Mohamed Fawnoon (Migration)

[2018] AATA 5191

Mohamed Fawnoon (Migration) [2018] AATA 5191 (26 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohamed Afkar Mohamed Fawnoon

CASE NUMBER:  1621375

HOME AFFAIRS REFERENCE(S):           BCC2016/3186172

MEMBER:Brendan Darcy

DATE:26 November 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Class TU visa.

Statement made on 26 November 2018 at 4:37pm

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 – extenuating circumstances beyond applicant’s control – severe anxiety – genuine efforts to address unsatisfactory academic progress – accessed counselling services prior to non-enrolment – mental health status stabilised – motivated to re-engage with studies – decision under review set aside

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 5 December 2016 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 the delegate being satisfied that the ground for cancellation existed and that the grounds for cancellation was not outweighed by the grounds for not cancelling.

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

4. The applicant appeared before the Tribunal on 16 November 2018 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

6. 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

7. 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?

8. 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).

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

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).

11. According to the decision record, the applicant was granted a student visa on 12 September 2013 and that the visa was set to expire on 31 December 2016. It also shows that Provider Registration and International Students Management System (PRISMS) records indicate the applicant had been enrolled in a registered course of study until 18 December 2015.

12. During the scheduled hearing the applicant explained that he had been enrolled in an English course for academic purposes and a Bachelor of Commerce at Deakin University. The applicant claimed he completed the English language coursework but did not maintain his enrolment in the Bachelor’s degree.  

13. The decision record further indicated that the applicant’s enrolment in a Bachelor of Business was cancelled on 1 March 2016.

14. The decision record also stated the applicant was further contacted by a departmental official by issuing the Notice of Intention to Consider Cancellation (NOICC) on 2 November 2016; and to respond within five working days.

15. The Department received a response from the applicant on both the 9 November 2016 and 16 November 2016. The applicant did not dispute in his written response to the NOICC that the ground for cancellation existed.

16. The Department proceeded to cancel this student visa under review on 5 December 2016.

17. In the applicant’s oral and written evidence submitted to the Tribunal, the applicant did not dispute that he had breached condition 8202 since he had not been enrolled in any course work since 18 December 2015 – more than eleven months.

18. On the evidence before the Tribunal, the applicant was not enrolled in a registered course for a period of more than eleven months between 1 March 2016 and the date of cancellation.  Accordingly, the applicant has not complied with condition 8202(2).

    CONSIDERATION OF THE DISCRETION TO CANCEL THE VISA

19. 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’.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

20. The delegate provided little weight on the evidence the applicant provided regarding the claimed circumstances that led to the grounds for his enrolment being cancelled.

21. It is accepted that the applicant has been accessing the university’s counselling services since March 2014 - considerably earlier than the applicant’s non-enrolment in March 2016. It is accepted that the psychologist’s overall assessment that the applicant has been experiencing severe anxiety over two or three years which has interfered with his life and academic functioning and the degree of impact on his academic performance was assessed as severe. It is accepted that symptoms pertaining to the applicant’s mental health status include OCD-type behaviours, depressive moods, insomnia and problems with decision-making; and that he has lived with some of these symptoms from a young age. It is further accepted that that he had few accessible relatives in Australia to assist him while enduring episodes of severe anxiety at the time of becoming non-compliant with condition 8202. 

22. The Tribunal also accepts that the applicant did make genuine efforts to address the applicant’s unsatisfactory academic progress by submitting medical evidence that he was afflicted by severe anxiety but the university decided to temporarily exclude the applicant from studying for a minimum of three trimesters from the end of 2015. It is the practice of Deakin University (and other education providers) to exclude students in cases on severe illness to allow the afflicted time to convalesce. Such practices are not design to punish students. In this regard, it was still open to the applicant to depart and to recover in his home country without being non-compliant without being barred. The Tribunal accepts that the applicant feared his family would not understand his mental health circumstances attributed to his poor academic performance but that did not mean that all these circumstances were beyond his control.

23. With particular emphasis on the mental health evidence before it, the Tribunal accepts the applicant did endure severe anxiety and these debilitating symptoms were extenuating circumstances beyond his control – even when psychological and medical support is accessed.  It is accepted the applicant attempted to appropriately address the matter about his unsatisfactory academic performance but his education provider suspended his studies arising from his mental health problems by cancelling his enrolment. Accordingly the Tribunal finds the applicant endured credible circumstances that extenuating and beyond the applicant’s control that led to the grounds for the visa being cancelling. The Tribunal places a notable weight in favour of the applicant’s visa not being cancelled.

