicant’s visa was cancelled on the basis that the delegate found he had not been enrolled in a registered course of study since 4 August 2016. In applying for review to the Administrative Appeals Tribunal the applicant also provided a copy of the delegate’s decision.
The delegate’s decision outlined that the Provider Registration and International Student Management System (PRISM) indicate that the applicant has not been in attendance at his course since 4 August 2016. However it was also explained that he had not been in attendance since 25 August 2015. A deferment was given to the applicant up to 30 June 2016 for medical/compassionate reasons. On 5 August 2016 the applicant advised his course provider that he continued to have an ongoing medical condition and did not indicate an intention to return to his studies. He lodged an application for a Protection visa [in] November 2015 and advised the Department he will no longer be studying. The delegate cancelled the visa on 28 September 2016.
The applicant appeared before the Tribunal on 16 March 2017 and a resumed hearing on 28 March 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages.
The applicant was represented in relation to the review by his registered migration agent.
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 (the Regulations). If the applicant has breached that condition, under s.116 (1)(b) of the Act, the visa may be cancelled.
Did the applicant comply with Condition 8202?
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 registered course, or in limited cases, a full time course of study or training: 8202(2)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).
The applicant submitted the following documentation and advice to the Department:
·An email dated 13 September 2016 advising that the applicant had been scheduled for admission to hospital and continuing treatment was required. Attached was a letter dated 13 September 2016 by [Specialist 1], Mr [A], confirming the applicant’s booking at [a hospital] on 19 September 2016.
·An email dated 9 September 2016, attaching:
a)    A copy of Form 22 (notification of changes in circumstances) on which the applicant advises that he came to Australia on a student visa and his intention was to study, gain his qualification, and then return to his home country, however, events have unfolded in his home country that are politically motivated, he has since lodged a protection visa application and he fears for his life if he returns to Ethiopia.
b)    A letter dated 9 September 2016 in which the applicant states:
   He had not complied with paragraph 8202(2)(a) of condition 8202 due to exceptional circumstances beyond his control.
   He communicated with his school about the illness he is suffering from.
   He has not been enrolled since 4 August 2016 because of special circumstances beyond his control. The applicant explains that his study was interrupted due to a serious health problem concerning his [Body part 1]. He became ill around November 2015, his illness gradually became worse and he commenced treatment. The applicant then moved to Melbourne where his oldest sister lives to have treatment and support.
   He is under the continuing care of a [Specialist 1] and underwent operations in February 2016 and May 2016 and has another scheduled in September 2016. The applicant advises that he has been told by his doctor to rest. The applicant further advises that due to his current health condition he is unable to attend school and concentrate.
   He is facing the most difficult period of his life because in addition to his health issues, his life is also under threat from the authorities in his home country and he fears returning after completing his studies.
c)    A card showing an appointment scheduled with [Specialist 1], Mr [A], on 13 September 2016.
d)    A letter dated 14 April 2016 by Mr [A] confirming the applicant is his patient and receiving treatment for [Medical condition 1]. Mr [A] advises that his first consultation with the applicant was in December 2015, the applicant had an operation in February 2016 and [further] treatment is scheduled in May 2016.
e)    An ‘illness certificate’ certifying the applicant was suffering from an operation and was unfit for work on 4 April 2016.
f)     An ‘illness certificate’ certifying the applicant was suffering from an operation and was unfit for work on 8 February 2016.
·An email dated 5 August 2016 advising that the applicant’s student enrolment had ceased. It was indicated contact had been made with the university and a protection visa had been lodged. Attached was a copy of an email train showing that on 4 August 2016 the [University 1] contacted the applicant to advise his COE had been cancelled and it had notified the Department he was not enrolled, to which the applicant responded on 5 August 2016 noting his illness and continuing treatment in Melbourne.
The applicant provided the Tribunal with a range of documents and submissions. The same documents were provided in multiples with minimal explanation as to their relevance and not in a coherent manner or date order.
On 28 March 2017 the applicant provided the following documents to support his case Tribunal file (folios 117-134) which included:
·     A prescription issued to the applicant on 22 March 2017.
·     A letter from the [University 1] confirming the applicant’s enrolment status as at 14 September 2015. Particularly, that the applicant was not currently enrolled, that the applicant had been enrolled full-time for Semester 1 2015, and that the applicant was not studying for Semester 2 2015 due to personal circumstances.
