Mongar (Migration)

[2019] AATA 2094

Mongar (Migration) [2019] AATA 2094 (26 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nar Bdr Mongar

CASE NUMBER:  1809614

HOME AFFAIRS REFERENCE(S):           BCC2018/151250

MEMBER:Nicola Findson

DATE:26 April 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 26 April 2019 at 1:13pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – Diploma of Leadership and Management – not enrolled in registered course for 10 months – car accident – robbery victim – physical injuries – mental health issues – genuine intention to study – genuinely remorseful for breaching visa condition – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 189, 198
Migration Regulations (Cth) 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 March 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 572 Vocational Education and Training 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 applicant did not comply with condition 8202(2) of his visa. 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 28 March 2019 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.

   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. The applicant provided a copy of the delegate’s decision record to the Tribunal, for the purposes of the review.  The delegate’s decision records that on 9 March 2018, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of his student visa.  In summary, that NOICC set out the statutory basis for the consideration of the cancellation of the applicant’s student visa and also indicated that it appeared from the Provider Registration and International Student Management System (PRISMS) that the applicant had not been enrolled in a registered course of study since 31 May 2017. 

10. In his response to the NOICC, dated, 16 March 2017, the applicant indicated that he agreed that the grounds for cancellation do exist.  At hearing the applicant confirmed that he was last enrolled in a registered course on 31 May 2017 when his Confirmation of Enrolment was cancelled by his education provider.  He also confirmed that he was not enrolled in a registered course in the period 31 May 2017 to the time of the delegate’s decision in March 2018.

11. On the basis of the information set out in the delegate’s decision, the applicant’s own written submission dated 16 March 2017, and his oral evidence at the hearing, the Tribunal finds that the applicant ceased to be enrolled in a registered course from 31 May 2017.  Accordingly, the applicant has not complied with condition 8202(2)(a) of his visa.

    Consideration of the discretion to cancel the visa

12. 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’.

13. In his response to the NOICC, the applicant asserted that in July 2016 he was involved in a serious car accident in which he sustained injuries. He also asserted that in October 2016, he was the victim of a violent robbery and admitted to the Royal Perth Hospital to be treated for injuries to his head.  Documentary evidence provided by the applicant corroborated that the car accident and the robbery did, in fact, occur.  He indicated that after recovering from these incidents, he became stressed, anxious and depressed, and withdrew from his studies.   He indicated that he has tried very hard to get his life back on track and wants to return to his home country, Bhutan, with qualifications from Australia, so that he can make a good life for himself and make his parents proud. 

14. At hearing, the applicant told the Tribunal that he first arrived in Australia in 2013 as the dependent spouse of his wife, a student visa holder.  He indicated that he and his wife had married in 2010 and that immediately before they left Bhutan, he worked in the documentation department of a hydro project company.  He told the Tribunal that he supported his wife while she completed a Diploma of Business Management.  He said his wife was half way through completing an advanced Business Diploma when, unexpectedly, she fell pregnant.  He indicated that it was her wish to return to Bhutan to have their baby. He also indicated that they both came to the decision that the applicant should remain in Australia to attain business qualifications so that he could return to Bhutan and obtain a good job to support his family.  The applicant indicated that he returned to Bhutan with his wife in October 2015 and spent time there after his baby was delivered, but returned to Australia to commence studying on his own student visa towards the end of November 2015.

15. The applicant indicated to the Tribunal that in the beginning everything went well.  He said he enrolled at the same college his wife had studied at – Stanley College – and completed a Certificate II in English.  He said he was working towards attaining a Certificate III and a Diploma, when things started to go wrong for him.   He said that after his car accident in July 2016, he spiralled into depression and felt very lost. He said that he missed his family terribly.  He said he also started to feel pressure not to fail because his family was depending on him for a good future. He said that when he was assaulted during a robbery a few months later, in October 2016, he felt like he was drowning and “could not do anything”.  He said he found it difficult to sleep, awoke feeling like he was in shock, was anxious all the time, and felt “blank” when it came to his studies.  The fact that he felt like he was failing at everything exacerbated his mental health issues.  He told the Tribunal that he did not speak with his wife and parents for several months because he was too ashamed to tell them he was not doing very well.  He said that even today, with his visa in doubt, he cannot face talking to his mother.

16. The applicant indicated to the Tribunal that he did not consult a medical practitioner in respect of his mental health issues, because he could not afford to.  He said he spoke to a student support worker at Stanley College about the problems he was encountering when they started impacting on his studies, but he was told they were unable to help him.  He said he did obtain some counselling, to learn some strategies to help him lift his mood.  However, he said, the prospect of returning to Bhutan with nothing and having nothing to provide my family, which ironically had been a cause of his health decline, made his mind stronger and he determined to do his best.  He indicated his family members, when he reconnected with them, also provided him with emotional support, and they are willing and able to financially support any further studies he undertakes in Australia. He said his community of friends has also rallied around him and will help him to progress and succeed in his studies if he is given another opportunity.    

17. The evidence before the Tribunal reflects that despite significant obstacles, the applicant remains committed to achieving a business qualification in Australia.  He said that it is his family’s dream for him to return home with his qualification, and if he cannot do so after the time and money he and his family have spent to enable him to study in Australia, and after the psychological stress he has endured, he would feel a great sense of failure.  He indicated that he had sought to enrol in a Diploma of Leadership and Management, and obtained a letter of offer dated 15 March 2018, from Stanley College.