    The purpose of the visa holder’s travel to and stay in Australia

24. During the scheduled hearing, the applicant elaborate that it was his dream to become a chartered accountant at his uncle’s private hospital. He claimed that the same uncle had supported his cost of living and tuition fees while living and studying in Australia and that there is a job available to him. He also claimed that he wanted to study in Australia because the process of becoming a charter accountant in Sri Lanka due to the required time spent as an intern in an auditing firm was excessive while qualifications from Australia were recognised. The Tribunal accepts this to be the case given working in a hospital as an accountant requires more than mere book keeping skills and that a degree from an Australian university does carry with some prestige in his home country.

25. In the applicant’s written post hearing response, the applicant claimed it would be highly unlikely he would be accepted into a well-recognised university and that he would have to declare that his visa had been cancelled as part of the reason he was genuinely committed to studying in Australia. The Tribunal finds these specific reasons about barriers to gaining access to a university in Sri Lanka or achieving qualifications to be weak and exaggerated.

26. Nevertheless, the Tribunal accepts the applicant does not have a genuine career goal and that he is motivated to complete a Bachelor’s degree in Australia as higher education is greatly valued in his family and especially by his mother.

27. More impressively, the Tribunal has considered the determination of the applicant to remain engaged with his studies since the cancellation of that enrolment in December 2015. The evidence before the Tribunal is that that the university cancelled his enrolment on the grounds of unsatisfactory academic performance, not to punish the applicant but because it was not satisfied he would be able to perform academically while experiencing severe anxiety. As outlined above, this is accepted to be the case.

28. As part of the post hearing submission, the applicant’s representative submitted a copy of letter dated 23 November 2018. The letter outlines that the applicant is currently enrolled fulltime in a Bachelor of Commerce as a full paying international student and that it is same course as the one he commenced in on 10 March 2014. This supports the applicant’s claim that is enrolled with a reduced study load. The Tribunal also acknowledges that the applicant has a letter of offer from Deakin University dated 2 November 2017 which also supports this claim. The Tribunal accepts that his studies are set to begin in February 2019 and that this would be in keeping with Deakin University’s earlier letter that the applicant’s enrolment had been cancelled until the applicant’s ongoing mental health conditions had been treated and stabilised. 

29. For these reasons, the Tribunal finds there is sufficient evidence not to doubt the applicant’s intention to complete a Bachelor’s degree or that his intention to garner a qualification to achieve economic advancement back in Sri Lanka.  Based on the available information, cumulatively considered, the Tribunal is satisfied that the applicant’s purpose of travelling to Australia is to study on a full-time basis and places substantial weigh in this overall finding in favour of not cancelling the visa.

    The extent of compliance with visa conditions

30. There is no evidence before the Tribunal to indicate the applicant did not comply with other conditions. The delegate decision does not record any information about further non-compliance. The applicant was not enrolled in a registered course for a long period of time – almost twelve months and that it was open to leave Australia and return once his mental health symptoms had stabilised. The Tribunal considers this significant to the question whether his visa should be reinstated. The applicant has provided explanations to the Tribunal for this non-compliance. The Tribunal gives this factor regarding non-compliance some weight towards the visa remaining cancelled.

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

31. In the applicant’s written submissions and during the scheduled hearing, the applicant has explained that he will experience significant emotional and psychological hardship which will be extenuated and heightened by the applicant’s mental health conditions. As mentioned above the Tribunal accepts the applicant does experience ongoing but treatable mental health conditions. The applicant elaborated that he belonged to a family in which academic achievement is greatly valued; that he was the eldest of the family; that he feared exacerbating the heart condition of the applicant’s mother; and that his family will isolate him from socialising for his failure to advance his studies and prohibit him from studying in another country. He also claimed that his mother and his uncle who sponsored his studies (and operated a private hospital) would not appreciate his mental health problems leading to his visa being cancelled or that he would not have access to psychological support. He also said if his visa was not reinstated he would have suicidal thoughts and that his family is angry with him for not attending the funerals of his father in March 2017 as well as other relatives.