·     COE [for] a Master of Agricultural Science at the [University 1], commencing 29 February 2016.
·     An application to the [University 1] to extend his studies and a new COE dated 27 August 2015.
·     A coursework record from the [University 1] dated 4 September 2015
·     A medical report dated 25 November 2015 detailing the outcome of [an] ultrasound.
·     A medical report dated 10 December 2015 detailing an examination of the applicant’s [certain body parts].
·     A psychologist’s report dated 22 March 2017. The report sets out the applicant’s study history since arriving in Australia, targeting of the applicant and political instability in Ethiopia leading to the applicant’s funds being frozen when he left Ethiopia and the applicant’s health issues with [Medical condition 1]. The applicant reported to the psychologist that his studies were adversely affected and his mental health deteriorated due to these stressors. The psychologist noted the negative impact trauma can have on a person’s cognitive functions and assesses that the applicant is highly anxious and depressed. For these reasons the psychologist explained that the applicant may present with memory problems and inconsistency in answers.
On 14 March 2017 the applicant provided the Tribunal with the following documents:
·     An email dated 28 October 2016 from the [University 1] to the applicant concerning the provision of a new COE and applying a new student visa.
·     An email train covering the period 8 January 2017 to 10 January 2017 between the [University 1] and the applicant concerning the payment of outstanding fees. The applicant advises that he cannot afford to pay the fees and the university advises it does not offer payment plans and the applicant cannot enrol until he repays the money.
·     A Certificate of Enrolment [with] a start date of 27 February 2017 for a Masters of Agricultural Science at the [University 1] with an end date of 30 November 2018.
·     An email to DIBP on behalf of the applicant dated 21 November 2016 advising that the applicant is keen to return to university since his medical condition had improved. The email also draws attention to ‘country information’ and a Human Rights Watch Report, however this information was not provided to the Tribunal.
·     A letter dated 17 October 2016 from the applicant’s sister, [Ms B], describing the current situation in Ethiopia, including that the country had become ‘bad and dangerous’ and the Ethiopian authorities had targeted the applicant’s property, belongings and family members. It also notes that recently more than 100 protestors had been shot and killed.
·     An email from the applicant’s representative to the Department attaching the two documents below and explaining the applicant has a medical condition which has prevented him from studying however he is keen to return to studies.
·     An express worldwide DHL envelope from [Ms B], the sister of the applicant dated 16 November 2016
·     A typed letter from [Ms B] stating that the political and safety conditions in Ethiopia are bad for the applicant
·     An application from the applicant to The [University 1] to extend studies dated 18 October 2016 with a studies report on the back
·     A medical letter dated 14 April 2016 stating the [Specialist 1] saw the applicant in December 2015 for [Medical condition 1]. He had an operation in February 2016. He was reviewed in March 2016 and confirmed that a second treatment is required and booked for May 2016.
·     A reminder card from the [Specialist 1] with the next appointment date being Tuesday 13 September 2016 at 9.45am
·     A confirmation letter from the [Specialist 1] to the applicant dated 13 September 2016 confirming a same day procedure for 19 September 2016.
·     Part of the applicant’s visa application details noting form 956
·     COE [was] provided with a start date of 29 February 2016 for a Masters of Agricultural Science at the [University 1] with an end date of 30 November 2017.
·     An email train covering the period 22 April 2016 to 28 April 2016 showing the applicant’s application to interrupt his studies and confirmation from the [University 1] of their notification to the department that the applicant had suspended his studies during semester 1, 2016 on compassionate grounds.
·     A Diploma of Early Childhood Education and Care issued to the applicant on 15 June 2016.
·     A copy of Direction No. 61.
·     An email train covering the period 12 December 2016 to 18 January 2017 showing the applicant’s attempt to recommence his studies in semester 1, 2017 and the[University 1]’s response that he needs to resolve his outstanding fees prior to enrolment.
·     A Statement of Attainment issued 11 December 2016 showing the applicant successfully completed the unit ‘Provide an emergency first aid response in an education and care setting’.
