Elias (Migration)

[2020] AATA 4501

Elias (Migration) [2020] AATA 4501 (9 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Michel Elias

CASE NUMBER:  2009302

HOME AFFAIRS REFERENCE(S):          BCC2020/375248

MEMBER:Vanessa Plain

DATE:9 August 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 573 Higher Education Sector visa.

Statement made on 09 August 2020 at 9:44pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered Higher Education course ceased – medical issues – limited academic progress – study deferral request refused – ban on the transfer of money out of Lebanon – decision under review set aside  

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 May 2020 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 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.

3. The applicant appeared before the Tribunal on 17 July 2020 to give evidence and present arguments.  

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

5. 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

6. 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?

7. 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)(a)

   ·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).

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

9. An examination of the Delegate’s Decision Record reveals that the applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 12 March 2015 for the purpose of undertaking an approved Higher Education level course of study at La Trobe University, including:

   ·A Diploma of Information Technology 

   ·A Bachelor of Information Technology

10. The Department has access to the Provider Registration and International Students Management System (PRISMS), which provides the Confirmation of Enrolment (CoE) and

    study records of international students registered to study in Australia. PRISMS indicated that the applicant had not been enrolled in a registered course since 21 June 2019 and therefore had not complied with the requirements of subclause (2)(a) of condition 8202.

11. On 12 March 2020, a Notice of Intention to Consider Cancellation (NOICC) of the visa was sent to the applicant.  No response was received.  At the hearing, the applicant candidly informed the Tribunal that he did not receive the NOICC and that his failure to receive the NOICC was his fault, because he had not provided the Department with current contact details. 

12. At the hearing, the applicant candidly admitted that he was not enrolled in a registered course since 21 June 2019.  The applicant gave detailed reasons for his failure to maintain enrolment, which are set out below.           

13. On the evidence before the Tribunal, the Tribunal is satisfied that the applicant was not enrolled in a registered course from 21 June 2019 onwards.  Accordingly, the Tribunal finds that 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 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.

15. 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’

    Circumstances in which ground of cancellation arose

16. The circumstances which led to the cancellation of the applicant’s visa are that he failed to maintain enrolment in a registered course of study from 21 June 2019 onwards.

17. The applicant is a 23 year old man who was granted a Student (subclass573) visa on 12 March 2015 for the purpose of enabling him to undertake a registered course of study, leading to a Higher Education qualification.  The applicant completed a Diploma of Information Technology and gave detailed reasons, supported by contemporaneous documents, as to why he did not successfully complete his Bachelor of Information Technology.

18. First, the applicant candidly informed the Tribunal that La Trobe University cancelled his enrolment due to unsatisfactory course progress.  The applicant then provided evidence in some detail of his medical history, which he contended contributed to his failure to maintain enrolment. 

19. Between 2015 and 2018 respectively, the applicant was treated by Dr Paul Ng, psychiatrist, for the management of severe clinical depression, anxiety and panic attacks.  He routinely utilised prescription medication in accordance with his psychiatrist’s directions.  He occasionally missed classes at La Trobe and produced medical certificates for his education provider to the effect that the medication he was prescribed made it very difficult for him to concentrate on his studies.

20. In 2018 and early 2019, the applicant suffered chronic migraines for which is was routinely treated and for his he was prescribed medication.  He informed the Tribunal that this made it incredibly difficult for him to concentrate on his studies.

21. The Tribunal has read and had regard to the contents of an extensive number of cotemporaneous medical documents issued between 2015 and 2019 respectively, which plainly establish that the applicant has sought treatment and was treated for the aforementioned medical conditions issues on at least 18 separate occasions during the said period.

22. The applicant candidly informed the Tribunal that he sought a deferral from La Trobe University on medical grounds, but that they refused his request. He then informed the Tribunal that due to the refusal of his request for a deferral, he sought a refund for the semester of course fees he had paid. He produced a copy of his refund request.  That document demonstrates that he made the request in February 2019.  The applicant stated that he was informed that because he had completed some classes, they would not refund the fees.  

