Nizardeen (Migration)

[2019] AATA 4114

Nizardeen (Migration) [2019] AATA 4114 (13 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Muhammedh Aathiq Nizardeen

CASE NUMBER:  1903994

HOME AFFAIRS REFERENCE(S):     BCC2018/5429175

MEMBERS:Dr Jason Harkess

DATE:13 August 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa and in its place substitutes a decision not to cancel the visa

Statement made on 13 August 2019 at 8:45am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – circumstances giving rise to non-enrolment – mental health issues – took affirmative steps to seek professional help – likely to resume 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. The Applicant is a citizen of Sri Lanka. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 15 February 2019 cancelling his Subclass 500 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant’s student visa was granted on 26 June 2018 with an original expiry date of 15 March 2022, providing for more than three years and eight months during which the Applicant would be permitted to reside in Australia for the purposes of full-time study.

3. The delegate cancelled the Applicant’s visa on the basis that he had breached that condition of the visa which required him to continue to be enrolled in a registered course of study.

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

5. The Applicant appeared before the Tribunal on 31 July 2019 to give evidence and present arguments. He was assisted by his registered migration agent, Mrs Deepty Arora.

6. For the following reasons, the Tribunal has decided to set aside the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa and substitute in its place a decision not to cancel the visa.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’, when the visa was granted. In the present case, the issue is whether the Applicant has breached condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

Did the Applicant Breach Condition 8202?

1. Condition 8202(2)(a) of the Applicants visa required that the Applicant remain enrolled in a full-time registered course. In the delegate’s decision record, the delegate identified the period from 13 August 2018 to 30 January 2019 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to more than five months during which the Applicant was alleged to be in continuous breach of the visa.

2. The delegate’s finding in this respect was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[1] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database allows registered course providers to report changes in relation to a student’s enrolment status and to notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s Confirmation of Enrolment (‘CoE’) in a course for which they had previously been enrolled and the reasons for doing so.

   [1] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

3. The PRISMS report obtained by the delegate indicated that the Applicant’s course provider had cancelled the Applicant’s enrolment the Bachelor of Engineering Technology course due to the failure of the Applicant to pay fees and non-commencement of studies.

4. The Department of Home Affairs wrote to the Applicant on 30 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.

5. The Applicant provided written responses to the Department on 6 and 11 February 2019 (‘the NOICC responses’). He did not dispute the allegation that he had breached condition 8202. At the hearing before the Tribunal today, the Applicant also conceded that he was in breach of his student visa.

6. Based on the available information and material, the Tribunal is satisfied that the delegate was correct in reaching the conclusion that the Applicant was in breach of condition 8202(2)(a) of the visa for the period identified.

Consideration of the Discretion to Cancel the Visa

1. 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. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. These include the following considerations:

   ·the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant’s control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);

   ·the purpose of the Applicant’s travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;

   ·the extent of the Applicant’s compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;

   ·the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;

   ·the Applicant’s past and present behaviour towards the Department (eg, whether they have been truthful and co-operative in their dealings with the Department);

   ·whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;

   ·whether there are mandatory legal consequences arising from a decision to cancel the visa;

   ·whether Australia has obligations under any relevant international agreements that would be breached as a result.

Circumstances Giving Rise to Breach of Condition 8202

1. In the Applicant’s NOICC responses, he referred to and produced three CoE documents generated by the PRISMS system. Those three CoEs indicate that, in response to the Department’s NOICC, the Applicant took immediate steps to enrol in three new courses. Those courses included a Certificate III in Carpentry, with a course start date of 11 February 2019 (enrolled on 31 January 2019), a Diploma of Building and Construction (Building) with a start date of 10 March 2020 (enrolled on 31 January 2019), and a Bachelor of Business (enrolled on 11 February 2019).

2. Other than providing the three aforementioned CoEs to the Department, the Applicant did not provide in his NOICC responses any explanation as to the circumstances giving rise to his five months of continuous breach of his visa. No explanation was provided as to why he had abandoned his Bachelor of Engineering course.

