Ibrahim (Migration)

[2020] AATA 17

Ibrahim (Migration) [2020] AATA 17 (2 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Umer Ibrahim

CASE NUMBER:  1906109

HOME AFFAIRS REFERENCE(S):     BCC2018/5560742

MEMBERS:Dr Jason Harkess

DATE:2 January 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 573) visa

Statement made on 02 January 2020 at 8:37am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – hearing postponed – lack of academic progress – mental health – alcohol issues – motivation for seeking help linked to visa status – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

[ 1 ]The Applicant is a citizen of Pakistan and is 23 years old. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 6 March 2019 cancelling his Subclass 573 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

[ 2 ]The Applicant’s student visa was granted on 13 July 2016 with an original expiry date of 15 March 2020, providing for approximately three years and eight months during which the Applicant would be permitted to reside in Australia for the purposes of full-time study. Specifically, it had been granted on the basis that he would study for a Diploma of Computing and Information Technology followed by a Bachelor of Computer Science.

[ 3 ]The delegate cancelled the Applicant’s visa on the basis that he had breached that condition of the visa which required him to continue to be enrolled in a registered course of study. The delegate’s reasons are contained in a decision record, a copy of which was provided by the Applicant when he lodged his review application on 14 March 2019.

[ 4 ]The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

HEARING OF APPLICATION

[ 5 ]The hearing of the application was originally scheduled to take place on 5 August 2019. However, following a request made by the Applicant on 25 July 2019, the Tribunal agreed to reschedule the hearing. The Applicant requested the postponement because of mental health concerns. The Applicant had arranged for a psychologist, Mr Edwin Kleynhans, to file a report with the Tribunal that supported his claim in this respect. That reported is dated 24 July 2019 and was received by the Tribunal on 25 July 2019 (‘Mr Kleynhans’ report’). Mr Kleynhans stated that he spent one-and-a-half hours with the Applicant on 24 July 2019 for the purposes of clinical interview. Mr Kleynhans stated:

I would support [the Applicant’s] intention to defer his AAT hearing for around 4 weeks as he is not in the right frame of mind to answer questions consistent at an AAT Hearing. This time will also give him some opportunities to treat his mental health issues and to consult myself as well as talking to his family doctor about drug therapy.

[ 6 ]The Tribunal granted the postponement on that basis. The Applicant was advised in writing by the Tribunal on 25 July 2019 that his request for a postponement would be granted and that he would be advised of the new hearing date when the matter was able to be formally rescheduled. The hearing of the application was rescheduled for 4 September 2019. The Tribunal advised the Applicant of the new hearing date in writing on 16 August 2019.

[ 7 ]On 22 August 2019 the Tribunal received a further request from the Applicant to postpone the hearing now scheduled for 4 September 2019. On this occasion, the Applicant’s reason for the requested postponement, as stated in his email to the Tribunal, was that he needed more time to gather material for the hearing so that he could be mentally prepared for it. He did not specify what material he needed to gather. There was also no additional psychological reportor any other kind of medical report which suggested the Applicant might not be mentally fit to attend the upcoming hearing.

[ 8 ]The Tribunal notes that the rescheduling or adjournment of a scheduled hearing at a review applicant’s request will only occur where there are cogent reasons for the granting of an adjournment.[1] The Tribunal is mindful that a request for an adjournment must be carefully considered and the decision to grant or not grant an adjournment must be made in a manner which is reasonable with genuine consideration of the facts and circumstances of the case.[2] On this occasion of a second request for a postponement, the Tribunal was not prepared to delay proceeding with the hearing of the application any further. Accordingly, on 27 August 2019 the Tribunal advised the Applicant in writing that the hearing would proceed as scheduled on 4 September 2019.

[1] Administrative Appeals Tribunal, President’s Direction: Conducting Migration and Refugee Reviews (Administrative Appeals Tribunal, 1 August 2018) cl 5.1.

[2] Ibid cl 5.2.

[ 9 ]The hearing to consider the merits of the application took place on 4 September 2019. The Applicant appeared before the Tribunal in person to give evidence and present arguments. He did not request an interpreter and it was apparent throughout the hearing that none was required given his proficiency in English. The Applicant did not make any further request for an adjournment of the hearing of his application.

[ 10 ]For the following reasons, the Tribunal has decided to affirm the delegate’s decision to cancel the Applicant’s visa.

CONSIDERATION OF CLAIMS AND EVIDENCE

[ 11 ]The Applicant’s visa was subject to a number of conditions as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’) when the visa was granted. In the present case, the issue is whether the Applicant has breached condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

Did the Applicant Breach Condition 8202?

[ 12 ]Condition 8202(2)(a) of the Applicant’s visa required that the Applicant remain enrolled in a full-time registered course. In the delegate’s decision record, the delegate identified the period from 19 October 2018 to 6 March 2019 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to more than four months during which the Applicant was in continuous breach of the visa.

[ 13 ]The delegate’s finding was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[3] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database allows registered course providers to report changes in relation to a student’s enrolment status and to notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s Confirmation of Enrolment (‘CoE’) in a course for which they had previously been enrolled and the reasons for doing so. The PRISMS report obtained by the delegate indicated that the Applicant’s course provider had cancelled the Applicant’s enrolment in a Certificate IV in Automotive Mechanical Diagnosis course on 19 October 2018 due to the non-commencement of studies. The PRISMS report indicated that the Applicant was not enrolled in any other registered course of study following the cancellation of the Certificate IV in Automotive Mechanical Diagnosis enrolment.

[3] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

[ 14 ]The Department of Home Affairs wrote to the Applicant on 5 February 2019, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). That notice set out particulars of the alleged breach by the Applicant of Condition 8202. The NOICC invited the Applicant to comment on the allegation that he had been in breach of Condition 8202 before the Department moved to cancel his visa.

[ 15 ]The Applicant responded to the NOICC by email on 12 February 2019. In that response, the Applicant stated, ‘I have received your email and I’m literally shocked’. He requested further time to reply to the allegations. The Department replied, granting the Applicant an extension of time to provide a substantive response to the breach allegations and advising him that he would need to provide such a response by 19 February 2019. The Applicant provided a substantive response on 19 February 2019 (‘the Applicant’s NOICC response’). In his substantive response, he did not dispute that he was in breach of Condition 8202 for the period alleged.

[ 16 ]At the hearing before the Tribunal on 4 September 2019, the Applicant admitted in oral evidence that he was not enrolled in a registered course of study for the period 19 October 2018 to 6 March 2019.

[ 17 ]Based on the evidence, the Tribunal is satisfied that the delegate was correct in reaching the conclusion that the Applicant was in breach of condition 8202(2)(a) of his visa. The Tribunal finds that the Applicant was in breach of Condition 8202(2)(a) for a continuous period from 19 October 2018 to 6 March 2019.

Consideration of the Discretion to Cancel the Visa

[ 18 ]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. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. The matters that ought to be considered are specifically listed in PAM3 as follows:

·the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant’s control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);

·the purpose of the Applicant’s travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;

·the extent of the Applicant’s compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;

·the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;

·the Applicant’s past and present behaviour towards the Department (eg, whether they have been truthful and co-operative in their dealings with the Department);

·whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;

·whether there are mandatory legal consequences arising from a decision to cancel the visa;

·whether Australia has obligations under any relevant international agreements that would be breached as a result.

Circumstances Giving Rise to Breach of Condition 8202

[ 19 ]In his NOICC response, the Applicant said his ‘behaviour in studies’ was not good. He said this was attributable to his father’s insistence on him pursuing studies in business or information technology. He explained that he was not interested in such subjects, and that he had more of an interest in ‘some mechanical degree’. Although the language and expression in his NOICC response was not always clear, he appears to admit terminating his enrolments in the computing courses for which his visa was originally granted shortly after his arrival in Australia. He further said in his NOICC response that he then became depressed, which ultimately led to a breach of his obligations as a student visa holder.

[ 20 ]At the hearing before the Tribunal on 4 September 2019, the Applicant gave evidence that was generally consistent with his NOICC response. He said that he started the Diploma of Computing and Information Technology as originally planned when he arrived in Australia in August 2016. After attending classes for about a month-and-a-half, he decided that he would abandon this course because he did not like it. He subsequently terminated his enrolments in both the Diploma of Computing and Information Technology and Bachelor of Computer Science courses.

[ 21 ]The Applicant stated that he then approached an education agent. That agent suggested that the Applicant enrol in an automotive mechanics or painting and decorating courses. The Applicant stated in evidence that he was interested in in more practical courses. He enrolled in the first of these suggested courses but he did not like the atmosphere after about one month of studying. He abandoned that course and enrolled in another.

[ 22 ]The Applicant did not produce any academic records from any course provider in Australia. Such records could have assisted the Tribunal in coming to understand the extent to which the Applicant has made progress in courses in which he has been enrolled since coming to Australia. However, it is reasonably clear from the Applicant’s own evidence given at the hearing that he has not made any meaningful progress in any course since he arrived in Australia in August 2016. He said that he submitted some assignments when he was studying for an automotive mechanics certificate qualification at Acumen College in Richmond. However, he admitted that he had no evidence to objectively verify that he had made any progress in any studies in Australia at all. The Tribunal finds that the Applicant has made no satisfactory progress in any registered course since he has been in Australia.

[ 23 ]The Applicant drew to the Tribunal’s attention that he has been suffering from depression for some time. He also referred to a habit that he had developed of consuming alcohol when he was depressed. In oral evidence, he stated that he had only effectively been introduced to alcohol after arriving in Australia because it is not readily available in his home country of Pakistan. From his evidence, it is clear to the Tribunal that alcohol consumption became a significant problem for the Applicant. He stated that he would drink between at least four and six cans of beer a day, at least three to four days a week. He said that he would often drink more than this. He said that he would sometimes include spirits and wine in drinking sessions. He said that he would drink whenever he became depressed and that he has effectively maintained this drinking habit for the past two years, up until approximately one week before he sought professional help in late July 2019. The Applicant sought to explain his lack of study progress, and the breach of Condition 8202, on this basis. The Applicant stated that a friend finally convinced him to see a doctor.

[ 24 ]In this regard, the Applicant has provided evidence that shows that he saw two healthcare professionals on 24 July 2019. First, there is Mr Kleynhans’ report which has been referred to above. Secondly, there is a collection of documents that appear to be authored by the Applicant’s general medical practitioner, Dr Kinazh Memon, which appear to have been created when the Applicant attended Dr Memon’s clinic in Broadmeadows on 24 July 2019. At the hearing before the Tribunal, the Applicant stated that he saw Mr Kleynhans following his consultation with Dr Memon on the same day.

[ 25 ]The first document authored by Dr Memon is a medical certificate indicating that the Applicant was ‘unfit for study’ on 24 July 2019. The second document is a ‘Pathology Request’ form indicating that Dr Memon requested blood tests to be undertaken by the Applicant. The Applicant stated in oral evidence that Dr Memon said that she thought the Applicant had depression, however he did not know why Dr Memon had requested the blood tests. He said that Dr Memon told him he was to arrange to have the blood tests taken and then see her again the following day. The Applicant also provided a document to the Tribunal which indicated that Dr Memon had placed the Applicant on a mental health treatment plan, which most likely functioned as a referral to Mr Kleynhans.

[ 26 ]The Applicant also stated that Dr Memon gave him a prescription for medication. The Applicant did not produce the prescription to the Tribunal. Upon further inquiry by the Tribunal, it appears that this prescription was designed to address the applicant’s depression issues. However, by the Applicant’s own admission, he did not present the prescription to a pharmacist for redemption. The Applicant also stated that he never arranged for the blood tests and never went back to see Dr Memon despite her advice that he do so. The only further contact he had with healthcare professionals was with Mr Kleynhans, who he saw the Applicant on the same day.

[ 27 ]Mr Kleynhans ’report is the only comprehensive document that goes some way towards explaining the Applicant’s current state of mental health. The report, which is dated 24 July 2019, discloses that Mr Kleynhans consulted with the Applicant once only on 24 July 2019. Mr Kelynhans provides a preliminary provisional diagnosis in his report of the Applicant suffering Major Depressive Disorder and Generalised Anxiety Disorder. As at 24 July 2019, the prognosis for the Applicant was described by Mr Kleynhans as ‘negative’ due to the Applicant’s worries about his ability to study and the hearing before the Tribunal. However, Mr Kleynhans further stated that, with appropriate treatment, including further psychological treatment and possible drug-therapy to be discussed with his family doctor, the prognosis could improve. Mr Kleynhans’ report does not specifically address the issue of whether the Applicant’s depression and anxiety were likely to have been causative of the Applicant’s cessation of studies from 19 October 2018. Nor does it address how the Applicant’s depression and anxiety may have caused his lack of study progress since he arrived in Australia in 2016.

[ 28 ]The Tribunal accepts that anxiety and depression, fuelled by alcoholism, was most likely a significant contributing factor to the Applicant’s breach of his student visa. It has clearly affected his ability to study in Australia since arriving in 2016. The Applicant has failed to achieve anything by way of study progress since he has been here because of this problem. The Tribunal recognises that mental health conditions, such as those suffered by the Applicant, are often not attributable to conscious decision-making processes. In that regard, some allowance has been made by the Tribunal for the Applicant’s breach of Condition 8202 in favour of not cancelling the visa.

