2005289 (Migration)

2005289 (Migration) [2020] AATA 4595 (29 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2005289

MEMBER:Michael Biviano
DATE:29 July 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 29 July 2020 at 3:50pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – enrolment in a registered course ceased – reasons for non-compliance – partly beyond applicant’s control – family medical issues – financial hardship – Australian citizen wife –pending spouse visa application – 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

This is an application for review of a decision dated 13 March 2020 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 Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had not complied with subclause (2)(a) of condition 8202 of his visa as he was not enrolled in a registered course of study. 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 20 July 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.
Did the applicant comply with condition 8202?
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);
·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: 8202(2)(b);
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c); and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course for the period from 17 December 2018, until the cancellation of the visa on 13 March 2020.
The Decision Record of the delegate of the Department of Home Affairs on 13 March 2020, which was provided to the Tribunal by the applicant, confirms the Department cancelled the Student (Temporary) (Class TU) (Subclass 500) visa which was granted on 28 May 2018 and the reasons for the cancellation of the visa (Decision Record).
The applicant is [an age]-year-old Fijian national. The Decision Record confirms that the applicant came to Australia [in] February 2018 pursuant to a tourist visa to visit his uncle and aunt as a present for completing a [qualification] in Fiji. He was scheduled to return to Fiji [in] April 2018.
Whilst in Australia, he successfully applied for a Student – Vocation Education (TU 500) visa. As part of his visa application, he was to undertake a package of Courses at [College 1] including a [Course 1] and [Course 2]. The applicant commenced study in April 2018 and was to conclude his studies in April 2020.
The applicant gave evidence that he undertook first semester and successfully completed all 3 subjects that he studied in that semester. He claims that he studied 2 subjects in the second semester and failed them. He claims that he was unable to complete his studies because:
a.His grandfather whom he was close with became very ill and was hospitalised. His illness was serious and ranged from a number of ailments including:
i.Depression;
ii.Fluid on the lungs;
iii.Diabetes.
The applicant gave evidence that the applicant’s grandfather has been in and out of hospital, and this has resulted in his family, in particular his father, taking care of the applicant’s grandfather. The applicant gave evidence that his grandfather was first hospitalised in November 2018.
The applicant submitted to the delegate the medical report of [a named doctor] dated 10 February 2020, which confirmed that [the applicant’s grandfather] was examined on 30 November 2018 and he is very sickly, on medication and bedridden, and suffering from:
·Depression;
·Diabetes;
·Congestive cardiac failure; and
·CKD.
b.The applicant’s father lost his job as [an Occupation 1] in Fiji in part to look after the grandfather. The applicant was being supported by his aunt and uncle in Australia who were looking after him and meeting his living and accommodation expenses. His father was responsible for his tuition fees. He claims that his father’s loss of job caused difficult financial circumstances and an inability to meet his tuition costs. He claims that he had attempted to obtain employment to fund his tuition costs, but even after obtaining a casual job in July 2018 [in Occupation 2], he was not offered any shifts.
c.By reason of his family’s circumstances he became depressed, and he was unable to complete his assignments and pass his studies. He was unable to meet the tuition expenses for the third semester.
The applicant readily conceded that by reason of not enrolling in the third semester and not attending classes, he was aware that his enrolment in the Courses would be cancelled. The applicant accepted that his enrolment in the Courses ceased on 17 December 2018 and confirmed that he did not enrol in a registered course of study prior to the cancellation of the visa on 13 March 2020.
On 5 February 2020, the applicant received a Notice of Intention to Consider Cancellation (NOICC) of his visa.
The applicant obtained an extension of time within which to file a response and provided a response which included amongst other things:
a.Statement by the applicant (Statement);
b.Counsellor’s Report; and
c.Medical prescriptions from [Doctor A] for the antidepressant Lexapro.
