Chan (Migration)

[2022] AATA 917

Chan (Migration) [2022] AATA 917 (12 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yin Hang Chan

CASE NUMBER:  2013279

HOME AFFAIRS REFERENCE(S):          BCC2017/2922181

MEMBER:Wendy Banfield

DATE:12 April 2022

PLACE OF DECISION:  Canberra

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

Statement made on 12 April 2022 at 5:20pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Federal Circuit Court remittal – failed courses and enrolments cancelled – discretion to cancel visa – study history and future plans – parental pressure, death of grandmother and mental health – financial hardship and fear for safety in home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(g)
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 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 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the visa holder did not comply with subclause 8202(2)(a) of condition 8202 attached to their visa. The issue in the present case is whether that ground for cancellation is made out and, if so, whether the visa should be cancelled.

   Background

3. The applicant is a citizen of China and is currently 27 years old. He arrived in Australia on 13 March 2015 and was granted a Subclass TU573 Student visa on 22 April 2015. The applicant was enrolled in a Bachelor of Commerce degree at University of New South Wales (UNSW) but his enrolment was suspended on 14 December 2016. The applicant’s Student visa was cancelled on 19 October 2017.

4. The matter is before the Tribunal because of a Federal Circuit Court order, requiring a reconsideration and redetermination of the application for review.

5. The Tribunal considered the evidence provided in support of the application for review:

   ·     Department of Home Affairs (the Department) notification and decision record dated 19 October 2017.

   ·     Applicant’s response to the Notice of Intention to Consider Cancellation (NOICC) dated 17 October 2017.

   ·     Confirmation of Enrolment (COE) for a Bachelor of Commerce at UNSW from 26/02/2018 to 15/09/2020.

   ·     COE for a Bachelor of Commerce at UNSW from 27/07/2015 to 31/07/2018.

   ·     COE for a General English course at Salisbury College Australia from 16/10/2017 to 24/12/2017.

   ·     Email correspondence from February/March 2017 between UNSW Student Administration and the applicant regarding his suspension.

   ·     Subclass 573 Visa Grant Notice dated 22 April 2015.

   ·     Report of Hamid Dadgostar, Psychologist dated 10 January 2019.

   ·     Email from the applicant dated 24 February 2020 stating an intention to provide further medical evidence and attaching HD Psychology appointment confirmation.

   ·     Notification from HD Psychology to the applicant confirming an appointment for 3 March 2020.

6. The applicant did not submit any new or additional written evidence to the Tribunal prior to the hearing scheduled for 25 February 2022.

7. The applicant appeared before the Tribunal on 25 February 2022 to give evidence and present arguments.

   Evidence at the hearing

8. The applicant came to Australia in 2015 after completing high school in Hong Kong. He said his parents always wanted him to study overseas, and he worked very hard at school to be able to go to the university and the country he wanted. He claimed he still wants to finish a degree in Australia. The applicant said it is important to his family and a huge advantage having a degree from overseas to be able to pursue a career in investment banking or consulting. The applicant confirmed he had been enrolled in a Bachelor of Commerce. He said initially he studied at a language school for about two months to finish IELTS, and then went to the University of New South Wales. The applicant said the original length was three years, and until his suspension he studied for about a year and a half or three to four semesters.

9. The applicant claimed there were multiple reasons why he was suspended. He said he received a suspension notice in December 2016 advising he had failed courses but at the time, he was in rural China and unable to access the internet or check emails. He said the notice was also sent by registered mail to his address in Australia, but he did not see it until after the appeal date. Regarding his underperformance in 2016, the applicant said his mental state was not stable and he was unable to focus on study and as a result, he did not meet the performance standards required. The applicant said he did not realise that getting suspended from the university could result in his visa being cancelled. The applicant confirmed he had been suspended for 2017. The Tribunal asked if the university had advised him about that, and he said an email from the university indicated there may be consequences with the Department. He claimed he went to see a student consultant and was told that he did not need to do anything unless his visa is cancelled. He said he did not know it was urgent at that time and was waiting for the suspension to be lifted.

