1921486 (Migration)

1921486 (Migration) [2020] AATA 3307 (17 June 2020)
Corrigendum
DIVISION:Migration & Refugee Division
CASE NUMBER:  1921486
MEMBER:David McCulloch
DATE OF DECISION:  17 June 2020
DATE CORRIGENDUM
SIGNED:27 August 2020
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

1. The word “affirmed” at paragraph 5 should be replaced with “set aside” so that the sentence is as follows:
· ‘For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.’

David McCulloch
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1921486
MEMBER:David McCulloch
DATE:17 June 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 17 June 2020 at 9:10am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course ceased – limited academic progress – multiple health conditions – lengthy gap in enrolment – restriction on bridging visa limiting study – decision under review set aside
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, 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

The applicant is a national of the United States of America, born on [date]. The visa that has been cancelled was granted on 24 October 2015 for a stay period until 15 March 2020. That visa was subject to condition 8202.
On 30 May 2019, the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he ceased to be enrolled in a registered course from 14 March 2018. The applicant provided a written response to the NOICC on 24 June 2019. On 1 August 2019 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa. The applicant seeks review of the delegate’s decision.
The delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course. The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.
The Tribunal exercised its discretion to hold the hearing by telephone which was held on 2 June 2020. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The applicant was represented in the hearing by his registered migration agent.
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 Migration Act 1958 (the Act), the visa may be cancelled. This is an application dated 5 August 2019 for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Act.
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 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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course.
The applicant provided a copy of the delegate’s decision to the Tribunal which indicates that he has not been enrolled in a registered course of study since 14 March 2018. The applicant did not disagree with this in the hearing.
There is nothing before the Tribunal to suggest that the applicant was a holder of a Subclass 560 or 571 (School Sector) visa as a secondary exchange student, thus the applicant’s obligation under condition 8202(2) is to be enrolled in a registered course.
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 to exercise its discretion to cancel the visa.
There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 of the Act (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non-refoulement obligations; and any other relevant matters.
The applicant provided the following detailed Statutory Declaration to the Department outlining what he claims are extenuating circumstances beyond his control concerning his studies and enrolment. Various documents are attached which are referred to in the Statutory Declaration (not corrected for spelling or grammar):
1.   I am the holder of a United States of America valid passport with an expiry date [in] 2025.
2.   On 24 October 2015, I was granted the Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa to study the [Course 1] with [University 1].
3.   [In] January 2016, I arrived in Australia on this visa to commence my studies.
4.   In March 2016, I first started in the [University 1] [Course 1] course in the first semester of 2016. I was enrolled on a fulltime load with four subjects, namely: [Subject A] 1, [Subject B] 1, [Subject C] and [Subject D] 1. I struggled with the [Subject A] 1 as it was the main course and the heaviest load, covering topics such as [topics], and the like. As a result, I was not able to take the next course named '[Subject A] 2' in the next semester, and [Subject A] 1 is only offered in Semster 1 of each year. The faculty excused me from taking a full course load in the semester 2 of 2016, and I was required to complete the rest of the subjects.
5.   At the end of Semester 1 of 2016, I passed the [Subject B] 1 and the [Subject C] 1 subjects. However, I did not pass the [Subject A] 1 and I the [Subject D] 1 subjects. This has resulted in an Academic progression caution in [Course 1] under program rule [specified].
6.   [In] June 2016, I departed [Australia] to [City 1], USA to visit my parents. returned [in] July 2016.
7.   In semester 2 of 2016, I was enrolled in only two subjects, namely [Subject B] 2 and [Subject C] 2. I passed the latter. However, I did not pass one of the tests in the [Subject B] 2, and I did try a supplement for it at the end of the semester, though it was not successful. I was approved for a conditional re enrolment following show cause in [Course 1] under program rule [specified].
8.   [In] January 2017, I travelled to [City 1] to visit my parents. During this visit, my parents had thought to introduce me to a girl from [Country 1], hoping that perhaps it might be able to become something more.