·     A written submission dated 14 March 2017. According to the submission:
a.The applicant has experienced exceptional and unforeseen circumstances beyond his control, including illness that made it impossible for him to attend school, however despite these setbacks the applicant has maintained his intention to continue studying.
b.There are compassionate or compelling circumstances relevant to why the applicant did not comply with his visa conditions, including medical reasons, political upheaval and a life threatening situation in his home country.
c.The applicant’s life is under threat for political reasons and he has submitted a protection visa application. The Ethiopian government has seized the applicant’s assets, including his money. This has led to financial problems affecting the applicant’s ability to pay tuition fees. Unexpected massive medical bills have also made it difficult for the applicant to pay his tuition and he has had to rely on sister for financial assistance.
d.The applicant has always maintained his intention to complete his studies. He attempted to enrol, but could not due to outstanding fees. The applicant tried to organise a payment plan to resolve the outstanding fees. He is trying to raise the tuition money.
·     Emails to the [University 1] dated 6 October 2016 stating he is fully recovered and requesting to continue his studies.
·     A doctor’s certificate dated 5 April 2016 stating he is unfit for work from 8 February 2016 for that day only due to an operation. The same date and doctor but for 4 April 2016 for that day only.
·     A COE [was] provided with a start date of 27 February 2017 for a Masters of Agricultural Science at the [University 1] with an end date of 30 November 2018.
·     An email to the Department dated 9 November 2016 regarding an application to work.
·     A transaction list for the applicant’s CBA account for the period 2 July 2016 to 21 October 2016 for a fee reduction to the Tribunal.
·     A balance statement for the applicant’s CBA account dated 10 October 2016.
·     Two anaesthetist’s invoices issued 26 September 2016.
·     Three [Specialist 1] receipts dated 7 December 2015, 8 March 2016 and 3 February 2016.
By the applicant’s own admission and on the evidence before the Tribunal, the applicant had not complied with a condition of his student visa. His enrolment ceased with the [University 1] on 4 August 2016 and as such he was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2) for at least the period of two months before the visa was cancelled.
Consideration of the discretion to cancel the visa
Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.
There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).
The applicant attended a hearing at the Tribunal and the process of review was explained to the applicant. It explained that the Tribunal had the discretion to consider relevant factors in deciding whether to cancel or not cancel the visa. During the hearing it offered the applicant a break and adjourned the hearing. The applicant returned to the hearing and provided additional information. The applicant was asked several times by the Tribunal if he understood everything and he said yes. He said that he would ask if he did not understand something. The Tribunal notes that a psychologist’s report was provided to the Tribunal and outlined that the applicant was assessed and diagnosed with a range of conditions which could impact on his ability to participate in the hearing, recall information or provide clarity. The Tribunal was conscious of this throughout the hearing and the applicant answered all questions with relevant answers and at no point in time did the Tribunal have concerns about the applicant’s ability to comprehend questions or recall details.
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 applicant confirmed he arrived in Australia [in] February 2015. He was born in Ethiopia in [year] and is [age] years old. He is single and do es not have children. He did state that he was previously married; however he came to Australia by himself.
The applicant gave evidence in relation to his travel history. In 2012 the applicant spent two months [overseas] on holidays and travelled to [COUNTRY 1] in July 2015 where he spent one month. He claims to have a sister in [COUNTRY 1] and he visited her. The applicant confirmed he travelled there by himself.
In relation to his family background, the applicant informed the Tribunal that his father died nine years ago, he had his own [business]. The applicant’s mother is alive and is a housewife. The applicant’s sister lives in Australia and has been here for 18 years and he lives with his sister. He first came to Brisbane as his university was there, but moved to Melbourne when his health deteriorated.
The applicant confirmed he has been in Australia for years and his objective in coming to Australia was to study. The applicant chose to come to Australia to study his Masters. He said he chose Australia as the educational standard is high.
The applicant explained he was involved in the election process in Ethiopia but the government considered him a political operative. He was an employee of the government service and expressed his opinion in meetings. The applicant received no promotions for 4 years and finally he lost his job. During the election he was tortured and he provided an x-ray indicating they broke his [Body part 2]. He claims that his sister and mother are asked about his whereabouts. He claims that his property has been taken and he had money for his studies and this too has gone.
The applicant spoke about the impact of these events. He said he lost his confidence and concentration and he was stressed and confused. The applicant did not want to return to Ethiopia because he fears for his safety. He stated that his plans and dreams were complicated and everything was at risk. He interrupted his study and his initial results were low. He said he was an outstanding student in his home country.
The applicant was asked by the Tribunal if he was on medication. The applicant responded that his last operation was in September 2016. In 2017 he had another check-up. He stated that in his home country he believes he will be targeted and this stresses him. However he stated that in regards to his medical condition he is much better. He said he cannot sleep very well.
