Pang (Migration)

[2019] AATA 5593

Pang (Migration) [2019] AATA 5593 (23 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Rui Pang

CASE NUMBER:  1909769

HOME AFFAIRS REFERENCE(S):     BCC2019/278839

MEMBERS:Dr Jason Harkess

DATE:23 August 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa

Statement made on 23 August 2019 at 1:43pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered course ceased – genuine temporary stay – gap in enrolment – limited academic progress – decision under review affirmed          

LEGISLATION

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The Applicant is a citizen of China. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 12 April 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 30 October 2017 with an original expiry date of 20 May 2019, providing for more than 18 months during which the Applicant would be permitted to reside in Australia for the purposes of full-time study. The visa was granted on the basis that he was enrolled in and would successfully complete an Advanced Diploma of Leadership and Management at the York Institute.

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 9 August 2019 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter of the Mandarin and English languages.

6. For the following reasons, the Tribunal has decided to affirm the decision 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 require that the Applicant remain enrolled in a full-time registered course. In the delegate’s decision record, the delegate identified the period from 18 May 2018 to 12 April 2019 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to more than 10 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 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 cancelled the Applicant’s enrolment in the Advanced Diploma of Leadership and Management on 18 May 2018 due to the cessation of studies.

4. The Department of Home Affairs wrote to the Applicant on 15 March 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 19 March and 29 March 2019 (collectively, ‘the NOICC response’). In that response the Applicant did not dispute that he had breached the visa. At the hearing before the Tribunal, he also admitted that he was in breach of Condition 8202 for the period alleged by the delegate.

6. Accordingly, on the evidence, the Tribunal is satisfied that the delegate was correct in finding that the Applicant had breached condition 8202(2)(a) of his student visa for the period of time that was alleged.

Consideration of Discretion to Cancel 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 the 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’). The matters that ought to be considered are specifically listed in PAM3 as follows:

   ·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 his NOICC response, the Applicant sought to explain the significant period of time during which he had ceased his studies. He referred to having originally arrived in Australia in 2013 to study. Since then he successfully completed an English course, a Certificate III in Commercial Cookery and a Diploma of Hospitality. He said that as he was undertaking the Advanced Diploma of Leadership and Management course at York Institute, he had difficulties arising from study pressure and an inability to regulate his mood. At the beginning of 2018 he said he became emotional and could not control his temper. He said he suffered from insomnia, depression and anxiety. He also referred to his grandfather in China having health issues which had an impact on his psychological condition. He says that he was close to his grandfather. He discovered that his grandfather was diagnosed with cancer. The Applicant wanted to return to China to see his grandfather, but the Applicant’s father would not allow this because, he was told, he should focus on his studies in Australia

2. The Applicant’s grandfather passed away on 16 April 2018. The Applicant stated that he suffered from severe anxiety and sleeplessness as a result of hearing about this news. He had arguments with his father about his grandfather’s death. He says that he became socially detached from friends and family. The Applicant stated that he and his father constantly fought.

3. At the hearing before the Tribunal on 9 August 2019, the Applicant largely reiterated the circumstances giving rise to the breach of Condition 8202 of his visa that have been summarised above. As the Tribunal understood his case, he was essentially submitting that his visa should not be cancelled because of the significant mental stress he was having as a result of his grandfather’s illness and subsequent death. Evidence was produced to the Department substantiating the Applicant’s claim his grandfather passed away. The Tribunal accepts this evidence and that the Applicant and his grandfather were very close. The Tribunal accepts that it would have been a difficult time for him, and that the timing of his grandfather’s death roughly coincides with the time at which the Applicant’s breach of Condition 8202 of his student visa started to accrue.

4. The Tribunal inquired of the Applicant as to what steps he took to address his levels of psychological distress during this time. The Applicant said that he was taking pain-killers for about six months. When asked what kind of pain killers, the Applicant stated that it was Chinese medicine and that he did not know the English name. When the Tribunal referred to the fact the Tribunal hearing was being conducted with the assistance of an interpreter, who could attempt to interpret and state the Chinese name of the medicine, the Applicant stated that he did not know the Chinese name. The Tribunal inquired as to whether the medicine he was taking was conventional medicine or traditional Chinese medicine. The Applicant was unable to communicate an answer to this question. When the Tribunal asked the Applicant whether he knew what the active ingredient in the medicine was, he was also unable to answer.

5. The Tribunal was not in any way satisfied by the responses of the Applicant in relation to these relatively simple inquiries about his medication. His answers were evasive for no apparent reason. The Tribunal does not accept that he was taking any medicine or took any steps to address his claims of suffering substantial psychological distress.