9.   From [City 1], I then travelled to [Country 1] from [in] January to visit my grandmother who is very dear to my heart and had a short introduction with the girl recommended by my parents in [City 1] and family in [Country 1]. I then returned to [City 1] for a short while and returned to [Australia] [in] February 2017.
10. I had spoken with the girl, and, after departing [Country 1], I corresponded with her, and she seemed like a very nice girl. I was not in a hurry, especially given everything else occurring at the time, but I was hopeful that we could at least be friends, perhaps that it might grow into something more over time.
11. Around mid or end of February 2017, I commenced semester 1 of 2017, during which time I had to make a 'show cause' application to be allowed to make further enrollment. I did so to proceed to the first semester of 2017. It meant that I had to take the [Subject A] 1 subject again. So, in Semster 1 of 2017, I was enrolled in the two that I did not pass ealier, which are [Subject D] 1 and [Subject A] 1. I passed the former but did not pass the latter.
12. Though I tried my best, I could not pass. As a result, I had to make another show cause application, which was refused. I made an internal appeal of this decision. I then was allowed to go through semester 2 of 2017, while waiting for the final decision of the appeal.
13. [In] June 2017, I departed Australia to visit my parents in [City 1] and returned to [Australia] [in] June 2017.
14. Upon my return, I continued my studies for Semester 2 of 2017 where I was attending and studying two subjects [Subject D] 2 and [Subject B] 2. I passed the [Subject B] 2 subject but did not pass [Subject D] 2. Thus, at the end of semester 2 of 2017, I successfully completed a total of 8 units for 5 subjects out of 20 units for 8 subjects. Thus, more than 50% of the load of the first year over two years was completed.
15. I experienced anxiety attacks, and I was saddened by my failures to pass these subjects. I felt ashamed and fearful about my parents being embarassed in the US if they found out. This situation made me more depressed.
16. On 31 October 2017, I went to see a psychologist, [Psychologist A], who found that I suffered from depression which affected my academic progress due to loss of concentration, anxiety, insomnia and lethargy. A copy of the Psychologist report dated 1 November 2017 is attached and marked with the letter 'A'.
17. On 28 December 2017, I departed Australia and went to visit my parents in [City 1] in the US, during which time, my parents and I went to [another country] for a week [in] January 2018. After that, I returned with my parents to [the US], stayed for a short while, before I returned to Australia [later in] January 2018 to commence Semster 1 of 2018.
18. By March of 2018, I learned that the appeal had been denied. As per the [University 1] policies, I would need to wait for at least one year before making a show cause application again in order to be allowed for further enrollment. An extract of the [University 1] policy in relation to 'showing cause' states:
5.6 Subsequent application
5.6.1 A person who -
(a) is required to show cause why enrolment should not be cancelled under section 5.3 or 5.4; or
(b) (i) is required to show cause why enrolment should not be cancelled under section 5.4; and
(ii) a show cause application is refused; or
(c) has had an appeal of the decision to refuse a show cause application under section 5.5 dismissed,
may not apply for permission to re-enrol until the same semester of the following year.
[University source deleted]
19. I was feeling rather depressed, anxious, and frustrated, and I was not sure how to proceed next. These feelings were something I had been coping with for some time.
20. In the that time interval, I was considering all my studying options and thought about whether to continue with [Course 1] if allowed to enroll again when the time came to apply for another 'Show cause', or whether I should pursue another area of study that is closer to my passion and expertise.
21. [In] June 2018, I departed Australia to [City 1] to visit my parents and returned around [a date in] June 2018.
