1800824 (Migration)

[2019] AATA 2710

1800824 (Migration) [2019] AATA 2710 (2 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1800824

MEMBER:T. Quinn

DATE:2 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 02 May 2019 at 9:18pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 – not enrolled in registered course for nine months – medical issues – mental health issues – relationship breakdown – limited evidence – no compelling need to remain in Australia – strong ties to Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 338, 347
Migration Regulations 1994 (Cth), Schedule 8, Visa 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 4 January 2018 made by a delegate of the Minister for Home Affairs (‘the delegate’) to cancel the applicant’s Subclass 500 (Student) visa (‘the current visa’) under section 116 of the Migration Act 1958 (‘the Act’).

2. The applicant has been in Australia since April 2009 on student (and associated bridging) visas and was granted the current visa on 7 December 2016.  The applicant is from India and came to Australia with the intention to study and obtain skills in Australia in order to open a  [business] in Punjab, India.[1]

   [1]           Evidence provided by applicant at hearing.

3. On 4 January 2018, the delegate cancelled the current visa on the basis that the applicant had failed to comply with a condition of the current visa as required by subsection 116(1)(b) of the Act, namely that the applicant had not been enrolled in a registered course of study[2] since 27 March 2017.  A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

   [2] As required by condition 8202(2)(a) of the Migration Regulations 1994 (‘the Regulations’).

4. On 10 January 2018, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(3) and 347 of the Act.

5. The applicant appeared before the Tribunal on 29 April 2019 to give evidence and present arguments.

6. The applicant was assisted in relation to the review by their registered migration agent; however, the migration agent was not present for the applicant’s hearing.

7. The Tribunal hearing was arranged with an interpreter in the Hindi and English languages.  On the day of the hearing, the applicant indicated he wished to speak in English.  The Tribunal made it clear to the applicant that if at any time he did not understand or would like to use the services of the interpreter, he must indicate that to the Tribunal immediately and the interpreter remained in the hearing room, available, for the duration of the hearing.

8. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.

9. The Tribunal has had regard to all the information before it, including the Department File, all information and evidence provided by the applicant to the Tribunal, including material provided on the day of and following hearing.

10. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

    STATUTORY FRAMEWORK

11. The issue in this case is whether the applicant, as the holder of a student visa, has breached condition 8202 of the Regulations. If so, the ground for cancellation is made out and the issue then becomes whether the visa should be cancelled pursuant to section 116(1) of the Act.

12. Under section 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in subsection 116(1)(b) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the ground for cancellation exist?

13. A visa may be cancelled under section 116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 of the Regulations attached to the applicant’s visa. This condition requires that the applicant:

    a.be enrolled in a registered course, or in limited cases,  a full time course of study or training: 8202(1) and (2);

    b.has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i); and

    c.has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

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

15. The applicant was enrolled in and commenced a Bachelor of [Subject 1] at [College 1] [in] November 2016.  The applicant’s confirmation of enrolment (‘COE’) was cancelled [in] March 2017 and he was not enrolled in a full time registered course of study from that date until his visa was cancelled on 4 January 2018. 

16. The applicant has at all times acknowledged and accepted that there are grounds for cancellation.[3]

    [3]           See delegate’s decision, submissions from the applicant and applicant’s evidence at hearing.

17. For these reasons, the Tribunal is satisfied that the ground for cancellation in section 116(1)(b) exists. As that ground does not require mandatory cancellation under section 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion to cancel the visa

18. 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’.

    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

19. At hearing, the applicant took the Tribunal through his study history including commencing and completing: an [Subject 2] course; a Diploma of [Subject 3]; an Advanced Diploma of [Subject 1]; and an Advanced Diploma in[Subject 4] prior to commencing his Bachelor of [Subject 1] under the current visa.  He claimed his intention is to learn skills from Australia so he can open up a hotel business in Punjab, India. 

20. The applicant indicated he has been in a relationship with his current girlfriend, who is an Australian citizen, for nearly two years and they are living together.  The Tribunal does not consider this constitutes a compelling need to remain in Australia

21. The applicant has had health problems as outlined below and is currently seeking treatment for [medical condition 1].  The Tribunal considers these issues can be treated in India and the purpose of the student visa is not to provide health care.