The applicant was asked again if he was on any medication and he stated he needs lots of treatments, but has not started. The doctor has provided a prescription for depression. This was prescribed last week. The applicant was asked if he can still study if he is still depressed and he said it is not as bad as before. He said that when he hears news from relatives he feels upset.

He expressed his passion to complete his Masters.
The Tribunal asked the applicant about whether he had received a treatment plan with the psychologist he consulted. The applicant said he stayed for 6 hours and he was asked questions. The psychologist provided lots of advice and he was told to visit the GP and seek help for his depression. The psychologist advised the applicant, if there was no improvement to come back. The applicant was also told to report on improvements and email the psychologist if there was no improvement. The applicant said that he does not have any appointments yet.
The applicant stated that he needs to remain in Australia to complete his studies and also because he fears for his wellbeing if he returns to his home country. The Tribunal also notes that the applicant has applied for a protection visa.
The Tribunal accepts that the applicant wishes to study in Australia and also acknowledges that he has applied for a protection visa.
The Tribunal notes that the applicant arrived in Australia in February 2015. He left Australia to take a vacation in July 2015 in [Country 1]. On 14 September 2015, the [University 1] confirmed the applicant had been enrolled full-time for Semester 1 2015, and that he was not studying for Semester 2 2015 due to personal circumstances.
The Tribunal gives some weight to the fact that the applicant commenced his studies on arrival into Australia indicating an intention to study. If the visa is cancelled the applicant will not be able to remain in Australia and study. The applicant has asked the Tribunal not to cancel the visa because he wishes to recommence his Masters and he has stated that obtaining an Australian education is considered prestigious because the stand is high. If he is prevented from studying in Australia because his visa is cancelled, then he is at a significant disadvantage. However the Tribunal does not accept that this equates to a compelling need to remain in Australia in light of the period of time in which the applicant has remained in Australia and has not studied. The applicant can study by distance education in his own country or undertake Masters by distance or with another University. Furthermore he could reapply to study in Australia after the exclusion period. As such, the Tribunal gives these factors minimal weight.
The Tribunal gives limited weight to the applicant’s concerns pertaining to political difficulties in his country and the stress that he may have felt associated with this. A student visa does not exist to protect the applicant from situations in their own country and the applicant can and has applied for protection based on these claimed circumstances. As such the fact that the applicant fears returning to Ethiopia is not a sufficient reason not to cancel the visa given the extent of the noncompliance. The Tribunal does not give any weight to the applicants claimed need to remain in Australia for protection in regards to whether the visa should be cancelled.
Circumstances in which ground of cancellation arose
The applicant explained that there were two main factors preventing him from being enrolled. Initially, he stated that that the political situation in Ethiopia was extremely bad and he worried about his family and his property and funds. This stress prevented him from studying. He also stated that the money he had put aside to cover his study was taken during the political issues. He said he brought A$10,000 to Australia to pay for his first semester and then he intended to access his savings in his account. He came to Australia for three or four months and was then intending to commence his studies but the political situation back home completely destroyed his intentions. He explained that he lost his job in the May 2010 election in Ethiopia somewhere between January and May 2010 when he worked [in] a private agency. He said he worked there for around 2 years and then moved to [another workplace] for 2 years plus. He said that he had saved money and he was to use this for his studies and it has gone. He stated that he does not know what has happened to these funds but he was targeted due to his profile prior to leaving Ethiopia. He also said that in 2010 his [Body part 2] was broken.
The applicant confirmed he participated in the first 13 weeks of the study year in Australia which equated to first semester (28 February 2015 to May 2015).
The applicant went on to explain the second reasons for his inability to be enrolled in a registered course. This pertained to his health. He said school holidays occurred but he experienced health problems when he was due to return. He said he was experiencing severe pain in his [Body part 1]. He said he could not continue with his studies from 25 August 2015. He confirmed that he informed the university and filled out the necessary forms.
The Tribunal asked why there is no medical evidence from August 2015 until December 2015 supporting this claim. The applicant explained he did not go directly to the doctor because he heard news back home about political issues and it impacted on his ability to concentrate. He stated that as a result of this he told the university and the university gave him time off for stress. He claims he remained in Brisbane but his bank account was frozen in his home country and he could not support himself.
