1730115 (Migration)

[2020] AATA 1789

1730115 (Migration) [2020] AATA 1789 (1 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1730115

MEMBER:Frank Russo

DATE:1 May 2020

PLACE OF DECISION:  Sydney

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

Statement made on 1 May 2020 at 1:00pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – enrolment cancelled after non-commencement – claim that rape and diagnosis of HIV soon after was the reason for non-commencement – study history and general limited contact with education provider – enquiries to enrol in another course in different subject area – extensive work history before, during and after study – plans for future study and work – medical treatment – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 359, 359A, 359AA

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 23 November 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 500 (Student) 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 was not enrolled in a registered course of study from 28 February 2017 until the date of the delegate’s decision on 23 November 2017. 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 is a [age]-year-old British citizen.

4. The applicant appeared before the Tribunal initially on 6 December 2019, but requested an adjournment of the hearing in order to obtain further documents in support of his application. The Tribunal adjourned the hearing until 16 January 2020. Further details of the applicant’s requests for postponements of the hearing, adjournments and extensions of time are set out in the Tribunal’s consideration of the claims and evidence below.

5. The applicant appeared before the Tribunal 16 January 2020 to give evidence and present arguments.

6. The applicant requested that the Tribunal take oral evidence from [Ms A] by telephone. The Tribunal adjourned the hearing briefly to allow [Ms A] to be contacted on the telephone number provided by the applicant. [Ms A] did not respond to the telephone call from the Tribunal. The Tribunal accordingly gave the applicant the option of adjourning the hearing to allow oral evidence from [Ms A] to be provided or providing a written statement from [Ms A]. The applicant indicated that he wished to take the latter option of providing a written statement from [Ms A].

7. 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

8. 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.

   Requests for postponement of hearing and representation of applicant

9. The application was initially listed for a hearing on 29 October 2019, with the invitation sent to the applicant’s registered migration agent.

10. On 22 October 2019 the Tribunal received a request from the applicant for postponement of the hearing on the basis that he had not been able to contact his agent, [Mr B] of [Migration Agency], despite the applicant calling the agent’s office. The applicant indicated that [Mr B] possessed his notes and supporting documents for his application. The applicant requested time to obtain another representative.

11. On 23 October 2019 the Tribunal agreed to postpone the hearing and sent the applicant an invitation to attend a hearing on 6 December 2019.

12. On 8 November 2019 [Mr B] contacted the Tribunal by telephone to indicate that he had been unable to contact the applicant, had not received any documentation or instructions from him and was unable to represent the applicant or attend the hearing.

13. On 29 November 2019 the applicant contacted the Tribunal by telephone to indicate that he had been unable to contact [Mr B] and that he has received an SMS hearing reminder from the Tribunal about the hearing on 6 December 2019.

14. On 29 November 2019 the Tribunal sent a applicant a Change of Contact Details – MR Division (MR6) form to the applicant’s most recently supplied email address.

15. On 3 December 2019 the applicant contacted the Tribunal to request a further ‘two-week extension’ in relation to the date of the hearing. On 3 December 2019 the applicant also sent the Tribunal email correspondence indicating that his agent had not been in contact with him and had his files. The applicant stated that he was stressed and did not have legal representation.

16. The Tribunal treated the applicant’s email correspondence of 3 December 2019 as a further request for postponement of the hearing. After considering the reasons provided by the applicant, and the hearing notices provided, the Tribunal decided to refuse the request. In a letter dated 4 December 2019, the Tribunal indicated that it considered it preferable to proceed with the hearing scheduled for 6 December 2019 and to discuss at the hearing the circumstances the applicant had raised in his email of 3 December 2019, as well as what further information he may need to provide in support of his application for review, and whether further time would be required to provide this information.

17. In its letter of 4 December 2019, the Tribunal also noted that an applicant is entitled, while appearing before the Tribunal, to have another person present to assist them, however there is no entitlement to be represented while appearing before the Tribunal.

18. In separate correspondence dated 4 December 2019 the Tribunal provided the applicant with a letter confirming his representative had indicated to the Tribunal that he was no longer acting for him and had withdrawn as authorised recipient. The Tribunal attached an Appointment of Representative / Appointment of Authorised Recipient form (MR5) and a further Change of Contact Details (MR6) form. The letter was sent to both the applicant and [Mr B]. Copies of MR5 and MR6 were again sent to the applicant on 19 January 2020.

19. On 5 December 2019, [Mr B] sent email correspondence to the Tribunal, confirming that he had forwarded the Tribunal’s correspondence of 4 December 2019 to the applicant. [Mr B] also informed the Tribunal that [Migration Agency] had informed the applicant that his firm had ceased representation [in] March 2018 and that it had provided the applicant with information to assist him and/or another representative to inform the Tribunal of this change. [Mr B] also stated that [Migration Agency] did not hold any information regarding the decision to cease the applicant’s Student visa, other than the information received by the Tribunal on 30 November 2017.

20. On 6 December 2019 the applicant provided the Tribunal with a submission sent by email, requesting a further two-week postponement of the hearing. The request stated that he had been unable to obtain hospital notes and a medical report.

21. At the hearing on 6 December 2019 the applicant appeared before the Tribunal. He stated that he had been unable to contact [Mr B] and had received an email from him the day before, indicating that he would no longer be representing him. He stated that [Mr B] had all of his original documents. He told the Tribunal that he had a new representative, a [Mr C], who was not able to be present at the hearing and did not yet have the applicant’s file.

22. The Tribunal adjourned the hearing of 6 December 2019 to a date to be advised. The hearing was resumed on 16 January 2020.