The Statement provided:
I [name] of [address] hereby state that I came to Australia on a tourist visa and secured a student visa with an intention to continue my studies for a better career path. I enrolled in [Course 1] at [College 1]. However, I had to skip my studies due to homesick, grandfather’s sickness and financial hardship. I was very depressed because of those reasons. Luckily, my wife and her parents provided me emotional supports. I am recovering from my trauma with their supports.
If my visa is cancelled, it will affect my career path which I am ambitious for and my wife also will be in depression as we both would like to build our happy life in Australia. My family members and my wife’s family members will be emotionally affected.
I am aware that I did no keep my enrolment due to problems that I have gone through. However, now I am planning to resume my studies so that I can reach my goal.
Even though I did not follow the student visa condition unintentionally, I would like to assure the Department that I would follow all the conditions set out by the DHA form now on.
I would be grateful to the Department, if the department does not cancel my visa and give me an opportunity to continue my studies so that I can build up my career path and to live with my wife.
The Counsellor’s Report was prepared by [a named] counsellor/social worker, having consulted with him on 7 February 2020. The Report relevantly provided that:
[The applicant] is a young man from Fiji, born and brought up in Fiji. He arrived in Australia [in] Feb on a tourist visa. He later decided to study, securing student visa on the 18^th of May 2018 to study [Course 1] at [College 1].
[The applicant] mentioned he joined the course with great hope and enthusiasm. However, during his course of study, he encountered psychological condition due to complex personal and educational related issues. [The applicant] stated that his first few weeks was a disaster as he was unable to cope with change, being in new environment with little or no much social support and communication barrier, feeling homesick. [The applicant] said to me that it all impacted on his physical and mental wellbeing. He said he received little or no support from his college.
He then decided to change his study. He intended to continue his [studies] which would allow him to improve his language skill and the ability to understand the education system over here and to improve his communication skills.
[The applicant] became teary, when mentioning the trauma he underwent in attempting to make the right decision and working hard to overcome his depression, In the event he got very depressed, having failed to achieve his ambition. He was unable to make informed decision. He became very lethargic and house bound.
He further states that he was losing all hopes, had very low self-esteem. The news of his grandfather becoming sick and his father losing his job further contributed to his level of depression. He reported feeling hopeless as the chosen course was to set his career path for better future. He was in real dilemma, what he should do, completely confused, unable to think properly, depressed, fearful; he was feeling hopeless for lack of support and direction.
Undoubtedly, all the above issues contributed to his emotional instability, affecting his capability in coping with his studies, leading to nonattendance of his studies.
[The applicant] said that he got lucky when he met his wife [named] in July 2018; he said he started gathering some hope, however he was unable not to relate his problems to her, for the fear of rejection. He continued to see her more often and later got married to her [in] September 2019. He mentioned to me that his [wife] is an Australian citizen, born and brought up in Sydney, but her parents come from Fiji, it was easier for him to relate with her family as they come from same cultural background.
[The applicant] said post marriage he started to take advice from his wife about his studies and future direction, He said he began to see the brighter side of life, he said he is glad that his father regained his employment and is assured of financial support if required.
[The applicant] said he is proud to mention that he is lucky to have such a caring partner. She is encouraging him to continue with his studies in the course which he initially chose so that he will gain the ability to continue studies related to his field of choice.
[The applicant] has now decided to reassume his studies to match with his ability to cope.
He said he is glad that he is now able to rebuild his confidence with the support from his spouse. With her support he is able to continue to work on his career path by completing his studies in Australia.
He mentions that sadly, all his plans are currently in limbo, after he received the notice of intention to consider cancelling of his student Visa from the Department of Home Affairs dated 5^th of February 2020. He mentioned he and his wife both became panic to receive such unexpected news. They are unable to cope in handling the situation. Although his in‑laws are providing them with lot of moral support and reassurance.
