CHAN (Migration)

[2020] AATA 563

CHAN (Migration) [2020] AATA 563 (26 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr YIN HANG CHAN

CASE NUMBER:  1726372

HOME AFFAIRS REFERENCE(S):          BCC2017/2922181

MEMBER:David McCulloch

DATE:26 February 2020

PLACE OF DECISION:  Sydney

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

Statement made on 26 February 2020 at 4:18pm

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 – anxiety and depression – did not seek treatment or approach education provider – did not receive suspension notice because of overseas travel – no arrangements for correspondence while travelling – enrolment in lower-level course not suitable for visa type – unsatisfactory progress in current course – credibility – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994 (Cth), Schedule 8, conditions 8202, 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 October 2017 made by a delegate of the Minister for Immigration and Border Protection 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 applicant is a national of Hong Kong, China, born on 2 January 1995. The visa that has been cancelled was granted on 22 April 2015 for a stay period until 30 September 2018. That visa was subject to condition 8202.

3. On 22 September 2017, the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he ceased to be enrolled in a registered course from 23 February 2017. The applicant provided a written response to the NOICC. On 19 October 2017, the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa. The applicant seeks review of the delegate’s decision.

4. The delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course. The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 24 February 2020 to give evidence and present arguments. The applicant was represented by his registered migration agent, who did not attend the hearing.

6. 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

7. 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?

8. 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).

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

10. The applicant provided a copy of the delegate’s decision to the Tribunal which indicates that he has not been enrolled in a registered course of study from 23 February 2017 until 10 October 2017 (on this date the applicant enrolled in a General English course due to commence on 16 October 2017 until 24 December 2017).

11. There is nothing before the Tribunal to suggest that the applicant was a holder of a Subclass 560 or 571 (School Sector) visa as a secondary exchange student, thus the applicant’s obligation under condition 8202(2) is to be enrolled in a registered course.

12. In the hearing the applicant acknowledged that he had not been enrolled during this period.

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 to exercise its discretion to cancel the visa.

15. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non-refoulement obligations; and any other relevant matters.

16. The applicant provided the following explanation on 17 October 2017 in response to the NOICC stating why he ceased to be enrolled in a registered course. The applicant indicated that he had difficulty focusing on his studies (in a Bachelor of Commerce) in Semester 2, 2016 and that this had resulted in his lower academic performance. Because the applicant left Australia for the summer break he did not get the email or hardcopy correspondence issued on 14 December 2016 by his education provider which advised him of a Suspension Notice from the University requiring him to lodge an appeal on or before 18 January 2017. The applicant indicates that he has otherwise abided by visa conditions. The applicant indicates that he intends to continue his studies in Semester 1, 2018.

17. On the Departmental file is email correspondence between the applicant and the University with the University indicating that the appeal process has been finalised and there is nothing that can be done about the suspension of the applicant for one year. The University advises that the applicant will be eligible to re-enrol in the program from Semester 1, 2018.

18. The applicant refers to hardships to his family if the visa remains cancelled in that they have already paid $6000 for the initial payment of tuition fees.

19. The Tribunal put to the applicant in the hearing that he must have had a sense that his performance in Semester 2, 2016 in the Bachelor of Commerce was deficient leading to the prospect of a Suspension Notice or other notification or sanction from the University. The Tribunal indicated to the applicant that it was inclined to consider that the applicant was either negligent or paid little concern as to consequences from the University in terms of his inadequate performance if he did not make arrangements to check or have forwarded relevant correspondence from the University or provide up-to-date contact details.

20. In response the applicant indicated that he partially accepted these comments by the Tribunal.

21. The Tribunal considers that the applicant was negligent or deficient in not taking steps to be informed of correspondence from the University while he was on holidays. The Tribunal therefore does not take the applicant’s failure to receive the Suspension Notice as extenuating circumstances beyond the applicant’s control.

22. The applicant indicated in the hearing that he had, in fact been suffering from significant depression and anxiety since 2016. These conditions extended over several years. The applicant indicated that he did not seek treatment for his conditions until January 2019 when he had one consultation with a psychologist. The applicant indicated that he was not comfortable before this point in seeking help for his mental health conditions.

23. The Tribunal noted to the applicant in the hearing that he had not indicated in response to the NOICC on 17 October 2017 that he had been suffering from any mental health condition as explaining his failure to be enrolled. The response indicates that the applicant simply indicated that he could not focus on his studies, without providing any indication that it was for a medical reason. In addition, the Tribunal noted to the applicant that if there were medical reasons for his lack of adequate progress then he would have had the option to have sought a deferral on medical/compassionate grounds. The applicant referred to his reticence in seeking a proper diagnosis and treatment.

24. The applicant indicated in the hearing that he knew he had the obligation to be enrolled in a registered course. However, the applicant indicated that this could be ameliorated by his intention to re-enrol again in 2018 in a Bachelor of Commerce. This is indicated as in part explaining why the applicant was not enrolled in a registered course from February 2017 until October 2017. The Tribunal sees no reasonable basis for this assumption and is not satisfied that this constitutes an extenuating circumstance beyond the applicant’s control for his failure to be enrolled in a registered course from February 2017 until October 2019.

25. The Tribunal notes that the applicant on 9 October 2017 enrolled in a General English course that was due to run from 16 October 2017 until 24 December 2017. The applicant makes mention in response to the NOICC of this seeking to mitigate the breach for failure to be enrolled, although acknowledging that it is not a suitable course for enrolment for the purpose of the applicant’s 573 visa.

26. The Tribunal noted to the applicant in the hearing the fact, that as he acknowledges, this is not a higher education sector course as the applicant is required to be enrolled in pursuant to his 573 visa. The Tribunal noted to the applicant that in addition to the breach of condition 8202 to be enrolled in a registered course the applicant has also been in breach, since 23 February 2017, of condition 8516. The impact of condition 8516 is to require the applicant to maintain enrolment in a higher education sector course.

27. The applicant did not dispute in the hearing that he had also been in breach of condition 8516.

28. Therefore the applicant has also failed to abide by visa condition 8516 from 23 February 2017 until the visa was cancelled on 19 October 2017. This is a discretionary factor adverse to the applicant.

29. The Tribunal notes that it is apparent from PRISMS records that the applicant re-enrolled in the Bachelor of Commerce on 19 January 2018 for commencement on 20 February 2018 until 15 September 2020. This accords with the applicant’s intention as indicated in the response to the NOICC.

30. PRISMS records that this enrolment was cancelled on 27 February 2019 for unsatisfactory course progress. Further information indicates that the applicant has been excluded for a period of two years beginning Term 1, 2019. It is noted that the applicant must reapply for admission. The applicant agreed in the hearing with the foregoing.

31. The Tribunal noted to the applicant in the hearing that even if the Tribunal were to accept that there were extenuating circumstances beyond the applicant’s control for his failure to be enrolled in a registered course together with a course as required for the purpose of his 573 visa from 23 February 2017 up until October 2017 (which the Tribunal has difficulty accepting), the applicant had failed to make satisfactory course progress in the Bachelor of Commerce which he had continued from February 2018. That would be a further matter significantly adverse to the applicant in the exercise of the Tribunal’s discretion.

32. In response the applicant indicated that his undiagnosed and untreated anxiety and depression continued throughout 2018 providing problems with his continuing studies in the Bachelor of Commerce.

33. The Tribunal noted to the applicant in the hearing that if he has had ongoing anxiety and depression that these factors could be impediments to him seeking to continue his study now. In response, the applicant indicated that he is now in an improved mental health state and would like to re-enrol again in the Bachelor of Commerce. The applicant indicated that the one session that he had with a psychologist in January 2019 was a turning point in his recovery. The applicant indicated, however that he had no further paid consultations with the psychologist.

34. The applicant had indicated at the commencement of the hearing that he would like to provide the Tribunal with a medical report from the psychologist who he intends to make an appointment with again following the hearing. The Tribunal asked the applicant why he intends to make an appointment with the psychologist if his conditions have stabilised. In response, the applicant indicated that he wishes to see the psychologist on an ongoing basis to ensure that the prior mental health issues that he had suffered do not re-occur. After the hearing the applicant provided the Tribunal with a confirmation of an appointment with a psychologist on 3 March 2020 and reiterated that he would like to provide further medical evidence.

35. The Tribunal assesses the applicant’s core claims of extenuating circumstances beyond the applicant’s control for the failure to be enrolled in a registered course from February 2017 until October 2017 is because of the applicant suffering from anxiety and depression. These are also claimed circumstances which are sought to explain the applicant making unsatisfactory progress and having his enrolment cancelled in the subsequent Bachelor of Commerce. This enrolment was cancelled on 27 February 2019 for unsatisfactory course progress.