The Tribunal asked the applicant what the political issues were that created stress for him. He said that he had previously worked for the government and he did not agree with some of the policies which were announced. He said he was never promoted and was finally suspended and then they fired him. He claims he was vocal about not electing the government. He said he was not a candidate in any election. He claims he was detained and tortured and his [Body part 2] was broken. This occurred in the May 2010 election.
The Tribunal asked how this impacted on his stress in August 2015. The applicant responded stating he brought money with him to Australia but he also worked hard at home and saved money and has a property which generated money to be used for the cost of his future studies. His sister has told him that security, police, militia and government people asked her and their mother where the applicant was. They froze access to his money and told his sister that she cannot act on his behalf. They confiscated his land. His sister was afraid and his mother was [age] and she could not do anything. His sister advised him not to come home. He stated that he suspended his studies because he was so stressed.
The applicant then claimed he became unwell and had three operations. The Tribunal asked the applicant why he did not seek assistance such as counselling if he was stressed. He said that he wanted to try and resolve things by himself. His sickness was acute and hard, so he moved in with his sister.
The applicant informed the Tribunal that there is no evidence to support the confiscation of the land but there was a small house that started to be built. It was about 400m2. The applicant said the land simply sits there with the house.
The applicant gave evidence regarding his medical issues. He stated that the stress and the [Medical condition 1] were issues in the last 6 months. He said at the beginning of September he started to feel pain in his [Body part 1]. The applicant went for an examination and they said he had an infection. [He] went to have tests [and] went to the clinic and had x-rays.
The Tribunal asked the applicant what he did between August 2015 and December 2015. He stated that he attended the clinic, had x-rays, [and] obtained referrals. He spent his time at home because he was experiencing discomfort.
The Tribunal put general information to the applicant outlining [Medical condition 1] stating they are a common medical problem which 5-6% of the population may experience and that it is hard to accept it would stop him being enrolled in a registered course for such a long period of time. The Tribunal explained that the two medical certificates issued and presented by the applicant detail that he was given one day off for each operation and this does not support any reason he has given which would prevent him from remaining in a registered course of study and participating.
The applicant acknowledged the certificates were for a day. However he said he had [Medical condition 1]. He said that [he] had a history of treatment. However the Tribunal reiterated that if the doctors felt that the applicant could not study at all, then they would not have given a medical certificate for one day, they would have given it for the period of non-enrolment.
The Tribunal put to the applicant that on 20 November 2015 he told the Department he could not attend studies, however at that point in time he had not seen the [Specialist 1], so this could not be the reason why he was not enrolled.
The applicant said that university finished in the November of 2015. He said he came to Melbourne and he started treatment here. He said that the treatment took longer than he expected and he could not commit to studying.
The Tribunal put to the applicant its concerns. It explained that whilst his assets and bank account may have been frozen, the requirements for the granting of a student visa generally mean that the applicant would need to have had the funds upfront in a secure account. Whilst access to funds may have stopped for a period, student visas are granted for the purposes of studying and achieving a qualification. If a student visa holder cannot afford to study then they cannot be enrolled unless they are able to obtain the funds elsewhere. The Tribunal accepts that the applicant may have had his funds blocked, but the period in which this happened was not for the entirety of the applicant’s time in Australia and no evidence was provided to suggest the period in which this occurred. The Tribunal gives some limited weight in favour of the applicant in this instance.
The Tribunal explained to the applicant that it was happy to consider factors which it can consider in using its discretion not to cancel the visa. It offered the applicant a break and adjourned the hearing.
The Tribunal engaged the applicant in further discussion about his medical problems. The applicant said he only spoke to his doctor about his pain in the [Body part 1]. He said that he survived financially by living with his sister. She supports him and pays his medical expenses.
The applicant said his sister looked after him. The Tribunal asked the applicant if his sister suggested he see a psychologist. The applicant said she looked after him. She suggested he get treatment for his [Body part 1] issues rather than psychological issues. The applicant stated he never spoke to his GP about anxiety.
The applicant was asked several times if he understood everything and he said yes. He said that he would ask if he did not understand something.
The applicant stated when he first arrived he was in a good condition and happy. He informed the Tribunal that he lost his confidence and concentration, and could not get assignments done or do anything, and he was stressed.
The applicant stated that he experienced another problem, his health. He was affected by problem after problem; however his intention was to return to studies in February. The applicant stated that his first surgery took place right at school [time] . His dream was to go and finish his studies and it was beyond his control that he did not.