According to [the applicant], he misunderstood the visa condition; he was under the impression that he is able to restart his studies within the stipulated time frame of the visa expiry period. He said his student visa is valid until June 2020. He reported, he is asked by the Department to respond within 5 days of the receipt of the notice, He once again stated that ever since he got the notice, he and his wife became very anxious and depressed. He said his [wife] is having panic attacks, not able to sleep as she is anxious of their future, due to the uncertainty. He said he is still hopeful and plans to rejoin his studies as decided.
Examination and Diagnosis:
[The applicant] presented with persistent anxiety, chronic depression, and recurrence of post‑traumatic stress disorder from a complex life situation. [The applicant] reported experiencing disturbed sleep, severe social withdrawal and isolation, markedly diminished concentration.
[The applicant] kept repeating that in the past his depression impacted on his studies, having interruption with his studies, suffering significant social deterioration, frequent fear of failure due to low self-esteem and depression.
[The applicant] during the phase of his depression had very limited social contact and reported to be very isolated from the outside world; his only support was his family members back in Fiji and known relatives in Sydney.
[The applicant] stated, after his marriage, he gradually recovered from his depression, with the emotional support he received from his wife.
Currently, his anxiety level has relapsed. Noticing deterioration in his emotional condition, he was advised by his family and spouse to seek counselling.
Current Summary of Opinion Post treatment sessions:
The information I obtained from [the applicant] and his [wife] and my assessment of his depression and anxiety; I believe that he will be able to perform better with further counselling and therapy and with proper direction.
[The applicant]’s psychological treatment will include Cognitive Behavior therapy, Psych‑education strategizes, slow breathing technique, improving sleep activities, meditation, walking and compliance with the recommended routine.
[The applicant] is advised to seek counselling and support to address the episode of his anxiety and depression.
On 7 February 2020, the applicant obtained a letter of offer to enrol in a [Course 3] from [College 2]. The applicant gave evidence that in early 2020, he was in a better position as he had support from both his wife and in‑laws who were prepared to help him financially in undertaking his studies.
He gave evidence that he had tried to enrol in his previous college but they refused to allow him to enrol.
The applicant conceded in evidence that he was not enrolled in a registered course of study for the period from 17 December 2018, until the cancellation of the visa on 13 March 2020, being a period of more than 14 months. By reason of not being enrolled in a registered course of study, he did not meet condition 8202(2)(a) of his visa.
On the evidence before the Tribunal, the applicant did not maintain enrolment in a registered course of study for the period from 17 December 2018, until the cancellation of the visa on 13 March 2020. Accordingly, the applicant has not complied with condition 8202(2)(a) of his visa. As this was a condition that was attached to his visa, the applicant therefore breached a condition of his visa, and the visa is liable to cancellation under s.116(1)(b) of the Act.
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 purpose of the visa holder’s travel and stay in Australia, and whether the visa holder has a compelling need to travel or to remain in Australia
The applicant gave evidence that he came to Australia to study and undertake the Courses as discussed above.
As discussed above, the applicant studied for a short period of time and has not been enrolled in registered course of study from 17 December 2018.
The Tribunal accepts that the applicant came to Australia for the purpose of studying in Australia.
Whilst the applicant intended to study a [Course 1] and [Course 2], he struggled with his studies in or about October 2018 for various reasons as discussed above.
As discussed above, since coming to Australia, he has enrolled in but unsuccessfully studied the [Course 1] and his enrolment in the [Course 2] at [College 1] was cancelled.
The applicant made no attempt to re-enrol, claiming that he was depressed and he had inadequate funds to enrol due to his father losing his job as [an Occupation 1] in Fiji to look after his grandfather.
The applicant was not enrolled for a long period of time of more than 14 months before the cancellation of his visa. The fact that he was not enrolled was due to in part to lack of finances, which was a matter that was his responsibility and partly due to his depression which was not within his control. However, the Counsellor’s Report does not state that his depression was so severe that the applicant was unable to study or otherwise enrol in a new course of study and defer his studies. Nevertheless, the applicant gave evidence that he was too depressed to study.
