AUFAR (Migration)

[2019] AATA 6429

AUFAR (Migration) [2019] AATA 6429 (29 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Hadyan Destya AUFAR

CASE NUMBER:  1828925

HOME AFFAIRS REFERENCE(S):          BCC2018/3915030

MEMBER:T. Quinn

DATE:29 October 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 29 October 2019 at 8:43pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Diploma of Information Technology – not enrolled in registered course – family health issues – study difficulties – lack of evidence of mental health issues – continued to work – not genuine student – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 September 2018 made by a delegate of the Minister for Home Affairs (‘the delegate’) to cancel the applicant’s Subclass 500 (Student) visa (‘the current visa’) under section 116(1)(b) of the Migration Act 1958 (‘the Act’).

2. The applicant has been in Australia since August 2014 on student (and associated bridging) visas and was granted the current visa on 9 February 2017.[1]  The applicant is from Indonesia and initially came to Australia after finishing high school, with the intention to study an Advanced Diploma of Hospitality Management and an Advanced Diploma of Information Technology with a view to gaining experience and learning as much as possible.  However, the applicant took longer than expected to compete the Diploma of Hospitality Management as he failed some subjects and found the Diploma of Information Technology difficult and only completed one and a half semesters and only passed one test in that time, failing the remainder of the course components that he undertook.

   [1]           See delegate’s decision.

3. On 5 September 2018, the delegate issued a Notice of Intention to Consider Cancellation (‘NOICC’) of the applicant’s visa on the basis that the applicant had failed to comply with a condition of the current visa as required by subsection 116(1)(b) of the Act, namely that the applicant had not complied with a condition of their visa. In this case, the applicant breached subclause 2(a) of condition 8202 of his visa in that he failed to maintain enrolment in a full time registered course. [2]  The applicant did not comply with this condition of his visa from 2 November 2017 to 19 September 2018.[3]  

   [2] As required by condition 8202(2)(a) of the Migration Regulations 1994 (‘the Regulations’).

   [3]           See delegate’s decision.

4. The applicant responded to the NOICC on 12 September 2018 (‘the Response’).

5. On 27 September 2018, the delegate cancelled the current visa on the basis of the breach set out in the NOICC.  A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

6. On 3 October 2018, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(3) and 347 of the Act.

7. The applicant appeared before the Tribunal via video hearing on 21 October 2019 to give evidence and present arguments. 

8. The applicant was assisted in relation to the review by their registered migration agent but their registered agent did not appear with them on the day of hearing.

9. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

10. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.

11. The Tribunal has had regard to all the information before it, including the Department File, all information and evidence provided by the applicant to the Tribunal.

12. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

    STATUTORY FRAMEWORK

13. The issue in this case is whether the applicant, as the holder of a student visa, has breached condition 8202 of the Regulations. If so, the ground for cancellation is made out and the issue then becomes whether the visa should be cancelled pursuant to section 116(1) of the Act.

14. Under section 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in subsection 116(1)(b) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the ground for cancellation exist?

15. A visa may be cancelled under section 116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 of the Regulations attached to the applicant’s visa. This condition requires that the applicant:

    a.be enrolled in a registered course, or in limited cases,  a full time course of study or training and that the registered course be undertaken at the required AQF level: 8202(1) and (2);

    b.has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i); and

    c.has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

16. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full time registered course of study or training.

17. The applicant was enrolled in a Diploma of Information Technology.   This enrolment ceased on 2 November 2017 and the applicant was not enrolled in a full time registered course of study from that date until 19 September 2018. 

18. At the hearing, the applicant acknowledged and accepted that there are grounds for cancellation.

19. For these reasons, the Tribunal is satisfied that the ground for cancellation in section 116(1)(b) exists. As that ground does not require mandatory cancellation under section 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion to cancel the visa

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 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

21. The applicant arrived in Australia at the age of 18.  The applicant gave evidence that he commenced and completed an Advanced Diploma of Hospitality Management and although he had to repeat some subjects, he still successfully completed that course.  He then commenced the first one and a half semesters of an Advanced Diploma of Information Technology but only passed one test, failing the remainder of the study that he engaged with. 

