1701597 (Migration)

[2019] AATA 6938

1701597 (Migration) [2019] AATA 6938 (27 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1701597

MEMBER:Mr S Norman

DATE:27 March 2019

PLACE OF DECISION:  Sydney

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 27 March 2019 at 11:30am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector  – not enrolled in a registered course  – department notified the applicant had ceased studies – error in NOICC  – mental health – deferment – evidence provided upon review – decision under review set aside 

LEGISLATION

Migration Act 1958 (Cth), ss 48, 116, 189, 198
Migration Regulations 1994 (Cth), Schedule 4, PIC 4013; Schedule 8 Condition 8202, 8516

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 27 January 2017 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). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa on the basis that the applicant was found to have breached condition 8202(2)(a) – enrolment. 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 27 March 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

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. The applicant was granted a (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 10 April 2014 (expiry date 30 August 2017). By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 9 January 2017,[1] the applicant was advised that information on the Provider Registration and International Student Management System (PRISMS) indicated he had not been enrolled in a registered course of study since 21 July 2016. Therefore, he appeared to be in breach of condition 8202(2)(a); and his visa may be cancelled under s.116(1)(b) of the Act.

   [1] Department – folio 15.

8. The delegate had subsequently referred to an error in the NOICC. The delegate noted the NOICC should have said the applicant had not been enrolled in a registered course of study from 21 July 2015 (and not from 21 July 2016 as stated in the NOICC).

9. The applicant (by their migration agent) lodged a response to the NOICC on 23 January 2017. The applicant, by their migration agent, also lodged evidence and submissions with the Tribunal (discussed below).

10. However, 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

11. 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’.

12. Regarding the purpose of the applicant’s travel to and stay in Australia, there is no evidence the applicant’s initial intention for travelling to and staying in Australia was not for the purposes of study. After considering the evidence lodged with the Tribunal, and discussing same at the hearing, I am also satisfied the applicant’s present intention is to continue to study in Australia.

13. Regarding the extent of compliance with visa conditions, as noted herein, the applicant had failed to comply with condition 8202(2)(a). The applicant had also breached condition 8516.

14. Regarding the degree of hardship that may be suffered by the applicant or his family if his visa is cancelled, the Tribunal notes inter alia that if his visa is cancelled, the applicant would have no work rights in Australia. The applicant may also be subject to harm from his family in Burma due to his same sex relations in Australia.

15. Next, there is no evidence the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. The Burmese citizen applicant, who is presently in a same sex relationship in Australia, has made protection claims that could be considered in an alternate visa process.   

16. The Tribunal notes that if the applicant’s visa is cancelled, he would become and unlawful non-citizen and liable to be detained under s.189 and removed under s.198 of the Act. However, I am satisfied he could temporarily retain his Bridging visa in order to remain in the community to finalise his affairs prior to departing.

17. Migration agent submissions dated 14 March 2019,[2] said that the applicant would be unable to apply for a subclass 485 visa if his Student visa was cancelled.  That being said, the Tribunal notes that if the applicant’s visa is cancelled he would be subject to s.48 of the Act, and he would have limited options to apply for further visas in Australia.  He would also be subject to PIC 4013; meaning he might not be granted a temporary visa for three years from the date of cancellation. 

    [2] Tribunal – folio 38.

18. Next, and regarding the circumstances in which the ground for cancellation arose, on 21 July 2015, the applicant’s education provider ([Organisation 1]) notified the Department that the applicant had ceased his studies as a result of non-payment of fees.  The migration agent also said that in mid-2016 the applicant had separated from his partner; this had exacerbated his poor mental health; he then did not re-enrol [with Organisation 1]; this resulted in the cancellation of his COE. [3] However, the applicant was to recommence [Course 1] at [Organisation 1] [in] March 2017.

    [3] Department – from folio 24.

19. In the response to the NOICC, the applicant had provided the following comments from an Accredited Mental Health Social Worker dated [January] 2017:[4]

    the applicant has a long history of mental illness. The applicant is likely to benefit from both ongoing psychiatric as well as psychological support. The applicant has agreed to consider both options. With regard to the period following his accident in November 2015, it is my opinion the applicant’s stressors were firstly his trauma from the accident, and secondly, a dysfunctional relationship in the first half of 2016. The applicant’s stressors were likely to have overwhelmed him, especially given his vulnerability to mental illness. The severity of the applicant’s mental illness is evidenced in his loss of function throughout 2016 where he was unable to study or work for much of the year. It follows that it is our opinion that the applicant’s mental illness caused him to be absent from his studies from November 2015 until now. The applicant reports that his mental health is slowly recovering … And that in 2017 he will be more conscious to manage his mental health. This would be through seeking more social and professional support. With support, the applicant’s mental health is likely to improve. This will make him more likely to be successful in his return to his studies.