The gap in studies has revealed an intention not to study for a period of time while he was here in Australia.
The applicant intends to continue studying in Australia in the future. The applicant has obtained a letter of offer and is confident he will obtain an enrolment for [Course 3] at [College 2].
The applicant gave evidence that he is very keen to complete his qualifications so that he return home with a bachelor’s degree, as it will provide him with an opportunity to work in [a specified] field back home. He gave evidence that his wife’s family will support him financially to help him obtain his qualifications.
Having regard to the applicant’s evidence and his conduct during his stay in Australia, in that he has continued to study during the time he has been in Australia, the Tribunal accepts that the applicant has travelled to Australia for the purpose of studying and he intends to study in the future, but his gap in studies revealed an intention not to study for a period of time.
For these reasons, the Tribunal gives these matters some weight towards the visa not being cancelled.
The extent of compliance with visa conditions
The applicant was not enrolled at the appropriate level course for the period from 17 December 2018 until the cancellation of the visa on 13 March 2020. Therefore, the applicant has not complied with condition 8202(2) for a long period of time. The non‑compliance with condition 8202(2) for such a long period of time may weigh towards cancelling the visa unless the Tribunal accepts his reasons for non-enrolment or finds he was not responsible for the reason of non-enrolment.
As discussed above, the applicant’s non-compliance with the visa condition relates to his grandfather’s ill health, which contributed to his father to losing his job to look after him and spend monies on his grandfather’s medical care, resulting in poor financial circumstances and an inability to meet his tuition costs. The applicant claims that his father is [an Occupation 1], who was on a modest income of F$20,000, which equates to approximately A$18,000, to meet his family’s living expenses and pay the tuition expenses for the applicant.

Further, the applicant claims that at the time he was suffering from depression, which appears to have been brought on by his grandfather’s condition, with whom he was close, and homesickness. When questioned whether he obtained medical advice at the time in November 2018 and through 2019, during the period he could not study, he claimed that he had inadequate funds to seek medical treatment.
Since gaining medical attention earlier this year, he has been prescribed antidepressants and he has tendered his pharmacy scripts from [Doctor A] dated 9 February 2020.
The Tribunal accepts, based on the corroborating evidence submitted and his evidence, that he was in a state of depression which would have impacted on his ability to study during late 2018 and 2019.
The Decision Record and the applicant’s evidence do not reveal that he was in contravention of any other visa condition. The Tribunal finds that apart from the matters before this Tribunal, there are no other matters raised about the applicant not being compliant with his visa.
The applicant in evidence confirmed that he knew that he was in breach of his visa. Visa holders who hold a student visa are aware that one of the main conditions of the visa is that they must be enrolled in a registered course of study at the appropriate level and that they are responsible for ensuring they are enrolled in a registered course of study.
The Tribunal understands the applicant’s reasons for not being compliant with the visa, where the applicant was aware that he would be in breach of his visa by not being enrolled in a course of study, and accepts that those reasons were in part beyond his control.
Having regard to these matters, the Tribunal gives these matters some weight towards the visa not being cancelled.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal asked the applicant if he or other members of his family would suffer hardship if the visa was cancelled.
The applicant gave evidence that if his visa was cancelled, it would cause him and his family a substantial degree of hardship as:
a.He would return to Fiji without any qualifications and he would be unable to gain employment back home where there is a lack of jobs; and
b.He was married to his wife in July 2019 who he met here in Australia and his wife has been a great source of support. She is not Fijian. She works in [Occupation 3]. If he was to return to Fiji, his wife would be unable to gain work as there is no demand for [Occupation 3] and she would struggle to live in Fiji not knowing the native language. He claims that if the visa is cancelled, he may lose his wife.
The applicant has made a Combined Partner (UK 820/BS801) visa application to remain permanently in Australia with his wife. The cancellation of the visa may impact that application.
