Andika (Migration)

[2019] AATA 6056

Andika (Migration) [2019] AATA 6056 (2 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jeffrey Andika

CASE NUMBER:  1826915

HOME AFFAIRS REFERENCE(S):           BCC2018/746561

MEMBER:Peter O'Farrell

DATE:2 October 2019

PLACE OF DECISION:  Melbourne

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 02 October 2019 at 4:33pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – discretion to cancel visa – factors for and against cancellation – significant period of non-enrolment – study, health, personal and family issues – mental health and treatment – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 September 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant has not been enrolled in a full-time registered course and does not meet the requirements of conditions 8202(2)(a) of his visa.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 12 July 2019 to give evidence and present arguments.

5. The Tribunal also received oral evidence from Melissa Adela, the sister of the applicant.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages although at the commencement of the hearing, the applicant stated that his preference was for the hearing to be conducted in English and that if necessary, that he would call upon the interpreter for assistance.  The Tribunal began to explain the process of the hearing in English and it became apparent to the Tribunal that the services of the interpreter would be of assistance.  The hearing was conducted with the assistance of the interpreter except that Ms Adela stated that she did not require the assistance of an interpreter.

7. The applicant was represented in relation to the review by his registered migration agent.

8. 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

9. 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?

10. 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).

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

12. At the hearing, the applicant stated that he had breached his visa condition in relation to enrolment.

13. 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

14. 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, whether the visa holder has a compelling need to travel to or remain in Australia

1. The applicant first came to Australia in February 2011 to undertake a foundation year and Bachelor of Engineering at RMIT.  He stated that he completed his foundation year but his results did not meet the entry requirements for the bachelor’s course.

2. After receipt of the NOICC, the applicant enrolled in a Bachelor of Hospitality Management.

3. Upon cancellation of his visa, his bridging visa did not permit him to study and he subsequently withdrew from the Bachelor of Hospitality Management course.

4. He stated that he wishes to complete a bachelor’s degree in the hospitality field at Melbourne Polytechnic.

5. The Tribunal finds that the failure of the applicant to maintain enrolment is not consistent with the purpose of the applicant’s travel and stay in Australia for the purpose of study.  The Tribunal give weight to this factor in favour of cancellation of the visa.

   ·the extent of compliance with visa conditions

6. The applicant was granted a TU500 visa for the purpose of study.  The study visa program provides an avenue to allow non-citizens and non-permanent residents to study in Australia.  In order to be granted and remain compliant with student visa obligations, the visa holder must maintain enrolment.

7. The applicant has not complied with the condition attached to his visa as he has not was not enrolled in a full-time registered course of study between 3 August 2017 and 27 June 2018.

8. The Tribunal consider that the breach of condition 8202(2) here is significant, having been for a lengthy period however for reasons explained below in relation to the mental health of the applicant, the weight given to the lengthy breach of condition 8202 is reduced as a factor towards the visa being cancelled.

9. The Tribunal finds that the applicant appears to have complied with his visa conditions apart from 8202.  The Tribunal gives some weight towards the visa not being cancelled in this respect.

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

1. In his response to the NOICC, the applicant stated that it would be hard to explain his current situation to his parents, although based upon the evidence of the applicant, it is apparent that he has subsequently explained his current situation to his parents.

2. He also stated in the response to the NOICC that he was in a serious relationship which would be affected if he was required to return to his home country.  He did not refer to this relationship in subsequent materials submitted to the Tribunal or in evidence at the hearing. 

3. The applicant gave evidence, as did Ms Adela that their parents were seeking to migrate to Australia and that if he was required to return to his home country, that this would put him in a difficult position.

4. I accept that there would be some hardship to the applicant and his family if the visa remained cancelled, and I accept that there may be some difficulties for the applicant with his family. However, I do not accept, on what he has said and the information before me, that such hardship is significant and I give this only little weight towards the visa not being cancelled.

• circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. 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

1. The grounds for cancellation arose because the applicant failed to maintain enrolment in a full-time registered course of study.

