Lee (Migration)

[2020] AATA 3455

Lee (Migration) [2020] AATA 3455 (10 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hung Chi Lee

CASE NUMBER:  2004413

HOME AFFAIRS REFERENCE(S):          BCC2019/4945158

MEMBER:Vanessa Plain

DATE:10 July 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 10 July 2020 at 5:24pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – non-payment of fees – consideration of discretion – mental health condition – decision under review affirmed

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 28 February 2020 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 was not enrolled in a registered course. 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 10 July 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

4. 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

5. 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?

6. 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).

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

8. An examination of the Delegate’s Decision Record reveals that the applicant was granted a Student (Temporary) (class TU) subclass 500 visa on 3 September 2018 for the purpose of undertaking a Bachelor of Business at Western Sydney University.  On 10 September 2018, this enrolment was by the university for non payment of fees. 

9. A Notice of Intention to Consider Cancellation (NOICC) of the visa was issued to the applicant on 10 February 2020.

10. The applicant responded to the NOICC in writing on 24 February 2020.  In that response, he sought to explain the reasons for his period of non-enrolment and provide reasons why the visa should not be cancelled. 

11. At the hearing, the applicant acknowledged that he was not enrolled in registered course between 10 September 2018 and 28 February 2020, when he obtained an enrolment in an Advanced Diploma of Leadership and Management. 

12. On the evidence before the Tribunal as set out above, the Tribunal is satisfied that the applicant did not maintain enrolment in a registered course of study from 10 September 2018 and 28 February 2020 and on that basis, he has not complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

13. 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.

14. 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’.

15. The applicant provided the following documents in support of his application:

    ·Initial Psychologist Assessment Report dated 24 February 2020 (Report);

    ·Statement of academic record;

    ·Signed statement; and

    ·COE for a Diploma of Leadership and Management produced 28 February 2020.

16. In his written response to the NOICC, the applicant gave reasons[1] why his visa ought not be cancelled, as summarized in the Delegate’s decision record, (verbatim) as follows:

    ·   ‘The visa holder arrived to Australia in October 2015 to study a Diploma of Commerce at Sydney Institute of Business and Technology (SIBT), which he completed in February 2018. He experienced difficulties adjusting to his new study environment and study methods.’

    ·‘The visa holder was also experiencing enormous pressure from his parents in regards to his academic performance and their high expectations of him. His father wanted him to enrol in Macquarie University. However he did not meet the entry requirements to study at Macquarie University, although he tried very hard. He was extremely depressed due to criticism from his father for not being able satisfy his father’s expectation.’

    ·‘The visa holder enrolled in Western Sydney University to engage in further study at the Bachelor level. He studied hard but found it to be challenging. He was physically and mentally drained, resulting in stress, depression and anxiety. He developed sleeping problems, causing fatigue. He developed a sleep disorder due to his irregular eating regime and gained 30 kg weight. He discontinued his study and isolated himself due to these mental health concerns.’

    ·‘After receiving the Notice from the Department, he talked to his family and received their emotional support and encouragement. He decided to seek professional support from a psychologist in relation to his mental health. He also engaged in the services of a professional education consultant to review his study plan.’

    ·‘The visa holder has received an offer letter to study an Advanced Diploma, as it is less intensive than a higher education or vocational course. He received an offer from United Colleges of Australia and plans to start the program in April 2020, to be completed in October 2021.’

    ·‘The applicant plans to complete a Bachelor Degree on completion of the Advanced Diploma because it will be extremely difficult for him to seek employment in his home country without a degree.’

    [1] Consistent with the written reasons set out in the applicant’s signed statement.

17. In his sworn evidence at the hearing, the applicant provided reasons that were consistent with the written reasons set out above and said further as follows:

    ·He did not seek a deferral of his course at the time because it was just too difficult a time for him and he couldn’t deal with it.

    ·He did not seek the assistance of a migration agent until after he received the NOICC.

    ·He lodged another student visa application after he received the NOICC, but this application has been refused.

    ·He lodged a visitor visa application, because his brother told him that he should apply for in in case his student visa gets cancelled.  

    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      

18. The applicant was granted a Student (subclass 573) visa on 10 September 2015 for the purpose of completing a Diploma of Commerce at SIBT and a Bachelor of Commerce at Macquarie University, however his COE for the Bachelor course was cancelled on 17 August 2016.  He did complete his Diploma of Commerce.

19. The applicant enrolled at Western Sydney University to undertake Bachelor studies, but found the course to be too challenging and contended that he developed a range of mental health issues, as described in the Report, which caused him to cease studying.

20. The applicant’s enrolment in his course at Western Sydney University was cancelled on 10 September 2018 due to due to non-payment of fees.  After his enrolment was cancelled, the applicant continued to reside in Australia without studying.

21. The applicant is enrolled in an Advanced Diploma on 28 February 2020, therefore he has remedied his non compliance as to enrolment.  However, his current visa was granted for the purpose of studying a Bachelor level course at an Australian Qualifications Framework level 7.  The Advanced Diploma is an AQF level 5. 

22. Moreover, the applicant lodged a Visitor (subclass 600) visa application on 11 February 2020.

23. The Tribunal considers the period of non enrolment to be reasonably substantial and the purpose of stay in Australia is currently not in line with the purpose for which the visa was granted.