The Tribunal notes that the applicant has not completed any Courses and he will return home to [his home country] empty-handed if the visa is cancelled. Further, the Tribunal accepts that there will be some hardship caused to the applicant and his family if the visa is cancelled, in the cost of tuition fees that have been paid for the last 2 years and his prospects of employment in Fiji will be weaker without obtaining academic qualifications. However, that is not the purpose of the visa.
The Tribunal notes that while the cancellation may have an impact on the Combined Partner visa application, that impact is not determinative. The Tribunal also finds that there is nothing preventing the applicant returning home to Fiji and bringing his wife and studying back at home.
In any event, the Tribunal finds that these matters may be the consequences of the visa cancellation, but they are not matters that would on their own constitute an overwhelming degree of hardship sufficient to weigh against cancelling the visa.
The Tribunal considers that the above matters give marginal weight towards the visa not being cancelled.
Circumstances in which ground of cancellation arose
The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.
The applicant gave evidence as to the circumstances that led to the cancellation of the visa as set out above.
Ultimately, the responsibility regarding enrolment rests with the student.
The applicant knew and was aware that by not being enrolled in a registered course of study, he would be in breach of condition 8202 and that his visa may be cancelled.
The primary responsibility of the applicant under the visa is to be enrolled and undertake a registered course at a level appropriate to his visa. The applicant was not enrolled in a registered course at an appropriate level for a period of more than 14 months, which is a long period of time to be in breach of the visa.
The Tribunal has considered the applicant’s explanations for why he was not enrolled in a registered course of study at a level appropriate to his visa for such a long period of time and therefore in breach of condition 8202(2). The Tribunal has accepted in part that those circumstances were beyond his control, or circumstances that provided a reasonable explanation for not being enrolled at the appropriate level of course for such a long period of time. The Tribunal gives this matter some weight towards the visa not being cancelled.
Past and present behaviour of the visa holder towards the Department
According to the Decision Record, there was no information before the Department indicating any specific matters of relevance regarding the applicant’s behaviour towards the Department. The Tribunal gives this factor marginal weight towards the visa not being cancelled.
Whether there would be consequential cancellations under s.140
As the cancellation of the visa does not affect the visa of any other person, this matter is not relevant in this application and the Tribunal gives this no weight towards the visa not being cancelled.
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
If the Tribunal decides to affirm the decision to cancel the visa on these grounds, then the applicant will become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, pursuant to s.48 of the Act, the applicant will have limited options to apply for further visas in Australia, so he would need to depart Australia and apply from overseas for most types of further visa.
Further, if the Tribunal decides to affirm the decision to cancel the Student (Temporary) (Class TU) visa on these grounds, then the cancellation will come within the identified risk factors to make the applicant meet public interest criterion 4013, so if the applicant decides to apply for a new visa from overseas if he has to depart Australia, then that application may not be approved within the next 3 years.
However, these are the intended consequences of the legislation when a visa is cancelled on these grounds.
The applicant has made a Combined Partner visa application which he will not be prevented from pursuing even if the visa is cancelled.
The applicant gave evidence that if the visa remained cancelled, he would return to Fiji, and therefore there is no indication that he would become unlawful or be subject to detention.
Accordingly, the Tribunal gives this factor marginal weight towards the visa not being cancelled.
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
This matter does not appear relevant in this application as the applicant gave evidence that if the visa remained cancelled, he would return to Fiji, and he did not give any reasons as to why he could not return to Fiji, and he has not made any claims that relate to this consideration. Accordingly, the Tribunal gives this factor no weight towards the visa not being cancelled.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
This matter is not relevant in this application as the cancelled visa is a temporary visa and the Tribunal gives this factor no weight towards the visa not being cancelled.
Any other relevant matters
The Tribunal is not aware of any other relevant matters which will impact whether the visa ought to be cancelled.
Conclusion
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 500 (Student) visa.
Michael Biviano
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.

[2020] AATA 4595

29 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Breach

Intention

Remedies