10. The applicant acknowledged the Department wrote to him in 2017 about the possibility of cancellation and that his visa was then cancelled in October 2017. The applicant said he explained to the Department about the appeal process and that he had some personal issues at the time. The applicant confirmed his enrolment with UNSW had also been cancelled after he re-enrolled in 2018. The Tribunal asked if the applicant investigated enrolling elsewhere or sought advice about his situation. He reiterated he had not understood the urgency and had been advised he did not need to do anything. Therefore, the applicant said he spent 2017 in self-study so he would be ready to recommence university. He confirmed he held a Bridging visa after his Student visa was cancelled and that it allowed him to study at first. The applicant advised he re-enrolled at UNSW in 2018 but the whole visa situation stressed him, and he also had personal relationship issues. He said his mental state and psychological distress was such that he could not perform academically. The Tribunal asked if he received help for his mental health and he said he did, in 2019. According to the applicant, due to his state of mind in 2018 he did not want to see people, did not sleep, or eat much and “refused to get help”. He said with mental health issues, sometimes help is not wanted but that he realised he really needed to seek help. The applicant said he wants to resume his studies and does not want this to stop him finishing his degree.

11. The Tribunal asked the applicant what particular issues he had that prevented him studying the Bachelor of Commerce. He referred to his parents and the pressure he received from them, including when his visa was cancelled. The applicant said he had a long-term relationship with his girlfriend that did not end well in 2018. The applicant said the combination of issues made him want to walk away from everything. He said he could not give his exams a chance because of panic attacks and an inability to focus. The Tribunal put to him that, according to the Department, he was not enrolled to study from February to October 2017 and asked if he agreed that was the case. The applicant agreed and said that was the suspension period.

12. The Tribunal explained that it appeared the Department did have grounds to cancel his visa since he had not been enrolled during 2017. It was also explained that in that case, the Tribunal would consider whether the visa should be cancelled in his particular circumstances, and that the Tribunal had a discretion in that regard. The Tribunal indicated it accepted the applicant had travelled to Australia for the purpose of study and asked if he had a compelling reason for needing to stay in Australia, that is, a particularly strong reason. The applicant referred to his intention to finish his degree as a strong reason. He also spoke about the circumstances in Hong Kong and his personal politics which makes it difficult and advised he would not want to go back now. The applicant claimed that when he returned to Hong Kong a few years ago, he took part in protests and demonstrations. He said he personally would not feel safe in Hong Kong. The applicant claimed he had planned to finish his studies in Australia then see if he could apply for citizenship or temporary residency. He said it is really unstable in Hong Kong and although his parents asked him to go back two years ago, they are now grateful he is in Australia.

13. The Tribunal indicated to the applicant that although a Student visa can lead to a pathway to permanent residency, visa holders are meant to demonstrate they are temporary entrants with an intention to depart. The applicant agreed but said finishing his degree which would be a bridge for him to see if there is a possibility to stay in the longer term and develop his career.  Regarding re-enrolment, the applicant said his Bridging visa did not allow him to enrol or study. The applicant was asked how he supports himself in Australia. He said his parents support him and he pays expenses through sports betting. The applicant claimed he has also studied informally and if he resumed as a commerce student, he could finish the degree quickly. The applicant advised he has course credit for a year and half, and he would want to re-enrol with UNSW.

14. The Tribunal asked the applicant if commerce is the right course for him since his enrolment was cancelled in the past. He said it is the right thing because he has always been interested in banking, economics, and management. The applicant claimed that apart from not maintaining enrolment, he has complied with all other visa conditions. Regarding any hardship that would result from his visa being cancelled, the applicant said apart from his personal development, his safety in Hong Kong would be affected. He claimed his family are not “super wealthy” and have paid for him to study in Australia. The Tribunal confirmed there is no one else who holds a visa that would be affected by his visa being cancelled.

15. The Tribunal discussed the possible legal consequences of cancellation with the applicant including his Bridging visa being cancelled, becoming unlawful and having to depart Australia. The applicant referred to his earlier evidence about concerns regarding Hong Kong. He was asked what he is planning to do in the regard, if he is required to leave Australia and the applicant said he has not decided, because the situation in Hong Kong is uncertain and changing every day. The applicant claimed returning to Hong Kong is a dangerous option for him now and he would avoid that if possible. The applicant was asked about his parents still living there and he said they do not participate in any demonstrations or protests, and do not have the same political views as him.

16. The applicant was advised the Tribunal would be considering any international obligations Australia has in his case, and it appeared his earlier claims about not wanting to return to Hong Kong were relevant. The applicant said returning to Hong Kong would be his last option. The applicant concluded by saying he has moved away from the mental state he was in before, and the only purpose he has now is to complete his studies and he is motivated to do so. He asked that he be able to return to university because he was meant to be finished three years ago. The applicant conceded it was his fault, but he wants to start his career. He stated he is mentally prepared for whatever is coming.