22. During this brief visit, I tried to look for a researcher under whom I could continue my prior research. This matter relates to the research I had done for my Bachelor [course] in [topic] studies to a [further related course] and finally to my [earlier Course 2] in [topic area] from [a named institution]. I had thought that, in this interval, I might at least try to find, perhaps try to apply for such positions back in the United States as well. However, these efforts proved fruitless as well, as I have not been successful in this regard. It has added to my stresses, and I then decided to continue to pursue the [Course 1] program. Perhaps, it would be better to complete a lower level of qualification first to enable me to pursue this level of [course].
23. I am suffering and struggling with my health issues with which I was plagued that had continued from my first semester in 2016. These are detailed as follows:
24. When I first started, it had been difficult adjusting to a new country, as I had never studied out of the United States before. I had struggled to adjust to living here and settling into different conditions and routines. As a result, it was difficult at times trying to balance the adjustment with my studies.
25. Furthermore, I have encountered health problems. In the first semester of the first year of 2016 during the week before midterms, I fell severely ill, experiencing constant vomiting and diarrhea. Even after the vomiting stopped, I still experienced diarrhea regularly and found myself losing weight and being constantly short of breath for even such activities as walking. I did not recover from such until near the end of the semester. As a result of the illness, I was exhausted and low on energy. Therefore, I could not master the concentration and effort needed for my studies.
26. Also, throughout the two years, it had been difficult to cope with the stress and anxiety, as after the finals occurred in every semester from 2016 onward, I found myself losing a significant amount of hair, coming out in clumps every time I bathed. More than that, there was the constant pressure I was feeling in trying to finish the program as soon as possible, as my parents are supporting me financially, and I did not wish to prolong this financial burden upon them.
27. The stress and anxiety from these sources drained my ability to concentrate and also caused me to lose motivation; sometimes, it is difficult to want to do anything. As a result, I was adversely affected in being able to focus upon my studies.
28. Additionally, the biggest source of stress has been caused by internal family disputes back in [Country 1]. In 2016, my grandmother who is very dear to my heart, had fallen ill and hurt her back considerably. There were numerous arguments among my relatives regarding how to treat her, and the arguments eventually became quite acrimonious and vicious, compounding the worries about my grandmother's health, which continued on throughout to 2018, and though she has recovered to a degree, it is not enough, and there is still internal argument in my family about what would be best for grandmother next. Having spoken to her about it, my grandmother has always been very independent, and it is highly difficult for her to be incapacitated in such a manner that limited her movement because of her back injury. Furthermore, she has always been very active and attending college classes with her friends, along with activities like painting and dancing.
29. As of late, since 2018, my grandmother has stopped attending those activities. It is difficult and exhausting for her to leave her home for extended lengths of time, which contributes to her loneliness and my pain and anxiety on her behalf. These issues contributed most heavily to my stress and anxiety problems, and because I had to focus so much of my time upon dealing with these family issues, I was left exhausted and without sufficient energy or time to deal with my studies.
30. The internal problems have continued unabated, as my grandmother's health is still not well, and considering her age, her health is inevitably deteriorating.
31. Furthermore, my parents are also encountering stress of their own at home. Father is in the middle of a work transition, which is very chaotic. After more than 30 years as [a manager], there has recently been a change of ownership of the [business]. As a result, it came with a change of staff, and a new, younger [manager] was in the process of being selected. The new owners had asked father to resign. Thankfully, father had anticipated for some time and had been preparing since around February of this year. He was asked to become the [manager] of a new [business] that is in the process of being established. However, it means moving to another state, and with all the difficulties that come with it, and my mother has been struggling to help, combined with her own job. Mother has called and spoken to me about how there seems to be a lot of bad luck in the family lately, and she is near burning out herself. They have been looking at houses, and I was worried and stressed and trying to help them from my end since February about looking at potential houses to buy, but given the distance, there is only so much I can do upon that front.
32. Furthermore, there have been problems at home regarding electronics or systems malfunctioning, and I have tried to help from a distance, though my contributions are limited.
33. Around July 2018, my mother had tripped and injured her wrist. There was not much I could do other than advise her to tape her wrist and urge her to see a doctor, in case there had been bone fractures and the like. It thankfully did not become a long-term issue.