23. The Tribunal notes that the applicant has not filed with the Tribunal an Appointment of Representative / Appointment of Authorised Recipient form or a Change of Contact Details form. Accordingly, the Tribunal has continued to send correspondence to [Mr B], who remains the most recently appointed representative / authorised recipient on record, as well as copies of correspondence to the most recent email address for the applicant on record.

24. Although there is no statutory entitlement to be represented while appearing before the Tribunal, in light of the applicant’s claims that he was experiencing stress and that his former agent had copies of his documents in support of his claim, the Tribunal postponed the hearing that was scheduled for 29 October 2019 and subsequently adjourned the hearing held on 6 December 2019 until 16 January 2020. The Tribunal considers the applicant has been given sufficient time to organise suitable representation, as well as to obtain any documents in support his application.

    Documents considered

25. In addition to his application form, the applicant provided the Tribunal with the following additional documents:

    a.Discharge Referral from [a Hospital], ‘Discharge Referral V2’ containing heading ‘Document Contains Addenda’ and [a Pathology provider] form, all dated or containing discharge date [in] February 2017;

    b.ED Discharge Referral – eMEDS, containing notes of attendance at the Emergency Department at [the Hospital], with an attendance date of [February] 2018;

    c.Notice of grant of Bridging visa, issued by the Department on 1 December 2017;

    d.Reference from [Ms D], [Business], undated;

    e.Email from [Ms A] to the applicant, dated [December] 2019, forwarding a reference drafted by [Mr E];

    f.Reference from [Ms F], dated [December] 2019;

    g.Letter from [Company] to the applicant, dated [February] 2018.

26. The Tribunal has read and had regard to these documents in making its decision. The Tribunal also notes and has regard to the documents contained within the Tribunal file and on the Department’s file.

27. The Tribunal notes that the applicant has not submitted a reference from [Ms A], although it notes that the applicant provided a copy of the email of [December] 2019 from a ‘[Ms A]’, which attaches a reference drafted by [Mr E].

28. The applicant confirmed at the hearing on 16 January 2020 that he had read the delegate’s decision and understood it.

29. On 16 January 2020 the Tribunal invited the applicant, in accordance with s.359(2) of the Migration Act, to provide the following information in support of his claims in writing by 31 January 2020:

    ·Copies of any medical records which support the applicant’s claim that he sought treatment from his general practitioner in the week prior to his hospital admission in February 2017;

    ·Copies of any medical reports not already provided which support the applicant’s claim that he received ongoing psychological and medical treatment following his hospital admission in 2017 and prior to the Department’s notice of intention to consider cancellation (NOICC) of his visa, dated 7 November 2017, in particular any reports supporting his claim that he was treated by [Mr G] prior to 7 November 2017; and

    ·Copies of any correspondence between the applicant and [educational institute] or any other education providers regarding enquiries for enrolment in courses after February 2017.

30. On 29 January 2020 the Tribunal received a request from the applicant for an extension of time to provide the information he was invited to provide in the Tribunal’s letter dated 16 January 2020, citing difficulties he had encountered in obtaining the information, as well as evidence of [an] injury he had sustained on 26 January 2020. The Tribunal agreed to grant an extension to provide this information until 21 February 2020.

31. On 21 February 2020 the Tribunal received email correspondence from the applicant providing an update on his attempts to respond to the Tribunal’s invitation to provide information. In this email he stated as follows:

    … in regards to a reference from the hospital [Mr H] (unsure of the surname) has actually retired and has kindly reached out to me to inform that he will put together note over the weekend and hasn’t got in contact as he was on a vacation.

    I have not been able to make contact with [Mr G].

32. On 3 March 2020 the Tribunal sent the applicant a letter inviting him to comment on or respond to certain information, sent to him in accordance with s.359A of the Migration Act. The information provided to the applicant consisted of the following documents:

    a.A letter from [a College], dated [January] 2020;

    b.The applicant’s attendance records for [Course 1 in Subject 1] at [the College]; and

    c.A contact log, containing details of contact between [the College] and the applicant.

33. The Tribunal’s letter set out the relevance of the information contained in each document and the consequences of the Tribunal relying on the information, and invited the applicant to give comments on or respond to the above information in writing by 18 March 2020. As at the date of this decision the applicant has not provided a response to this information. The Tribunal is of the view that the applicant has been afforded sufficient opportunity to respond to the information sent to him in accordance with s.359A of the Act.

34. In addition, the applicant has not provided any further response to the Tribunal’s s.359(2) invitation of 16 January 2020 since his request for a further extension on 21 February 2020. The Tribunal is of the view that the applicant has been afforded sufficient time to provide any further evidence pursuant to the s.359(2) invitation or any further evidence in support of his application. The Tribunal notes in particular that the application for review was made on 30 November 2017. The application was initially listed for a hearing on 29 October 2019, but at the applicant’s request was moved to 6 December 2019, and this hearing was then adjourned to 16 January 2020 to allow the applicant further time to obtain copies of documents in support of his application. On 16 January 2020 the Tribunal invited the applicant to provide further information in accordance with s.359(2) of the Act, and following his request received on 29 January 2020, granted an extension until 21 February 2020. The Tribunal therefore considers that the applicant has been granted multiple extensions to obtain information in support of his application. The Tribunal therefore has proceeded to make its decision on the information before it.

    Did the applicant comply with Condition 8202?

35. 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)

    ·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).

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

37. The applicant gave evidence at the hearing on 16 January 2020 that he arrived in Australia [in] September 2015 holding a Working Holiday visa. He stated that he had no intention of anything when he first arrived in Australia. He stated that he lived in Australia for a year and thought that he could further his studies. He stated that he saw a migration agent about things that he could do, and he was presented with a course in [Subjects 1 and 2] at [the College] in [Suburb].

