Pandey (Migration)

[2020] AATA 1339

Pandey (Migration) [2020] AATA 1339 (4 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pawan Pandey

CASE NUMBER:  1805563

HOME AFFAIRS REFERENCE(S):          BCC2017/4354043

MEMBER:Helen Kroger

DATE:4 February 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 04 February 2020 at 10:52am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered Higher Education course cancelled – applicant ceased enrolment – applicant’s illnesses – limited academic progress – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 116, 359
Migration Regulations 1994, Schedule 8; Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 February 2018 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, Mr Pandey, a Nepalese national, was granted a visa on 17 January 2014 for the purpose of studying in Australia.

3. On the 29 January 2018, Mr Pandey was sent a Notice of Intention to Consider Cancellation (NOICC) of his student visa, inviting him to comment on a potential breach of condition 8202 which was imposed on his visa. The delegate received a response on the 12 February 2018 from Mr Pandey, explaining that he did not agree there were grounds for cancellation.

4. The delegate cancelled the visa on the basis that the applicant has not maintained enrolment in a registered course and the grounds for cancelling outweighed the grounds for not cancelling 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.

5. The applicant did not appear before the Tribunal for a hearing on 14 October 2019 and the application was dismissed under s.362B(1A)(b) of the Migration Act. The applicant applied for reinstatement on the basis of stress and anxiety he claims, providing a medical certificate supporting that claim and the Tribunal considered it appropriate to reinstate the application.

6. The applicant appeared before the Tribunal on 7 January 2020 via video conferencing to give evidence and present arguments.

7. 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

8. 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?

9. 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).

10. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. Mr Pandey arrived in Australia in January 2014 for the purpose of studying a Diploma of Management and Bachelor of Business with an education provider in Tasmania and transferred to Sydney some 7 months later. He enrolled at Australian Ideal College in Sydney, NSW. He was issued a Notice of Intention to Consider Cancellation (NOICC) on the 29 January 2018 and provided a written response to the Department on the 2 February 2018 explaining the circumstances around the time that his COE was cancelled and the sequence of events at that time. At the hearing, the alleged breach was put to Mr Pandey, and he was issued an invitation to comment further after the hearing under Section 359, with regard to the alleged breach when his COE was cancelled.

11. During the hearing, Mr Pandey confirmed that he had not been enrolled since mid-2016, explaining that he was having a ‘bad time’ in 2016 and stayed home due to anxiety and depression that he was experiencing. The applicant did not dispute the finding that his COE had been cancelled due to non-attendance.

12. On the 7 January, 2020, the Tribunal issued an invitation to Mr Pandey under Section 359A of the Migration Act, to comment on information provided by the Provider Registration & International Student Management Systems (PRISMS), that indicates that the applicant completed a Certificate iv in Business Administration on 9 August 2015 and a Diploma of Management on 27 March 2016 and has not been enrolled in a registered course of study since mid-2017. The Tribunal granted the applicant an extension of one week to respond to the invitation after he sought an extension of time to respond. In his written response to the Tribunal, (folio 55), the applicant does not dispute that he has not been enrolled since mid-2017, and claims that “…without visa no college is willing to take me….”

13. On the evidence before the Tribunal, namely the applicant’s admission during the hearing, and his written response to the Tribunal’s invitation under Section 359A of the Migration Act, the Tribunal finds that the applicant was not enrolled in a registered course of study. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

14. 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’.

15. The information provided to the Tribunal at the hearing along with the applicant’s written explanatory statement to the Department has been considered by the Tribunal in its exercise of discretion as outlined below.

    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

16. The applicant is a Nepalese national who travelled to Australia for the purpose of studying and enrolled in a Diploma and Bachelor of Business in Tasmania, transferring to the Australian Ideal College in Sydney. He completed the requisite English language course and a Diploma in Business after his second attempt. He told the Tribunal that he did not continue his studies after mid 2016 as he was experiencing “bad times”, explaining that he was suffering from anxiety and stress. He explained that this was compounded when he broke his leg in 2017. Mr Pandey provided a medical report, dated 2 January 2020, authored by Dr Farid Hamawy from the Sutherland Medical Centre, that indicates that Mr Pawan Pandey has been “having depression and anxiety symptoms since 2 years”. The applicant previously submitted three medical certificates to the Department, dated 8 February 2018 and 31 January 2018, confirming a left ankle fracture that occurred on 19 December 2017 and indicating he was unfit for work for 3 weeks along with a certificate that records that he suffered from anxiety in June 2016 and March 2017.

17. Mr Pandey told the Tribunal that he stayed home for a period of six months when he “broke his leg” as he was not able to leave home. He confirmed that he had not sought to defer his course at any stage when he was unwell or made any inquiries about his options with his education provider or through the Department as he was too anxious and just stayed home. He explained that he became aware of the cancellation of his COE when he received a letter from the education provider.

18. He confirmed that he had completed the requisite English language course over a period of six months after his arrival, a Certificate iii and Certificate iv in Business and that he completed a Diploma in Business after his second attempt. He told the Tribunal that he wished to enrol in a Diploma of Construction in February 2020, indicating that whilst he had googled the course, that he had not confirmed any details in relation to the course or made any inquiries about education providers who teach the Diploma. Mr Pandey is self-sufficient and has supported himself since his arrival in Australia by working the allowable 20 hours per week, in effect, 2-3 days per week as a construction labourer.

