Bairy (Migration)

[2020] AATA 3289

Bairy (Migration) [2020] AATA 3289 (4 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shiva Chandra Bairy

CASE NUMBER:  2006132

DIBP REFERENCE(S):  BCC2019/5389092

MEMBER:Vanessa Plain

DATE AND TIME OF

ORAL DECISION AND REASONS:         4 June 2020 at 2:40 pm (VIC time)

DATE OF WRITTEN RECORD:                25 June 2020

PLACE OF DECISION:  Melbourne

DECISION: The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Student (Temporary) (Class TU) visa.

Statement made on 25 June 2020 at 3:07pm
CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa –breached condition 8202 – applicant has not maintained enrolment in a registered course–  taken substantive steps to attempt to re-enrol – breakup of the serious relationship – depression – decision under review set aside

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 March 2020 to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 4 June 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral decision in case number 2006132, the applicant’s name is Mr Bairy.

4. This is an application for review of a decision dated 19 March 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s subclass 500 student visa under section 116(1)(b) of the Migration Act 1958.

5. The delegate cancelled the visa on the basis that the applicant 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.

6. The applicant appeared before the Tribunal on 4 June 2020 to give evidence and to present arguments.  The applicant was represented in relation to the review by his registered migration agent.  The hearing was conducted with the assistance of an interpreter in the English and Hindu languages.

7. For the following reasons the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside. 

8. 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. If the applicant has breached that condition under section 116(1) of the Act the visa may be cancelled.

9. Condition 8202 as it applies in this case requires the applicant to be enrolled in a registered course (indistinct) for a fulltime course of study or training.  The issue in the present case is that the applicant’s visa is cancelled on the basis that he was not enrolled in a registered course.  An examination of the delegate’s decision record notes that information before the Department indicated that the applicant did not maintain enrolment in a registered course of study from 6 December 2018 onwards.

10. A notice of intention to consider cancellation was sent to the applicant on 26 February 2020.  By written response the applicant responded to the Department on 12 March 2020.  In that document the applicant set out reasons for his non-compliance with the visa condition.  In the response the applicant stated that he had broken up with his girlfriend, a serious relationship, at the time.  He stated that he was unable to concentrate on his studies and spiralled into what he considered to be a severe depression.  The applicant claimed that he was unaware of the cancellation of his confirmation of enrolment until such time as he went back to his training organisation several months later and attempted to restart his classes.

11. In the applicant’s oral evidence at hearing the applicant candidly acknowledged that he was not enrolled in a registered course from 6 December 2018 onwards.  And on the basis of that evidence the Tribunal is satisfied that the applicant was not enrolled in a registered course from 6 December 2018 onwards.  Accordingly, the Tribunal finds that the applicant has not complied with condition 8202(2).

12. Having found that the applicant has not complied with the condition of the visa the Tribunal must now consider whether the visa should be cancelled.  There are no matters specified in the other Regulations that must be considered in the exercise of this discretion.

13. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, the matters in the Department Procedures Advice Manual PAM3 general visa cancellation powers.

14. The applicant was granted a Student (Temporary) (Class TU) subclass 500 visa on 5 July 2018 for the purpose of undertaking an approved higher education level course of study at James Cook University.  The applicant was enrolled to undertake a Masters of Information Technology.

15. As to the applicant’s purpose and stay in Australia.  It is clear that the applicant arrived onshore on 11 July 2018 as the holder of a student visa that I have just set out.  Student visas are granted for the purpose of enabling an applicant to obtain a qualification in Australia.  According to the PRISMS record the applicant was enrolled to complete the Master of Information Technology degree that I have just described.  The course was supposed to run for a period of approximately two years.

16. The applicant gave candid evidence at the hearing that he struggled tremendously in the latter half of 2018 on account of what he considered to be the mental health condition during that particular time.  The applicant gave candid succinct and concise evidence of the symptoms that he was afflicted with in late 2018 on account of his breakup of the serious relationship that he was in at the time.

17. The applicant described calmly and concisely the fact that he was in a state of what he describes as a trance state at the time.  He described the fact that he was not seeing any friends of his in the country at the time.  He described keeping himself alone in his premises and alone in his room.  He described feelings of isolation and a desire not to leave his house.  He described succinctly and concisely having thoughts and feelings of a suicidal nature in that period of the latter half of 2018 and early 2019.