38. When asked the names of the courses he had enrolled in, he stated that the course title was [Full course names]. He stated that he never received any certificates for courses in which he enrolled in Australia, although he completed assessments and finished a couple of modules. He stated that he started the course late, in October 2016, but he caught up on some of the work he was meant to complete for the course. He stated that the courses were online, but he had to attend classes once a week.

39. The applicant told the Tribunal that he was hospitalised in February 2017 for five days, further evidence of which is set out below in the Tribunal’s consideration of the exercise of the discretion to cancel the Student visa. The applicant gave evidence that in January 2017 he went out one night and that when he ‘came around’ he realised he was being raped. He stated that at the date of his hospital discharge he ‘was collared by a board of four people’ and that one of the doctors at the hospital informed him that he was HIV-positive. He stated that he wasn’t aware that any tests had been conducted. He stated that when he came out of hospital he was not in a good state. He told the Tribunal that he contacted [the College] about his hospital admission and was told that his hospital notes were ‘not valid’ documents and were not accepted by [the College] as a reason for his inability to enrol in his course of study. He stated that [the College] cancelled his enrolment soon after this. When asked at what date this occurred, he stated that it may have been at the beginning of March 2016.

40. The applicant told the Tribunal that after his enrolment was cancelled by [the College], he contacted [educational institute] to see if he could enrol in a [Subject 3] certificate, but was told nothing could be done at that point because the start dates were not right and he would have to wait until September 2017.

41. Adopting the procedure in section 359AA of the Act, the Tribunal put to the applicant that it had on file a copy of his enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal provided the applicant with a copy of his PRISMS enrolment records. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal, namely that it indicated that he had not been enrolled in a registered course of study since [date] February 2017 and the reason provided for the cancellation was the non-commencement of his studies on [date] February 2017. The Tribunal explained to the applicant the consequences of relying upon the information, namely that it may be the reason or part of the reason for the Tribunal affirming the delegate’s decision. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to his PRISMS enrolment records and advised that he may be granted time to comment on or respond to the information if needed.

42. The applicant indicated that he wished to respond to the PRISMS enrolment record at the hearing.

43. According to his PRISMS record, the applicant was enrolled in the following courses:

    a.[Course 1 in Subject 1] from [date] October 2016 to [December] 2016, which was cancelled [in] October 2016, with the reason provided for variation of enrolment being ‘Non-commencement o studies’;

    b.A second enrolment in the [Course 1 in Subject 1] from [November] 2016 to [February] 2017, which the applicant finished;

    c.[Course 2 in Subject 1] from [February] 2017 to [July] 2017, which was cancelled [in] February 2017 because of non-commencement of studies; and

    d.[Course 3 in Subject 2] from [July] 2017 to [July] 2018, which was also cancelled [in] February 2017 because of non-commencement of studies.

44. The applicant stated at the hearing that he accepts he was not enrolled in a course of study from [February] 2017 and confirmed that he has not enrolled in any registered courses of study since that date. The applicant confirmed that he accepted that the grounds for the cancellation exist and that the issue before the Tribunal was therefore the exercise of the discretion to cancel the visa.

1. On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course of study from [February] 2017 until the date of the delegate’s decision on 23 November 2017. Accordingly, the applicant has not complied with condition 8202(2)(a).

   Consideration of the discretion to cancel the visa

2. 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 Procedural Instruction ‘General visa cancellation powers’.

   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

3. As noted above, at the commencement of his evidence the applicant stated that he arrived in Australia in September 2015 on a Working Holiday visa. He stated that he had no intention of anything when he first arrived in Australia, however after living in Australia for a year he thought that he could further his studies, and accordingly saw a migration agent about things that he could do. The agent presented him with the package of study which he enrolled in, which the Tribunal notes from his PRISMS record, was for the [Courses 1 and 2] in [Subject 1] and the [Course 3 in Subject 2].

4. When questioned specifically about the purpose for his travel and stay in Australia, the applicant stated that he loves the Australian lifestyle. He stated that he had spoken to a friend who had just ‘started’ a Student visa and she recommended that he speak to an agent, who pointed him to the courses he enrolled in. He stated that it was a way of staying in Australia and a way of him continuing his education.

5. The applicant told the Tribunal that prior to coming to Australia he had completed high school in the United Kingdom, following which he obtained a [Course 4 in Subject 4] from 2000 to 2002. He stated that he also obtained a [Course in Subject 3], obtaining [qualifications] from 2000 to 2002 and [another qualification] in 2014. He stated that in the UK he worked as [an Occupation] and did [specified] work. In addition he had a [business] with his mother, which he was part-owner of from 2003 to 2008. He stated that he worked as [an Occupation] from 2002 and worked in [that work sector] full-time from 2008 or 2009, until he arrived in Australia. He stated that he worked as [work-related details deleted], and as [work-related details deleted]. He stated that he was self-employed with [this] work, but otherwise was also employed in [workplaces]. The applicant stated that he is a [work-related detail deleted] in Australia.

6. The applicant told the Tribunal that he commenced working as [an Occupation] in his second week in Australia, while he held his Working Holiday visa. He commenced working at [Workplace 1], in mid-September 2015, where he worked for four months, and then at [Workplace 2] for approximately six months. He stated that he then did a small amount of travel within Australia, after which he commenced studying in Australia. He then commenced freelance work for [Business name 1], which then became [Business name 2]. He stated that at the time of the hearing he was working at [Workplace 3].

