1621743 (Migration)

[2018] AATA 4433

1621743 (Migration) [2018] AATA 4433 (7 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1621743

MEMBER:Brendan Darcy

DATE:7 September 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 07 September 2018 at 12:31pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – family member’s death – mental health conditions – access to mental health treatment – pressure of family and cultural expectations – financial capacity – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

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

1. This is an application for review of a decision dated 13 December 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had breached condition 8202 imposed on his student 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. The applicant appeared before the Tribunal on 6 September 2018 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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) of the Act, the visa may be cancelled.

   Did the applicant comply with Condition 8202?

6. 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).

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

8. The delegate’s decision submitted to the Tribunal indicates the applicant had been granted a Subclass 573 Higher Education Sector student visa on 1 September and the stay period of the visa was extended up to and including 28 February 2017.  It also shows that Provider Registration and International Students Management System (PRISMS) records indicate the applicant was enrolled in a registered course of study in [Degree 1] at [named] College.  It is also indicated that the applicant was enrolled in a [course] which he completed and that was enrolled in a graduate [diploma] whose enrolment was cancelled [in] August 2015, with the same education provider.

9. The decision record indicates the applicant had not been enrolled with [the named] College for [Degree 1] since [September] 2015.

10. The departmental file indicates that that the applicant was contacted by a departmental official on 25 November to clarify his email address and that he would be receiving communication about his migration status.

11. The decision record indicates the applicant was further contacted by a departmental official by issuing the Notice of Intention to Consider Cancellation (NOICC) on 28 November 2016; and to respond within five working days.

12. There was no response to the NOICC and the Department proceeded to cancel your visa on 13 December 2016.

13. On 20 April 2016, the applicant responded by email his reasons for not cancelling his student visa and asked for an extension to provide more evidence and arguments. On 21 April 2016, the Department granted this request with a five day extension to make a further submission.

14. In the legal submission submitted by the applicant’s representative and in the applicant’s written and oral evidence, there was no dispute that the applicant had not been enrolled between 16 September 2015 and the date of cancellation on 13 December 2016 – about fourteen months. 

15. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

16. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. 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’.

17. Prior to the scheduled hearing, the applicant’s representative provided two legal submissions; a statutory declaration, a handwritten death certificate pertaining to his grandfather; financial documents; an academic completion record; and several medical documents.

18. Below is an extract from the legal submission which outlines the applicant’s mental health conditions relevant to this decision:

    The Reason for, and Extent of, the Breach. As a General Rule, a Visa Should not be Cancelled where the Breach of Visa Condition Occurred in Circumstances Beyond the Visa Holder's Control

    18.     As per the Review Applicant's statutory declaration dated February 2018, the Review

    Applicant was not aware that he was in breach of his conditions by failure to enrol in his     course.

    19.   The Review Applicant had requested a deferral from his studies after the passing of his grandfather, as he began suffering from depression and sought medical assistance from [Medical Centre 1].

    20.   In August 2015, an estimated 2 months after the death of his grandfather, the Review Applicant sought the assistance of a Social Worker, Mr [A].

    21.   We refer to the letter issued by Mr [A] on 4 August 2015, shortly before the Review Applicant's enrolment ceased, confirming that the Review Applicant was referred for therapeutic counselling and management plan for depression, stress and anxiety.

    22.   The letter states the following regarding Mr [A]'s diagnosis:

    He lost his Grandfather, recently at his home country. These caused [specified symptoms]. Therefore as he noticed that he suffers from lack of concentration, thus his recent progress has been affected.

    23.   A further letter issued [Mr A] on 4 August 2015 confirms that the Review Applicant commenced treatment and was placed under an Enhanced Health Care plan:

    Different approaches have been commenced, alongside with the medical regime, such as [specified treatments].

    24.   Annexure 4 evidences the symptoms experienced by the Review Applicant, which made it difficult for him to concentrate on his studies:

    Lost his grandfather last month
    Mentioned that he was in a low mood

    Consuming more cigarettes

    Not able to sleep well

    Was not able to pass two of his exams
    Taking medications for headaches
    Concerned about his study and about his performance

    25.   As part of his treatment, the Review Applicant was also prescribed [medication] in August 2015 to assist with tension and stress. We note that evidence was provided in our previous submission.