18. The applicant further stated that when he felt his health improve in early 2019 he then took steps to attend upon James Cook University for the purpose of re-attending university for the purpose of study.  At that time the university refused to re-enrol the applicant in the course because he had missed a semester of study and on that basis he was not eligible to re-enrol in study until the first semester of 2020.

19. The applicant gave evidence that he attempted to re-enrol in precisely the same Masters degree at La Trobe University in Melbourne and at Queensland University in Queensland.  Those universities would not accept his enrolment because of his failure to complete the first semester and second semester in his degree at James Cook University.

20. Although it is clear that the period of non-enrolment is reasonably substantial the Tribunal is satisfied that the applicant has taken steps to rectify the relevant breach in question and on that basis the Tribunal is satisfied that the applicant has established that his primary purpose for being and remaining in Australia is for the purpose of study.  Notwithstanding that the applicant has not yet procured a valid confirmation of enrolment for a Masters of Information Technology degree the Tribunal does not place significant weight on that fact because it is satisfied of the steps the applicant has taken to attempt to rectify his non-enrolled status.

21. And it is clear that as at early 2020 when his visa was cancelled it would not have then been possible for the applicant to obtain a confirmation of enrolment in a Masters of Information Technology degree or, in fact, any other course of study in circumstances where he no longer held study rights due to his visa being cancelled.  I therefore give this consideration some minor weight in favour of the visa not being cancelled.

22. As to the extent of compliance with visa conditions it is clear that the applicant has not complied with condition 8202(2)(a).  However, the Tribunal is satisfied on the basis of the applicant’s evidence as to his health at the relevant time, that he had a recently compelling reason for the breach of the visa condition.

23. The applicant’s oral evidence at hearing is consistent with the explanation he provided to the Department in his response to the notice of intention to consider cancellation.  The Tribunal places significant weight on the credibility of the applicant’s evidence at hearing as to the relevant medical condition he was afflicted with at the time he breached his visa condition.

24. I have already described and set out the symptoms that the applicant was suffering from at the time.  And on the basis of the applicant’s demeanour and manner in which he concisely described his symptoms at the relevant time the Tribunal is persuaded as to the genuine nature of the condition the applicant was suffering from at the time.  And on that basis the Tribunal makes (indistinct) against the applicant on the basis that he has not procured a doctor’s report to substantiate the matters that he claims he was afflicted with at the relevant time.

25. The Tribunal asked the applicant if he visited a doctor at the time that he was suffering from suicidal thoughts and what appears to be all round mild depression.  The applicant candidly responded that he did not visit a doctor because he did not think a doctor would be able to do anything for him.  He said candidly and succinctly that what he was suffering from was as a result of the breakup of his relationship and on that basis he did not think that a doctor would be able to do anything for him to guide him out of that circumstance.

26. The Tribunal asked the applicant why he did not take steps to seek a deferral of his course from his education provider.  The applicant candidly responded that he was in such a dark state of mind that he just simply did not leave his house.  He did not speak with friends or colleagues and was of a generally dark mind and had suicidal thoughts at the time.  And on that basis he just simply didn’t take the steps to seek a deferral at that time.

27. He described feeling better in early 2019 and when he felt he could he attended upon James Cook University in mid-2019 in an attempt to rectify his enrolment status.  The Tribunal is of the view that the steps the applicant took in mid-2019 to attempt to rectify the status and then attempted to enrol in other universities when he realised that James Cook University did not reinstate his enrolment demonstrates the fact that he is a genuine student.

28. Therefore, notwithstanding that the extent of the non-compliance with the visa condition is significant insofar as the non-compliance has been for a significant period the Tribunal is of the view that the breach of the particular visa condition in this case is attributable to a matter not reasonably within the applicant’s control.  And on that basis the Tribunal gives this some consideration against the visa not being cancelled.

29. As to a degree of hardship that maybe caused to the applicant if his visa is to be cancelled the applicant gave extensive evidence as to the fact that he has studied a Bachelor degree of similar course content to the Masters degree that he was undertaking in Australia and he used to be a good student with a grade point average of above 90 per cent.  He spoke of the immense disappointment that his family would suffer if he were unable to finish his Masters of Information Technology in Australia.