22. The applicant gave evidence that his initial arrival in Australia was to undertake the course in Hospitality and then Information Technology but he found the latter too difficult and has now changed his goal to a career in cooking.  He expressed a passion for cooking and an intention to have his own restaurant in Australia or Indonesia.  He filed a confirmation of enrolment for a Certificate IV in Commercial Cookery with the Tribunal which commenced in October 2018 and is due for completion in April 2020 and gave evidence that he is enjoying the courses he is enrolled in.

23. The applicant’s written submissions and oral evidence stated that in 2016 or 2017 his brother suffered an illness which involved bleeding in his nose which required surgery and that in May 2017 his father had a mild stroke.  The applicant gave evidence that his brother’s doctor had said there was swelling on the nose and if it was not treated it could impact the brain.  The applicant’s brother underwent the necessary surgery under his right eye and still bears a scar but the surgery was successful.  The applicant’s father was in a serious car accident in Bali when the applicant was in primary school and that his father suffered vertigo since that time.  The applicant did not return to Indonesia through his brother or father’s health issues.  When asked about the source of information he was providing to the Tribunal, he stated his evidence was based on information his sister was giving him.  The Tribunal gave the applicant four working days to provide translated medical certificates in relation to his brother and father’s medical conditions. 

24. On 25 October 2019, the applicant filed what appears to be a one page medical document in Indonesian dated September 2017 and has the word ‘sinus’ in it so is presumably in relation to his brother, another hand written document in Indonesian, a receipt in Indonesian and what appears to be an authorised Indonesian document confirming sibling/familial relationships but is also in Indonesian.  The Tribunal is unable to give anything more than limited weight to these documents.  In this regard, the Tribunal also notes the applicant’s evidence that his brother had a sinus condition from the age of four which has been a continuous issue for him and which required therapy including using a humidifier and such treatment lessened the thickness inside his nose resulting in a bleeding nose if he became too hot, too cold or tired.  It would seem to the Tribunal that the applicant’s brother’s surgery was not entirely unexpected and was likely to occur in the circumstances of his condition.  The applicant’s evidence was that his family’s health problems made him feel quite down and caused him to have difficulty concentrating to attend his courses at that time.  The Tribunal accepts the applicant’s oral evidence that his brother had a sinus condition which required surgery and that his father suffered a mild stroke in 2017.  The Tribunal empathises with the applicant in this regard, however considers it does not explain the applicant’s failure to comply with his visa conditions. 

25. The Tribunal enquired as to why the applicant did not seek counselling at this time in 2017.  The applicant stated he just kept his problems to himself and only discussed them with his parents.  Whilst the Tribunal appreciates that the applicant accepted he ought to have taken action sooner, it does not change the applicant’s history. 

26. The Tribunal enquired as to why the applicant did not seek deferral of his course.  He stated he was childish and running away and can see now he should have approached his education provider.  Again, the Tribunal commends the applicant for his honesty and for taking responsibility for his breaches but it does not excuse same.

27. The Tribunal enquired as to why the applicant did not return home to be with his family at this time if it was so distressing and he said he had a trip booked for late September 2017 but received correspondence from the Department which caused him to fear that he would not be able to re-enter Australia if he left.  On 25 October 2019, the applicant provided a copy of this correspondence which was an email from the visa cancellations department dated 23 August 2018, not 2017.  This email postdates the events in question by almost twelve months and does not explain the applicant’s decision not to return home to support his family and/or treat any consequential emotional or psychological conditions he was suffering from without breaching his student visa. 