The Tribunal accepts that when students come from overseas and particularly if they come rom countries where there is political turmoil, this may cause stress and anxiety. However no medical evidence has been supplied to indicate that his medical issues pertaining to his [Medical condition 1] or his mental health issues or the access to funds prevented the applicant from attending classes for the period of the breach and the Tribunal gives these issues minimal weight in favour of the applicant.
The Tribunal has considered the applicant’s medical conditions and accepts that the applicant had [Medical condition 1] and subsequently treatment. However the medical evidence does not support the applicant being so affected that he is unable to attend or enrol in his course.
The Tribunal has considered the psychologist’s report pertaining to the applicant and whilst it acknowledges the applicant is stressed and may have associated symptoms, it does not satisfy the Tribunal that the applicant was unable to study and as such justify his non-enrolment.
Individually and cumulatively the issues put forward by the applicant pertaining to the circumstances in which the breach occurred are given some weight but not sufficient weight to outweigh the reasons for the period in time where the applicant was not attending university and not enrolled.
The extent of compliance with visa conditions
The Tribunal notes that whilst the period of non-enrolment from 4 August 2016 was identified by the Department after the University notified them, the applicant had an approved period of non-attendance by the University from Semester 2 2015 (25 August 2015) onwards until 4 August 2016. Whilst the University is at liberty to approve a period of non-attendance, it is the applicant’s responsibility to ensure he is compliant with conditions on his visa. The University is not responsible for the applicant’s adherence to conditions outside of its area of authority. Whilst technically enrolled, he was not attending university.
The Tribunal notes that the applicant was therefore not enrolled in a registered course since 4 August 2016, a period of a few months prior to his cancellation.
The Tribunal therefore gives limited weight in favour of the applicant.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal noted that the applicant has applied for a protection visa on 20 November 2015. The Tribunal also notes that the application was refused and an appeal made to the Tribunal on 26 April 2018.
The applicant was asked what he would do if his visa was cancelled. He said that he will suffer psychologically. He explained that he is worried about returning to his home country and facing the circumstances there as things have become bad and he explained that if his visa is cancelled then he will not be able to study and it will affect his plans in the future as he will be in limbo. He said that his future is dark.
The applicant explained that his mother is old and if his visa is cancelled it will cause her great concern.
The Tribunal accepts that the cancellation of a visa is disappointing. It also accepts that a significant amount of money is invested in a person in order to set them up in a country to live independently in order to study.
The Tribunal also accepts that the hardship is felt by family members who may also feel let down and disappointed.
The Tribunal accepts that the applicant has and continues to suffer from mental health issues and that a cancellation may contribute to the pressure and stress he may already be facing. However, the Tribunal is also mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition such as non-enrolment. Whilst appreciating the hardship the applicant and his extended family may face regarding a cancelled visa, it does not outweigh the breach and the Tribunal gives these reasons limited weight in its considerations.
Past and present conduct of the visa holder towards the department
There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives this some weight in favour of the applicant.
If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors
This is not relevant to the applicant.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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
If the visa is cancelled, the applicant would need to obtain migration advice pertaining to his status. Given he has applied for review of his protection application, it is most likely that he would be granted a bridging visa to ensure he remains lawful until that review is decided.
Australia’s international obligations
There is nothing before the Tribunal to suggest that the cancellation of the visa holder’s visa would breach any international obligations. The Tribunal places no weight on this in favour of the applicant. Whilst the applicant has applied for a review of his protection visa refusal a cancellation of his student visa does not impact on the review of his protection claims.
Any other relevant matters
The applicant provided a psychologist’s report dated 22 March 2017 and confirmed he went to see the psychologist on 17 March 2017 for the first time. The psychologist reported that the applicant is suffering severe depression and stress and this could lead to inconsistent information given at hearing. The Tribunal has been mindful of this and does not believe this has impacted on the applicant’s ability to fully participate in the hearing and review of this matter or in his ability to have maintained his enrolment.
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.
Rachel Westaway
Member

ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
(2)A holder meets the requirements of this subclause if:
(a)the holder is enrolled in a registered course; or
(b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.
(3)A holder meets the requirements of this subclause if neither of the following applies:
(a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:
(i)section 19 of the Education Services for Overseas Students Act 2000; and
(ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;
(b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:
(i)section 19 of the Education Services for Overseas Students Act 2000; and
(ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007
(4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.

[2018] AATA 5912

16 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction