2309558 (Migration)

[2024] AATA 2112

2309558 (Migration) [2024] AATA 2112 (24 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Michael Terence Jones

CASE NUMBER:  2309558

MEMBER:Gabrielle Cullen

DATE:24 April 2024

PLACE OF DECISION:  Sydney

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 24 April 2024 at 5:17pm

CATCHWORDS
MIGRATION – cancellation – Student (Class TU) visa – Subclass 500 (Student) – Federal Circuit Court remittal – not enrolled in registered course – discretion to cancel visa – mental and physical health, change of subject area and successful completion of one course – short period of non-enrolment – serious illness and hospitalisation – bridging visa with no-study condition pending court review – return to study after condition removed – payment of fees and current course progress – hardship and mandatory legal consequences – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 376

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)

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 11 October 2018 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 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(b) on the basis that the applicant did not comply with condition 8202 which requires the visa holder (hereinafter referred to as the applicant) to be enrolled in a registered course.

3. The Tribunal received an application for review of the delegate’s decision from the applicant on 17 October 2018. The applicant attached the Department’s Notification of Cancellation under s 116 and their Decision record both dated 11 October 2018 which indicates that on 6 September 2018 the Department notified and invited the applicant to comment on the intention to consider cancellation of his Subclass 500 Student visa on the basis he had not been enrolled in a course of study since 22 June 2018. The applicant provided a response on 20 September 2018.

4. The applicant appeared before the Tribunal (differently constituted) via video on 23 October 2019  to give evidence and present arguments. The applicant was represented in relation to the application for review by his former registered migration agent.

5. On 25 October 2019 the Tribunal (differently constituted) affirmed the decision of the Department.

6. On 29 June 2023 the Federal Circuit Court remitted by consent the decision of the Tribunal (differently constituted) on the basis that it is affected by jurisdictional error because the Tribunal's finding that the report from a psychologist dated 14 September 2018 “does not conclude that the applicant could not undertake study in July 2018” demonstrates that it misunderstood, in a material way, the evidence provided by the applicant (namely, the psychologist’s report) which stated that:

   ·“various events in last year has significantly exacerbated [the applicant’s] mood and anxiety difficulties”;

   ·“the due date for his visa compliances correlates with a period of time during which he was unwell and impaired”; and

   ·“it is my clinical impression that [the applicant’s] periods of functional incapacity due to his mental health condition hampered his ability to meet his Visa requirements”.

7. The applicant attended a further video hearing before the Tribunal on 15 April 2024. His representative attended the hearing.

8. Further submissions were provided after the hearing on 24 April 2024.

9. For the following reasons, the Tribunal sets aside the decision under review and substitutes a decision not to cancel the visa.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 (Cth). 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?

11. 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);

    ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a); and

    ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

12. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course: condition 8202(2). At that time he was the holder of a subclass 500 visa valid from 22 May 2017 to 4 August 2021 where condition 8202 applied.

13. The decision record sets out that the applicant received a Notice of Intention to Consider Cancellation (NOICC) of his visa on 6 September 2018 as he had not been enrolled from 22 June 2018 to that date. The Tribunal is satisfied that the NOICC was validly issued.

14. On 20 September 2018, the applicant responded to the NOICC with a submission and a COE dated 12 September 2018 indicating enrolment in a Bachelor of [Subject 1] from 27 August 2018 to 13 August  2021.

15. The delegate found on 11 October 2018  the applicant had not been enrolled in a registered course of study 22 June 2018 to 11 September 2018. The delegate proceeded to cancel the visa on 11 October 2018.

16. The applicant confirmed in written evidence to the Department and oral evidence to the Tribunal that he was not enrolled in a course of study from 22 June 2018 but argued that it was only to when he commenced the Bachelor of [Subject 1] on 27 August 2018. As the Tribunal outlined at hearing, it appears the COE dated and issued on 12 September 2018 was backdated to 27 August 2018. The applicant accepted this evidence. He did not dispute that he had not complied with condition 8202(2) of his visa by not being enrolled from 22 June 2018 until the COE  with the course commencement date of 27 August 2018. PRISMS records also confirm the applicant was not enrolled in a course of study in this period.

17. Therefore, on the evidence, the Tribunal finds that the applicant was not enrolled in and did not have a Confirmation of Enrolment (COE) in a registered course or a full-time course of study or training from 22 June 2018 to 26 August 2018 inclusive while the holder of a Subclass 500 Student visa. Failing to maintain enrolment means that the applicant has not complied with condition 8202(2).

18. The Tribunal is therefore satisfied that the grounds for cancellation in s 116(2)(b) exist.

    Consideration of the discretion to cancel the visa

19. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

20. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedural Instruction ‘General visa cancellation powers’.

    Background

21. The applicant is a [Age] year old male from near Lahore in Pakistan. [In] May 2017 the applicant arrived in Australia to undertake a Diploma of [Subject 2] followed by a Bachelor of [Subject 2] at [University] from 26 June 2017 to  4 June 2021. His evidence at hearing was he did not commence the [Subject 1] studies and instead began studying a Diploma of [Subject 3] at [College 1], also in Sydney, from 17 July 2017 to 21 June 2018 which the evidence indicates he successfully completed. The PRISMS record confirms that enrolment in the [Subject 2] courses was cancelled and he successfully completed the Diploma of [Subject 3].

22. As to why he changed from studying [Subject 2] including at a bachelor’s level to studying [Subject 3] at a diploma level, in his 20 September 2018 submission he said he had no friends or family, he was lonely and became homesick. He claims it was hard to adjust to a new environment and culture and it  was suggested by his parents he take the support of hs cousins in Melbourne so he applied to be released from [University] to change his study to Melbourne. He also applied for refund. He also submitted the report of his psychologist, [Mr A], dated 10 July 2017 which he submitted to [University] to obtain a release from the course which happened although at hearing he stated he did not receive all his money back. [Mr A] opined that the applicant was suffering moderate stress, anxiety and depression and requested he be released from his studies in Sydney to move to Melbourne where his cousins live. At the 2024 hearing he was asked if that was the case why he stayed in Sydney and studied the diploma course with [College 1]. The applicant said his cousin in Melbourne instead put him in contact with a friend of his, [Mr B], who he began living with and he motived him to study. He said his stress and anxiety improved and he successfully completed the Diploma of [Subject 3] on 21 June 2018.

23. As noted above the applicant was not enrolled in a course of study from 22 June 2018 to 26 August 2018 inclusive. This is accepted by the applicant.

24. When asked at hearing why he was not enrolled in this period; he said he was always going to undertake a Bachelor of [Subject 1] but the education provider would not accept his enrolment until he had successfully completed the Diploma of [Subject 3].  The applicant said his non enrolment could also be explained as he continued to face mental health issues living in Australia and feeling homesick.

25. He also noted that in early August 2018 there was a small lump on his neck which he believed, at that time, could be cancerous and his GP at that time, [Dr C], on 11 September 2018 sent him to medical imaging. There is a record on file of a medical imaging request from [Dr C] on that date. A medical imaging report submitted on 14 August 2018 confirmed the applicant undertook a CT scan on that day for a lump in his neck and further investigation was recommended.

26. A psychologist report by [Mr D] dated 14 September 2018 noted that the applicant has been under his care for mood and anxiety difficulties and that there are mental health reasons which may have impaired his ability to carry out the required task including anxiety and depression. He submits that the loss of support when in Australia and investigation for cancer in his neck region have exacerbated his mood and anxiety difficulties. He submitted that these events has significantly exacerbated the applicant’s mood and anxiety difficulties; and that the due date for his visa compliances correlates with a period of time during which he was unwell and impaired; and the periods of functional incapacity due to his mental health condition hampered his ability to meet his visa requirements.

27. The Tribunal at hearing noted hs evidence he was able to work in the period of non-enrolment in 2018 and questioned why he could not have studied. He said he had to work to earn a living.

28. The applicant additionally claimed  that he was also unwell with fevers and night sweats during that non enrolment period form 22 June 2018. However, he did not know why and it was not until around October 2018 he was diagnosed with tuberculosis and admitted to hospital it was then determined that his previous fevers and the lump on the neck were caused by the tuberculosis. Records show he was admitted to [Hospital] from 26 October 2018 to 9 November 2018 and again from 15 to 18 Janaury 2019 due to his tuberculosis. There are a number of medical certificates indicating the applicant was  unfit for work and study from 4 October 2018 to 30 December 2018, as well as evidence of  numerous visits to his doctor in early 2019 and prescription of antibiotics in March 2019 and April 2019. There is documentary evidence he underwent scan again for tuberculosis in May 2019 at [Hospital]. He said due to these heath reason he could not study successfully in the second half of 2018 and first half of 2019. A letter from [Dr E] dated 15 October 2019 notes the applicant was diagnosed with extensive pulmonary tuberculosis in 2018 and he was treated for tuberculosis for 9 months. [Dr E] submitted that during this period the applicant had no family support and required psychological support. [Dr E] submitted that due to his diagnosis and regular hospital visits he was unable to study in that 9 month period.

29. A psychologist report by [Ms F] dated 10 October 2019 noted the applicant attended 4 sessions in March 2019 with  symptoms of anxiety, sadness and stress due to his health issues and homesickness as well as being concerned he has failed his parents who have invested so much in his study. She noted his closeness to his family, as did the applicant at hearing stating that due to bed wetting problems until 15 he did not sleep outside his home away from his family until his late teens.

30. He said he did not work for some months during this period in 2018 and 2019 due to the health issues.

31. As to his study of the Bachelor of [Subject 1] from  August 2018, the PRISMS record, academic record, applicant’s evidence and evidence from his education provider [College 2] dated 8 December 2023 indicates the following as to his course progress in the Bachelor of [Subject 1].

    ·He was enrolled from 27 August 2018 in this course but according to PRISMS enrolment was cancelled on 9 October 2018 when he varied his enrolment. The academic record indicates he was given 3 exemptions and was enrolled in 4 subjects but was given the mark AF for all 4. The applicant said that means attempt fail. He said he could not study due to his health issues.

    ·He said he was not enrolled again until 2 September 2019. There is documentary evidence from his education provider of approval of deferment on compassionate grounds dated 15 February 2019 from 21 Janaury 2019 to 3 May 2019.

    ·The academic record indicates the applicant passed 4 subjects in semester 3, 2019 achieving 2 credits and 2 passes. The education provider advised his attendance was 81%. When asked why he did not enrol until third semester 2019 he said because of his health issues.

    ·As to why he ceased studying on 17 January 2020 he said because his matter was refused by the Tribunal (differently constituted)  on 28 November 2019 and condition 8207, No study was placed on his bridging visa meaning he could not study. Movement records confirm that a no study condition was placed on his bridging visa on that day.

    ·On 28 August 2023 he again enrolled in the Bachelor of [Subject 1] to 6 December 2024. HI education provider confirmed enrolment in this period as does the PRISMS record. The applicant said following the FFC decision in June 2023 the no study condition was removed from his bridging visa. The movement record confirms on 18 September 2023 the new bridging visa issued did not have a no study condition attached.

    ·As to his course progress the applicant said at hearing he has to finish the course by the end of 2024 as the education provider will not extend his enrolment. He said he has studied five subjects in semester one, 2024, was able to name them and said that he is confident that he will pass these courses. He said he will receive the results shortly.  He said he will then have completed 16/24 subjects, 66.6% of the Bachelor of [Subject 1].

    ·He said he will then enrol in four subjects in each of semester 2 and semester 3 in 2024 and complete the course by December 2024. He gave credible evidence as to his knowledge of the course and his aim to complete it by the end of 2024, as well as  the importance of achieving the Bachelor of [Subject 1] to his future.

32. Following the hearing the applicant provided documentary evidence from [College 3] confirming the applicant’s enrolment in five subjects in semester one, 2024 consistent with evidence given at hearing. He also provided documentary evidence from the education provider that he has already paid $24,195.25  towards the Bachelor of [Subject 1] with $11,340 to pay for the last 8 courses to be completed in 2024.

33. The applicant’s representative also provided a number of submissions which the Tribunal has considered.

34. In making the below decision the Tribunal as also considered the anonymous dob-in received by the Department on 8 June 2018 which is protected by a s.376 certificate. The gist of the information provided is that the applicant came to Australia on a student visa in a streamline course where students cannot change their visa. It noted that has given false information that his mother is sick and he is going overseas to see her and therefore his course should be changed. It was submitted this is false and he did not leave Australia, received the fee from the university and has now enrolled in a cheaper course. As the source of the information is unknown, there is no reference to in any evidence given by the applicant to the Department, Tribunal or his psychologist as to his mother being sick as reason for changing his course; the Tribunal places no weight on this information in making its decision.

    The purpose of the applicant’s travel and stay in Australia, whether the applicant has a compelling need to travel or remain in Australia

35. The purpose of the visa grant was for the applicant to travel and stay in Australia for the purposes of study. The Tribunal accepts that the purpose of his travel to Australia was for study. It accepts his reasons why he did not continue with the Diploma and Bachelor of [Subject 2]. While it has concerns as to why he never even attended the [Subject 2] course; on changing the course he successfully completed a Diploma of [Subject 3] and then enrolled in a Bachelor of [Subject 1]. It accepts he is in Australia to complete a Bachelor of [Subject 1]. It accepts his reasons outlined above as to why there was a gap between finishing the Diploma of [Subject 3] and commencing the Bachelor of [Subject 1] from 22 June 2018 to 26 August 2018 inclusive. It accepts his evidence as to why he could not study in the second half of 2018 and first two semesters of 2019 and that he could not achieve course progress due to his significant health issues and other factors as outlined above. It accepts he could not study from 2020 to the first half of 2023 because a no study condition was placed on his bridging visa. It accepts that outside the above factors he has achieved course progress. In particular, the evidence indicates he has completed 11/24 subjects, but will achieve results studied in 5 subjects in the first semester of 2024 imminently and has a study plan to complete the course by the end of 2024. It accepts, while slow, and there are good reasons for this he is now achieving strong course progress. His payment of $24,195.25  so far in fees shows his commitment to this course and his study. The Tribunal accepts that the  purpose of the applicant’s stay in Australia is to study and complete this course.

36. It accepts there is a compelling need for him to stay in Australia and complete the Bachelor of [Subject 1]. It accepts his evidence that he has paid the not incosniderbale sum of $24,195.25  to study the course and he will complete it by the end of 2024.

37. The Tribunal gives this discretionary factor significant weight in favour of the applicant.

    The extent of compliance with visa conditions

38. There is no information before the Tribunal that the applicant did not comply with any other conditions on his visa.

39. While the Tribunal has found the applicant was not enrolled, it views the period of just over two months to be not extensive. While he changed from studying in a packaged course leading to a Bachelors of [Subject 2]; to a Diploma of [Subject 3], the evidence indicates he has been studying a Bachelor of [Subject 1].  

1. The Tribunal gives this discretionary factor weight in favour of the applicant.

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

2. As the applicant is currently studying, the Tribunal accepts there will be a degree of hardship if the visa is cancelled due to the legal consequences as outlined below. It also accepts he will forgo the money spent on the Bachelor of [Subject 1] course he is part way through and that he will not be able to achieve the Bachelor of [Subject 1] which he has indicated he will finish by the end of 2024.

3. The Tribunal gives this consideration weight in favour of the applicant.

   Circumstances in which the ground of cancellation arose

4. The ground for cancellation arose because the applicant was not enrolled in a  course of study from 22 June 2018 to  26 August 2018. The Tribunal accepts this arose due to mental health difficulties, concern the lump in his neck was cancerous, as he was suffering from tuberculosis with night fevers and tiredness but did not know it as outlined above.

5. The Tribunal gives this consideration weight in favour of the applicant.

   Past and present behaviour of the visa holder toward the Department

6. There is no evidence that the applicant has not been co-operative in his dealings with the Department in the past. The Tribunal gives this consideration some weight in the applicant’s favour.

   Whether there would be any consequential cancellations under s.140

7. The applicant claimed to be single with no dependants. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa was cancelled. The Tribunal gives this factor no weight.

   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

8. There are mandatory consequences in the case of the cancellation of the visa, including difficulties in obtaining any further visas.

9. If the visa is cancelled, the applicant may be subject to a restriction under s.48 of the Act and the applicant would have difficulties in obtaining any further visas in Australia, following the expiry of his student visa. Under PIC 4013 he also may not be granted a further visa for three years from the date of cancellation. The cancellation may also restrict the applicant’s future ability to  make a valid application for any visa other than those prescribed in reg 2.12. The applicant provided oral evidence to the Tribunal that he intended to comply with any lawful direction to depart Australia, and therefore the likelihood of the applicant being detained is remote.

   Whether Australia’s international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

10. The Tribunal has no evidence that Australia’s international obligations may or would be breached if the applicant’s visa was cancelled. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations, nor has the applicant applied for refugee status or invoked Australia’s protection obligations. At hearing the applicant said he did not fear return to Pakistan.

11. There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child (CROC) or that it would be in contravention of the Convention Against Torture.

12. The Tribunal gives this consideration neutral weight.

    Any other relevant matter

13. The Tribunal has considered the applicant’s circumstances individually and cumulatively. The Tribunal is satisfied that there are aspects that are significantly favourable to the applicant as outlined above.

14. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

15. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Gabrielle Cullen
    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.