    26.   Furthermore, annexure 4 evidences that the Review Applicant continued to seek medical treatment from [Medical Centre 1] on 14 January 2016 and 4 August 2016; the period in between the death of the Review Applicant's grandfather and the cancellation of his Subclass 573 Visa.

    27.   We submit, therefore that the death of the Review Applicant's grandfather and subsequent struggle with his mental were factors beyond the Review Applicant's control. In the event that the Review Applicant's grandfather had not died, the Review Applicant's circumstances may have been extremely different.

19. During the hearing, the Tribunal finds the applicant provided overall credible and reliable testimony, largely consistent with the written statements and submissions. However, the Tribunal was able to identify one significant thread of evidence it did not find to be credible, as discussed below.

20. Critically the Tribunal also found the weight of documentary and oral evidence that the applicant does have a number of significant mental health disorders and that he has an ongoing but treatable challenge with depression and/or anxiety. It is noted the applicant was able to provide some insight into his psychological disorders when he disclosed feelings of abandonment due his father’s long absences during his formative years, which contributed to the Tribunal finding him credible in this regard.

21. No other documents or submissions were required by the Tribunal at the end of the hearing.

    The purpose of the visa holder’s travel to and stay in Australia

22. According to the decision record, the substantial period of non-compliance with condition 8202 it appeared that the applicant’s original intention for his travel to and stay in Australia was not for the purpose of study. The applicant did not respond to the NOICC to elaborate on this factor.

23. However, the Tribunal notes that prior to the applicant’s arrival to Australia, he completed an undergraduate degree in [named field], but could not find a job in his field. His oral evidence posited that his motivation for studying in Australia was to advance his employability in the management of [a business], preferably in Australia. It is noted further noted the applicant completed when he arrived in Australia; that he began but did not complete the diploma, let alone began [Degree 1]. As discussed below, the Tribunal was able to identify some extenuating circumstances for his lack of academic progress since August 2016. The applicant also credibly spoke of his strong desire to complete his studies given the high degree his family valued academic achievement.

24. The Tribunal finds there is insufficient evidence to doubt the applicant’s intention to complete [Degree 1] or that he has not been or will be a genuine and conscientious student. Based on the available information, cumulatively considered, the Tribunal is overall satisfied that the applicant’s purpose of travelling to Australia was to study and places substantial weigh in this overall finding in favour of not cancelling the visa.

    The extent of compliance with visa conditions

25. There is no evidence before the Tribunal to indicate the applicant did not comply with other conditions. The delegate decision does not record any information about further non-compliance. The applicant was not enrolled in a registered course for a long period of time - fourteen months. The Tribunal considers this significant to the question whether his visa should be reinstated. The applicant has provided explanations to the Department and the Tribunal for this non-compliance. The Tribunal gives this factor regarding non-compliance some weight towards the visa remaining cancelled.

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

26. During the scheduled hearing, the applicant struggled to articulate the degree of hardship that may be caused by the visa remaining cancelled. 

27. For instance, the applicant did not advance in any detail the financial impact on him if his visa remains cancelled. Accordingly, the Tribunal places very little weight on the material impact on the applicant if his visa remains cancelled.

28. The applicant also claimed that it was emotionally difficult to return to Pakistan because he spent so much time in Australia. Given the applicant’s representative submitted he suffered severe homesickness and because the Tribunal does not consider four years a considerable amount of time, it places no weight on this specific claim.

29. Nevertheless he has provided medical evidence that he has ongoing medical health conditions involving anxiety and severe depression and was provided with an enhanced health care program. He provided a plausible explanation that he withheld the news of his non-enrolment and visa cancellation for fear of severely disappointing his parents. While he accepted he could resume studies in Pakistan and he will have the support of his parents, the applicant claimed that his future was very uncertain and he was unsure about the access of mental health services to him. In this regard, the Tribunal accepts the salience of the representative’s point that access and affordability Pakistani mental health treatments, such as counselling and medication, are not as accessible or as sophisticated as they are in Australia.   The applicant also emphasised the tremendous intensity on him in not meeting family and cultural expectations if he is unable to demonstrate academic and professional credentials which [Degree 1] obtained in Australia attracts. Based on the applicant’s vulnerabilities arising from severe depression, the Tribunal finds these claims about emotional and psychological hardship credible.