22. The Tribunal accepts the applicant does wish to study but also notes that the nature of the student visa programme is necessarily temporary and after approximately 10 years onshore, the Tribunal has concerns about the applicant’s true intentions.  The Tribunal considers the applicant does not have any compelling need to remain in Australia as he could study a Bachelor of [Subject 1] in his home country.  The Tribunal gives equal weight to the evidence in favour of cancelling the applicant’s visa and the evidence against cancelling the applicant’s visa in the matters described in paragraphs 19-22.

    Circumstances in which ground of cancellation arose

23. At hearing and in his submissions, the applicant indicated that in late 2016 he began suffering from anxiety, depression and [medical condition 2].  His evidence at hearing, which does not appear to be reflected in the submissions made to the Department, was that this followed the breakdown of a [relationship] with his ex-girlfriend, including [a certain incident] in January 2017.  He described [feeling] so depressed.  He also said he began drinking heavily and that this has led to serious problems [for] which he has received treatment since July 2018.[4]  The Tribunal was surprised to hear of the relationship difficulties the applicant suffered in late 2016 and early 2017 as none of those specifics were provided in any of his submissions or in any of the medical documents submitted.  The Tribunal requested that the applicant locate some form of corroborating evidence, such as previous text messages or email correspondence with his ex-girlfriend indicating the sort of issues they were dealing with in late 2016.  The Tribunal gave the applicant until the close of business on 30 April 2019 to provide such corroborating evidence and the applicant emailed the Tribunal on 30 April 2019 indicating he had deleted all correspondence with his ex-girlfriend.  With such limited evidence to support what appears to be a new submission and one never previously raised with the Department, the Tribunal gives limited weight to the evidence in relation to the [incident] but accepts that there was a relationship break down and the applicant suffered anxiety, depression and [medical condition 2] following this in late 2016.

    [4]In addition to his oral evidence, the applicant provided written support for his [medical condition 1] in his email to the Tribunal of 30 April 2019 and the Tribunal accepts his evidence and submissions in relation to his pain and health issues with [medical condition 1] from mid-2018 to present but considers this has limited relevance, if any, to his cancellation which occurred well before the  [diagnosis].

24. The applicant provided the following medical documents in support of his application for review:

    a.A letter from Dr [A], Psychologist, dated 23 January 2017 stating ‘I have been prov[id]ing psychological assessment and treatment to [the applicant].  [The applicant] was referred for treatment by his general practitioner as he is suffering depression and anxiety.  This has caused his attendance at university to be affected.’

    b.A letter to Dr [A] dated 17 January 2017 on [Named] Practice letterhead stating ‘[The applicant]… is suffering from depression and anxiety[and] [medical condition 2] as a consequence of his poor mental health.  I have commenced him on [Medication 1].  I have also recommended he see a psychologist for [specified treatment]’.

    c.A number of receipts indicating [a number of] appointments at the [Named] Practice from December 2016 to August 2017.

    d.A Letter from Dr [B] dated 17 November 2017 stating that the applicant ‘has been undergoing treatment for management of his anxiety and depression symptoms.  He is now much improved and feels ready to recommence his university studies.’

    e.A letter from Dr [C] dated 26 April 2019 stating that the applicant ‘[h]as been a patient at our practice since 2015.  I am reviewing (sic) him for the first time today, however, I can see from his patient file that he has been treated for depression and anxiety from January 2017- December 2017’.

25. The Tribunal enquired with the applicant at hearing in relation to the reason for the appointments reflected in the receipts described in subparagraph 24(c) above and the applicant indicated that most of those appointments were for sicknesses relating to his drinking habit, primarily a fever and that he was given prescriptions for antibiotics.  He explained that prior to late 2016 he had been in relatively good health.

26. The Tribunal noted that only one of the receipts related to an appointment with his psychologist and the applicant indicated that he only saw the psychologist once and had not sought any counselling.

27. The applicant indicated that he only took the anti-depressant medication he was prescribed about once a week and only a half dose for the first half of 2017 when he was having particular difficulty [and] that from around the middle of 2017, when he met his girlfriend, he did not need any more antidepressants. In his email to the Tribunal on 30 April 2019, the applicant provided a Patient History document from 1 January 2017 to 31 December 2017 which indicated he filled a prescription for [Medication 1] (an anti-depressant medication) on 17 January 2017 to be taken daily and a prescription for [Medication 2] (an anti-depressant medication) on 17 November 2017 to be taken daily.  This seems somewhat inconsistent with the applicant’s statement that from mid-2017 after he met his current girlfriend, he did not need any more anti-depressants.