18. At his hearing, the applicant indicated to the Tribunal that he appreciated the importance of compliance with visa conditions and was genuinely remorseful for breaching the condition of his visa.  The Tribunal observes that the applicant was visibly distressed at the hearing.  There was no doubt about the realisation of the significance of the breach of his visa and genuine remorse and understanding of compliance with visa conditions.

19. In assessing the evidence, the Tribunal notes that the applicant presented as a reliable witness.  It can be satisfied that it can rely on his oral evidence to make many of its findings.

20. The purpose of a student visa is to enable the visa holder to pursue study in Australia.  The Tribunal accepts that the applicant came to Australia in October 2013 as a dependent on his wife’s student visa to provide her with support during her studies, and then was granted a student visa to undertake study in his own right in October 2015.  The Tribunal finds that the applicant ceased to be enrolled in a course from May 2017.  However, the evidence before the Tribunal indicates that the applicant pursued one and a half years of study after arriving in Australia as the holder of his own student visa, successfully completing an English course and units towards a Certificate III and Diploma in Business.  He has also indicated that but for the status of his current visa, he would have resumed his studies and worked towards attaining his business qualifications.  The Tribunal accepts that the applicant was fulfilling the purpose of his travel to, and stay in, Australia from the time of his arrival in November 2015 up until the time he breached condition 8202 of his visa, in May 2017.  In addition, the evidence before the Tribunal, and accepted by the Tribunal, is that the applicant remains committed to maintaining his studies.  The Tribunal gives this factor some weight in favour of the visa not being cancelled.

21. The Tribunal has considered the circumstances in which the ground for cancellation arose.  The applicant presented evidence that he suffered trauma as a result of two significant incidents – a serious car accident and a robbery - in July and October 2016.  These incidents subsequently led to him suffering physical symptoms associated with a mental illness, and his health impacted on his conduct which resulted in the breach of the condition of his visa.  While the Tribunal has some concerns about the duration of the period the applicant remained unenrolled, the Tribunal accepts that the physical injuries he sustained in his car accident and the robbery as well as the psychological condition that developed as a result of these incidents impacted on his conduct which resulted in the period of non-enrolment.  The Tribunal also accepts that the applicant is set to study towards a Diploma of Leadership and Management if his visa is reinstated. 

22. The Tribunal finds that the evidence before it indicates that the applicant suffered injuries following a car accident and a robbery which led to him suffering psychological difficulties; attempted to take action to continue with his studies; and has demonstrated a desire to continue studying.  The Tribunal considers that the evidence and actions of the applicant ameliorates the breach, and it finds that the circumstances of the breach in this case do not weigh towards the visa being cancelled.  The Tribunal gives them little weight towards the visa being cancelled.

23. The Tribunal has considered the extent of compliance with visa conditions.  It is the case that the applicant has breached condition 8202.  However, there is no evidence that the applicant has breached other conditions of his visa.  In addition, the evidence of him actively engaging in studies from the time of his entry to Australia in November 2015 up until May 2017, as well as him re-enrolling in the business course(s) he would like to complete, is indicative that he wishes to study in compliance with his relevant visa conditions.  The Tribunal therefore gives this factor little weight towards his visa remaining cancelled.

24. With respect to the degree of hardship, the applicant indicated to the Tribunal that he, with his family’s support, wants to study in Australia.  The evidence before the Tribunal is that the applicant’s family would be disappointed if he returned to Bhutan without a business qualification, and he would feel as if he has wasted a significant amount of money and failed if he returns empty handed and without the ability to obtain a good job to support his family.  He told the Tribunal his “future would be bleak”. The Tribunal gives this factor some weight in favour of not cancelling the visa.

25. According to the delegate’s decision record, there is no information before the delegate to indicate any specific matters of relevance regarding the applicant’s behaviour towards the Department.   The Tribunal gives this little weight towards the visa not being cancelled.

26. The delegate’s decision record indicates that if the applicant’s visa were to be cancelled he would become unlawful and 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. The Tribunal gives these consequences some limited weight in favour of not cancelling the visa.

27. There are no persons in Australia who would be affected by consequential cancellations in this case.

28. There is nothing to suggest, and the applicant does not claim, that any international obligations would be breached as a result of the cancellation. The Tribunal gives no weight to this consideration.

    any other relevant matters.

29. The applicant indicated to the Tribunal that he wished to continue studying to obtain a business management qualification at Stanley College, if his visa is reinstated.  The Tribunal accepts this evidence.  The Tribunal considers that the applicant’s intended choice of further study, at the same education provider he has already completed studies at, is indicative of his genuine intention to study, and gives it some weight in his favour.

30. The Tribunal recognises that the cancellation of a visa is a significant matter and has weighed the evidence before it, including evidence that was not available to the delegate at that time of decision. The Tribunal considers that the discretionary factors above indicate that the applicant should be given an opportunity to remain in Australia to engage in study.

31. The correct and preferable decision therefore is not to cancel the visa. The Tribunal, in reaching this decision, notes that had the visa not been cancelled it would have already ceased naturally.  The Tribunal is conscious that setting aside the visa cancellation will allow the applicant the opportunity to be considered for a further student visa while in Australia.

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

    DECISION

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

    Nicola Findson
    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.