3. At the hearing before the Tribunal, the Applicant was significantly more forthcoming in explaining the circumstances giving rise to his cessation of studies. The Applicant explained that he had been suffering mental health issues due to his anticipated marriage being called-off at the end of the June 2018. In accordance with the customs of Sri Lanka, this marriage had been arranged between the Applicant’s family and the bride’s family, to take place in Sri Lanka. The marriage had been arranged in April 2018. If the marriage had gone ahead as planned, the Applicant would have returned to Sri Lanka for the marriage. However, for reasons that the Applicant was unable to explain, the bride’s family unexpectedly called-off the marriage.

4. The Applicant stated that the termination of the marriage plans led to him becoming depressed. It was ultimately suggested that this period of depression led to him disengaging from his studies. He started drinking alcohol which, according to the Applicant, he had not done before. And so, it would seem, he spiralled out of control on a path of self-destruction insofar as his educational pursuits were concerned. The Applicant’s account appears to coincide with the cancellation of his enrolment by the course provider and the period of non-enrolment giving rise to the breach of Condition 8202.

5. As it turned out, however, the Applicant took affirmative steps to seek professional help for his mental health issues. It would seem that these positive steps were prompted by the NOICC being issued, with the stark reality being presented to the Applicant that his entitlement to remain in Australia for the purpose of studying was about to come to an abrupt end. He engaged with a Sri Lankan psychotherapist, paid for by his family. In support of that contention, and following the hearing before the Tribunal, he produced to a letter dated 4 August 2019 from Dr Lukmanul Hakeem, a psychotherapist based in Akurana, Sri Lanka.

6. Dr Lukmanul Hakeem’s letter postulates a diagnosis of the Applicant suffering a ‘moderate degree of depression’. Dr Lukmanul Hakeem further states that the Applicant has been successfully engaging with treatment of cognitive behaviour therapy and emotional intelligence techniques. The letter states that Dr Lukamanul Hakeem has had 13 consultation sessions with the Applicant since 19 March 2019. As the Applicant indicated in his evidence at the hearing, these consultations have taken place by telephone. The Applicant also stated that he has found the consultations beneficial.

7. Although the Applicant has only taken positive steps to address his mental health issues following receipt of the NOICC, they are nevertheless very significant steps which are to his credit. He also stated in evidence that he has stopped drinking alcohol since February of this year, which evidence the Tribunal accepts.

8. Accordingly, the Tribunal is of the view that extenuating circumstances exist which weigh in favour of his visa not being cancelled.

Purpose of Applicant’s Stay in Australia

1. The purpose of the Applicant’s stay in Australia, as reflected in the essential purpose of a student visa, is to study on a full-time basis. That purpose was effectively defeated when the Applicant ceased studying.

2. The Applicant stated in evidence that he wishes to continue with studying in Australia so that he can return to his home country with an Australian qualification. Given that the Applicant now appears to have the cause of his cessation of enrolment now under control, with the aid of a qualified psychotherapist, the Tribunal considers that the purpose of the visa can be served by not cancelling it. The Tribunal considers that it is likely that the Applicant will resume his studies if the decision to cancel is visa is set aside.

Extent of Applicant’s Compliance with Visa Conditions

1. Apart from the lapse that has led to the present cancellation decision now under review, there is no evidence before the Tribunal that indicates any other action has been taken against the Applicant for non-compliance with visa conditions.

Hardship

1. The Tribunal accepts that it would be difficult for him were he not allowed to complete successfully his studies in Australia. In the circumstances of his mental health issues, which now appear to be under control, the Tribunal considers it would be unduly harsh to cancel his visa.

Applicant’s Behaviour towards Department

1. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. There is no adverse evidence before the Tribunal in that regard.

Other Visa Holders

1. There do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

Legal Consequences

1. The Tribunal notes that if his visa is cancelled, the Applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met.

2. The Tribunal considers this consequence to be overly punitive in the circumstances, as outlined above, that have given rise to the breach of the Applicant’s visa.

International Obligations

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

Conclusion

1. In all the circumstances, the Tribunal is not satisfied that the Applicant’s visa ought to be cancelled.

DECISION

1. The Tribunal sets aside the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa and in its place substitutes a decision not to cancel the visa.

Dr Jason Harkess
Member