7. The Tribunal questioned the applicant about his plans if his Student visa is not cancelled. He stated that he wants to study and learn more. When asked what course he wishes to study, he responded that he wants to be in the business sector. When asked if he knew where he would enrol, he stated that he did not know where, but it would be city-based. When asked about his future plans, he stated that he wants to build a [work sector] empire and then stated that he wants to learn and understand what he can in order to open such an empire. He stated that he had a business in the past, but he ran it without having any qualifications or knowing how to do things; that there are things that he needs to know about operating a business and that he wants to know more about business and marketing. He stated that after completing a course in Business he would return to the UK and that he is not drawn to study any other courses after this.

8. The Tribunal questioned the applicant about why he has not enrolled in a course of study since February 2017. He responded that he tried to enrol at [educational institute], but was told that it was too late in the year. He stated that he had contacted [educational institute], he stated at the end of March 2017, but was told that he could not start the course until the next intake in September 2017. The applicant stated that he was told by the Department that he could not enrol or study until his hearing at the Tribunal came up. He stated that it had been a numbing two years of his life, and that it had also caused issues for him as he has held a Bridging visa Class E and has not been able to travel back to the UK to attend funerals and to see family and friends.

9. The Tribunal questioned the applicant as to the conditions of his Bridging visa, including whether there were any conditions preventing him from enrolling in further study. He read out the conditions of his Bridging visa Class E, granted on 4 December 2017, and subsequently provided the Tribunal with a copy of the notice of grant of this visa. The conditions of his Bridging visa include work limitation (8104), no violent or disruptive activities (8303), maintain single official identity (8304), report as directed (8401), notify DIBP of change of address (8506) and present a valid passport (8510). The Tribunal noted that the notice of the grant of this visa did not appear to contain a condition preventing him from enrolling in a course of study. The applicant told the Tribunal that he made phone calls to the Department and was told that he could not enrol in a course of study and would need to wait until the date of the Tribunal hearing.

10. When asked of his plans if the Student visa was not cancelled, the applicant stated that he intended to study Business, but did not provide any evidence as to which education provider he would enrol with, other than stating one in the city. Although the applicant gave evidence that he made telephone calls to [educational institute] about enrolment in a [Subject 3], he indicated that he had no documentary evidence in support of any enquiries made to potential education providers. In its invitation to the application pursuant to s.359(2) to provide information, the Tribunal invited the applicant to provide evidence in support of his claims that he made enquiries to [educational institute] or to any other education provider, however no such evidence has been provided. The Tribunal found the applicant’s stated plans for future study to be general and finds on the evidence before it, that he has taken few steps, if any, to research suitable courses of study for the future.

11. Based on the applicant’s evidence and his enrolment history, the Tribunal has concerns regarding the purpose for wishing to remain in Australia and whether it is consistent with the purpose for which the grant of the Student visa is intended. The applicant stated that the Student visa was a way of staying in Australia and a way of continuing his studies. The Tribunal has concerns that the applicant may have been using the Student visa as a means of extending his stay in Australia, rather than because of a genuine intention to remain in Australia temporarily for the purpose of study. The Tribunal also has concerns with the applicant’s enrolment history. According to his PRISMS enrolment record, the applicant commenced his enrolment in the [Course 1 in Subject 1] on [date] October 2016, which was cancelled for non-commencement of studies on [date] October 2016. The applicant then enrolled in the [Course 1 in Subject 1] again from [November] 2016 until [February] 2017. His enrolments in the [Course 2 in Subject 1] and [Course 3 in Subject 2] were both cancelled [in] February 2017 for non-commencement of studies. The applicant has therefore has been enrolled in a course of study from [date] October 2016 to [date] October 2016 and from [November] 2016 to [February] 2017, a total of under 4 months. This enrolment history does not support a claim that the applicant’s principal purpose for remaining in Australia is for the purpose of study.

12. On 3 March 2020, the Tribunal wrote to the applicant in accordance with s.359A of the Migration Act, inviting him to comment on or respond to information. The particulars of the information put to him was information contained in the following documents provided by [the College] pursuant to a request from the Tribunal:

    a.A letter from [the College] to the Tribunal, dated 31 January 2020;

    b.The applicant’s attendance records for the [Course 1 in Subject 1] at [the College]; and

    c.A contact log, containing details of contact between [the College] and the applicant.

13. The Tribunal set out the particulars of the relevant information in each document. The Tribunal indicated that some of the information may be relevant to the assessment of his purpose for remaining in Australia. In particular the Tribunal notes the applicant’s attendance record for the [Course 1 in Subject 1], which indicated that his attendance for each unit was as follows:

    a.[Unit 1]: Lectures – 25%, Tutorials – 52.5%

    b.[Unit 2]: Lectures – 33.33%, Tutorials – 7.81%

    c.[Unit 3]: no percentages provided

    d.[Unit 4]: Lectures – 33.33%, Tutorials – 64.06.

14. For each unit, other than [Unit 3], for which no percentages were provided, the applicant’s attendance was well below 80%, with overall poor attendance, suggesting that the applicant was not actively engaged in this course of study.

15. The letter from [the College] dated 31 January 2020 states:

    The College communicated with [the applicant] on numerous occasions to remind him of his outstanding tuition fees and to collect his timetable in order to commence his studies for [Course 2 in Subject 1] (he had received many similar communications pertaining to his previous [Course 1 in Subject 1] …

16. As noted above, the applicant was invited to respond to or comment on the information contained in the above documents, however as at the date of the decision has not done so. The Tribunal considers that the information suggests the applicant was not particularly engaged with the courses of study in which he was enrolled, and does not support the applicant’s claim that his purpose for remaining in Australia is consistent with the intended purpose of the Student visa.

17. The applicant provided the Tribunal with references from [Ms D], [Mr E] and [Ms F], as well as a letter from [Company], dated [February] 2018, regarding his appointment as [position]. The Tribunal has considered each of these documents to assess whether they provide any support for the applicant’s claims as to his purpose for travelling to and remaining in Australia, as well as the other matters which the Tribunal must consider in exercising the discretion.