23. The University cancelled his enrolment in June 2019.  He stated that his migraines alleviated later in the year and he sought to re-enrol in another university in the same course. However, at that stage, a fully fledged economic and political crisis broke out in Lebanon, that resulted in the Lebanese Government placing a ban on the transfer of money out of the country in excess of USD$1,000.  The crisis was known as the October Revolution which lasted for 230 days, from October 2019 onwards and resulted in the Prime Minister resigning from Parliament.  The applicant produced several internet links to articles describing the crisis which corroborate the applicant’s evidence.  The ban on the currency transfer meant that the applicant’s father was unable to transfer money to the applicant for his tuition fees in late 2019.

24. When the applicant was finally able to receive funds from home in mid 2020, he began seeking re-enrolment in a Bachelor degree. He received a conditional letter of offer from APIC College to study a Bachelor of Business (IT Systems) on 16 July 2020, but by that stage, his visa had been cancelled and he was informed by APIC that he would have to ‘rectify his visa status’ before he could obtain a CoE.

25. Based upon all the matters set out above, particularly the nature of extent of the medical evidence provided by the applicant, the Tribunal is satisfied that the reason for the visa breach was primarily to due a reason outside of the control of the applicant, namely, the applicant’s medical conditions.  Further, the Tribunal is satisfied that the applicant took all reasonable steps in the circumstances to seek to defer his studies and obtain a refund of his fees, due to his inability to study, because of his medical conditions.

26. The Tribunal is also satisfied that the applicant has compelling reasons for failing to re-enrol for a reasonably substantial period of time, on account of the civil unrest in his home country which prevented his father from transferring money to the applicant to enable him to re-enrol in a course.  

27. The Tribunal therefore gives these factors significant weight against cancelling the visa. 

    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 

28. The applicant is a 23 year old man who was granted a Student (subclass573) visa on 12 March 2015 for the purpose of enabling him to undertake a registered course of study, leading to a Higher Education qualification. 

29. The applicant completed a Diploma of Information Technology and gave detailed reasons supported by contemporaneous documents as to why he did not successfully complete his Bachelor of Information Technology as set out above.

30. The Tribunal is satisfied that the applicant has established that his primary reason for being in Australia is for the purpose of study and that he has no compelling need to remain in Australia permanently. 

31. The Tribunal gives these factors some weight towards the visa not being cancelled.     

    The extent of compliance with visa conditions

32. The applicant has not complied with condition 8202(2)(a).  However, as set out above, I find that the applicant had a compelling reason for the breach and that the circumstances that led to the breach were not reasonably within his control.

33. There is no evidence of any breach of other visa conditions.  Whilst I find that the applicant did breach the condition, given the circumstances surrounding the breach, the Tribunal gives this factor no weight towards the visa being cancelled. 

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

34. The applicant gave compelling and credible evidence of the emotional and psychological hardship that he would endure if he had to return home in circumstances without having completed studies.  The applicant further stated that he has developed a relationship with a young woman in Australia who is supporting him in his studies and it would be difficult to be separated from her at this time.

35. The Tribunal accepts that the cancellation has led to some personal detriment for the applicant which would undoubtedly be compounded by the continuation of the cancellation of the visa. 

36. The Tribunal therefore gives this some weight towards the visa not being cancelled. 

    Past and present behaviour of the visa holder towards the Department

37. The applicant has conducted himself in good faith in his dealings with the Department.  He acknowledged that his failure to respond to the NOICC was entirely his fault, however, his failure to update the department with his contact details was clearly not in bad faith. 

38. The Tribunal gives this some weight in favour of the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

39. Not applicable.

    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

40. If the visa were to be cancelled, the applicant would be excluded from making applications for certain types of visas and most importantly to the applicant, would not be able to complete his Bachelor degree before returning home to Lebanon. 

41. Considering the circumstances surrounding the breach of the visa condition, this would be manifestly unfair and the Tribunal gives this some weight in favour of the visa not being cancelled. 

    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

42. Not applicable.

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

43. Not applicable.

    Any other relevant matters

44. The applicant stated that before his visa was cancelled, he rang the department to seek guidance about what he should do given the time to respond to the NOICC had passed.  He informed the department about his medical evidence and he said that he was advised to raise the matter with the Tribunal. The Tribunal finds that these matters demonstrate that the applicant’s intention is to remain in Australia for the purposes of completing his Bachelor degree.   

45. As above, it is clear that the breach does not reveal any bad faith on the part of the applicant and was occasioned by matters 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.

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

    DECISION

47. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Vanessa Plain
    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.