24. The Tribunal gives these considerations some weight towards the visa being cancelled.     

    Circumstances in which ground of cancellation arose

25. The circumstances in which the grounds for cancellation arose occurred when the applicant failed to maintain enrolment in a full-time registered course of study, from 10 September 2018. This resulted in non-compliance with visa condition 8202(2)(a).

26. The applicant has claimed he did not maintain enrolment due to study demands and his mental health issues.

27. The applicant has not provided any other medical evidence other than the Report, dated 24 February 2020 which was prepared following an initial date of assessment on 19 February 2020. 

28. The Report specifically provides that the applicant was referred for psychological assessment regarding his psychological state of mind from June 2019 to the present date. The opinion of the psychologist provides that the applicant’s symptoms during the period in question were suggestive of the presence of high levels of clinical depressive symptoms.  He stated further that these symptoms have directly affected his studies, which have manifested as a lack of motivation and interest in his studies.  

29. Although the Tribunal acknowledges the clear difficulties the applicant has endured, the Tribunal cannot be satisfied that the applicant’s mental health conditions caused the breach of his visa condition, for the following reasons:

    (a)The Report states that the assessment is for the period June 2019 onwards and the visa condition was breached in September 2018, therefore, there is no medical evidence before the Tribunal to the effect that the applicant had a mental health in September 2018 that impacted upon his capacity to maintain enrolment;

    (b)The Report was procured after receipt of the NOICC and the applicant has not provided any other medical certificates dated prior to receipt of the NOICC, to suggest that his alleged symptoms impacted upon his ability to study or remain enrolled;

    (c)Based upon the applicant’s own evidence set out above and the general nature of the Report, the Tribunal is not satisfied that there were grounds beyond the applicant’s control that prevented him from seeking a deferral of his studies for compassionate or compelling reasons

30. The Tribunal considers that it is reasonable to expect that if the applicant believed that he was unable to maintain enrolment due to health issues, he could have applied for a deferral of his course on compelling and compassionate grounds and returned to his home country to seek treatment, rather than remain in Australia in continued non-compliance with the condition of his visa.

31. The Tribunal therefore finds that the reason for the breach of the visa condition was not due to a matter reasonably outside of the control of the applicant and the Tribunal gives this consideration significant weight in favour of cancelling the visa. 

    The extent of compliance with visa conditions

32. The applicant has not complied with condition 8202(2)(a).  The applicant has provided reasons for the breach which are set out above. 

33. However, the Tribunal considers that the period of non compliance is substantial, being approximately 18 months and it further considers the requirement to maintain enrolment to be integral to the grant of a student visa.   

34. Further, while the Tribunal acknowledges the applicant’s struggles as set out above, the Tribunal is not satisfied that the reason for the breach of condition 8202(2)(a) was due to a matter reasonably outside of the control of the applicant.  

35. The Tribunal gives this consideration some weight in favour of the visa being cancelled.

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

37. The applicant contended that he will suffer hardship if his visa is cancelled, because it will be difficult for him to return to China and obtain a good job without higher education.

38. There is no evidence that the applicant has family members in Australia that will be adversely affected by the cancellation of the visa.  The applicant stated that he has an older brother in Australia and his parents visit on occasion. 

39. The Tribunal acknowledges that the separation of the applicant and his brother in Australia may cause a degree of hardship. However, the usual consequences of a stay in Australia on a temporary visa is departure.

40. There is no evidence to suggest that the applicant could not study in his home country, however, the Tribunal takes into account the modest mental and emotional hardship the applicant may suffer having to return to China without having obtained a Bachelor degree and the consequent difficulty that may cause him with his parents.    

41. Based on the matters set out above, the Tribunal accepts that the cancellation will lead to some personal detriment for the applicant which would be compounded by the continuation of the cancellation of the visa and the Tribunal gives this a little weight towards the visa not being cancelled. 

    Past and present behaviour of the visa holder towards the Department

42. The applicant has conducted himself in good faith in his dealings with the Department and its staff.  He responded to the NOICC promptly and in some detail. 

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

    Whether there would be consequential cancellations under s.140

44. There is no evidence before the Tribunal of any consequential cancellations as a result of the applicant’s visa being cancelled.  The Tribunal therefore gives this factor no weight for or against cancelling the visa for this consideration.   

    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

45. 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. The applicant would also be affected by Public Interest Criterion 4013, which may exclude him from being granted a visa for a specific period of time in the future.

46. However, these are mandatory and intended consequences of the legislation and given that the circumstances giving rise to the breach were not due to circumstances beyond the control of the applicant, the Tribunal does not consider this to be manifestly unfair and the Tribunal therefore gives this consideration some weight in favour of cancelling the visa 

    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

47. 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 the Tribunal, the Tribunal does not give any weight for or against cancelling the visa for this consideration.

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

48. Not applicable.

    Any other relevant matters

49. There are no other relevant matters for consideration.   

50. Although the matters set out above do not reveal any bad faith on the part of the applicant, it is clear based on the evidence that the reason for the breach of the visa condition was not due to a matter reasonably outside of the control of the applicant.

51. It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa being cancelled and I so find.

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

    DECISION

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