18. The reference from [Ms D] indicates that she is a [specified] professional, and that she was introduced to the applicant over 6 years ago and immediately recognised his talents in the field of [work sector]. [Ms D] states that she organises may contracts and [events] and that the applicant did an outstanding job and had excellent reviews from those who worked with him, and that she recommends him as an outstanding talent, as someone who is hard working and driven.

19. The applicant provided the Tribunal with an email from [Ms A] addressed to the applicant, dated 5 December 2019, which forwards an email sent to her by [Mr E]. The email from [Ms A] states, ‘[Mr E] has asked me to expand on this and print and sign’.  The reference drafted by [Mr E] indicates that he worked with the applicant at [an Event] [in a Location], that the applicant was in charge of [a work task] and was head of [work] teams for [events], and that he hopes to work with the applicant again. The Tribunal has not received an expanded or signed version of this reference from [Ms A].

20. The reference from [Ms F], graduating [student], states that she has been a friend of the applicant for two years and met him while seeking the services of a mobile [Occupation]. [Ms F] gave a reference in relation to the applicant’s good character and his contributions to Australia by establishing a large client base in his work as [an Occupation] and [work-related detail deleted], as well as to his reputation as [an Occupation]. The reference notes the applicant’s new business endeavour as part-owner of [Workplace 3] and states that it is in the public’s best interest that the applicant is able to remain and contribute to Australia on the appropriate visa.

21. The Tribunal considers that none of these references, nor the letter from [Company] appointing the applicant a [position], provide support for a claim that the applicant’s primary purpose for remaining in Australia is consistent with the purpose for which the Student visa is intended. None of these documents refer to the applicant’s enrolment as a student or support a claim that his purpose for remaining in Australia is to study. Rather, they all relate to the applicant’s career.

22. Having considered all of the evidence before it, the Tribunal finds there is little evidence to support a claim that the applicant has a compelling reason for remaining in Australia that is consistent with the purpose of the Student visa. Accordingly the Tribunal gives this factor no weight against the cancellation of the visa.

    The extent of compliance with visa conditions

23. The applicant was not enrolled in a course of study from [date] February 2017 until the delegate’s decision on 23 November 2017, a period of just under 9 months. The Tribunal considers this a significant length of time to remain unenrolled when the purpose of the applicant’s visa was to allow him to study, and it was a condition of his visa that he maintain enrolment.

24. The applicant told the Tribunal that he has complied with all other conditions of his visas. He stated one example was he contacted the Department to see if he could enrol in a course of study and was told that he could not. Similarly, under his Bridging visa he has not been able to travel. He stated that his grandfather died in February 2019 and he did not travel for the funeral. He stated that he had contacted the Department four to five times while he held a Bridging visa Class E, to see if he could leave Australia, but was told that he could obtain a different class of Bridging visa if he paid a fee, but was subsequently told that he could not obtain a different visa class due to the hearing date being near. There is no evidence before the Tribunal of other breaches by the applicant of his visa conditions. Accordingly, the Tribunal gives this some weight against cancelling the visa.

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

25. When asked about the hardship which may be caused by the cancellation of his visa, the applicant stated that there would no hardship to his family. He stated that in terms of hardship to himself it would stop his future progression. When questioned whether he would be able to undertake courses in the UK, he stated that he could, but that he chose to study in Australia because it is a place where people want to do better for themselves. He stated that he loves Australia and does as much as he can for the community, such as doing free [Occupational services] for [events].

26. The applicant also stated that a HIV-positive status is not taken as well in the UK as it is in Australia. He stated that in the UK people are more shallow-minded. He stated that in terms of his ‘mind security’ it makes him happier to be in Australia at the moment.

27. The Tribunal has considered the evidence the applicant has provided regarding the hardship he would experience if the visa were cancelled. As noted above, the Tribunal is not satisfied that the principal purpose for the applicant wishes to remain in Australia is consistent with the purpose for which the Student visa is intended. The applicant made little progression with the studies he enrolled in, with the duration of his enrolment being for a total of less than four months. The Tribunal therefore considers that there would be little hardship to the applicant if he is unable to complete his studies in Australia. There is no evidence that he has paid significant fees or devoted a significant amount of time towards his studies which would be lost if the Student visa were to be cancelled. The Tribunal also notes that the applicant has obtained certificates in [Subject 4] and [Subject 3] in the UK. On his own evidence there would be little preventing him from undertaking a Business course in the UK, other than a stated preference to study in Australia because Australia is a place where people want to better themselves.

28. The Tribunal however considers that the applicant has developed a number of community and professional ties in Australia, which would be affected if the visa is cancelled, and the Tribunal takes this into account in its assessment of the weight to give to this matter. Although the applicant provided no evidence to support his claim that having a HIV-positive status is not taken as well in the UK as it is in Australia, the Tribunal is willing to accept that this is the applicant’s personal experience and accepts that he may encounter some psychological hardship if he were to return to the UK. Accordingly, the Tribunal gives this factor some weight against cancelling the visa.

    Circumstances in which the ground of cancellation arose. Are there any extenuating circumstances beyond the visa holder’s control that led to the grounds existing?

29. The applicant told the Tribunal that one night in January 2017 he went out and that when he ‘came around’ he realised that he was being raped. He stated that some days later he felt sick. He stated that about one month after this he was hospitalised for 5 days at the [Hospital], with what he thought was a stomach complaint, but when he was discharged he was told that he was HIV positive. He stated that one of his discharge notices states that his HIV status was inconclusive and that it would take time to obtain a conclusive diagnosis.