30. Based on the weight of medical evidence in combination with not meeting family and/or cultural expectations, it finds on the evidence, cumulatively considered, that the applicant has demonstrated heightened emotional and psychological hardship that is not trivial or insubstantial would be attached to him in returning to Pakistan. The Tribunal gives these factors considerable weight towards the visa not being cancelled.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

31. According to the decision record, departmental records confirmed that the applicant was not meeting condition 8202 attached to his student visa as he was not enrolled in a registered course for [Degree 1], as required.  He did not respond to the formal invitation to provide reasons for this non-enrolment.

32. As mentioned above, the Tribunal accepts that the applicant encountered a serious mental health episode prior to the cancellation of his enrolment. It accepts that it was triggered by the news of his grandfather’s passing to whom he was close and when he failed to pass a number of academic units.

33. However the Tribunal has considered there were extenuating circumstances relating to the applicant’s mental health conditions. Episodes of depression can be so deliberating and de-motivating that engagement with the reasonable expectations of full time study feels unattainable. Not all people are equally resilient and being a migrant in Australia can be isolating. The Tribunal finds that these circumstances, while not exceptional were extenuating. With regards to the applicant’s substantial period of not being enrolled, the Tribunal has provided the applicant the benefit of the doubt that his mental health symptoms diminished his judgement on an ongoing basis. However the Tribunal hesitates to characterise this accepted circumstance as beyond the applicant’s control as the some capacity for remaining enrolment, seeking deferment or re-enrolment remained over a considerable period of time existed.

34. Less credibly, the applicant claimed that his family back in Pakistan encountered significant financial difficulties in paying the applicant’s tuition fees. This included a severe downturn in the wholesale price of rice in Pakistan throughout the period he was not enrolled and that those circumstances no longer existed soon after his visa was cancelled. He claimed that his father informed the review applicant he was consequently unable to meet his tuition payments.  It was put to the applicant that this fortuitous claim stretched credulity.  The Tribunal’s credulity was stretched further when he informed the Tribunal that his sister’s tuition fees were being maintained while studies in Pakistan. The Tribunal does not accept this implausible claim to be credible and indeed finds it to be a contrivance to augment his otherwise credible written and oral testimony.  Based on this adverse credibility finding, the Tribunal places no weight on these reasons that led to the cancellation as extenuating circumstances beyond the visa holder’s control.

35. Accordingly the Tribunal gives this extenuating circumstance some weight towards the visa not being cancelled, but not as an exceptional circumstance beyond the applicant’s control, that led to the grounds for cancelling the visa. 

    Past and present conduct of the visa holder towards the Department

36. Although the applicant did not respond to the NOICC that was issued, there was no evidence that the applicant had been uncooperative towards the Department. During the hearing, the applicant claimed that he did not respond as he was overwhelmed with the prospect of his visa being likely cancelled. The Tribunal finds this reasons does not adequately explain the lack of response or the request for an extension of time. Overall, the Tribunal gives this factor a little weight in his favour.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

37. Not relevant.

    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

38. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained. The applicant did not demonstrate much detailed knowledge about this factor, other to mention he has considered appeal an unfavourable decision to a Federal court.  In relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

39. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Whether any international obligations would be breached as a result of the cancellation

40. During the scheduled hearing, the applicant did not advance any specific claims that that he faces a well-founded fear of persecution for a nexus reason relevant to the Refugees Convention or any other reasons might breach other humanitarian obligations under other international treaties or protocols.  Instead he responded about the sense of embarrassment he would endure given his sister has begun a [high level qualification] at a Pakistani university and that he has not completed [Degree 1]. It is noted he mentioned the security situation was not strong in Pakistan and that Australia was very safe. Given the well-known challenging security situation in Pakistan, the Tribunal notes that it remains open to the applicant to seek Australia’s protection obligations and therefore it gives this factor a little weight in favour.

    Any other relevant considerations

41. Based on a cumulative assessment of the evidence, the Tribunal is satisfied that the applicant is a genuine student who is willing and capable of upholding the conditions on his visa, given he has access to ongoing treatment for his significant mental health symptoms and that he has the financial capacity to meet regular payments of tuition fees.  It places considerable weight on this finding in favour of the visa not remaining cancelled.

    Conclusions

1. 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.

2. Considering the evidence provided and on weighing the above factors, the Tribunal has placed more weight on the cumulative findings and evidence in favour of not cancelling the applicant’s student visa over those countervailing findings and evidence in favour of cancelling the visa.

3. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

   DECISION

4. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

   Brendan Darcy
   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.