34. At the late end of August 2018, I then found out that father apparently had a heat stroke from working in the garden for too long. I tried to check up by phone and give what advice I could to him about resting. He did recover, at least. Regardless, since May, my parents have been very busy arranging to ship clothes and other belongings and the like to the new home, and combined with mother's job and maintenance issues at the old home, I am very worried about her and the stress that comes with it.
35. [In] December 2018, I departed Australia to [City 1] to visit my parents and returned to [Australia] [in] January 2019.
36. Around February or March 2019, my mother tripped and fell again and broke some of her front teeth. I was frantic and trying to find some dentist that was still open and available at that late time at night on the weekend. I found some I thought were available and called mother in hopes that it would help. Afterwards, she was able to see a dentist who had to make new teeth to attach them. I am relieved that it was resolved, though it did not help my emotional stability.
37. Around December 2018, I was devastated because the girl I was introduced to and was chatting to as my friend had stopped corresponding. I tried contacting her again a few times, but there was no response. It was only later that one of my [relatives] in [Country 1] had informed me of what had occurred. Apparently, one of my other [relatives] in [Country 1] had been feeling some jealousy and insecurity over the issue, about how if this girl and I might actually   develop a relationship, it would, for various reasons,   make their own [daughter] look inferior in comparison. It seems that my [relatives] told the girl some false, unflattering rumors about me, and thus she ended the contact. This development certainly added to my stress and depression. While I was not sure about the relationship, I did at least like her as a friend and wanted to at least continue corresponding with her, and certainly, I did tentatively hope it could have become more.
38. These problems combined together made it very difficult for me to perform to the best of my ability and concentrate on my studies, especially with the worries about my grandmother and the internal family disputes and upheaval at this time.
39. On 6 June 2019, I saw my Psychologist who recommended that I obtain a prescription for an anti-depressant and to join a gym for regular exercise, which I have done. Attached please find a copy of the Psychologist letter dated 10 June 2019. The letter is marked with the letter: 'B'.
40. My General Practitioner (GP) has written me the prescription of the anti-depressant. Attached is a copy of the prescription receipt marked with the letter 'C'. Also find attached a copy of the gym membership marked with the letter: 'D'.
41. Also please find attached a printout of my [University 1] Studies report, marked with the letter 'E'.
42. On 13 June 2019, I have applied for the [Course 3] program at [University 1]. A copy of the email is attached and marked with 'F' . To proceed with this application, I needed to apply for another 'show cause' application for a further enrolment.
43. On 20 June 2019, I have submitted the latest 'show cause' to allow me to re-enrol at [University 1] again for both the [Course 3] followed by the [Course 1] program. Please refer to the attached email marked with 'G'.
44. It is evident that the [Course 1] program is too stressful for me, and I could not cope with the workload, so I think instead I should go for the [Course 3] program first. It would be more prudent, as I wish to continue my studies to the [specified] level, which I would be more ready for it after the completion of the [Course 3] level.
45. If my application for the [Course 3] program is accepted, I am confident that I will be able to complete it successfully, because I have done [similar courses] before, and I am familiar with these more, and the workload would not be as difficult to cope with as the [Course 1] program.
46. I will also be going for more sessions with my psychologist to talk and thus ease my stress. I would like to proceed with the [Course 3] program going forward and complete it, to at least achieve something in this field and show some fruits for my efforts.
47. I seek that my visa not be cancelled, but rather that I am given a grace period to obtain a Confirmation of Enrollment Certificate for the [Course 3] first and then followed by the [Course 1] one.
48. I am keen to pursue my studies in Australia, it is just that my health condition has stopped me from progressing with the [Course 1] program and because it was a heavy load. Together, with all the emotional upheaval connected with my family matters, the relationship with the girl from [Country 1], I was unable to function and was withdrawing from all social and academic activities. I believe that once I am able to complete the [Course 3] level it will prepare me better for the [Course 1].