30. The applicant told the Tribunal that after his HIV diagnosis he went into what he described as a massive downward spiral. He stated that he didn’t know who he was. He stated that to go into a hospital with a stomach complaint and to come out with a diagnosis that he was HIV-positive was a big issue. He stated that he became very introverted and did not want to speak to anyone. He was given HIV medication which made him very sick and that trying out medications was a big issue. He stated that he was house-bound and not in a good mental state.

31. When asked about the dates of his hospital admission, the applicant stated that he was admitted to hospital on [date] February 2017 and discharged on [date] February 2017. He stated however that he was feeling ill before he went to the hospital and that he saw his general practitioner before his hospital admission, although he did not have a record of this visit. He stated that he could however obtain one.

32. The Tribunal notes the medical evidence which the applicant has provided, including a Discharge Referral, together with Addenda and a [Pathology service provider] Form, all of which are dated, or refer to a discharge date of [date] February 2017. The Tribunal notes that the Discharge Referral indicates the applicant was admitted to the [Hospital] on [date] 2017 and was discharged on [date] February 2017. It indicates that the presenting problem was ‘pain, abdominal’ and the principal diagnosis was ‘Likely [deleted] ’. It states that the applicant was admitted on [date] February 2017 ‘with abdominal pain of one week duration.’ It also indicates that the applicant had a pre-existing condition of IBS, which was diagnosed by a gastroenterologist in the UK and was being managed by dietary changes. It also states that consent was obtained for HIV, Hepatitis B and Hepatitis C tests. The discharge plan records that he was discharged to home, with follow-up with the applicant’s general practitioner within five days for review of symptoms and medications. It notes that results for the HIV test were pending.

1. The applicant also provided an ED Discharge Referral – eMEDS for attendance at the [Hospital] [in] February 2018. It notes that the attendance was in respect of abdominal pain, nausea and vomiting, as well as tonsillitis. It notes that the applicant has been compliant with HIV treatment and regarding his past medical history, records HIV (Feb 17 – managed by [the Hospital]).

2. The Tribunal accepts, on the basis of these medical records, that the applicant was admitted to the [Hospital] on [date] February 2017 until [date] February 2017. The Tribunal notes that the applicant gave evidence that he was admitted to hospital on this occasion for five days. The Tribunal does not accept this evidence and instead prefers the record contained in the applicant’s hospital discharge records, which indicate a hospital admission of no more than two days. The Tribunal also accepts that the applicant’s HIV status was tested during this hospital admission and that his HIV-positive status was subsequently confirmed in February 2017.

3. When asked whether he sought any further treatment or counselling in relation to his HIV status following his hospital discharge, the applicant stated that he went he went to a ‘HIV place [in Location 1]’, which he stated was a drop-in centre. He stated that he also attended a centre [in Location 2].

4. The Tribunal questioned the applicant about whether he had sought any counselling or medical treatment in relation to the psychological impact of his HIV-positive diagnosis. He stated that he received some advice where professionals talked him through things and helped him to understand things. He stated that he went to a support group, but found it was more of a coming out group. He stated that he saw a counsellor called [Mr G] When asked how often he had seen [Mr G], he stated that he had one telephone consultation with him and three meetings from March 2017.

5. The Tribunal noted that the applicant had provided a copy of a letter from [Mr G] to the Department, a copy of which is contained on the Department file. The Tribunal noted that in this letter, [Mr G] states that he saw the applicant on 11 November 2017. The Tribunal noted that the NOICC from the Department is dated 7 November 2017, which may indicate that the applicant first saw [Mr G] in November 2017 in response to the NOICC, rather than in accordance with the evidence he provided. The applicant responded that the first time he saw [Mr G] was not that late, and that [Mr H] at the [Hospital] had provided [Mr G]’s details to him.

6. On 16 January 2020 the Tribunal wrote to the applicant to invite him pursuant to s.359(2) to provide additional information about certain matters, including evidence that he had first been treated by [Mr G] prior to November 2017, as well as any other documentary evidence of treatment relating to his HIV status or his psychological health. As noted above, the applicant requested an extension of time on 29 January 2020 to provide this information. He stated that he had tried to contact [Mr G], but had been unable to establish communications. He stated that [Mr H], the staff member from the [Hospital] who he had dealt with regarding his HIV status, had retired, however he was awaiting an email from him which he would forward in the next couple of days. The Tribunal granted the applicant an extension until 21 February 2020 to provide this information.

7. On 21 February 2020 the applicant sent the Tribunal a further email in which he confirmed that he had been unable to get in contact with [Mr G], and that he had made contact with [Mr H], who would put together a note for him over the weekend. As at the date of the hearing the applicant had not provided any further information regarding his treatment by [Mr G] prior to November 2017 or any additional information regarding his treatment for his HIV status or psychological health. The Tribunal considers the applicant has had sufficient time to prepare his application for review, which was made on 30 November 2017, and provide evidence in support of his claims.

8. The applicant told the Tribunal that he contacted [the College], the college in which he had been enrolled, about his hospital admission, but was told that the hospital forms were not enough and would not be accepted as a reason for not enrolling in Semester 1 of 2017. He stated that [the College] subsequently cancelled his enrolment. The Tribunal expressed concern about this evidence and questioned the applicant about whether [the College] had indicated why it would not accept hospital records or accept a hospital admission record. The Tribunal also questioned whether the applicant had received any correspondence from [the College] prior to the cancellation of his enrolment. The applicant stated that he did not know why the records were not accepted. He stated that he received no emails or letters from [the College] prior to the cancellation of his enrolment. He stated that he received a phone call from [the College] asking where he was. He stated that he was in hospital, but was told by [the College] that this wasn’t enough and that his ‘course was being cancelled and that was it.’