[ 29 ]On the other hand, it appears the Applicant took no affirmative steps to address the issue until the imminence of the Tribunal hearing was upon him. That suggests that his primary motivation for seeking professional help was to preserve his visa status, as opposed to addressing his ongoing mental health problem. The fact that he has failed to re-engage with Dr Memon and carry out her instructions since seeing her on 24 July 2019 supports the Tribunal’s finding that the Applicant is not seriously concerned about taking proactive steps to address his underlying mental health problems.

Purpose of Applicant’s Stay in Australia

[ 30 ]The purpose of the Applicant’s stay in Australia, as reflected in the essential purpose of a student visa, is to study on a full-time basis. Regrettably, that purpose has effectively been defeated as a result of the Applicant’s underlying mental health issues, as well as what appears to be an inability on his part to take steps to address those issues.

[ 31 ]The Tribunal has turned its mind to the possibility that the Applicant’s inability to pursue his studies in Australia may have been only temporarily set back by the state of his mental health. The Tribunal has also taken into account the Applicant’s oral evidence given at the Tribunal hearing that, if his visa is not cancelled, he intends to enrol in a Diploma-level course at Barkly International College. However, Mr Kleynhans’ prognosis is ‘negative’ unless the Applicant takes steps to get proper treatment. Based on the evidence of the Applicant, the Tribunal is not satisfied that he intends to take steps to obtain proper treatment. The prognosis therefore remains negative.

[ 32 ]Moreover, it is reasonably clear that the Applicant failed to take ameliorative steps to address his underlying mental health issues at the earliest opportunity when these issues would have been apparent to him. By their nature, student visas are only temporary – they have a start and end date. In the Applicant’s case, his visa was to last for only three years and eight months. It appears that the Applicant’s underlying mental health concerns, and associated problem of not being able to study, were operating for most of that visa period. The Tribunal has no doubt that the Applicant remained conscious of his primary obligation to comply with Condition 8202 throughout this time, notwithstanding that he would have been suffering depression and anxiety at the time. That he failed to do anything to address his underlying mental health concerns until the cancellation of his visa was upon him does not assist his case.

[ 33 ]The Regulations are clear in that student visa holders must continue to remain enrolled and make satisfactory progress towards the attainment of an Australian qualification for the currency of their visa. The Regulations make no provision for the maintenance of a student visa in circumstances where the visa holder is unable to fulfil study requirements due to long-term incapacitation arising from mental health conditions such as those suffered by the Applicant.

[ 34 ]Objectively, it is a sad and unfortunate situation that the Applicant finds himself in. However, the Tribunal cannot overlook the primary purpose for which the student visa was granted. It appears that the Applicant has been unable to maintain consistent compliance with the primary conditions attaching to his student visa for some time. On the available material, the Tribunal does not consider this to be a temporary set-back. Rather, it is a long-term issue that the Applicant continues to have trouble in grappling with. There is no utility in prolonging the Applicant’s entitlement to stay in Australia as a student when there appears to be little prospect in the Applicant being able to effectively function as a student in the foreseeable future. This consideration has weighed significantly in the Tribunal coming to the determination that the visa ought to be cancelled.

Extent of Applicant’s Compliance with Visa Conditions

[ 35 ]Apart from the Applicant’s non-compliance with Condition 8202, the Tribunal is not aware of any other breaches of his visa conditions.

Hardship

[ 36 ]The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia and study in order to obtain an Australian qualification. The Tribunal accepts that it would be difficult for him were he not allowed to complete successfully a further Australian qualification. The psychological impact would also be significant having regard to the Applicant’s current state of mental health. The Tribunal has given this significant consideration, although the Tribunal does not consider this consideration should be given primacy over the purpose for which the visa is designed to serve.

Applicant’s Behaviour towards Department

[ 37 ]The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. There is nothing unfavourable before the Tribunal in that regard.

Other Visa Holders

[ 38 ]There do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

Legal Consequences

[ 39 ]The Tribunal notes that if his visa is cancelled, the Applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds.

[ 40 ]The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements to depart Australia. He is a citizen of Pakistan and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia.

International Obligations

[ 41 ]The Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

Conclusion

[ 42 ]In all the circumstances, the Tribunal is of view that the Applicant’s visa ought to be cancelled.

DECISION

[ 43 ]The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 573) visa.

Dr Jason Harkess
Member