36. The Tribunal has credibility concerns with the truth of these claims of suffering several years of significant depression and anxiety. There is no medical diagnosis provided by the applicant during the period from 2016 until 2019 when the applicant claims to have been suffering such conditions. The Tribunal does not think it plausible that the applicant would have been suffering from significant depression and anxiety from the beginning of 2016 until January 2019 and this being the cause of not being able to progress adequately in studies, but not have having sought any medical treatment or diagnosis for a period of approximately three years. Further, the concerns as to whether the applicant was genuinely suffering from such conditions is reinforced by the applicant not stating in his response to the NOICC dated 17 October 2017 that his failure to be enrolled was due to suffering from mental health conditions. The Tribunal considers that if the applicant had been suffering from a mental health condition that he would have explicitly stated this in the response to the NOICC. The Tribunal also considers that at this point in time if the applicant had been suffering significant depression and anxiety as a cause of not being enrolled that he would at least have obtained medical attention at this point in time, including so as to be able to provide an explanation for non-enrolment to the Department.

37. Further, if the applicant was suffering from significant mental health issues he could have sought a deferral on compassionate or compelling grounds which are further reasons why he would have sought treatment if he was suffering from such conditions.

38. Further again, the applicant’s account of his subsequent medical treatment for his depression and anxiety and his recovery does not have a ring of truth to the Tribunal. The applicant gave evidence that just one appointment with a psychologist in January 2019 was a turning point for the applicant’s recovery without any further consultations or medical treatment. The Tribunal does not think that this is plausible in the context of the applicant claiming to have suffered significant depression and anxiety for three years. The Tribunal does not consider that one psychological appointment would be sufficient to turn around such long-term and sustained mental health conditions.

39. The Tribunal is not satisfied that the applicant was suffering significant depression and anxiety from 2016 to 2019 affecting the progress of his studies.

40. The Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control explaining his failure to be enrolled either arising from mental health issues, from him not receiving the initial intention from his education provider to cancel his enrolment, or from assuming that the lack of enrolment would be ameliorated by a decision to enrol in the same course a year later. The Tribunal is further not satisfied that mental health issues, which have now resolved, are the reason for the applicant having his subsequent enrolment in the Bachelor of Commerce cancelled. 

41. In all of the circumstances, and as indicated to the Tribunal in the hearing, the Tribunal is not prepared to give the applicant further time following the hearing to provide further medical information. This is based on the credibility concerns identified in relation to the applicant claims of suffering such mental health conditions together with the fact that the applicant has had ample time and opportunity to seek medical support and provide medical evidence to the Tribunal since he made his application for review on 27 October 2017.

42. The applicant indicated to the Tribunal that he would suffer hardship if the visa remains cancelled and his compelling reason to remain in Australia is that he wishes to continue to study the Bachelor of Commerce. Given all of the evidence and credibility concerns, the Tribunal is not satisfied that the applicant has the ability and/or genuine intention to enrol and study the Bachelor of Commerce.

43. The applicant also indicated in the hearing that if the visa remains cancelled his parents will no longer support him on his return to China. Whilst the Tribunal accepts that this might be the case, the Tribunal does not consider that this is a hardship that weighs significantly in the applicant’s favour.

44. The Tribunal accepts some degree of hardship to the applicant and his family if he is unable to continue to live in Australia and wasted funds on his studies to date. The Tribunal accepts that there will be a hardship to the applicant if the visa remains cancelled in his ability to apply for many other visa categories onshore.

45. The Tribunal accepts that if the visa remains cancelled the applicant would become an unlawful non-citizen and liable to immigration detention. However, the Tribunal does not consider that there is any basis on which the applicant would not likely continue to hold a bridging visa while he makes arrangements to leave the country.

1. There is no evidence that the interests of children in Australia would be affected by the continued cancellation of the visa. There is no evidence that the applicant fears or faces a real chance of serious or significant harm in China. The Tribunal is therefore not satisfied that Australia’s non-refoulement obligations are enlivened.

2. In summary, the Tribunal is not satisfied that there are extenuating circumstances for the applicant’s control for his failure to be enrolled in a registered course from February 2017 until October 2017. Also adverse to the applicant is his breach of condition 8516 and his failure to make satisfactory progress in his subsequent enrolment in a Bachelor of Commerce which the Tribunal does not accept were for extenuating reasons beyond the applicant’s control.

3. The Tribunal accepts that there may be some hardship to the applicant if the visa remains cancelled and this hardship would not overcome factors adverse to the applicant in the exercise of the Tribunal’s discretion. Weighing discretionary factors both adverse and favourable to the applicant, the Tribunal determines to exercise its discretion to cancel the visa.

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

   DECISION

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

   David McCulloch
   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.