The applicant provided the following additional Statutory Declaration dated 1 June 2020, the day before the Tribunal hearing:
1.   I intend to study in Australia and hence have obtained a conditional offer to study [Course 3] at [University 2] Australia on 29 May 2020,
2.   To get a full offer letter and a confirmation of enrolment, [University 2] has told me that I need the condition 8207 waived by the Department of Home Affairs.
3.   Therefore, I wish to request the Department to waive the condition 8207 which is imposed on my current Bridging Visa E granted [in] August 2019.
4.   I had originally intended to gain a [Course 1 qualification] to complement my [Course 2] in [topic area]. It seemed to be a logical step, considering my [Course 2]. It would allow me to understand the entire spectrum, from the [specified research areas covered].
5.   I had trouble and struggled with the [Course 1]. However, I would like to try again, and before doing so, I think pursuing a [course] in a related field would help as a preparation. Thinking upon it, I do wish to continue my research from my time as a [Course 2] student. My background was a B.A. in [topic], proceeding with a [further related course] with a focus in [related field], followed by a [Course 2] in [topic area].
6.   I would like to continue my studies that built from my base in [topic], and [University 2] has excellent [related] courses. I feel that [University 2’s] [Course 3] would be a good complement to my previous educational background. [University 2] has lecturers who are leading experts in their field, and I could learn much from them and benefit from their experience. I also appreciate the small class size and customized approach. The aid in increasing my employability is also an important factor. The success coaches are another motivating factor, as I feel I need such guidance and help.
7.   The flexibility regarding what I study is also a motivating factor. I would like to continue research under a professor during my time in the [Course 3], and I think [University 2] will be able to advise and guide me in this matter. Hopefully, it would also serve as a platform for me to continue with future career aspirations upon completion of the [Course 3].
8.   Upon completing the [Course 3], I would like to try to the [Course 1] in [University 1] again, this time having more preparation. Even if not, the time at [University 2] will have been beneficial for my study and career aims.
9.   In this turbulent time, [this field] is especially critical, and so my studies in this field should continue. Hopefully, in the future, I would be able to contribute in in some way regarding [related] policy design and improvement. The current pandemic shows why it is necessary, and there is clearly room for improvement.
10. With my studies, I hope I can contribute to updating and optimizing [this policy field] so that if or when such an epidemic or pandemic occurs again, it can be swiftly contained and minimize the turmoil and impact upon people's lives and the flow of the global community. Combined with my [Course 2] in [topic area], I think I would be able to see both ends of the spectrum, from the [specified] side working [in a named area] and from [another] side working to [achieve another goal]. Specifically, I hope that the [required] research can be implemented into [a policy area]. I ultimately want to go into [specified areas].
11. I would like to work as a [specified occupation] with experience in the [specified area] from a [Course 1 level]. Given my background, I am aspiring to work for [specified] companies to analyze data from [types of research]. The [subject] tie into the [Course 3], along with addressing [topic areas], which do impact the implementation of [specified products]. The study of the [Course 3] in [University 2] will thus help me reach that aim.
Following the Tribunal hearing the applicant provided evidence of applying successfully to remove the no study condition on his bridging visa and evidence of enrolment in a [Course 3] commencing on 1 June 2020.
The following medical reports were provided to the Department:
·A psychological assessment by [Psychologist A] regarding the applicant dated 1 November 2017. The report notes that the applicant presented on 31 October 2017 in an anxious state and that he stated that he had been experiencing insomnia, lethargy, depressed mood, anxious thoughts, social withdrawal, decreased concentration, reduced motivation and appetite disturbance over the last 18 months. The report notes that the applicant stated these symptoms were connected to external stressors including fear that his parents would disapprove of his academic progress. [Psychologist A] notes that she believes that the applicant is suffering from depression which has been the primary cause of his inability to fulfil the academic requirements. The report notes that some symptoms have abated recently, and recommends that the applicant seek medical attention and counselling to ensure his full recovery.