19. The Tribunal has considered the applicant’s successful completion of English, the Certificate iii and iv in Business and the Diploma of Business, along with his claims regarding his mental health and the anxiety and stress he has and continues to experience. He affirmed his wish to complete studies in Australia however he did not indicate how those studies would directly affect his circumstances. The Tribunal gives some weight to the courses that the applicant has completed and has considered the period of time during which he was not enrolled. The Tribunal has also considered the applicant’s claim that he did not communicate with the education provider about his personal circumstances, that he did not attempt to defer his course, and that he did not attempt to contact the Department to advise about his changed circumstances.  The Tribunal has considered the applicant’s completed courses, the period of time that he was not enrolled in a registered course of study since 11 May 2017 and the applicant’s testimony that he had not been studying since mid-2016 and considers this period of time to be significant in the context of a student’s study period and in the context of the time since he arrived in Australia. Accordingly the Tribunal gives significant weight to the period of time that the applicant was not enrolled.

20. Given the circumstances outlined above, the Tribunal gives limited weight to these reasons in favour of the applicant and not cancelling the visa and more weight to the period of time in which the applicant was not enrolled.

    The extent of compliance with visa conditions

21. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions of the visa and the Tribunal is mindful of the significance of the breach. As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

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

22. The applicant was invited during the hearing to indicate any hardship he would potentially incur or his family would suffer, should the visa cancellation be upheld.

23. The applicant indicated that he has been referred to a Psychologist for treatment and submitted to the Tribunal a mental health plan prepared for him by Dr Farid Hamawy, dated 2 January 2020. The Tribunal has considered the diagnosis, described as anxiety, depression symptoms and sleep issues and the applicant’s mental health plan (submitted to the Tribunal) recommending 6 sessions with Psychologist, Mr Sean Dickson and a prescribed review date of 28 February 2020. In the applicant’s oral submission to the Tribunal, he claims that he is required to undergo 20 sessions with a Psychologist, and that the first session is to commence the week beginning 13^th January 2020.

24. The Tribunal has considered the inconsistency in the oral evidence provided to the Tribunal at hearing and the written mental health plan that was submitted at the same time.  Mr Pandey submitted that he needed to stay in Australia so that he could undertake the 20 sessions with the Psychologist as recommended, in an endeavour to deal with his mental health issues. The Tribunal has considered the significant difference in both the written and oral submissions and variance in the number of sessions recommended by Dr Dickson and referred to by the applicant. The Tribunal sought clarification from the applicant in relation to his treatment and Mr Pandey confirmed that he had not commenced any of the sessions (as of the date of the hearing), notwithstanding his health issues developed in 2016 and that his first session was scheduled for the following week after the hearing. The Tribunal is not unsympathetic with the health issues described by the applicant and the impact he claims it has had on his studies and has considered the action taken by the applicant to address these health issues. The Tribunal has considered the period of time that the applicant has claimed to suffer, a period of three and a half years and whilst satisfied that a health plan has been undertaken, and the applicant’s submission that he has not commenced the sessions recommended in the health plan, dated 2 January 2020, it is not satisfied that the management of the health plan requires him to remain in Australia. The Tribunal has also considered the applicant’s claim that he is to commence sessions in the week following the hearing and invited the applicant to comment on this timing. The applicant submitted that he has been under medication for the last three and a half years and that therapy was about to start.

25. The Tribunal has considered the mental health care available, and finds that whilst the level of healthcare may be superior in Australia to Nepal, that a health plan developed in Australia could be adopted and managed in Nepal. The applicant indicated that he has been able to work 2-3 days per week to support his financial requirements over the last few years, and the Tribunal is satisfied that the applicant has been able to support himself in Australia and would therefore be able to do so in his home country.

26. In his written response to the Tribunal’s invitation to respond under Section 359A of the Act, Mr Pandey indicates social and personal concerns if he is required to return to Nepal without a qualification. “…I am in that phase of life where going back without a degree will lead to social negligence, parental pressure and a shameful act….” The Tribunal has considered the disappointment and upset that Mr Pandey and his parents may face should his visa be cancelled, and whilst sympathetic, the Tribunal does not find these circumstances to be unique and considers it a not unusual response following the cancellation of a visa.

27. The Tribunal provided the applicant the opportunity to submit any further hardships he would face should he be required to return to Nepal and he indicated that there were no further considerations

    Circumstances in which ground of cancellation arose

28. In addition to the above claims regarding the applicant’s mental health, the Tribunal has also considered the evidence before it in relation to the broken ankle suffered by the applicant in 2017, that is detailed in his response to the NOICC (DF 18, 23), and his claim that this caused him to be home for six months. In addition to this response, the Tribunal has considered the medical certificate provided (DF 19), indicating that the applicant would not be able to work for a period of three weeks due to the broken ankle. The Tribunal finds that the applicant’s claim attesting to six months at home due to his broken ankle is not consistent with this certificate that indicates he cannot work for a period of three weeks. Notwithstanding this inconsistency, the Tribunal has considered the period of time when the applicant broke his ankle, 17 December 2017, and is satisfied that this accident occurred after the period when the applicant stopped studying in 2016, and accordingly did not influence his studying capacity in 2016.

29. Given these circumstances, the Tribunal gives limited weight to the reasons provided by the applicant and more weight to the period in excess of nine months in which the applicant was not enrolled in a registered course of study. As such, the Tribunal finds thee considerations outweigh any weight given in favour of the applicant and not cancelling the visa.

30. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Helen Kroger
    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.