1812908 (Migration)

1812908 (Migration) [2019] AATA 5254 (24 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1812908
MEMBER:Mark O'Loughlin
DATE: 24 September 2019
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 24 September 2019 at 4:02pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – college closed – criminal charges dropped – mental health claims – substantial breach – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 189, 198
Migration Regulations 1994 (Cth), Schedule 4, Public Interest Criterion 4013; 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

This is an application for review of a decision dated 1 May 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with condition 8202 of his visa and the delegate was satisfied that the grounds for cancelling the visa outweighed the reasons for not cancelling. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 8 and 22 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.
In considering its decision the Tribunal has had regard to the following information provided by the applicant;
a.decision record Department of Home Affairs dated 1 May 2018;
b.medical statement [Dr B] dated 19 August 2019;
c.note [Dr B] dated 5 March 2018;
d.note [Dr B] dated 19 April 2018;
e.receipts for medication dated 3 May 17, 16 July 2017, 10^th of October 2017, 14 January 2018;
f.bundle of documents related to criminal charges including variation to bail agreement, letters from [Law Firm 1], police apprehension report dated [date], magistrates Court of [state] to receipts for amounts paid to [LawFirm 1]; and
g.Confirmation of enrolment for a Diploma of [Field 1] starting 21 May 2018.
The Tribunal’s file also contains movement records which were not relied upon as the relevant matters recovered in the applicant’s evidence which the Tribunal accepts in those respects.
Tribunal did not rely on any other documents in reaching its decision.
Did the applicant comply with Condition 8202?
Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant be enrolled in a registered course, or in limited cases, a full time course of study or training- 8202(2).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a relevant registered course.
The applicant gave evidence that he came to Australia [in] September 2014. He was [age] years old had been educated to year 12 level in India. He did an English language course at [University 1] then started a Bachelor of [Field 2], also at [University 1].
He continued with that course for about six months but found it to be too difficult so he transferred to a Diploma of [Field 2] at a college in [City 1]. The applicant said that he spent a year in [City 1] and that he finished that diploma.
He gave evidence that although he came to Australia on a 573 visa he was told by his agent that a diploma level course was sufficient to sustain his visa.
After he had finished the diploma in [Field 2] he returned to [City 2] and enrolled in a [Field 3] course for six months. The applicant gave evidence that he had friends in [City 2] studying [Field 3] and had decided that he would work [in a Field 3 occupation] in [City 2].
He said that he had decided that he wanted to stay in [City 2].
He said that he also hoped to return to [University 1] and pursue the Bachelors course and that he had friends who had done that.
The applicant advised that he was not able to finish the [Field 3] course because the college, [named], closed.
The applicant said that that was in 2017 or 2018.
He said that they offered to move him to a different college but that it was in [location] and it was too far for him to go.
He said that instead he didn’t do any study and that he and his friend’s “partied”.
The applicant said that he eventually enrolled in another course on about 20 April 2018 during a trip to India and that his visa was cancelled after he returned to Australia.
The applicant was asked whether the college closed down in about May 2017 and that his enrolment failed after that. He agreed that that was the case.
The applicant was able to date the closing of the college because at about that time he was subjected to criminal charges arising from an incident on [a street]. He said a taxi driver threatened him. He was charged with [various offences] but said that those charges were ultimately dropped.
The applicant provided a copy of the police apprehension report that shows that those charges arose from an incident in the early hours of [date] April 2017.
The applicant said that he stopped attending the course shortly after that incident when the college gave the students about a month and a half of holidays. He said the college closed and later his enrolment was cancelled.
It was after this that he was not enrolled in any course until April 2018.
The Tribunal notes that this is consistent with the delegate finding that the applicant held no enrolment in a relevant registered course for the period 21 June 2017 to 20 April 2018 inclusive.
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
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’
The applicant described the circumstances of the police charges and said that the police visited him at home. He said that he and his home were searched and the police took his DNA and documents before giving him bail on the condition that he not travel.
He said that the case went for about a year but that all charges were dropped in about the middle of 2018. He said that this was about six months before his Visa was cancelled.
The Tribunal put it to him that his Visa was cancelled in May 2018. The applicant said that the charges were dropped at least six months before his Visa was cancelled and that by that stage he had started to suffer from depression and he’s not sure of the dates.
He said that he started to suffer depression at about the time his study was stopped and that he found this very difficult. He said that it was too expensive to seek treatment in Australia and that although he had working rights his depression interfered with his ability to work.
He said that he’d been trying to [work as an Occupation 1] but only lasted about a week.
He said that he had been unable to avail himself of his health insurance because it required him to pay his medical expenses upfront and seek reimbursement and he did not have enough to do that.
He said that instead he had telephone consultations with his family doctor in India, [Dr B], who sent him medication which friends brought to him in Australia.
The applicant had told the tribunal that his doctor had records and that he could provide them. The records referred to were provided during the adjournment.
The Tribunal notes that there are receipts for medication dated 3^rd of May 2017, 16^th of July 2017, 10^th of October 2017, and 4^th January 2018. Further statements from [Dr B] say that he had been in contact with the applicant from about May 2017 in relation to depression and that he certified the applicant was suffering from restlessness and insomnia due to anxiety neurosis with depression from 5 March 2018 to 19 April 2018.
[Dr B] says that he advised the applicant to continue medicine for six months after that time. The applicant said that he recovered after about a month and discontinued the medication.