17. 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

18. 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 (Cth) (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?

19. 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)

    ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

    ·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).

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

21. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 22 April 2015. He had been enrolled in a Bachelor of Commerce from 27/07/2015 to 31/07/2018. According to his evidence, the applicant was suspended from the course for the 2017 academic year. He failed to maintain enrolment in a full-time registered course of study from 23 February to 10 October 2017, a period of more than seven months. In his response to the NOICC of 17 October 2017 the applicant set out the criteria for consideration in deciding whether the visa should be cancelled and stated: “Therefore, please allow me to thoroughly address all the aforementioned concerns so that I can validate and defend myself that the grounds for cancellation of my visa do not exist and why my visa should not be cancelled”. Although the applicant said he would address why the grounds for cancellation do not exist, he instead addressed matters related to the discretion whether to cancel. The Tribunal is not satisfied the applicant provided any persuasive evidence to refute the finding that he breached condition 8202 of the Regulations.

22. 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

23. 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 Procedural Instruction ‘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

24. The applicant arrived in Australia to study a Bachelor of Commerce and was enrolled in the course. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant stated his intention to finish his degree is a compelling reason. He also made a submission about his personal politics which it was claimed would make it difficult for him to return to Hong Kong. The applicant claimed that while he was in Hong Kong a few years ago he took part in protests and demonstrations and would not feel safe there. The applicant submitted he is planning to finish his studies in Australia then investigate options for applying for residency. The Tribunal understands the applicant may wish to complete his studies and look for a pathway to permanent residency in Australia but does not consider it amounts to a compelling need. Regarding his claims about not feeling safe returning to Hong Kong because of past activities, the applicant has not provided any independent or verifiable evidence to support his claims and the Tribunal does not accept his bare assertions in this regard. The Tribunal considered the applicant’s submission but is not persuaded he has demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

25. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions.

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

26. The applicant stated in his response to the NOICC that if his visa is cancelled, it will bring hardship to his family because they have paid $6,000 for his tuition fees. The applicant submitted it was a large amount provided by his parents through hard work. He advised visa cancellation will mean he cannot fulfill his and his parent’s dreams. At the Tribunal hearing the applicant said as well as his personal development being affected, his safety in Hong Kong would also be an issue. As stated in this decision, the applicant has not provided any evidence other than his oral assertions that he may not be safe in Hong Kong. The Tribunal does not accept returning to Hong Kong would amount to hardship for this reason. Nevertheless, the Tribunal accepts the applicant will not be able to continue studying or residing in Australia if his visa is cancelled and he will suffer some degree of hardship, including financial. The Tribunal gives some weight in the applicant’s favour when assessing this criterion.

27. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. The Tribunal has assessed the claims and evidence in the applicant’s case and has accepted there will be a degree of hardship to the applicant if his visa is cancelled, however, the intended consequences of the legislation do not outweigh the other considerations in this case.

    ·     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

28. The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but did not continue his studies for a period of at least seven months. The applicant gave several reasons for why he says this occurred. In his written response to the Department of 17 October 2017 the applicant claimed he had difficulty focussing on study in Semester 2 of 2016 that resulted in “low academic performance”. He further stated there were unfortunate circumstances that contributed to his inability to comply with visa conditions but did not explain what they were. At the previous Tribunal hearing in 2020 (differently constituted) the applicant declared he had suffered from undiagnosed and untreated depression and anxiety during 2016 which continued after his visa was cancelled. He did not make this claim in his response to the Department which was closer in time to the events that led to the visa being cancelled.

1. The applicant submitted a report prior to the Tribunal hearing in 2020 from Psychologist Hamid Dadgostar dated 10 January 2019. The report states the reason for referral was for an assessment of the applicant’s psychological state from March 2016 to the date of assessment on 8 January 2019. Mr Dadgostar writes that the assessment drew on information from an interview with the applicant. The report sets out the following, as reported by the applicant:

   ·     He was suffering from severe anxiety and associated depression during the relevant period.

   ·     He was under pressure from his parents who expected a high level of achievement.

   ·     He was notified by his parents that his grandmother died in December 2015 which led to a deep depression.

   ·     After his grandmother’s death, he became disillusioned and withdrawn, and developed sleeping and eating difficulties.

   ·     His girlfriend cheated on him at the end of 2017 and the disappointment, fear, resentment and sadness added to his sorrow about his grandmother.

   ·     Due to these events, he is always stressed and anxious, especially during exams.

