Nguyen (Migration)

[2020] AATA 1669

Nguyen (Migration) [2020] AATA 1669 (21 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pham Thach Son Nguyen

CASE NUMBER:  1709274

HOME AFFAIRS REFERENCE(S):          BCC2017/952331

MEMBER:Justin Owen

DATE:21 February 2020

PLACE OF DECISION:  Sydney

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

Statement made on 21 February 2020 at 1:01pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa –did not comply with condition 8202 – applicant ceased to be enrolled in a registered course of study – applicant is currently enrolled – genuine desire to complete studies at the higher education level – psychological illness – medical evidence provided – decision under review  set aside

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 April 2017 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 applicant is a national of Vietnam born 31 January 1993.  His Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa was granted on 30 May 2016 and was subject to condition 8202.  The visa had a stay period with a stay period until 30 September 2017.  On 27 March 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he had ceased to be enrolled in a registered course since 18 August 2016.  The applicant responded to the NOICC on 20 April 2017.  On 24 April 2017 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa.      

3. The delegate cancelled the visa on the basis that the applicant has not complied with the requirements of condition 8202 (2)(a) of the 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.

4. The applicant appeared before the Tribunal on 6 February 2020 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. The applicant supplied the Tribunal with a copy of the delegate’s decision of 24 April 2017. The decision record states that the Provider Registration and International Student Management System (PRISMS) records indicated that the applicant had not been enrolled in a registered course of study since 18 August 2016.  At the time of the delegate’s decision on 24 April 2017 the applicant therefore had not been enrolled for a total of over 8 months. 

11. At the Tribunal hearing the applicant conceded in oral evidence that he had not been enrolled in a registered course between 18 August 2016 and the delegate’s decision on 24 April 2017. 

12. 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).

    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 Procedural Instruction ‘General visa cancellation powers’.

    The 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

14. The applicant originally arrived in Australia some years ago and successfully completed his high school education (Yrs 7 to 12) in Sydney. 

15. In 2012 the applicant commended his tertiary studies at Western Sydney University in a Bachelor of Information and Communications Technology and Bachelor of Business and Commerce (Accounting) double degree.  He successfully passed most subjects in the 2012 year and all subjects in the first half of 2013.  In latter 2013 and 2014 his academic performance declined with a mixture of fails and pass results in his studies. 

16. In 2015 he shifted his studies at Western Sydney University to just a Bachelor of Information and Communications Technology.  He obtained poor results in 2015 and 2016, only passing one subject.  In August 2016 his enrolment was cancelled for cessation of studies.  The applicant has submitted that psychological challenges he was facing and a previously undiagnosed depressive disorder are responsible for his failure to remain enrolled in a registered course of study until his recent enrolment at the University of New South Wales.

17. The Tribunal accepts the applicant was a good student at school in Australia and initially was a solid student at the higher education level at WSU.  On the evidence before it, the Tribunal is satisfied that the applicant’s original intention was to travel and stay in Australia for the purposes of study.

18. The Tribunal has considered whether the applicant has a compelling need to remain in Australia.  The Tribunal notes that the applicant did not hold a COE in a registered course of study since the cancellation of his enrolment in his Bachelor of Information and Communication Technology course in 2017, despite receiving an offer by Group Colleges Australia in a Bachelor of Accounting course in April 2017.  He is currently enrolled in a Master of Analytics at UNSW.  The Tribunal notes he has paid his fees for his 2020 subjects and is a current student. 

19. The Tribunal notes the extensive evidence the applicant has provided pertaining to his mental health and his diagnosis of a Severe Mental Depressive Disorder.  He claims he first exhibited symptoms in 2015 but was unaware of the disorder.  His health declined in conjunction with his academic performance in 2016, leading to his cessation of studies.  Since May 2017 he has engaged in extensive weekly or fortnightly treatment with his registered psychologist Dr Carlie Kowald in order to address his psychological issues. 

20. The Tribunal on the evidence before it accepts the applicant was committed to his studies at the higher level prior to the cancellation of his enrolment and has retained a desire to study at the higher education level.  He has received extensive psychological treatment professionally as well as the support of his Church community in order to recover and recommence his studies.  The Tribunal is satisfied he has a genuine desire to complete studies at the higher education level. 

21. The Tribunal considers, based upon the evidence before it, that the applicant has faced some enormously difficult psychological challenges in the past five years.  The Tribunal considers the applicant deserves an opportunity to recommence his higher education studies in the wake of his treatment and the opportunity to return to the good academic performances he displayed prior to the cancellation of his course of study. 

22. On the evidence before it concerning the purpose of the applicant’s travel to and stay in Australia and whether the applicant has a compelling need to travel to or remain in Australia, the Tribunal weighs this factor against cancelling the visa. 

    The extent of compliance with conditions

23. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions other than those that he has accepted, and the Tribunal has taken this into account. 

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

24. The Tribunal has considered the degree of hardship that may be caused to the applicant and his family should his Student visa be cancelled.  

25. The applicant talked about his concerns relating to returning to Vietnam with a psychological illness.  He stated that mental health is not considered a real illness and there is a stigma attached.  The Tribunal considers this statement to be speculative rather than based upon empirical evidence or experience.  The Tribunal gives the claim of hardship pertaining to his mental health little weight. 

26. Similarly the applicant discussed his concerns about returning to Vietnam and being compelled to serve in the armed forces due to conscription.  He said that if he was able to remain in Australia for his studies he would be able to avoid the requirement to serve after he was 28 years of age.  The applicant also stated that he was concerned his psychological disorder would not be understood or treated in the Vietnamese military.  The Tribunal appreciates the applicant’s desire to avoid compulsory service and his concerns about his treatment plan whilst serving.  The Tribunal considers the hardship however that will be caused to the applicant to be limited.  Military service via conscription is an expected element of Vietnamese life in the applicant’s age cohort.  The expectation of service in its own right is not in the Tribunal’s opinion an unreasonable hardship, rather an obligation as a citizen.  The Tribunal furthermore notes that the applicant retains the opportunity to inform the military of his health concerns upon any call-up for conscription and either seek ongoing treatment or an exemption due to his health problems.  The applicant has claimed there is no psychological treatment available in the armed forces but there is no evidence before the Tribunal to corroborate such a claim.   The Tribunal does not consider the issue of conscription and military service in Vietnam, in the personal circumstances of the applicant, is an onerous hardship and gives the claim little positive weight. 

27. The applicant stated that hardship would be caused to himself by the need for him to recommence his studies in Vietnam in Vietnamese.  He stated that after many years in Australia he uses English as his main language.  The Tribunal gives this claim of hardship little weight.  There is no claim the applicant is no longer fluent in Vietnamese.  The Tribunal accepts that the applicant is comfortable speaking in English but there is no reason to believe he will be unable to reintegrate himself with the use of Vietnamese as his principal language of study.  The Tribunal gives the claim of hardship relating to language little weight.

28. The applicant has no partner.  The applicant is currently residing with his sister who is studying nursing.  The Tribunal accepts cancellation of his visa will cause her limited personal and financial hardship.  It does not however think such hardship is either onerous or unusual.  He has no other family members in Australia. 

29. In relation to his family overseas the applicant said his parents would be disappointed in his failure to complete his studies.  The Tribunal considers this to be an understandable reaction but it does not consider it represents a hardship to his family.   

30. The Tribunal has considered the claim of hardship to the applicant in relation to his ongoing psychological treatment.  The Tribunal on this issue has sympathy for the applicant.  The Tribunal has noted the extensive psychologist reports that have been submitted as well as the detailed report submitted by Dr Carlie Kowald, the applicant’s treating psychologist for almost three years.  In that period Dr Kowald has treated the applicant on well over sixty separate occasions.  She clearly plays an important role in the applicant’s management of his psychological and mental health condition.  The Tribunal places considerable weight on Dr Kowald’s evidence and her pronouncements on the applicant’s severe major depressive disorder which she predates his visa cancellation to 2015.  The Tribunal considers the hardship that would be caused to the applicant by losing access to Dr Kowald would be considerable.  The Tribunal gives this matter significant weight in favour of the applicant. 

31. Similarly the Tribunal has placed considerable weight on the applicant’s support network he claims have helped him through his depressive disorder and recover to the point he has recommenced his studies.  The applicant provided extensive statements of support from members of the Gymea Baptist Church.  These statements from a number of parish members have outlined the support he has received and the concerns they have previously had for the applicant.  At the hearing the applicant spoke of the important role they have held in his life in recent years.  The Tribunal considers the Church and the support of his fellow Church members have had a positive role in his life after his diagnosis of depression.

32. The Tribunal has considered the applicant’s claims of hardship.  Whilst the Tribunal give his varied claims concerning military conscription and the challenges of studying again in Vietnamese very little weight, it does however note the claims of his psychologist.  The Tribunal has placed significant weight on Dr Kowald’s extensive submissions that have been built upon years of treating the applicant.  The Tribunal accepts her premise that he has suffered from depression over some years and has improved due to an intensive program of treatment that has helped stabilise him and prepare him for a return to higher education study which Dr Kowald supports.  The Tribunal considers Dr Kowald’s ongoing assistance is an important element of the applicant’s recovery as well as his return to study.  The Tribunal has considered the various claims of hardship that will be cause to the applicant if his visa is cancelled and weighs it slightly against cancelling the applicant’s visa.       

    Circumstances in which the ground for cancellation arose

33. The applicant’s visa was cancelled because he remained in Australia as the holder of a Student visa but did not continue his studies for a period of around over eight months.  The Tribunal put the PRISMS record which outlined the applicant’s breach of the condition attached to his visa to the applicant under s359AA and invited the applicant to comment or respond.   The applicant responded orally at the hearing. 

34. The applicant addressed the circumstances that led to his not being enrolled in a registered course of study in some detail and provided a further detailed written statement through his representative plus extensive submissions from his psychologist.    