9. The Tribunal raised concerns that it did not have any documents as to [the College]’s reasons for cancellation of his enrolment, other than the reason stated in the applicant’s PRISMS record. The Tribunal noted this was of concern in light of the applicant’s evidence about his hospital admission, and indicated that it may contact [the College] to obtain relevant documents about the reasons for the cancellation of his enrolment.

10. The Tribunal questioned the applicant as to what steps he took, if any, after the cancellation of his enrolment with [the College] to obtain another enrolment. He stated that he did nothing because at that point his ‘life had gone to shit’. He stated that he didn’t know where his mind was and at the time he was dealing with his HIV-positive status.

11. As noted above, on 3 January 2020 the Tribunal wrote to the applicant in accordance with s.359A of the Migration Act, inviting him to comment on or respond to information. The particulars of the information put to him were information contained in the following documents:

    a.A letter from [the College] to the Tribunal, dated 31 January 2020;

    b.The applicant’s attendance records for the [Course 1 in Subject 1] at [the College]; and

    c.A contact log, containing details of contact between [the College] and the applicant.

12. The Tribunal set out the particulars of the relevant information in each document. The Tribunal indicated that the letter from [the College] states that [the College] communicated with students who had not enrolled in semester 1 of 2017 on [date] February 2017 by sending a timetable collection notice, and on [date] February 2017 by sending a non-commencement email. The Tribunal also noted that [the College] had provided the Tribunal with a copy of a ‘non-commencement list’ which lists the names of all students who did not commence semester 1 of 2017. The applicant’s name is at number 44 on this list. The Tribunal noted that [the College] also provided a list of persons who opened the non-commencement letter and that this list indicated he had opened this email on one occasion.

13. The Tribunal also noted that the letter from [the College] states that the applicant’s attendance for the [Course 1 in Subject 1] was poor, and that [the College] had many communications with him pertaining to tuition fees, orientation, timetable collection and cancellation of his confirmation of enrolment. [the College]’s letter also stated that [the College] received a medical certificate from the applicant in 2016, relating to his enrolment in the [Course 1 in Subject 1], but did not have records of receiving any medical certificates or hospital letters regarding his enrolment in the [Course 2 in Subject 1] commencing on [date] February 2017.

14. The Tribunal also provided the applicant with a copy of the contact log which [the College] maintained regarding its contact with him. The Tribunal noted that this document indicates that he was contacted by [the College] regarding late commencement, outstanding tuition fees and potential CoE cancellation in relation to the [Course 1 in Subject 1] in November 2016. The document also sets out the contacts made by [the College] regarding his enrolment in the [Course 2 in Subject 1]. It indicates that the last contact which [the College] records as having received from the applicant occurred [in] December 2016 and it has no record of receiving contact from him in 2017.

15. The Tribunal noted the information from [the College] may be relevant to assessing the timing of the events which the applicant claims were the reason for him being unable to enrol in semester 1 of 2017, as well as for assessing his credibility as a witness. The Tribunal noted the consequences of relying on this information, noting that it may be the reason, or part of the reason for affirming the decision of the Department, and invited the applicant to give comments on or respond to the above information in writing. As at the date of this decision, the Tribunal has not received a response from the applicant.

16. As noted above, according to the [Hospital]’s discharge records, the applicant was admitted to the [Hospital] on [date] February 2017 and discharged the next day. The record also confirms that the applicant had been experiencing abdominal pain for one week prior to admission, which would indicate his symptoms commenced on approximately [date] February 2017. The information provided by [the College] indicates that the expected date on which the applicant was to commence the [Course 2 in Subject 1] was [date] February 2017 and that he was contacted about failure to enrol in this course by [the College] on [date] February, when a timetable collection notice was sent, and again on [date] February 2017, when a non-commencement email was sent. The Tribunal notes that this information is consistent with the applicant’s PRISMS record, which indicates that his enrolment in the [Course 2 in Subject 1] was to commence [date] February 2017. The information from [the College] also indicates the applicant opened the non-commencement email on one occasion. It also indicates that the applicant had not contacted [the College] after [December] 2016 and there is no record of [the College] having received a copy of any medical records relating to his hospital admission in February 2017.

17. The Tribunal places weight on the evidence received from [the College], and finds that these documents call into question the applicant’s evidence about his reasons for not enrolling in Semester 1 of 2017 of the [Course 2 in Subject 1]. The Tribunal finds that the applicant was required to commence his studies for the [Course 2] on [date] February 2017, over a week prior to his hospital admission on [date] February, and that he was expected to enrol in this course prior to [date] February, but did not do so. The Tribunal also does not accept the applicant’s claim that he received no correspondence from [the College], given the evidence of the letter of [October] 2017, and the log indicating that he opened this document on one occasion. The Tribunal also does not accept that the applicant provided [the College] with a copy of his hospital admission record from February 2017. The Tribunal notes that the contact log maintained by [the College] is relatively detailed and the Tribunal does not find it likely that receipt of a hospital admission document, if received by [the College], would not have been recorded, particularly in circumstances where the applicant’s enrolment was cancelled [in] February 2017.

18. The Tribunal therefore does not accept that the principal reason for the applicant’s failure to enrol in February 2017 was his hospital admission. Rather, based on the documents provided by [the College], the Tribunal finds that the applicant’s failure to enrol, which pre-dated his hospital admission by over a week, was the principal reason for the cancellation of his enrolment. The applicant was given at least two reminders of the need to enrol prior to his hospital admission, but there is no evidence that he acted on these.

19. The Tribunal therefore does not consider that the circumstances which resulted in the cancellation of the applicant’s enrolment were beyond his control. The applicant was required to enrol in his course prior to [date] February 2017 and commence his course on that date. He did neither, and the medical reasons which he provided, at the earliest may have affected his ability to enrol from [date] February onwards.