The applicant gave evidence that on about 3 March 2018 he returned to India and received treatment. It was during this visit that he saw [Dr B]. He said that it was also during this trip that he enrolled in a further course and to do that he borrowed about [amount] from his cousin. The Tribunal notes that the applicant provided the department with a confirmation of enrolment for a diploma of [Field 1] that was due to start on 21 May 2018.
The applicant said that he did not start the course.
[Mr A] was interposed on the first day of the hearing.
[Mr A] said that he came to Australia in October 2014 from Punjab in India and that he had met the applicant once or twice there.
He said that they met up again at university in the English classes. [Mr A] said that at the time he is giving evidence he was in his last semester of a [course] at [University 1].
He said that the applicant was at [University 1] for about one year and that he understands that the applicant failed a few topics and had problems with sick parents and money that he chose to do an easier course.
He said the applicant went to [City 1] and did a diploma then returned to [City 2]. [Mr A] shares a house with the applicant and has usually done so at those times the applicant has lived in [City 2].
He said that when the applicant came back from [City 1] he got admission to a college and did some study but that the college was suddenly shut down.
He said he was aware that the applicant got into some trouble but he was not with him at the time. He said that he did not know the details but thought that the applicant was suffering stress because his parents will have got a bit drunk and perhaps got into a fight.
He said that they were sharing a house when the police came and that the applicant was very scared and depressed for six or seven months before the charges were dismissed.
He said the applicant spent a lot of time at home and that he did not work for months. He said that the applicant used to [work in Occupation 1] and he worked in [Occupation 2].
He said that the applicant [worked in Occupation 1] during his first period in [City 2] and then for about five or six months after he returned but that he lost his license at about the time of trouble.
The hearing resumed on 22 August 2019 and further evidence was taken from the applicant. The applicant confirmed that he had heard [Mr A’s] evidence and that he understood him despite the fact that [Mr A] did not use the interpreter.
The applicant said that during his visit to India from [March] to [April] 2018 he stayed in [Dr B’s] hospital.
The applicant said that after he returned from India he kept taking the medication that [Dr B] prescribed for about one month. He said that after that he felt better and didn’t need the drugs anymore.
The applicant agreed that he was not doing study from May 2017 to March 2018 and said that he was suffering depression for most of that time. He said that he would speak to his doctor on the telephone and take the medication that was prescribed. It said that in terms of activities he would just stay home and sleep or go to the park.
In relation to the criminal charges the applicant said that he did not use his lawyers are dealt with them by himself. He said that the last hearing was at the end of 2017 but that he remained depressed until the end of May 2018.
The tribunal sought to clarify an apparent conflict between the evidence of the applicant and the evidence of [Mr A]. The applicant had suggested that he only worked as [Occupation 1] for about a week but [Mr A] said that it was a longer period. The applicant confirmed they [worked in Occupation 1] for about a year and that he [worked] 18 to 20 hours per week. He said that when he was not doing that he worked in [Occupation 2].
The applicant said that he [worked in Occupation 1] until 10 or 15 days after his arrest but that after that the police seem to be aware of him and pulled him over. He said that he lost his license due to fines and so went to work [for a business].
He said after that is not worked that sometimes [Mr A] helps him sometimes his parents do.
There is nothing to suggest there are motives other than to study that prompted the applicant’s travel to and stay in Australia or that he has any compelling need to travel to or remain in Australia.
The Tribunal notes that the applicant was in breach of his visa for about 300 days which the Tribunal views as a substantial breach. There is no evidence of other breaches.
The Tribunal notes that the applicant and his family have incurred expense in the applicant’s efforts to obtain an Australian education and to some extent that expense will have been wasted if the applicant is precluded from further study. This may represent an economic hardship to the applicant and his family. There is no evidence of hardship that may be caused by the cancellation of the applicant’s visa.
The applicant gave evidence, which the Tribunal accepts, that the cancellation of his enrolment came about because of the college closing. That is a circumstance that was beyond the applicant’s control.
The applicant further says that he was restricted from seeking a further enrolment due to depression that came on at about the same time as the college closed.
The applicant has provided evidence that he is doctor in India diagnosed him as suffering depression on the basis of telephone consultations. Documents obtained from [Dr B] for the specific purpose of addressing this question suggested the applicant was suffering from serious depression in May 2017 and later in March and April 2018.
There is no evidence that the applicant was assessed at other times.
There is nothing in the evidence to suggest that the applicant was not capable of study and the Tribunal is not satisfied that the applicant was suffering from a medical condition that prevented him from enrolling in another course once his enrolment was cancelled.
There is nothing in the applicant’s past or present behaviour towards the Department tends to suggest that his visa should be cancelled.
There is no evidence that there would be any consequential cancellations under section 140.
If the Student visa is cancelled, the visa holder will become an unlawful non-citizen.
He will need to apply for a bridging visa. He may become liable to detention under section 189 and to removal under section 198 if he does not get a bridging visa or leave voluntarily.
Future visa grants may be compromised by the cancellation of this visa and in particular, the applicant will come within the risk factors defined in Public Interest Criterion 4013. That will mean he will be restricted in lodging an application for another visa to Australia for 3 years after the cancellation of the Student visa.
There is no information before the Tribunal that shows that the cancellation would result in breach of Australia’s international obligations.
The Tribunal is not aware of any other factors relevant to the exercising of its discretion to cancel the visa.
The Tribunal has weighed the considerations set out above together and finds that, although the applicant suggests that the grounds for cancellation arose from matters beyond his control, namely depression, he has failed to demonstrate that despite that he was unable to comply, or more fully comply, with condition 8202.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Mark O'Loughlin
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.

[2019] AATA 5254

24 September 2019

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction