Madige Muhamdiramlage Mohamed Rasdeen (Migration)

[2019] AATA 3476

Madige Muhamdiramlage Mohamed Rasdeen (Migration) [2019] AATA 3476 (1 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohamed Raslan Madige Muhamdiramlage Mohamed Rasdeen

CASE NUMBER:  1901643

HOME AFFAIRS REFERENCE(S):         BCC2018/4403763

MEMBER:D. Triaca

DATE:1 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 01 August 2019 at 4:50pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – mental health issues – poor academic progress – purpose of visa no longer fulfilled – 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 23 January 2019 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 applicant’s visa was granted o 5 February 2016 and was subject to conditions, including condition 8202(2) which required the applicant to be enrolled in a registered course of study, or in limited cases, a full time course of study or training. The delegate cancelled the visa on the basis that he had breached that condition of the visa which required him to be 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 1 August 2019 to give evidence and present arguments.

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 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 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).

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

8. In the delegate’s decision record, the delegate identified the period from 5 February 2018 until 9 January 2019 as the relevant period in which the applicant was not enrolled in a registered course. This amounted to a period of 11 months during which the applicant was in continuous breach of his visa.

9. The Department wrote to the applicant on 2 January 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 applicant was invited to comment on these allegations before the Department moved to cancel his visa. As the delegate noted, following receipt of the NOICC the applicant appears to have re-enrolled in a registered course of study, being a Certificate III in carpentry with Elite Training Institute on 9 January 2019.

10. The applicant provided a written response to the Department by email on 9 January 2019 (the applicant’s NOICC response).

11. In his oral evidence before the Tribunal, the applicant admitted that he was not enrolled in a registered course that period and the finding by the delegate was true and correct.

12. On the evidence before the Tribunal, the Tribunal finds 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

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. 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.’

    Applicant’s Evidence

14. The applicant is a 30 year old citizen of Sri Lanka. He arrived in Australia in February 2016 on a student visa. His intention was to study IT and he enrolled in IT courses at Charles Sturt University with an intention of studying a Bachelor’s degree in IT.

15. In his NOICC response, he states a combination of personal events had prevented him from studying and led to the breach of his student visa conditions. These included mental health issues, including anxiety and depression and contributed to by the death of his grandfather in Sri Lanka and his mother’s surgery in Sri Lanka.

16. He states that he commenced studying at Charles Sturt for approximately 6 months. He failed every subject. In 2017 he enrolled in and commenced studying at Victorian Institute of Technology (VIT), also in IT related courses, initially a Diploma course with a view to completing a Bachelor degree.

17. It is fair to say his academic progress at VIT was poor. He says he did not submit about half of his assignments due to his Obsessive Compulsive Disorder (OCD). He says he wanted to be alone at this time. He says he failed each of his subjects at VIT. He provided no academic transcript or documentary evidence in relation to his time at VIT. He did not obtain his Diploma.

18. He says he sought medical treatment for depression. He produced two medical certificates in this regard from Keilor Medical Clinic, one dated 8 January 2019 that states, “This is to certify that Mr. Mohamed Raslan Mohamed Rasdeen has been attending our clinic for the management of OCD, anxiety and depression since 2016. This certificate was completed on 8 January 2019.” Another, dated 21 January 2018, states he was “receiving medical treatment for the period 21 January 2018 to 15 February 2018 and would be unfit to continue his usual occupation during this period.”

19. He says on the advice of his Doctor, he returned home to Sri Lanka for approximately 1 month in late January 2018. He says that around that time he sought to defer his studies for a semester and made a request to defer his studies from VIT although the applicant did not provide documentation in support of this request.