28. The applicant has supplied an assessment report from Dr Dadgostar, registered psychologist dated 5 September 2018.  In this report, the applicant’s study and emotional history is outlined and Dr Dadgostar states that based on the information gathered during his assessment on 4 September 2018 the applicant’s symptoms were suggestive of the presence of high levels of Clinical Depressive and Anxiety symptoms which he continues to experience.  Dr Dadgostar states that it appears the applicant’s anxiety and depressive symptoms have directly affected his academic progress.  Given that this report is dated twelve months after the events in question which are said to have impacted the applicant to such a great extent and is based entirely on the applicant’s own reports, it is difficult for the Tribunal to give the report much weight.  It would seem to the Tribunal that such severe psychological symptoms would have prompted the applicant to seek earlier psychological assistance, which he did not do until he had received the NOICC.  There is also no mention of any medication which ought or will be taken in future for his symptoms.  It was open at all times to the applicant to return home to Indonesia to avoid breaching his student visa.  Further and significantly, the applicant gave evidence that he continued to work part time through this period. 

29. It seems to the Tribunal that if an individual is residing onshore on the basis of an intention to study, such study should take priority over work.  There are financial requirements before such visas are granted.  It raises concerns about an individual’s true intentions in residing onshore if when doing so they are working but not studying, in breach of the conditions of a student visa upon which their right to reside is based.

30. The Response details the impact of the applicant’s brother’s health problems on the applicant’s family and parent’s in particular, stating that the family was told his brother could die and that the applicant’s father’s stroke was as a consequence of the stress about his brother’s health issues and that his father has also been hospitalised for kidney problems.  These statements are not supported by medical reports and are not entirely consistent with the evidence given by the applicant at hearing.  Although the Tribunal accepts that there have been health problems suffered by the applicant’s brother (including surgery) and father, the Tribunal still holds concerns about the applicant’s conduct in breaching his student visa in circumstances where he could have returned home and/or sought psychological treatment and chose not to.

31. To his credit, the applicant took responsibility for his actions in breaching his student visa and expressed remorse and regret.  The Tribunal commends him for this.  The applicant submitted that if his visa is cancelled, he will feel sorry for himself and despondent as he would not have succeeded in what he aspired to do in Australia and that his mother would be very disappointed because she trusted him on the choices he made in Australia.  He indicated if he had to return to Indonesia he would most likely concentrate on finding a position in a restaurant because he enjoys cooking and is eager to run his own restaurant.  In this regard, the Tribunal notes that the applicant has obtained a hospitality qualification onshore, has considerable experience working in Sydney as a cook and has obtained English skills in his time onshore as well. 

32. The Tribunal understands that a visa cancellation can be disappointing for visa holders and their families but does not consider this constitutes a compelling need to remain in Australia.  Further, the Tribunal notes that the applicant has been onshore for in excess of five years and has had ample opportunity to engage with any courses he may wish to complete.

33. The Tribunal notes that the nature of the student visa programme is necessarily temporary and after in excess of five years onshore, the Tribunal has concerns about the applicant’s true intentions.  The Tribunal considers the applicant does not have any compelling need to remain in Australia as he could study in his home country.  The Tribunal considers the evidence in favour of and against cancelling the applicant’s visa are finely balanced in this regard.

    Circumstances in which ground of cancellation arose

34. The applicant’s evidence at hearing has been outlined above.  In late 2017 the applicant’s brother and father had health issues.  These health issues affected the applicant and family and parents in particular and the applicant struggled emotionally and psychologically and he submitted he ceased his studies in or around this time as he was having difficulty concentrating.  The applicant did not re-engage with study for a period of nearly twelve months, commencing a Certificate IV in Commercial Cookery in October 2018.

35. The Tribunal accepts that the applicant’s brother and father had health issues in late 2017 but considers the applicant has exaggerated the extent of these.  The Tribunal empathises with the applicant and his family in relation to their health circumstances and understands the applicant’s brother and father’s health problems must have been difficult for everyone concerned, including the applicant, and that it would have been difficult to be overseas at this time.  However, the option to return to Indonesia to avoid breaching his visa conditions was open to the applicant at all times.  This would have been a practical option to avoid breaching his student visa conditions.  However, he did not do this.  Instead, he failed to resume any study for some months, was issued with a NOICC at which time he sought a psychological assessment, twelve months after suffering from the alleged symptoms.  This is not the conduct one would expect of a genuine student who takes their responsibilities in residing onshore on the basis of a student visa seriously.