·A psychological assessment by [Psychologist A] in regards to the applicant dated 10 June 2019. The report notes that this is a follow-up assessment to the assessment on 31 October 2017. The report states that the applicant again presented with the same symptoms as before, and an assessment indicate that these symptoms have been exacerbated over the past 18 months. It is stated that the applicant is in the ‘extreme severe’ range for stress, anxiety, and depression. It is noted that the deterioration is due to ongoing stressors. [Psychologist A] notes that the applicant is suffering from major depression. The report notes that [Psychologist A] explained to the applicant the importance of consulting a GP for trialling anti-depressants, and recommended that the applicant seek counselling and undertake an exercise programme.
In the days leading up to the hearing the applicant provided the Tribunal with the following medical reports and an MPs testimonial for the applicant:
·A letter from [a named Member of Parliament] dated 26 May 2020. The letter outlines the applicant’s circumstances and the history of the case. The letter states that [the Member of parliament] supports the application, and that there are extenuating circumstances which warrant leniency.
·A psychological assessment report by [Psychologist A] regarding the applicant, dated 27 May 2020. The report states that [Psychologist A] assessed the applicant on 31 October 2017, 7 June 2019, and on 26 May 2020 for a follow-up psychological assessment. The report notes that the applicant suffered stress-related illnesses in August and September 2019, and that this interfered with the applicant’s ability to undertake academic courses. The report states that the applicant is still experiencing symptoms of depression, stress, and anxiety but that stressors have abated recently and that he is not experiencing stress-related illnesses. Reference is made to the applicant trialling an antidepressant but stopping it due to negative side-effects. [Psychologist A] notes that she recommended that he return to his GP for a different medication. The report concludes that the applicant has a strong desire to do well in his studies and is willing to seek any required medical help.
·A letter from [a named doctor] at [a named health service] regarding the applicant, dated 25 May 2020. The letter confirms that the applicant was a patient of the practice from 29 March 2016 to 2 November 2017, and that the applicant attended seven consultations with GPs and one with a psychiatrist. The letter states that the applicant was treated for a stress-related illness, and that the applicant reports that the illness recurred from September to November 2019 and January to April 2020. The letter concludes by saying that the applicant reports that the effects of the stress prevent him from studying.
·A letter from [another doctor] regarding a referral to him for the applicant to receive a psychiatric assessment, dated 2 November 2017. The letter notes that the applicant experienced bullying and social withdrawal as a child, and that the applicant will be referred for psychotherapy and CBT. The letter sets out the applicant’s family background and upbringing. The letter states that the applicant reports no features of depression, panic, or anxiety. The letter concludes that the applicant is diagnosed with probably mild ASF, GAD, social anxiety, schizoid personality disorder, moderate stresses, and social isolation and struggling academically. The letter states that treatment will revolve around working with the applicant to overcome his ambivalence and to assist him in making decisions.
The Tribunal considers discretionary factors, particularly whether there are extenuating circumstances beyond the applicant’s control but explain his struggles with aspects of his study and his failure of enrolment after enrolment was cancelled.
The applicant has claimed that stress/mental health issues caused by a variety of factors are the core reason for problems with study and lack of enrolment.
The applicant progressed with his studies in the [Course 1] from January 2016 until the enrolment was cancelled in March 2018. The applicant passed some units but struggled with others and had to show two ‘show cause’ applications in terms of being able to progress with his studies. The second of these was denied, and the applicant appealed, eventually unsuccessfully, denial causing the enrolment to be cancelled.
The Tribunal accepts based on the medical evidence that the applicant has suffered from some mental health issues. These indicate a degree of fragility and vulnerability of the applicant. The Tribunal accepts that these mental health issues were contributing factors in creating difficulties in study. The Tribunal also considers that the applicant found some aspects of the [Course 1] inherently challenging.
