Gwavava (Migration)

[2018] AATA 5195

Gwavava (Migration) [2018] AATA 5195 (26 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tererai Gwavava

CASE NUMBER:  1711278

HOME AFFAIRS REFERENCE(S):           BCC2017/1111319

MEMBER:Michelle East

DATE:26 September 2018

PLACE OF DECISION:  Perth

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 26 September 2018 at 11:29am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – 573 Higher Education Sector visa  – not enrolled in a registered course of study – breach of condition 8202 – financial and emotional hardship –mental health issues – ground for cancellation arose were beyond the visa holder’s control - Decision under review set aside

LEGISLATION
Migration Act 1958, ss 48, 116, 140, 189, 198
Migration Regulations 1994, Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 May 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 delegate cancelled the visa on the basis that there was a ground for cancellation for breach of condition 8202 of the Act, namely that the applicant had not been enrolled in a registered course of study since 28 May 2016. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.  A copy of the delegate’s decision was attached to the application for review.

3. The applicant appeared before the Tribunal on 25 September 2018 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 and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

   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 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)

   ·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. As outlined in the delegate’s decision, information relied on from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since 28 May 2016.  The applicant confirmed at hearing that information was correct.

10. 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

11. 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’.

12. The applicant was sent a Notice of Intention to Consider Cancellation of Visa (NOICC) on 8 May 2017 and the applicant responded on 12 May 2017, attaching documents from the Bunbury Community Adult Mental Health Clinic dated 9 May 2017, his church pastor, undated and his mother dated 11 May 2017, together with a statement of the applicant explaining his situation.  He said he started to not cope with his studies due to psychological issues.  He said he then started to get involved with drugs resulting in him being admitted into the inpatient psychiatric unit in February 2017 for a drug induced psychosis.  He said he has now had the support of his church and his mother will now support his studies.  There is reference in the social worker’s report of him working ‘long hours’ as a kitchen hand to support himself.

13. At the hearing the applicant also gave evidence that his sponsor had stopped funding his studies from mid-2015.  He said his sponsor was from the UK and she paid his fees for the first semester of 2015.  He then said he had difficulty paying his fees.  He said he continued with his studies in second semester however the university told him he would be unable to sit his exams unless he paid the outstanding fees.  He then said they cancelled his enrolment at the end of 2015. 

14. Evidence was provided at the hearing in the form of a certificate of the completion of a Certificate III in Aged Care.  The issue date of this certificate was 23 June 2016. 

    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

15. The purpose of the student visa is to enable the visa holder to undertake study in Australia.  The applicant, as outlined in the delegate’s decision, has not been enrolled in a registered course of study since 28 May 2016.

16. The Tribunal finds the applicant’s breach of condition 8202 of his visa to be significant because he was not engaging in study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.

17. The Tribunal questioned the applicant as to whether there are any compelling reasons for the applicant to remain in Australia. The applicant did not give evidence of any compelling reasons to stay in Australia and the Tribunal finds there are no compelling reasons for the applicant to remain in Australia.

18. The applicant’s non-engagement in study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

    The extent of compliance with visa conditions

19. The applicant was granted the visa to undertake specified studies in Australia and has not done so since 28 May 2016.  He has not complied with the primary condition of the visa granted to him.

20. The Tribunal has had regard to the applicant’s response to the NOICC.

21. Whilst the Tribunal notes the applicant was suffering from some personal issues during this time it considers the condition of his visa to be important because one of the primary reasons for holding a student visa is to be enrolled and to study and he had not done so for a significant period of time.

22. The Tribunal considers that this weighs heavily in favour of cancellation of the visa.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the visa holder and any family members

23. The applicant has provided evidence in the form of a letter from a psychiatrist dated 6 June 2017 regarding his admission to the inpatient psychiatric unit from 8 February 2017 to 17 February 2017 with ongoing support through the Bunbury Mental  Health Service until 21 April 2017.

24. The applicant’s mother has written to the Department stating that she will fund his studies if he is able to continue.

25. The Tribunal questioned the applicant what he would do if he were to return to Zimbabwe and what effect the cancellation would have on him.  The applicant said it would be difficult for him to obtain a job in Zimbabwe without formal qualifications.

26. When the Department sent the applicant the NOICC, in his response he said that he wanted to re-enrol in nursing or social work.  When giving oral evidence the applicant said he would like to do electrical engineering at Murdoch University.

27. The Tribunal acknowledges that there could be some long term financial hardship if the applicant were to return to Zimbabwe without formal qualifications.  At this stage however, it is a matter of conjecture as to whether that would occur.

28. The Tribunal questioned the applicant whether he was receiving ongoing counselling and support for his drug taking.  He said he received medication and psychological counselling for two months after his hospital admission and since that time had not been receiving ongoing rehabilitation.  He did say however that he received some help from his church. He said he had family members in Zimbabwe and his mother is a nurse in the UK.

29. The Tribunal acknowledges that there could be some financial and emotional hardship caused to the applicant should his visa be cancelled.  The Tribunal gives this some weight in favour of the applicant in determining whether his visa should be cancelled.

    Circumstances in which the ground of cancellation arose.  Were the circumstances beyond the visa holder’s control

30. The applicant has explained in his supporting documentation that he became very overwhelmed with his studies, felt a lack of support from friends and family, experimented with drugs and was admitted into hospital with a drug induced psychosis in February 2017.  The Tribunal notes however that he finished studying in May 2016 which is a significant period of time before he was admitted to hospital.  The medical reports indicate it was in response to a drug induced psychosis that he was admitted into hospital.

31. The applicant said he tried to seek deferral of his studies and this statement was also made in a written submission provided by his representative.  The Tribunal noted there was no documentary evidence to support this submission and the representative conceded this was correct.

32. The applicant also gave oral evidence that his sponsor withdrew her financial support for him after he completed his first semester in 2015.  He said financial problems and the inability to study meant he suffered some mental issues and started taking drugs.  This resulted in his involuntary admission to hospital and subsequent rehabilitation. 

33. The Tribunal finds the circumstances in which the breach occurred were beyond the visa holder’s control and that this weighs in favour of the applicant when considering whether to cancel his visa.

    Past and present conduct of the visa holder towards the Department

34. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

    Whether there are mandatory legal consequences such as whether cancellation would result in the visa holder being unlawful and subject 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

35. The delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, s.48 of the Act means that he will have limited options to apply for further visas in Australia.

36. There is nothing to indicate the applicant would not be able to return to Zimbabwe.  The Tribunal affords little weight to this consideration in determining whether to cancel the visa.

    Whether there would be consequential cancellations under s.140

37. There is no evidence before the Tribunal that there would be consequential cancellations in this case.

    Whether any international obligations would be breached as a result of the cancellation

38. There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation.

39. The Tribunal recognises that the cancellation of the visa is a significant matter.  The Tribunal notes the nature of the breach of the condition of his visa and the period of time in which he was not engaged in his studies.  Balanced against this however, the Tribunal has taken into account the circumstances in which the breach arose and the effect those circumstances had on him.  The Tribunal had regard to the applicant’s demeanour and presentation at the hearing which it found to be positive.

40. On balance and after carefully considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Michelle East
    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.