28. The applicant also stated that at the end of February 2017 he verbally sought a deferral of his course over the counter at his education provider and that he was told verbally that he could not defer his course and that he needed to finish his study within a certain time and that he should look for a new course provider.  The Tribunal asked whether the applicant took any of his medical documentation to the university when he approached them about deferral and he said he did not.  The Tribunal enquired about why the applicant did not put in a written request for deferral and he said it was because they told him verbally that he could not defer.  Standard 13 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 which was in operation at the time the applicant sought deferral of his course required that ‘[t]he registered provider must have in place documented procedures for assessing, approving and recording a deferment of the commencement of study or suspension of study for the student, including keeping documentary evidence on the student’s file of the assessment of the application.’  In such circumstances, the Tribunal is troubled by the applicant’s evidence in relation to his request for deferral.  It seems unlikely to the Tribunal that given the obligations imposed upon the education provider, that they would have verbally declined the applicant’s request without suggesting he complete a formal written request.  The Tribunal is also perplexed by the applicant’s failure to take medical support with him, particularly the letters described subparagraphs 24(a) and (b) above.

29. The applicant has provided a letter of offer from [College 2] dated 31 March 2017.  On the day of hearing, the applicant provided correspondence via email between him and [College 1] in April 2017 providing cancellation of enrolment and indicating he sought a copy of his transcript, which was also required for him to receive a new COE from [College 2].  His evidence at hearing was that he never received the transcripts. The Tribunal notes that the applicant’s email requesting the transcript was addressed to ‘[address 1]’ [in] April 2019 and that there is an email from ‘[address 1]’ [in] April 2019 stating ‘You are able to apply for a transcript.  If you would like your transcripts, please contact [Ms D] at: [address 2]’.  There is a further email from the applicant to  [address 2] [in] April [but] it appears to have nothing in its subject or in the body of the email. 

30. The Tribunal is troubled by this evidence and, despite the applicant’s mental health problems, considers that if he had capacity to engage with this email correspondence and attend the university in person to enquire about deferral, then it is reasonable to assume that he also had capacity to include a proper request for transcript in his email correspondence of April 2019 and to take medical evidence which he had obtained to support his application for deferral.

31. The Tribunal accepts that the applicant has had emotional turmoil and mental health problems.  However, on his own evidence, he did not seek regular counselling, did not take medication as prescribed (once a week if he felt he needed it as opposed to daily as prescribed) and ceased taking medication in the middle of 2017.  Further, the supporting medical documents are limited in their relevance as they are very general in nature and do not provide sufficient detail in terms of timing or symptoms and the impact of those symptoms in order that the Tribunal can properly assess the full impact of the applicant’s mental health on his capacity to study.  There is one reference to attendance at university being affected but, given the applicant was able to attend the university to seek deferral, obtain a fresh letter of offer from [College 2], engage with email correspondence with the university and form a new relationship with his current girlfriend, the Tribunal has difficulty accepting that the applicant could not have engaged with his studies in some way or taken the necessary steps to ensure he was able to obtain a new COE in compliance with the conditions of the current visa. 

32. In addition, even if the applicant’s mental health was severe enough to impact his ability to study from late 2016 to mid-2017, the Tribunal considers that the applicant’s evidence indicates that he was well enough to have re-engaged with study from mid-2017 when he met his new girlfriend and ceased taking his anti-depressant medication.  The Tribunal also notes that the option to return to India to avoid breaching his visa conditions was open to the applicant at all times (albeit a difficult situation given his evidence that he had not mentioned his difficulties to his parents).

33. The Tribunal empathises with the applicant’s personal circumstances in late 2016 and early 2017, including the fact that the end of the relationship and [related incident] and resultant mental health problems were out of the applicant’s control.  The Tribunal acknowledges these issues must have caused emotional stress for the applicant and gives weight against cancelling the applicant’s visa in this regard.  However, the applicant’s visa was not cancelled until January 2018 and the Tribunal considers that from at least mid-2017 when he met his current girlfriend and ceased taking anti-depressant medication, the applicant could have taken steps to ensure he was meeting the conditions of the current visa.