20. He says that he left for Sri Lanka without any clarity as to whether he could defer his studies. He says that whilst in Sri Lanka he was advised by VIT that it intended to cancel his CoE on account of his lack of academic progress. He says he was asked to pay $250 for the re-issue of his CoE. He returned to Australia on 1 March 2018. He did not recommence his studies. He says he paid $250, but did not pay further fees sought by VIT at the time. He could not remember how much those fees were. He says that he “negotiated with VIT” at the time in relation to fees. In his evidence, it became apparent that VIT required him to repeat the Diploma course on account of his lack of progress in order to continue studying and he did not pay any further fees.

21. He says that around that time his Grandfather became ill and died in Sri Lanka. He says this left him broken. He did no to Sri Lanka as his family considered he should remain in Australia and study. He reports that the death of his grandfather “shook me to the core.”

22. Another matter that the applicant raised is the illness of his mother who lives in Sri Lanka, who suffered an eye issue and required surgery to remove a cataract in October 2018. He provided a medical certificate in relation to this surgery. He says that he is very attached to his mother and this upset him greatly.

23. He states that following the cancellation of his CoE he did attempt to enrol in other colleges in IT but was unable to do so on account of VIT recording his poor course progress.

24. He says he works 1 – 2 days a week at a warehouse in Truganina.

25. He says that his future plan is to enrol in carpentry and pursue a career in that trade. He says that his family are involved in the timber industry in Sri Lanka and he would like to open a furniture shop in his home country.

    Considerations

26. The evidence is that the applicant’s Confirmation of Enrolment (CoE) was cancelled in February 2018 and he remained in Australia, on a student visa, for a period of 11 months without enrolling in a registered course of study or studying. The Tribunal considers this is a significant period of time and it weighs heavily against the application.

27. The Tribunal has regard to the applicant’s evidence in relation to his depression and OCD. He has provided 2 medical certificates that indicate he has suffered from depression and the Tribunal accepts that he has laboured under some difficulties in relation to mental health during his stay in Australia.

28. However, the applicant’s evidence fall well short of enabling the Tribunal to conclude that he was unable to study due to mental health issues during the entirety of his stay in Australia. The applicant’s first medical certificate identifies a specific period between 21 January and 15 February 2018 that the applicant was “unfit to continue his usual occupation during that period.” The applicant states that at this time, his GP recommended he return home to Sri Lanka to visit his family and he did so around that time. Whilst the second certificate dated January 2019 does confirm that he has suffered from OCD and depression and anxiety since 2016, there is no detail provided that would suggest that the applicant’s inability to study or make any academic progress during his stay in Australia is the result of a chronic mental health issue. The Tribunal does not consider it is credible to suggest that the applicant was suffering symptoms of depression so severe that he was incapable of studying for a period of nearly a year and now, with minimal intervention, he is in a position to return to study.

29. The Tribunal accepts the applicant’s evidence that his mother required eye surgery in October 2018 and that the applicant was upset by this occurrence. However, having regard to the fact that his mother’s surgery took place approximately 8 months after the applicant’s CoE was cancelled,  the Tribunal places minimal weight on this issue and does not consider that the applicant’s breach of the student visa was caused by the impact of his mother’s surgery.

30. The Tribunal accepts that the applicant’s grandfather died in Sri Lanka and this may have stressed and upset him at the time. This event appears to have occurred after the applicant’s CoE was cancelled and the Tribunal. He did not return home to Sri Lanka.  The Tribunal considers that death of an elderly relative is not an uncommon experience for student visa holders living away from home and the Tribunal does not consider this event, or the applicant’s reaction to it caused the applicant to breach his student visa.

31. On any view, the applicant’s academic progress in Australia is poor. He reports that he failed all his subjects at both La Trobe College and VIT. He has provided no evidence that would demonstrate any academic progress in Australia. The applicant’s poor academic progress placed him in a situation in which La Trobe required him to repeat his studies and the applicant’s evidence is that he “negotiated” financially to attempt to resolve the matter and have the CoE re-issued. Ultimately he did not reach a financial agreement with VIT.