30. He has spoken of the ill health of his father who is unaware of the particular circumstances the applicant is currently in in Australia in respect of his visa.  He has said that he will suffer undue hardship if he is required to return to his country in circumstances where his visa is cancelled because it will be a financial waste in respect of the studies that he has already undertaken to date.

31. The Tribunal accepts that it will cause the applicant some psychological and emotional hardship if he must return to his country in circumstances where he has not completed his Masters degree and that hardship will be compounded by cancellation of the visa.  Particularly given that I have just found that the reasons for the breach of the visa condition is not due to a matte reasonably within the control of the applicant I consider that the hardship that will befall the applicant in these circumstances would be manifestly unfair and I give this some minor weight in favour of the visa not being cancelled.

32. As the circumstances on which the ground for cancellation arose, as I have already set out, the applicant provided concise and persuasive evidence as to the mental health difficulty that he was suffering from at the time of the breach of his visa condition, which led to the cancellation of his course by his education provider.

33. As I have already set out, the Tribunal accepts that evidence absent medical evidence on account of the credibility of the applicant.  In this particular case the applicant has described and did describe his symptoms calmly and succinctly and with grace.  On the basis of the applicant’s demeanour the Tribunal finds his evidence wholly credible and accepts at the relevant time that he was suffering from whether it be depression or anxiety he was suffering from a condition that caused him to stop going to his classes at university, which led to the university cancelling his enrolment.

34. The Tribunal considers those circumstances to be matters which were not reasonably within the control of the applicant and on that basis the Tribunal gives this factor significant weight in favour of the visa not being cancelled.

35. As to the applicant’s past and present behaviour towards the Department the Tribunal notes that there is no evidence before it of anything other than good faith in the applicant’s dealings with the Department.  The Tribunal notes that the applicant has responded promptly and succinctly to the notice of intention to consider cancellation and I give this good behaviour some minor weight in favour of the visa not being cancelled.

36. According to the Department records there are no other persons in Australia whose visas would be cancelled as a result of the cancellation of the applicant’s visa.  On account of that consideration I give this factor no weight for or against the cancellation of the visa in these particular circumstances.

37. As to the legal consequences that might flow from a decision to cancel the visa the Tribunal notes if the visa were to be cancelled the applicant would become an unlawful citizen and liable to detention under section 189 and the removal under section 198 of the Migration Act 1958 if the applicant does not voluntarily depart Australia.

38. The applicant would also be subject to the Public Interest provisions were he to apply for a visa in the future in the next three years and he may be excluded from applying and being granted a visa for the next three years, if his visa is cancelled.

39. The Tribunal considers the fact and takes into account the fact that the applicant has taken substantive steps to rectify the breach of his visa condition in this case.  He has taken substantive steps to attempt to re-enrol in universities that offer precisely the same course that was cancelled in late 2018.  The applicant has taken steps to retain an agent for the purpose of advising him what universities he is able to attend upon in the event his visa is set aside and his visa cancellation set aside and his study rights are reinstated.

40. The Tribunal is satisfied that upon reinstatement of the applicant’s visa he will take those steps to enrol in a Masters of Information Technology on the basis of the credibility of the evidence the Tribunal has heard throughout the course of the hearing.

41. Therefore, notwithstanding that the mandatory legal consequences of the legislation are the intended consequences of the legislation given that I have already found that the applicant has a compelling reason for the breach of his visa condition I consider that the mandatory legal consequences in this particular case and the results from them would be manifestly unfair and I give this some weight in favour of the visa not being cancelled.

42. There is no evidence before the Tribunal to suggest that the applicant has any children in Australia and as such there is no evidence before the Tribunal that this case engages Australia’s non-refoulement obligations under the Refugee Convention and on that basis I give this consideration no weight for or against cancelling the visa in this particular case.  There are no other relevant matters before the Tribunal.

43. It is clear that the breach of the visa condition in this particular case is not revealing bad faith on the part of the applicant and was occasioned by a matter not reasonably within his control.  It is also clear that the considerations I have arrived at on examining all the evidence before me lean towards the visa not being cancelled and I so find.

44. Considering the circumstances as a whole the Tribunal concludes that the visa should not be cancelled.  The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s subclass 500 higher education student visa.

    DECISION

45. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Student (Temporary) (Class TU) visa.

    Vanessa Plain
    Member