Cheng (Migration)

[2020] AATA 2684

Cheng (Migration) [2020] AATA 2684 (28 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Xianmin Cheng

CASE NUMBER:  1920825

HOME AFFAIRS REFERENCE(S):          BCC2019/1535174

MEMBER:Vanessa Plain

DATE:28 May 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 28 May 2020 at 12:41pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – compelling or compassionate reasons for breach of visa condition – medical health condition – deferral sought and obtained – reasonable steps taken – conduct of a genuine student – decision under review set aside

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 19 July 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) 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 failed to maintain enrolment 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.

3. The applicant appeared before the Tribunal on 5 May 2020 to give evidence and present arguments.

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

5. The applicant was represented in relation to the review by his registered migration agent.

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

   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(2)(a) 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 full time registered course: 8202(2)(a)

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

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

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

10. The applicant’s visa was granted on 6 February 2018 for the purpose of studying a Bachelor of Business at Griffith University in Queensland.   

11. Information available to the Department in the Provider Registration and International Student Management System (PRISMS) indicated that on 19 June 2018 the applicant’s enrolment in the Bachelor course was cancelled by his education provider and he has not been enrolled in a course since that date.

12. On 22 May 2019, a Notice of Intention to Consider Cancellation of Visa was sent to the applicant.

13. By written response dated 4 June 2019, the applicant responded to the NOICC.  In his response the applicant candidly acknowledged the ground for cancellation of his visa.  He contended that he discontinued his studies at Griffith University because he suffered from anxiety and adjustment issues due to a depressive mood disorder and that these ailments effected his ability to concentrate on his studies.  He further contended that his health has improved and he intends to resume his study at Griffith University and re-enrol in his Bachelor of Business course.    

14. At the hearing on 5 May 2020, the applicant admitted he breached his visa condition and acknowledged that he was not enrolled in a registered course from 19 June 2018, but he further informed the Tribunal that he enrolled in a Diploma of Business at the Sphere Institute in August 2019 and he completed the Diploma in April 2020.  The Tribunal has had regard to academic documents produced by the applicant at hearing which plainly establish the applicant’s claims.   

15. However, based on the above, the Tribunal finds that the applicant was not enrolled in a full time registered course between 19 June 2018 and August 2019 . Accordingly, the applicant has not complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

16. 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.

17. 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’.

18. The Tribunal has considered the circumstances in which the ground for cancellation arose in this case.  The ground for cancellation arose because the applicant did not maintain enrolment in his Bachelor of Business degree at Griffith University.  He ceased to be enrolled on 19 June 2018. 

19. The applicant candidly informed the Tribunal that he was being treated for anxiety and depression for a substantial period in 2017 and 2018 respectively which impacted upon his capacity to concentrate on his studies.  That is the reason he sought and obtained a deferral from Griffith University.  He did not realise that he had to apply for a second deferral in mid 2018 as he was labouring under the misapprehension that it was incumbent upon his to inform the school when his health improved, for the purpose of recommencing his classes.  These matters are clearly established by medical documents submitted by the applicant from his treating clinical psychologist in late 2017.

20. The Tribunal put to the applicant that it was not satisfied that there were compelling reasons for the breach of the visa in mid 2018 in circumstances where there was no contemporaneous medical evidence before the Tribunal to support the applicant’s claims that he was being treated for anxiety and depression in 2018.  The applicant assured the Tribunal this was indeed the case.  On that basis, the Tribunal granted an adjournment of the hearing for the purpose of enabling the applicant to procure a report from his treating clinical psychologist with a view to informing the Tribunal of his medical condition(s) in 2018.

21. On 22 May 2020, the applicant provided a further report of Dr Clare Pang, his treating clinical psychologist.  The report is dated 13 May 2020.  Ms Pang has treated the applicant for anxiety, adjustment and depressive disorders since 2017.