    [4] Department – from folio 35.

20. Regarding the accident (in November 2015), further medical evidence referred to [an injury] suffered by the applicant.[5] This injury arose due to the applicant accidently [details deleted] in [Location 1].[6] The accident occurred around [November] 2015.[7]

    [5] Department – folio 42 (reverse side).

    [6] Department – folio 44.

    [7] Department – folio 44 & 29.

21. A more recent medical report dated 25 January 2019[8] was lodged. That ‘Psychological Report’ was by a person claiming to be an accredited Mental Health Social Worker. It was said the applicant had been initially seen [in] June 2016 for treatment for depression and anxiety in the context of an unstable relationship. The applicant had been consulted on three occasions (the second [in]06/2017 and the third on [in]01/2019). Put briefly, the health care worker assessed the applicant as enjoying a significant improvement in his mental health since the second appointment in June 2017. They went on to say the applicant was from Myanmar; that he had a history of mental illness; that since 2014 he had been diagnosed with [a variety of medical illnesses] by his General Practitioner. In 2017, the applicant was also diagnosed with [Medical Illness 1] after a psychiatric review.

    [8] Tribunal – from folio 41.

22. Next, the applicant’s migration agent[9] said the applicant had received and accepted an offer to recommence [Course 1] at [Organisation 1] and would commence that course [in] March 2017.[10] It was also claimed the applicant had been subject to exceptional circumstances resulting in his non-compliance with condition 8202 of his Student visa. The agent also said the applicant suffers the treatable [Medical Illness 1]. The agent also said the applicant had been studying in Australia since late 2009 (when he first arrived); that in 2014 he was diagnosed with a depressive illness and provided with prescription medication; up till then he had been progressing satisfactorily in [a course] at [a university]; as a result of his illness he ceased that course and commenced first, [another course], and second, [Course 1] at [Organisation 1]. Also, that as a result of the injuries he received in [Location 1] accident, he was partially immobilised and had been granted a temporary deferment from [Organisation 1] for the first part of 2016.[11]

    [9] Department – from folio 24.

    [10] Department – from folio 27.

    [11] Department – from folio 24.

23. By migration agent submissions dated 15 March 2019,[12] the following was also lodged:

    ·     A letter dated 29 November 2018 from [Organisation 1] advising that the applicant had completed [Course 1][13] 

    ·     A letter dated 26 February 2016, from [Employer], advising that the applicant’s employment had been terminated [in] February 2016[14]

    ·     a letter dated 28 February2019,[15] from a friend of the applicant who repeated inter alia that the applicant had experienced his injury and being ‘fired’ from [Employer], but that his health had since improved. The friend also attended the applicant’s [date] graduation ceremony where the applicant was awarded a [qualification in Course 1] (Academic Transcript lodged[16] - [certificate] lodged[17] - Recognition of Excellence lodged[18]).

    ·     Migration agent submissions dated 14 March 2019,[19] also advised that the applicant had now enrolled in [Course 2] (COE lodged[20])

    [12] Tribunal – from folio 44.

    [13] Tribunal – folio 43.

    [14] Tribunal – folio 42.

    [15] Tribunal – folio 39.

    [16] Tribunal – folio 37.

    [17] Tribunal – folio 34.

    [18] Tribunal – folio 35.

    [19] Tribunal – folio 38.

    [20] Tribunal – folio 36.

24. That being said, independent enquiries by the Tribunal indicated [Course 1] from [Organisation 1] ( [certificate] lodged[21]) was a CRICOS registered course; and [Organisation 1] confirmed that the applicant had been awarded [a qualification]. Further, and when discussed at hearing, the applicant explained the ‘Recognition of Excellence’ certificate he was awarded,[22] indicated he had placed at the top of his year. At hearing, the applicant also explained that [Course 2] (COE lodged[23]) was a four month course and he proposed to either engage in further study and or enquire about other visa types on completion.

    [21] Tribunal – folio 34.

    [22] Tribunal – folio 35.

    [23] Tribunal – folio 36.

25. After then considering the more recent evidence lodged by and on behalf of the applicant, that evidence has satisfied the Tribunal the applicant’s ongoing health issues are being managed, and in the last few years, this appears to have assisted him achieve exceptional results in his studies at [an education] level in Australia.

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

    DECISION

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

    Mr S Norman
    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.