2. The applicant described difficulties that he had in his studies and had difficulties assimilating into his classes. 

3. He stated that he could not make friends as he could not speak the same language as his class mates 

4. He stated that he sought assistance from teachers and counsellors but was given limited help and felt isolated.  He stated that he felt depressed and did not let his family know of his circumstances because he was embarrassed and did not want to disappoint them.

5. He stated that he missed his semester examination due to a car accident and that his education provider did not allow him special consideration or a deferment to sit supplementary examinations.

6. He stated that in August 2017 he subsequently enrolled in commercial cookery course and that he began that course.  He stated that the course was subsequently cancelled.   

7. He stated that he had fell into depression and had suicidal thoughts and that was when he realised that he really needed help.  He stated that his condition became worse when he learnt of a terminal illness and death of a close uncle and the decline of his father’s business.

8. He stated that he sought the help of a professional counsellor in March 2018.  He stated that the doctor helped him to encourage him to talk to his family which he subsequently did.  With the assistance of his family, the enrolled in another course.

9. The applicant provided a medical report from a Dr Wong dated 29 June 2019.  This report confirms that the applicant has been receiving counselling services from Dr Wong since March 2018.  Significantly this was before the date of the NOICC on 22 May 2018.  The report states:

   At the time when I first saw Mr Andika, he presented himself as a depressed individual who had experience symptoms of anxiety disorder, particularly insomnia associated with mood disorder.  To effectively resolve his emotional conflicts, I outlined a treatment plan for him and suggested that he should undergo treatment and receive support counselling for his mental condition.  He demonstrated his desire to resolve his emotional and personal difficulties by attending his appointments regularly and adhering to the treatment plans accordingly.  His response to counselling has been positive.  However, due to the chronicity of his condition, Mr Andika requires ongoing support, monitoring and treatment.

10. Dr Wong diagnosed adjustment disorders with mixed anxiety and depressive mood.

11. Dr Wong reported that the applicant had been trying to reshape his life and to improve his health by reducing alcohol consumption and going to the gym.

12. At the hearing, the applicant stated that he is currently doing well with his health situation and that he intends to continue to see Dr Wong.

13. The Tribunal is conscious that mental health conditions can be debilitating and can seriously impact upon a person’s ability to function.  In the case of the applicant, the report of Mr Wong states that ‘due to his unstable mental conditions, Mr Andika failed to comply with his student visa conditions.’  The Tribunal is prepared to accept that the applicant’s circumstances giving rise to the cancellation were beyond the applicant’s control due to his mental condition as reported by Mr Wong.  The Tribunal finds that the medical report of Dr Wong is consistent with the evidence of the applicant who explained the difficulties that he has faced with mental health and the impact that this has had on his ability to study and comply with his visa conditions.  The Tribunal finds that this is a very weighty factor in favour of not cancelling the applicant’s visa.

• past and present behaviour of the visa holder towards the department

1. There is nothing to suggest that the behaviour of the visa holder towards the department has been problematic.  I give this some weight in favour of the visa not being cancelled.

• whether there would be consequential cancellations under s.140

1. There would be not consequential cancellations under section 140 as a result of cancellation.

• 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

1. The Tribunal is mindful that the applicant could become an unlawful noncitizen and detained and removed from Australia, and it may be difficult to be granted further visas, and he may be subject to a three-year exclusion period unless relevant Public Interest Criterion is met.

2. It is unlikely however that the visa applicant will be detained but rather provided with a time-limited period in which he can leave the country or apply for review of the decision.

• 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

1. The circumstances of this matter are not such that would engage Australia’s international obligations.

• if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

1. Not relevant.

• any other relevant matters.

1. The applicant was asked during the hearing whether there were any other relevant matters that he wanted to bring to the attention of the Tribunal.  I have carefully considered the evidence of the applicant but I find he has not provided any other relevant matters that go to the visa not being cancelled.

   DECISION

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

   DECISION

3. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

   P. O'Farrell
   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.