20. The Tribunal accepts that the applicant was informed that he may have been HIV-positive on [date] February 2017 and this was subsequently confirmed, and accepts that this is likely to have been a difficult time for the applicant. While the Tribunal accepts that the applicant’s medical issues and mental state after his hospital discharge may have affected his ability to take immediate steps to remedy the cancellation of his enrolment, the Tribunal does not find the applicant has provided sufficient explanation for remaining unenrolled until November 2017, in breach of his visa conditions.

21. On the evidence currently before the Tribunal, the Tribunal finds that the applicant first consulted [Mr G] in November 2017, and therefore considers that the applicant’s purpose for consulting [Mr G] may have been for the purpose of responding to the NOICC issued by the Department. The Tribunal has not been provided with any documentary evidence to support the applicant’s assertion that he saw [Mr G] earlier than this, despite the Tribunal inviting the applicant to provide such evidence, and providing him with two extensions to provide the information. The Tribunal also notes that the report was prepared over seven months after the events which resulted in the cancellation of the applicant’s enrolment, and the Tribunal therefore gives little weight to this report.

22. In any event, the Tribunal finds that the content of [Mr G]’s report does not support a finding that the applicant’s medical condition prevented him from enrolling in a registered course of study for the entire period from February 2017 to November 2017. The applicant was invited to provide other evidence from counsellors or treating medical practitioners which supported his claims, however he has not provided such evidence. The Tribunal finds there is insufficient medical evidence or evidence from treating counsellors or mental health professionals to support a finding that the applicant was unable to enrol in a course of study for the entire period from February to November 2017.

23. The Tribunal also notes that on the applicant’s own evidence he returned to work approximately one month after his February 2017 hospital admission, but gave little evidence of attempts to meet the enrolment condition. He stated that he made enquiries of [educational institute] around April 2017, but was told the next intake was in September 2017. He stated that he contacted some other colleges by telephone, but was told that the next semester hadn’t yet started. He stated that he did not seek advice from an agent, because he figured that he would get the same response. The applicant gave evidence that he could not enrol at [educational institute] because he returned to the UK to attend three funerals in September 2017, but there is no evidence before the Tribunal that the applicant applied for the September 2017 admission or made applications to any other education provider.

100.   Having considered the evidence as a whole, the Tribunal finds the circumstances surrounding the applicant’s cancellation of his employment were primarily the result of his failure to enrol prior to [date] February 2017 and his failure to commence his course on that date. While the Tribunal has taken into account the medical issues which the applicant experienced, and which resulted in his hospital admission [in] February 2017, the Tribunal considers that they arose after the applicant’s failure to re-enrol, and does not find that these were the primary reason for the cancellation of his enrolment. The Tribunal also does not accept the applicant’s evidence of his communication with [the College] after he was discharged from hospital, and does not accept his claim that he provided [the College] with hospital discharge records, nor that these documents were deemed unacceptable by [the College]. The Tribunal therefore finds that the applicant did not take steps to mitigate the cancellation of his enrolment. While it has taken into account the applicant’s evidence of the difficulties he experienced in dealing with his HIV-positive diagnosis and his subsequent mental state, the Tribunal does not consider this a full explanation for why the applicant did not re-enrol in a course of study for a period of over eight months, in breach of the conditions of his visa. The Tribunal gives this factor weight in favour of cancelling the visa.

Past and present behaviour of the visa holder towards the Department

101.   The applicant gave evidence that he was not aware of any issues in terms of his past or present behaviour towards the Department. There is no indication of any issues contained on the files. The applicant responded to the Department’s NOICC. The Tribunal gives this a little weight against cancelling the visa.

Whether there would be consequential cancellations under s.140

102.   The applicant stated at hearing that there are no persons in Australia whose visas would, or may, be cancelled under s.140. On the evidence before it, the Tribunal weighs this factor neither in favour nor against cancelling the applicant’s 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

103.   The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189, however he could apply for a Bridging visa in order to settle his affairs in Australia. The applicant would need to seek advice regarding his immigration status. 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 he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The applicant confirmed at hearing that he understood these mandatory legal consequences and he did not have any comments to make in relation to them. The Tribunal gives this only little weight against cancelling the visa.

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

104.   There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements any international obligations, including non-refoulement and best interests of the children, would be breached as a result of the cancellation. On the evidence before it, the Tribunal weighs this factor neither in favour nor against cancelling the visa

Any other relevant matters

105.   The Tribunal asked the applicant whether there are any other relevant matters which the Tribunal should take into account. He stated that there were no other relevant matters in addition to those already covered at the hearing.

106.   The Tribunal has however considered the references which the applicant has provided, as well as the letter from [Company], which indicates he has been appointed a [position], as well as his evidence of community involvement. While these contain evidence that the applicant has built community as well as business/employment relationships while in Australia, the Tribunal does not consider these of relevance to the intended purpose of the Student visa. The Tribunal therefore gives them only little weight against cancelling the visa.

Considering matters as a whole

107.   As noted above, on the evidence available to it, the Tribunal finds that the primary circumstances which resulted in the cancellation of the visa were not beyond the control of the applicant and the Tribunal gives this weight in favour of cancelling the visa. The Tribunal is also not satisfied that the applicant’s purpose for remaining in Australia is consistent with the intended purpose for which the Student visa was granted, and has given this matter no weight against cancelling the visa. While the Tribunal has given some or little weight to other matters against cancelling the visa, overall the Tribunal considers that these factors are insufficient when balanced against the circumstances in which the ground for cancellation arose.

108.   Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

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

Frank Russo
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.