6. In any event, the Tribunal does not accept the Applicant’s evidence relating to his distress arising from his grandfather’s illness and death as providing a foundation for the Applicant being excused from complying with his student visa conditions. Sickness and death of family members are unkind life stressors that everyone must deal with at some point. Non-Australian citizens on student visas in Australia are no exception. Many student visa holders are forced to contend with such difficulties during their stay in Australia. They are all burdened in a similar way in that they are having to deal with some degree of emotional turmoil while away from their families in their home country. At the same time, they are obviously burdened with having to maintain their studies in Australia in order to comply with the strict visa conditions attaching to student visas. Many such students are young adults, just like the Applicant.

7. In such circumstances, registered course providers and the Department have in place policies that permit the exercise of discretion for compassionate reasons that will allow a student visa holder some latitude in having to deal with a difficult personal situation. The cancellation of an enrolment and the subsequent cancellation of a visa is a last resort. However, the exercise of a discretion to refrain from cancelling an international student’s enrolment, or to refrain from cancelling their visa, is premised on the visa holder taking positive steps to bring their personal issues to the attention of the relevant authorities and by producing evidence that corroborates their claims. In this case, the Applicant did not do so. He neither contacted staff at his course provider, nor staff at the Department, to inform them of any personal difficulties he may have been having.

8. There is no psychological evidence, beyond the evidence of the Applicant himself, that provides an adequate account of his mental state at the time. He has said that he was psychologically stressed. However, there is no material before the Tribunal suggesting that the Applicant was suffering a clinically diagnosable chronic mental health condition throughout or for any part of 2018 or for any part of 2019. Accordingly, the Tribunal can do no more than place his claims of suffering into the general category of suffering that ordinary people endure on a day to day basis in dealing with life’s stressors.

9. Indeed, the Tribunal has much difficulty in accepting that the Applicant was suffering any kind of significant mental health concern that was truly instrumental in his decision to cease his studies altogether. Such claims seem rather dubious having regard to the facts that he made no attempt to alert his course provider or the Department to his issues and that he was unable to address a relatively simple query from the Tribunal as to the type of pain medication he said he was taking. It seems the more likely explanation is that he simply lost interest in studying and decided to prioritise other things going on in his life ahead of his study obligations.

10. In this regard, the Tribunal has had regard to his relatively poor academic performance in Australia since he has been in Australia from 2013. According to the Applicant’s evidence, in that 6 year period, he has completed an English course, Certificate III in Commercial Cookery and a Diploma of Hospitality. All of these courses could have been completed in less than 3 years. Yet the Applicant has been here, purportedly as a full-time student, for approximately 6 years. It seems that he has not consistently pursued his studies to a satisfactory level of performance during his time in Australia.

11. In the Tribunal’s view, the situation that has given rise to the breach of Condition 8202 of the Applicant’s visa is neither characterisable as extenuating nor was it beyond the Applicant’s control. It is a situation that has largely arisen from his own choosing.

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. The Applicant has virtually nothing to show by way of academic achievements during the visa period.

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 further Australian qualifications. The Tribunal has taken into account that on 28 March 2019 the Applicant enrolled in an Advanced Diploma of Leadership and Management at Newton College. However, this enrolment appears to have been prompted by the Department giving the Applicant notice of its intention to consider cancelling his visa. In light of the Applicant’s educational history, the Tribunal considers that enrolment to be somewhat disingenuous.

3. There is no compelling need for the Applicant to remain in Australia. By their nature, student visas are meant to provide non-Australian citizens with temporary residence only. If the Applicant’s visa had been left to operate, without being cancelled, it would have now expired. The Applicant was afforded a significant amount of time to spend in Australia for the purposes of full-time study to obtain educational qualifications. In the Tribunal’s view, that purpose has been fundamentally defeated by the Applicant’s decision-making processes that de-prioritised his studies. It appears he is not interested in being a full-time student. It is appropriate that the student visa be cancelled.

Extent of Applicant’s Compliance with Visa Conditions

1. The Tribunal finds that the Applicant never made any realistic attempts to comply with the fundamental condition relating to his obligation to maintain satisfactory course progress. This is a significant factor that weighs in favour of cancelling his visa.

Hardship

1. The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia and complete further studies. The Tribunal accepts that it would be difficult for him if he is forced to return to his home country. However, that desire must be tempered with the extent of his non-compliance with the conditions of the visa. It was a student visa which obliged him to prioritise studying in Australia the entire time he has been here. In the Tribunal’s view, he has not provided a satisfactory explanation for not complying with that fundamental condition. It seems that he has fundamentally failed to utilise his student visa effectively for the purpose it was designed to serve.

Applicant’s Behaviour towards Department

1. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department. 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. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. They reflect the seriousness of the breach of visa conditions.

2. The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements to depart Australia. He is a citizen of China and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia.

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 satisfied that the Applicant’s visa ought to be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa.

Dr Jason Harkess
Member