32. The Tribunal considers that the reality is that in February 2018, the applicant was in a position to either prevent the cancellation of his CoE or, at the very least have it re-issued after a short period of time by paying fees to VIT. He chose not to do so. He says he attempted to enrol in other colleges after that time but here is no evidence of him so doing. There is no evidence that he attempted to raise his personal issues with the Department of VIT. He says he did attempt to defer his studies at La Trobe but he has not provided any evidence of this and, in any event, the Tribunal considers that his position evolved upon his return to Australia when he started to “negotiate” with VIT on fees.

33. The applicant says that he continued to work in his warehouse job after the cancellation of his CoE.

34. The applicant’s position appears to be that the combination of a number of life events, all beyond his control, created a situation in which by their aggregate effect he was prevented from continuing to study.

35. The Tribunal accepts that the applicant has faced the difficulties that he says he has had to deal with. However, many student visa holders are forced to contend with such difficulties during their stay in Australia, being away from their families and support networks in their home country. At the same time, they are required to maintain their studies in Australia in order to comply with the strict visa conditions attaching to student visas.

36. There is no evidence that the applicant availed himself of the opportunity to formally raise his difficulties with his education provider or the Department. The Department and Education providers may allow some latitude to a student visa holder who is experiencing difficulties. He also had the choice to return home to Sri Lanka until he was in a position to return to Australia and study. He chose not to do so. Instead, he remained in Australia on a student visa without studying for an extended period of time. The Tribunal does not accept his evidence that he made any meaningful attempts to rectify the situation and maintain his enrolment or re-enrol in a registered course.

37. The Tribunal does not consider enrolling in the carpentry course in January 2019 after receiving the NOICC and facing the realisation that his visa may be cancelled obviates the applicant’s breach of the conditions of his student visa over an extended period.

38. The Tribunal also has regard to the fact that whilst the applicant failed to take any positive steps to remedy the situation in respect of his continuing study obligations, he found time to do other things such as work. It would seem that the applicant has continued to benefit from the relatively high wages available to him by performing ordinary work in Australia. However, in choosing not to study, the Tribunal considers that he was not acting in a manner that was consistent with the purpose of which the visa was granted.

39. The Tribunal notes the applicant’s desire to study in Australia and accepts that he wishes to study in Australia. It also accepts that he arrived in Australia with a genuinely held purpose of studying. However, at some point in his stay in Australia his purpose evolved and studying was no longer the primary purpose of his stay in Australia.

40. The Tribunal also accepts that the applicant will suffer some emotional and financial hardship if his visa is cancelled and he is unable to return to his home country with the qualification he sought. He has invested time and resources in pursuing his education in Australia. He says it will be embarrassing for his parents if he returns home without a degree. He also says that he has spent approximately $50,000 in 4 years on fees and living expenses in Australia which he considers will be lost if he is forced to return without completing his studies. However, these matters must be tempered by the fact that the breach is significant. The applicant’s student visa obliged him to prioritise studying in Australia. In the Tribunal’s view, the applicant has not provided a satisfactory explanation for his non-compliance with a fundamental visa condition.

41. The Tribunal notes that if the visa is cancelled, the applicant will become an unlawful non-citizen and liable to detention under s 189 of the Act and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar will also be imposed under s 48 of the Act, limiting his options to apply for further visas from within Australia. He will also be subject to a 3 year exclusion period where he will not be eligible to have any temporary visa application if he applies for a visa that requires Public Interest Criterion 4013 to be met. However, these are the intended consequences of the legislation and reflect the seriousness of the breach. In any event, the applicant’s position is that if the visa is cancelled he will return to Sri Lanka so there is no evidence he is at risk of detention and I give this factor minimal weight.

42. The Tribunal considers there is no adverse evidence before the Tribunal in relation to the applicant’s past and present behaviour towards the Department.

43. There do not appear to be any consequential cancellations under the Act that will follow if the applicant’s visa is cancelled.

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

45. In all the circumstances, having regard to all the evidence before it, the Tribunal considers that the applicant’s visa ought to be cancelled.

    DECISION

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

    D. Triaca
    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.