22. In addition to the report of Ms Pang dated 13 May 2020, the applicant provided detailed documentary evidence to the Tribunal evidencing the following matters:

    ·Griffith University deferral grant on compassionate grounds

    ·Letter of diagnosis from Clare Pang, psychologist, dated 17 August 2017, in support of the applicant’s deferral application to Griffith University

    ·Medical history for outpatient services

    ·Certificate of completion for a Diploma of Business in April 2020

23. The medical report of Dr Pang dated 13 May 2020 clearly establishes that the applicant was being treated for adjustment disorders throughout the course of 2018, at the time of the breach of the visa condition and well into the later part of 2018.  It is Ms Wang’s clinical opinion that the disorders afflicting the applicant hampered his capacity to progress academically. The Tribunal is therefore satisfied that the circumstances that led to the breach of the visa condition were not reasonably within the control of the applicant and the Tribunal is further satisfied that the applicant took reasonable steps in the circumstances to defer his enrolment, which is the conduct of a genuine student.

24. The applicant informed the Tribunal that as soon as his health improved, in early 2019, he took steps to re-enrol in a business course.  The applicant stated that he enrolled in a Diploma of Business, rather than a Bachelor of Business, for the purpose of not putting himself under too much pressure on account of just getting over his illness.

25. The academic documents to which the Tribunal has had regard clearly establish that the applicant enrolled in a Diploma of Business in August 2019 and completed that course in April 2020.  This conduct on the part of the applicant speaks to his character as a genuine student, who is in Australia for the purpose of studying. 

26. The Tribunal has had further regard to the fact that the applicant is now eligible to re-enrol in his Bachelor Business now that he has competed a Diploma of Business.  The only thing preventing him from re-enrolling is the fact that his visa is cancelled.  The Tribunal accepts the applicant’s assertion that he wishes to enrol in the Bachelor of Business and it does so on account of the steps he has taken to defer his studies initially and the steps he then took to immedicably recommence his studies when he felt he was able to do so, medically speaking. 

27. Based on the above, the Tribunal is satisfied that there are compelling or compassionate reasons for the breach of the visa condition in this case that are clearly established by contemporaneous medical evidence. 

28. The Tribunal therefore gives this consideration significant weight in favour of not cancelling the applicant’s visa.

29. In view of the above finding, the Tribunal is satisfied that the applicant has established that his purpose for travel and stay in Australia is clearly for the purpose of study, that there are no other breaches of visa conditions, that he would suffer undue hardship that would be manifestly unfair in the circumstances if his visa were to remain cancelled, and that he has otherwise acted in good faith in his dealings with the department.

30. The Tribunal gives the aforementioned considerations weight in favour of not cancelling the visa. 

31. The circumstances of this case are not such that any person’s visa would be consequentially cancelled under s140 of the Act.  The Tribunal therefore does not give any weight for or against a decision to cancel the visa for this consideration.

32. If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart Australia. The applicant would also be affected by section 48 of the Act, which may prevent him from applying for certain visas while in Australia, and Public Interest Criterion 4013, which may exclude him from being granted a visa for a specific period of time in the future.

33. These are mandatory and intended consequences of the legislation and given that the circumstances giving rise to the breach were not reasonably within the control of the applicant, the Tribunal consider these consequences to be manifestly unfair in the circumstances of this case and the Tribunal there gives this consideration some weight against cancelling the visa.

34. There is no evidence before the Tribunal to indicate the applicant has children in Australia, nor whether cancelling the visa would lead to a breach of Australia’s non-refoulement obligations. As there is no information before me, I am unable to give any weight for or against cancelling the visa for this consideration.

35. The Tribunal has no further evidence before it of any other relevant matters.

36. The matters set out above do not reveal any bad faith on the part of the applicant, it is clear based on all the evidence set out above, that the reasons for the breach of the visa condition were not matters that were reasonably within the control of the applicant. 

37. It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa not being cancelled and I so find.

38. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

39. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Vanessa Plain
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.