35. The applicant has provided evidence he was a solid student at the higher education level, successfully completing a range of subjects until the second half of 2015 and 2016.  Prior to this time he had concerns with the significant load of study he was facing with a double degree and cut bac to a single Bachelor course.  In 2015 he started exhibiting what his psychologist Dr Kowald diagnosed as a severe major depressive disorder.  In addition to his psychological and health issues, the applicant’s father was diagnosed with renal failure and had surgery in August 2016.  The applicant said he wanted to return home to see his father but given his own mental health state at the time, he didn’t wish to worry his parents further. 

36. The applicant spoke eloquently at the hearing, stating he was initially unaware of his depression.  He states his feelings of isolation grew and he felt unable to turn to anyone at the university for support.  The cancellation of his enrolment further exacerbated his situation.  He sought assistance during this time from his Church friends who ultimately convinced him to seek professional assistance.  He claimed he tried to talk to the university about seeking a deferral but they told him his enrolment had already been cancelled and he should apply to recommence in 2017.  The applicant stated that he had the ideation of suicide around this time.  The applicant finally through his GP was referred to Dr Kowald in early 2017 and he commenced the extensive programme of treatment which continues today. 

37. The Tribunal acknowledges that severe depression can be difficult to diagnose and individuals can at times suffer significantly prior to any formal diagnosis or treatment.  The Tribunal on the evidence before it is satisfied that this was the likely case in relation to the applicant.  The Tribunal is satisfied, based upon the documentary evidence submitted in the guise of various psychologist reports and the oral testimony of the applicant, that he was in a difficult spot mentally during the period which he was not enrolled.  Given the applicant’s sound initial academic record, the Tribunal considers on the evidence before it that it is plausible that the applicant was suffering from depression well before his commencement of a full treatment plan with Dr Kowald in early 2017.  The Tribunal has given particular weight to the detail of Dr Kowald’s reports and the fact that she and the applicant have engaged in many dozens of consultations the last three years.  The Tribunal has placed a high premium on Dr Kowald’s reports and evidence. 

38. Given this, the Tribunal is not convinced that the circumstances in which the ground for cancellation arose was not beyond the applicant’s control.  The Tribunal considers the weight of evidence suggests it is more likely than not that the applicant was suffering from a severe depressive disorder during the period the delegate found he was not enrolled and in fact for some time prior to this time.

39. The Tribunal notes the submission of Dr Kowald who states that more recently the applicant has been able to find more psychological stability and reduced symptoms of depression.  Dr Kowald has supported the applicant’s return to studies due to his stabilised mental health. 

40. On the evidence before it relating to the circumstances in which the ground for cancellation arose, the Tribunal weights this factor against cancelling the visa.

    Past and present behaviour of the visa holder towards the Department 

41. The Tribunal has considered the past and present behaviour of the applicant towards the Department.    There is no evidence before the Tribunal concerning the applicant’s previous and present behaviour towards the Department. On the evidence before it the Tribunal weighs this factor against cancelling the visa. 

    Whether there would be consequential cancellations under s.140

42. The Tribunal has considered whether there are persons in Australia whose visas would, or may be, cancelled under s140 as a result of the cancellation of the applicant’s visa. On the evidence before it the cancellation of the applicant’s visa would not result in the consequential cancellation of any dependent visa holders. The applicant in oral evidence confirmed this. Therefore any cancellation of the applicant’s student visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.  

    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

1. The Tribunal notes that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s189 and removal under s198 of the Migration Act if he does not voluntarily depart Australia.  He will also be subject to an s48 bar which will limit his options in applying for further visas in Australia.  The Tribunal notes that the applicant, if he were to apply for a further Student visa offshore, will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a further Student visa for three years from this date.   However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa not to be cancelled. The Tribunal however also notes that if his visa is cancelled, the applicant may be eligible to apply for a Bridging Visa E to allow him to remain in Australia to finalise any outstanding matters and visa applications that have been lodged.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.       

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

2. The Tribunal has considered whether there are 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 of the applicant’s visa.  The applicant stated he does not have any children or partner. There is no information before the Tribunal which indicates that ant cancellation would result in any breach of Australia’s international obligations.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.

   Conclusion

3. The Tribunal notes that the applicant’s failure to comply with the conditions attached to his Student visa was significant.  The Tribunal notes that the purpose of a Student visa is to study, something the applicant has not done successfully for several years.  Nevertheless the Tribunal has given significant weight to the applicant’s claims concerning his mental and psychological health and, importantly, the very extensive and detailed treatment he has undergone now for several years.  The Tribunal considers the applicant’s commitment to such treatment for such an extended period is indicative of the genuineness of both his claims concerning his psychological health and his health professional’s concern for his wellbeing.  The Tribunal has placed further positive weight on Dr Kowald’s pronouncement the applicant is ready to recommence his studies – which he now has at UNSW.  The Tribunal took note of the applicant’s academic performance in the period prior to his illness and considers, on balance, the applicant deserves the opportunity to recommence his higher education studies with his psychological health being effectively managed.        

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

   DECISION

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

   Justin Owen
   Senior 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.