Bamunu Arachchige (Migration)

[2019] AATA 3482

Bamunu Arachchige (Migration) [2019] AATA 3482 (1 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bhanuja Kovinda Bamunuarchchi Bamunu Arachchige

CASE NUMBER:  1818900

HOME AFFAIRS REFERENCE(S):          BCC2018/1036630

MEMBER:Peter Booth

DATE:1 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 01 August 2019 at 1:06pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – unsatisfactory academic performance – mental health issues – 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 22 June 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 did not comply with condition 8202 (2 ) (a). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 26 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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?

6. 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).

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

8. The applicant gave evidence at the hearing that his enrolment was cancelled on 29 August 2018.

9. 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

10. 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’.

11. The Tribunal turns to considering any relevant factors, including matters raised by the applicant and the departmental guidelines as follows:

    ·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

    The applicant gave evidence that he arrived in Australia on 15 October 2015 as the holder of a Student (Subclass TU 573) visa.  His intention at that time was to study video game design and to complete a Bachelor of Game Design and Development at Deakin University.  The applicant did not give evidence that he had a compelling need to travel to or remain in Australia.

    ·The extent of compliance with visa conditions

    The applicant conceded that he has not been enrolled in a registered course of study since 29 August 2018.

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

    The applicant did not give any evidence regarding any degree of hardship that may be caused, whether financial, psychological, emotional or otherwise, by reason of the cancellation of the visa.

    ·Circumstances in which ground of cancellation arose.  If cancellation is being considered because of a 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

    The applicant gave evidence that he commenced the Bachelor’s degree course in about February 2016, and he had attended classes thereafter for about 1 ½ years.  He said that his enrolment had been cancelled because he did not register for the second semester of 2017.  The reason, he said, was that he had failed in many subjects in the first semester of that year, having found the course too difficult.  He also said that he had “issues” in his home country at the time. He said further that he went to classes for a few weeks in the second semester of 2017.  However, after he was excluded for unsatisfactory performance, he no longer attended classes. He said that he did not attend the course at all after the middle of 2017 until 2018, when he decided he was able to study again.

    The applicant said that he was “mentally depressed” because his brother was a drug addict.  He sent money to his brother but said he could not tell his parents.  In answer to a question from the Tribunal, he said that he did make a request to defer his course but was concerned about making second such request.  He gave evidence that he received notification that his enrolment had been cancelled in about October or December 2017.  This appeared inconsistent with his earlier evidence that his enrolment had been cancelled in August 2018, but the applicant insisted he was unaware of a course cancellation in October or December 2017.  He said that after he became aware that his enrolment had been cancelled, he looked for a course to commence and met with a lawyer to ascertain his eligibility to study.  He said this took place during the period December 2017 to August 2018.   When asked by the Tribunal why this process would take about a year, he said that he could not make up his mind.  He also told the Tribunal that he did not travel to his home country to visit his brother in 2017, nor in 2018.  

    The applicant was asked by the Tribunal whether he had obtained any treatment for depression in 2017, to which he answered “no”.  He said that he was worried about seeing a psychiatrist or psychologist.  The reason being that in his culture, mental illness was a stigma he said.  The Tribunal enquired how any of his friends or relatives would know that he was seeking such treatment.  He said that he was living with a cousin and that he would have to tell him of such matters.  When pressed on this point as to why he would have to tell his cousin about his mental state, he said that he discussed many things with his cousin.  The Tribunal observed that it was hard to accept that if there was such a social stigma associated with mental health that he would tell his cousin at all.  The applicant said in response that he was frightened.

    However, the applicant went to see a psychiatrist in June 2019, shortly prior to the hearing.  The Tribunal enquired why if there was a social stigma associated with mental health, he had chosen to go to a psychiatrist after all that time, and shortly prior to the hearing.  He said that he was trying to calm his mind by doing meditation and felt that he needed to be of calm mind.  When pressed as to why he had seen the psychiatrist recently, he said that he came to the conclusion after considering other people’s opinions as to the matter.  He said that his brother no longer had problems with drugs and that he had had no contact with his brother recently.  He said that the last time he had contact with his brother was in December 2018, but before that he said they would speak on the telephone.  The applicant said that he could not study in 2017 due to his concerns about his brother’s drug dependence and his own mental health, but that his mother had told him that his brother no longer had the problem with drugs, in about December 2018.

    The Tribunal enquired that if his brother was now drug-free, why the applicant needed to see a psychiatrist in June 2019.  He said that recently his brother had borrowed a lot of money from his mother and still had other issues.  The Tribunal informed the applicant that his evidence as to the reason for not studying was difficult to accept.  In particular, he was asked that if there was such a social stigma associated with mental illness, then why was it that had he consulted with friends and then decided to see a psychiatrist, only very recently.  He said that he is taking some medication and that his intention is to return to study.

    The Tribunal finds the applicant’s evidence as to the reasons why he did not continue studying to be unconvincing.  Having been excluded for poor performance, the applicant could have applied to defer his course.  He did not do so.  His reasons for not applying to defer are unconvincing.  He said that he could not study because he was concerned about his brother’s drug dependency.  This in itself is unconvincing insofar as it is said to be the reason for a prolonged period of not studying.  It is notable also that during this period, the applicant did not return to his home country to visit his brother. 

    An assertion of depression was also used as the basis for a reason to not be studying.  The Tribunal also finds this difficult to accept, for several reasons.  First, the applicant led no expert evidence in that regard.  Secondly, the applicant chose not to obtain any advice from a health professional, until June 2019.  The reason he gave was the social stigma attached with such conditions.  A confidential visit to a health professional would not have caused him any social issues unless he chose to disclose it.  He said that he would do so in the ordinary course of things.  This is difficult to accept if there is such a social stigma attached to mental illness. However, the applicant did then choose to see a health professional in June 2018, notwithstanding his clear evidence about the social stigma attached. The reasons for his change of mind are unclear, and unconvincing.  In any event it is notable that this visit to a health professional in June 2019 was made six months after he had been told by his mother that his brother was no longer drug dependent.   If indeed there was a relationship between his mental health and his brother’s drug dependency, it is difficult to accept that six months after his brother was no longer drug dependent, he found the need to see a health professional.

    The Tribunal is not convinced, having regard to the totality of the applicant’s evidence, that there were circumstances beyond his control which caused the applicant to either abandon his studies, or not to return to them.

    ·Past and present behaviour of the visa holder towards the department

    There is no evidence in relation to this factor and the Tribunal gives it no weight.

    ·Whether there would be consequential cancellations under s.140

    There is no evidence in relation to this factor, and the Tribunal gives it 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

    The applicant gave no evidence as to any legal consequences upon cancellation of his visa.  However, the Tribunal accepts that there will be legal consequences, but they are the consequences which Parliament intended upon when enacting the relevant migration framework.  They are given no weight by the Tribunal.

    ·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

    There is no evidence in relation to this factor and the Tribunal gives it no weight.

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

    There is no evidence in relation to this factor and the Tribunal gives it no weight.

    ·Any other relevant matters

    There is no evidence in relation to this factor and the Tribunal gives no weight.

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

    DECISION

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

    Peter Booth
    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.