32. While the Tribunal accepts that his mother and other family relatives may be disappointed in him or even temporarily angry towards him if he returns to Sri Lanka without a degree, the applicant failed to convincingly or consistently argue that his family, who are well educated, would understand his difficulties arose from his mental health symptoms or that he would not have accept that he would need ongoing medical support for his mental health problems. In this regard, the Tribunal finds that the applicant has exaggerated the degree of emotional and psychological hardship he will face in returning to Sri Lanka and does not accept the applicant’s family will deliberately or knowingly exacerbate these hardships to any notable extent or that he would not be able to undertake studies either in Sri Lanka or another jurisdiction such as Malaysia, Canada or the United Kingdom.

33. Nevertheless The Tribunal accepts the applicant’s ongoing mental health problems which are currently stabilised, are serious enough and that the visa remaining cancelled will cause some but not a severe or significant amount of distress and emotional hardship to the applicant. The Tribunal places a notable but not a significant amount of weight on this emotional and psychological hardship in favour of the visa not remaining cancelled.

34. In the applicant’s written post hearing response, the applicant claimed it would be highly unlikely he would be accepted into a well-recognised university and that he would have to declare that his visa had been cancelled. The Tribunal does not accept this and places no weight on these exaggerated explanations in favour of the applicant.

    Past and present conduct of the visa holder towards the Department

35. Although the applicant did not respond to the NOICC that was issued, there was no evidence that the applicant had been uncooperative towards the Department. Overall, the Tribunal gives this factor a little weight in his favour.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

36. Not relevant.

    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

37. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained or even forcibly removed. It was also discussed that he would be barred up to three years from re-entering Australia. The applicant feared that were the visa to remain cancelled it would jeopardise his arranged prospective marriage to a fellow Sri Lankan currently studying in Malaysia as he would not have an overseas degree which he is expected to have achieved. The applicant argued that love marriages are not sanctioned by his Islamic faith. Although arranged marriages are widely practiced among Muslims and without being the arbiter of the Islamic doctrine on marriage, the Tribunal does not accept the applicant’s argument that non-arranged marriages are prohibited or his future marital status relies heavily on this visa not remaining cancelled. Even taking into consideration the applicant’s sincerity about his marital prospects, the Tribunal finds little hardship in this mandatory legal consequence on him.  In relation to this factor, the Tribunal gives these considerations only little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

38. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

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

39. During the scheduled hearing, the applicant attempted to unconvincingly argue that he held a fear of serious harm in returning to his home area of Kandy in central Sri Lanka. This fear arose due to anti Muslim provocations by Sinhalese chauvinists in that area. While the Tribunal accepts such riots in early 2018, the Tribunal notes that many of the provocateurs were arrested and that the applicant’s subjectively held fears of persecution were undermined by his earlier claim that he will wanted to return to Sri Lanka to work in a family business close to Kandy and that none of his family have moved from the area. The applicant claimed that he has considered applying for a protection visa as he has not applied since his arrival. As it remains open to the applicant to seek Australia’s protection obligations, it gives this factor a little weight in his favour.

    Any other relevant considerations

40. The Tribunal has also considered that the applicant’s lack of maturity since arriving in Australia. When the applicant departed Sri Lank for Australia, he was aged 21. It was the first time in his life that did not have constant parental supervision and in a different country. It is not unusual for young men and women to embrace these relative freedoms at the expense of their studies. In this matter, the applicant’s lack of maturity was exacerbated by his mental health conditions but he has now matured and has stabilised his mental health conditions. The Tribunal places some weight on this factor in favour of the visa not remaining cancelled.

    Conclusions

41. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

42. In his matter, the Tribunal finds the applicant did have extenuating circumstances beyond his control the ground for cancellation based on the medical evidence presented. Certainly there is no evidence there was any mischief or malice behind the applicant’s non-compliance with 8202. It is accepted that his mental health status is stabilised and that the applicant has matured, inviting the Tribunal to find he has the capacity to study full time and uphold the conditions imposed on him as a student visa holder. It accepts, on balance, that the applicant has been determined to re-engage with his studies and that he is genuinely motivated to complete his full time studies as claimed. While the degree of hardship to be faced by the applicant is not assessed to be significant and the applicant has understandably exaggerated some explanations for the visa to be reinstated, the Tribunal finds there are more factors in favour of having his visa not remain cancelled than in favour of cancelling the visa.

1. The Tribunal notes that the applicant will have to apply for a new visa in a short period if he wishes to study in Australia. Due to changes in the Migration Regulations, Class TU Subclass 573 visas are not available to the applicant, as the Minister has made reductant Subclasses 570 through to 576 visas. They were replaced by Class TU Subclass 500 student visas on 1 July 2016.

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

   DECISION

3. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Class TU visa.

   Brendan Darcy
   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.