    Extent of compliance with visa conditions

34. The Tribunal notes the applicant’s evidence that he has otherwise complied with all previous student visa conditions.  However, the breach of the condition associated with the 2016 student visa is extensive, being nine months.  The evidence is finely balanced in this regard.

    The degree of hardship that may be caused to the visa holder and any family members

35. The applicant is one of [a number] children to his parents.  He has an [sibling] who has [children] and [he] is expected to return to India to take care of them.  His evidence was that his parents hold high hopes for him to finish his studies in Australia and start his business.  He gave evidence that if his visa is cancelled, it will be hard for his parents to hear that.  He also gave evidence that he has not told his parents about his mental health, [medical condition 1] or visa problems as he does not want to cause them stress and only wants to make them happy.

36. The applicant gave evidence that if his visa is cancelled, he would continue with his studies but it would not be as good as an Australian qualification.

1. Although the applicant did not make this particular submission, it is clear that there will be consequences for his health care in relation to his [medical condition 1] and his relationship with his girlfriend if his visa is cancelled.  The Tribunal considers that if these were pressing concerns for the applicant, he would have mentioned it when asked about the hardship caused if his visa is cancelled.  Given the applicant’s evidence about his intentions with his girlfriend described in paragraph 46 below, the Tribunal does not consider there would be hardship caused to the applicant’s girlfriend if his visa is cancelled and the applicant did not make any submissions to that effect.

2. The Tribunal accepts that the cancellation of a visa is disappointing.  It also accepts that a significant amount of money is invested in a person in order to set them up in a country to live independently in order to study.

3. The Tribunal recognises that the hardship is felt by family members who may also feel let down and disappointed.

4. The Tribunal is, however, mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition such as non-enrolment.  Whilst appreciating the hardship the applicant and his family may face regarding a cancelled visa, it does not outweigh the breach and the Tribunal gives these reasons limited weight in its considerations.

   The visa holder’s past and present behaviour towards the Department

5. There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives this some weight against cancelling the applicant’s visa.

   Whether there are persons in Australia whose visas would, or may, be cancelled under section 140 of the Act

6. This is not relevant to the applicant.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, 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

7. If the current visa is cancelled, this will result in the following:

   a.The applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act;

   b.The applicant will have limited options to apply for further visas in Australia;

   c.The applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed.  The applicant could therefore be subject to a three (3) year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Requirement 4013 to be met.

   I give little weight to this consideration in favour of the applicant because:

   ·These are the intended consequences of the legislation when a visa is cancelled under these grounds;

   ·It reflects the seriousness with which the Department takes this type of cancellation ground;

   ·The applicant will be eligible to apply for a bridging visa while he makes arrangements to depart Australia and therefore the likelihood of detention is only in the event that he does not co-operate in applying for a bridging visa.

   Australia’s international obligations

8. There is nothing before the Tribunal to suggest that the cancellation of the current visa would breach any international obligations.  The Tribunal places no weight on this in favour of or against the applicant.

   Any other relevant matters

9. The applicant described at hearing heavy drinking in 2017 to self-medicate his mental health problems.  The Tribunal accepts this would have also impacted his circumstances but considers it something that was within realm of control of the applicant, particularly given his more recent abstinence since having his [medical condition 1] diagnosed so gives this circumstance some, but limited, weight against cancelling the applicant’s visa.

10. The applicant’s evidence was that he intends to return to India to start his [business] and care for his [parents].  However, when asked what the future of his relationship with an Australian citizen would hold, he said they would get married and that his girlfriend would like to move to [Country 1] or [Country 2].  The applicant indicated his parents have family in [Country 1] so if he moved there with his girlfriend, he could move his parents over to [Country 1] in order to care for them.  The Tribunal found this evidence difficult to reconcile and considers the applicant has formed strong ties to Australia and that his incentive to remain onshore may be motivated by factors other than study.  The Tribunal gives weight in favour of cancelling the applicant’s visa in this regard.

    CONCLUSION

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

    DECISION

12. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    T. Quinn
    Member