36. Sickness of family members is an unkind life stressor that everyone must deal with at some point.  Non-Australian citizens on student visas in Australia are no exception.  Many student visa holders are forced to contend with such difficulties during their stay in Australia.  They are all burdened in a similar way in that they have to deal with some degree of emotional turmoil while away from their families in their home country.  At the same time, they are obviously burdened with having to maintain their studies in Australia in order to comply with the strict visa conditions attaching to student visas. Many such students are young adults, just like the Applicant.

37. There is no psychological evidence, beyond that the evidence of the Applicant himself, that provides a contemporaneous account of his mental state at September 2017.  The Tribunal is therefore unable to form any view as to whether the Applicant was suffering any clinically diagnosable mental health condition that puts his suffering into a category that goes beyond the ordinary mental difficulties that ordinary people generally suffer on a day to day basis in dealing with life’s stressors, and that this may have been a cause of him effectively doing nothing to get his studies back on track.

38. The Tribunal acknowledges the applicant’s brother’s and father’s health were out of the applicant’s control, but also considers that if an applicant is not in a position to comply with the conditions of their visa, it is their responsibility to take appropriate action to avoid breach of same.  It is the responsibility of a visa holder to ensure they are complying with the conditions of their visa.  The Tribunal gives equal weight in favour and against cancelling the applicant’s visa in this regard

    Extent of compliance with visa conditions

39. The Tribunal notes the applicant’s evidence that he has otherwise complied with student visa conditions.  However, the applicant’s breach of the condition of his visa is extensive, being in excess of ten months.  The Tribunal considers the ten month breach a significant breach and gives weight in favour of cancelling the applicant’s visa in this regard.

    The degree of hardship that may be caused to the visa holder and any family members

1. The applicant submitted that if his visa is cancelled, he will feel sorry for himself and despondent as he would not have succeeded in what he aspired to do in Australia and that his mother would be very disappointed because she trusted him on the choices he made in Australia.  He indicated if he had to return to Indonesia he would most likely concentrate on finding a position in a restaurant because he enjoys cooking and is eager to run his own restaurant.  In this regard, the Tribunal notes that the applicant has obtained a hospitality qualification onshore, has considerable experience working in Sydney as a cook and has obtained English skills in his time onshore as well. 

2. The Tribunal accepts that the cancellation of a visa is disappointing.  It also accepts that a significant amount of money is invested in a person in order to set them up in a country to live independently in order to study.

3. The Tribunal recognises that the hardship is felt by family members who may also feel let down and disappointed.

4. The Tribunal is, however, mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition.  Whilst appreciating the hardship the applicant and his family may face regarding a cancelled visa, it does not outweigh the breach and the Tribunal gives these reasons limited weight in its considerations.

   The visa holder’s past and present behaviour towards the Department

5. There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department.  The Tribunal gives some weight against cancelling the applicant’s visa in this regard.

   Whether there are persons in Australia whose visas would, or may, be cancelled under section 140 of the Act

6. This is not relevant to the applicant.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, 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

7. If the current visa is cancelled, this will result in the following:

   a.the applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act;

   b.the applicant will have limited options to apply for further visas in Australia;

   c.the applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed.  The applicant could therefore be subject to a three (3) year exclusion period where they will not be eligible to have any temporary visa application approved if they apply for a visa that requires Public Interest Requirement 4013 to be met.

   The Tribunal gives little weight to this consideration in favour of the applicant because:

   ·these are the intended consequences of the legislation when a visa is cancelled under these grounds;

   ·it reflects the seriousness with which the Department takes this type of cancellation ground;

   ·the applicant will be eligible to apply for a bridging visa while they make arrangements to depart Australia and therefore the likelihood of detention is only in the event that they do not co-operate in applying for a bridging visa.

   Australia’s international obligations

8. There is nothing before the Tribunal to suggest that the cancellation of the current visa would breach any international obligations.  The Tribunal places no weight on this in favour of or against the applicant.

   Any other relevant matters

9. Nil.

   CONCLUSION

10. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

11. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    T. Quinn
    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.