2. The report sets out the applicant’s family history, psychiatric history, risk assessment, behaviour during interview, presenting issues, psychological status during the period in question, reported psychological status at present, psychometric assessment, clinical opinion and concluding remark. The heading ‘Psychological Status during the period in question’ states: “Mr Chan stated that he experienced the following anxiety and depressive symptoms during the period in question: depressed mood, loss of interest in most activities, loss of motivation, feelings of hopelessness, and an inability to experience pleasurable emotions from normally pleasurable life events. He reported having developed a sleeping and eating disorder.” The clinical opinion is that applicant’s anxiety and depression appear to have developed due emotional distress from parental pressure and his grandmother’s death, feelings of worthlessness, loneliness and the challenges of his studies. It further states the applicant’s anxiety and depression have directly affected his studies.

3. The Tribunal considered the psychologist’s report but does not give it weight in considering the applicant’s claims that his visa should not be cancelled, or that it demonstrates the circumstances in which the ground for cancellation arose were beyond his control. This is because the report relies almost exclusively on information self-reported by the applicant during a single interview. In addition, it was made on 10 January 2019 but purports to assess the applicant’s psychological state from March 2016 to 8 January 2019. The Tribunal is not satisfied the report supports the applicant’s claim that his academic performance was poor in 2016 due to his mental state, and this led to his enrolment at UNSW and his visa being cancelled. The applicant took a psychometric assessment test (Kessler Psychological Distress Scale) during his appointment with the psychologist but according to the report, the test measures “anxiety and depression symptoms in the most recent 4-week period.”

4. The Tribunal accepts that people suffering from depression and anxiety may not seek immediate assessment and treatment for their condition. However, in the applicant’s case it was directly relevant to his reason for being in Australia which was his studies. The applicant told the psychologist he was deeply affected by his grandmother’s death in December 2015, and it caused him to be depressed, disillusioned, withdrawn and suffering from sleeping and eating difficulties. However, the applicant stated in his response to the NOICC dated 17 October 2017 that since he started his studies at UNSW [on 27 July 2015] “I have always had passing remarks [sic] and have been performing well. It was just this Semester 2, 2016 where I really did have some difficulties to focus on my lessons”. The Tribunal does not find it credible that if the applicant’s grandmother passed away in December 2015 and he was seriously affected as reported to the psychologist, he would have been able to study successfully in Semester 1 2016 but not Semester 2.

5. The applicant said he did not realise that getting suspended from the university could result in his visa being cancelled but acknowledged at the Tribunal hearing that the university had indicated there may be consequences with the Department. The applicant also claimed he had not understood the importance of his enrolment cancellation but had consulted an agent who advised he did not need to do anything. The conditions of the applicant’s student visa required him to maintain enrolment which is a strict requirement, and it was his responsibility as the visa holder to ensure he did so. Therefore, the Tribunal finds the circumstances in which the grounds for cancellation occurred do not weigh in favour of the applicant in considering whether to exercise the discretion to cancel his visa.

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

6. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department.

   ·     whether there would be consequential cancellations under s.140

7. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

   ·     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

8. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. There is no evidence to indicate the applicant may be subject to indefinite detention as a consequence of cancellation. The Tribunal has assessed the applicant’s claims and evidence and considers the mandatory legal consequences of cancellation do not outweigh the other considerations in this case.

   ·     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

9. The Tribunal considered whether the visa cancellation would lead to the applicant’s removal in breach of Australia’s non-refoulement obligations, that is, removing a person to a country where the person faces persecution, death, torture, cruel, inhuman or degrading treatment or punishment. The Tribunal considered the applicant’s claims that he took part in protests in Hong Kong during a return visit from Australia and that he would not feel safe there. However, the applicant did not give specific reasons why he would feel unsafe and did not claim he would face persecution, or any other form of harm, in Hong Kong. The Tribunal is not required to undertake a full analysis of the applicant’s claims and on the evidence before it, is not satisfied Australia’s non-refoulment obligations would be breached if the visa is cancelled.

10. The applicant indicated he is unmarried and did not claim that there are children in Australia whose interests could be affected by the cancellation.

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

11. The Subclass 500 Student Visa is not a permanent visa.

    ·     any other relevant matters

12. There are no other relevant matters to be considered in the applicant’s case.

    Conclusion

13. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour such as a degree of hardship, on balance, the Tribunal finds that most considerations do not weigh in his favour. The Tribunal is not satisfied the issues encountered by the applicant outweigh the grounds for the visa to be cancelled.

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

    DECISION

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

    Wendy Banfield
    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.