The Tribunal does accept that the applicant was committed and earnest in seeking to progress with his [Course 1] despite some intellectual challenges with aspects of the course combined with his mental health issues.
The Tribunal would readily have concluded that extenuating circumstances beyond the applicant’s control as a result of his health issues caused him not to be enrolled for a reasonable period following the cancellation of his enrolment in the [Course 1] in March 2018.
The key issue that the Tribunal is concerned about is the fact that it has taken the applicant over two years to enrol in another course, the [Course 3] which happened in the lead up to and following the Tribunal hearing. This therefore means no enrolment in a registered course by the applicant from 14 March 2018 until 1 August 2019 when the visa was cancelled.
The applicant has provided evidence that he was confused about his options when his enrolment was cancelled. The applicant has also indicated that there was a restriction on his bridging visa in limiting his ability to study. The Tribunal considers that it should make some allowance for these factors. However, in relation to conditions on the bridging visa, the applicant at a much earlier time could have made an application to remove the study condition.
The applicant has provided medical evidence of a re-emergence of his mental health issues in the second half of 2019 in terms of him not being able to progress with his study at that point.
The applicant has indicated, and the Tribunal accepts, that the [Course 3] will be a less onerous degree than the [Course 1]. Given that the applicant progressed successfully with not insignificant components of his earlier degree, the Tribunal considers there is a reasonable likelihood that the applicant will be able to progress successfully with the [Course 3].
The Tribunal has some concerns about the applicant not taking advice from medical professionals on at least two occasions to seek ongoing counselling. The applicant sought medical attention only when he needed to demonstrate to his university, the Department or the Tribunal reasons for poor performance in aspects of study or to explain the reason for non-enrolment. The Tribunal accepts, however, the evidence of the applicant that there were financial impediments to this and that he did from time to time seek the services of Lifeline.
The student visa that has been cancelled has now expired, and therefore, if the visa is reinstated the applicant will have to apply for a new student visa on its merits.
The Tribunal accepts the not insignificant degree of hardship to the applicant if he is unable to continue with his desired studies in the [Course 3]. The Tribunal accepts hardship to the applicant if the visa remains cancelled in terms of his inability to apply for a range of visas for a not insignificant period and for a three-year exclusion to be applied.
There is no evidence that there is any individual attached to the applicant’s visa who would face cancellation consequential upon cancellation of the applicant’s visa. The applicant indicated in the hearing that there are no interests of children in Australia affected by the cancellation of the visa. The applicant indicated that he does not fear persecution or significant harm on return to the United States.
The Tribunal weighs key discretionary factors adverse and favourable to the applicant.
The key adverse factor to the applicant is that it has taken him over two years from his enrolment being cancelled to now enrolling in a [Course 3]. The Tribunal does accept that continuing mental health issues suffered by the applicant, a restriction on his bridging visa in terms of not being able to study, and a period in which the applicant was confused about his future study options. Nevertheless, the Tribunal is concerned at the not insignificant period of time that it has taken the applicant to determine his next steps.
However, the applicant has enrolled in and is on the cusp of commencing the [Course 3] which the applicant is likely to progress with. The Tribunal accepts that it will be a not insignificant hardship to the applicant if he is unable to undertake this course with a future goal to try again at the [Course 1].
In all of the circumstances, the Tribunal considers that the applicant should be given a chance to progress with his current imminently proposed course of study. Weighing discretionary factors, the Tribunal determines not to exercise its discretion to cancel the visa.
The Tribunal wishes to emphasise that this has been a finely balanced decision which could well have gone the other way, particularly considering the more than two year period in which the applicant was not enrolled or studied. In the future, the applicant should be put on notice that he needs to meticulously comply with his visa conditions.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.
David McCulloch
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.

[2020] AATA 3307

17 June 2020

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Immigration

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