Raja (Migration)

[2019] AATA 6302

Raja (Migration) [2019] AATA 6302 (16 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Asif Raja

CASE NUMBER:  1827747

HOME AFFAIRS REFERENCE(S):     BCC2018/1079441

MEMBERS:Dr Jason Harkess

DATE:16 September 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 16 September 2019 at 1:34pm

CATCHWORDS

MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – not enrolled in a registered course of study – breached condition 8202  – depressive disorder – unable to fulfil study requirements – long-term incapacitation – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 189,198
Migration Regulations 1994 (Cth), Schedule 8
Education Services for Overseas Students Act 2000 (Cth)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

[ 1 ]The Applicant is a citizen of Pakistan. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 17 September 2018 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 23 December 2016 with an original expiry date of 1 November 2018, providing for more than 1 year 10 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.

HEARING OF APPLICATION

[ 5 ]The Tribunal convened a hearing to consider the merits of the application on 16 August 2019. The Applicant appeared before the Tribunal in person to give evidence and present arguments.

[ 6 ]The hearing of this application had originally been scheduled to take place on 17 July 2019. However, that hearing had been postponed at the request of the Applicant. The Applicant’s registered migration agent wrote to the Tribunal on 12 July 2019 requesting that the 17 July 2019 hearing date be postponed due to the Applicant not being in a sufficiently fit state of mental health to attend to the hearing. In support of this request, the Applicant’s migration agent produced a letter from the Applicant’s treating psychiatrist, Dr Dulip Dharmage, dated 11 July 2019. Dr Dharmage stated that the Applicant was suffering severe depression and that he had prescribed antidepressant medication for the Applicant. He also stated that the Applicant had recently stopped taking that medication and that his mental health had deteriorated. Dr Dharmage stated that the Applicant was not mentally fit to attend the hearing scheduled for 17 July 2019.

[ 7 ]Having regard to the circumstances as outlined by Dr Dharmage, and given that the Applicant had not previously made a request for a postponement, the Tribunal granted the request. The hearing originally scheduled for 17 July 2019 was rescheduled to take place on 16 August 2019. The Applicant’s migration agent was advised in writing of the new hearing date.

[ 8 ]Another request for the postponement of the hearing of the application, which was now scheduled for 16 August 2019, was received by the Tribunal on 13 August 2019. In support of this request, another letter from Dr Dharmage dated 12 August 2019 was provided. In that letter, Dr Dharmage referred to having reviewed the Applicant at his clinic on 12 August 2019. He also referred to his previous attendance on the Applicant at his clinic on 11 July 2019. Dr Dharmage reiterated that he was currently treating the Applicant for major depressive disorder. Dr Dharmage stated that he had observed mild improvement in the Applicant since he had seen him on 11 July 2019. However, Dr Dharmage also stated that the Applicant ‘needs at least three months to recover from his depression and is not fit to appear before the Tribunal at present.’

[ 9 ]The rescheduling or adjournment of a scheduled hearing at a review applicant’s request will only occur where there are cogent reasons for the granting of an adjournment.[1] The Tribunal is mindful that a request for an adjournment must be carefully considered and the decision to grant or not grant an adjournment must be made in a manner which is reasonable with genuine consideration of the facts and circumstances of the case.[2]

[1] Administrative Appeals Tribunal, President’s Direction: Conducting Migration and Refugee Reviews (Administrative Appeals Tribunal, 1 August 2018) cl 5.1.

[2] Ibid cl 5.2.

[ 10 ]On this occasion of a second request for a postponement of the hearing, the Tribunal was not prepared to delay proceeding with the hearing of the application any further. The Tribunal is mindful that the Applicant’s student visa was only ever intended to provide him with temporary residence in Australia as a student. It has now been almost 1 year since it was cancelled by the delegate. He has remained in Australia on a bridging visa since. In refusing to grant a further adjournment, the Tribunal took into account that the length of time requested to delay the hearing of this application, being 3 months, seemed somewhat excessive without further explanation. The Tribunal also took into account that, given the Applicant was able to instruct his migration agent to seek a request for an adjournment, and attend the clinic of his psychiatrist and to communicate his concerns, it was likely that he would also be able to participate at a hearing before the Tribunal. For these reasons, the second request for a postponement of the hearing was refused. The Tribunal advised the Applicant’s migration in agent in writing on 15 August 2019 that the hearing would take place as scheduled on 16 August 2019.

[ 11 ]When the Applicant appeared at the hearing on 16 August 2019, the Tribunal made an assessment of the Applicant’s ability to participate in the hearing. The Tribunal concluded that the Applicant was competent to participate. He was able to understand questions put to him by the Tribunal and his answers were able to be understood by the Tribunal. He did not request an interpreter and it was apparent throughout the hearing that none was required given his proficiency in English. The Applicant did not make any further request for an adjournment of the hearing of his application. The hearing therefore proceeded as scheduled.

[ 12 ]For the following reasons, the Tribunal has decided to affirm the delegate’s decision to cancel the Applicant’s visa.

CONSIDERATION OF CLAIMS AND EVIDENCE

[ 13 ]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?

[ 14 ]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 9 September 2017 to 7 April 2018 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to almost 7 months during which the Applicant was alleged to be in continuous breach of the visa.

[ 15 ]The delegate’s finding 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’).[3] 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.

[3] 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].

[ 16 ]The PRISMS report obtained by the delegate indicated that the Applicant’s course provider had cancelled the Applicant’s enrolments in a Certificate III in Light Vehicle Mechanical Technology, a Certificate IV in Automotive Mechanical Diagnosis, and a Diploma of Automotive Technology on 9 September 2017.

[ 17 ]The Department of Home Affairs wrote to the Applicant on 11 June 2018, 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. At this point in time, the Department was of the view that the Applicant had been in breach of his visa for a substantially longer period of time than that which subsequently formed the basis for cancelling his visa. The NOICC alleged that he had not been enrolled in a registered course of study from 12 December 2016 to 9 April 2018. It is apparent that the Department reached this conclusion due to there being evidence of other courses, in which the Applicant had been enrolled, having been cancelled. However, it is clear that, prior to the Department moving to cancel his visa, the Department reviewed the period of breach and revised the breach allegation in the Applicant’s favour.

[ 18 ]The NOICC invited the Applicant to comment on the allegation that he had been in breach of Condition 8202 before the Department moved to cancel his visa. The Applicant did not respond to the NOICC.

[ 19 ]At the hearing before the Tribunal, the Applicant admitted in oral evidence that he was not enrolled in a registered course of study for the period 9 September 2017 to 7 April 2018.

[ 20 ]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 his visa.

Consideration of the Discretion to Cancel the Visa

[ 21 ]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’. 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

[ 22 ]At the hearing before the Tribunal, the Applicant stated in evidence that he was not enrolled for the period giving rise to the breach of Condition 8202 because of his mental health condition. The Tribunal accepts that his inability to remain enrolled and to complete his studies was most likely due to him suffering a major depressive disorder. This claim is corroborated by the letters of Dr Dharmage referred to above.

[ 23 ]The Applicant’s claim is also corroborated by further medical documentation filed following the hearing on 16 August 2019. The Tribunal received a further letter from Dr Dharmage from the Applicant’s migration agent on 23 August 2019. This third letter from Dr Dharmage is dated 20 August 2019. It refers to Dr Dharmage as having first diagnosed the Applicant with major depressive disorder on 20 April 2015. It is clear from this evidence that the Applicant has been suffering recurrent symptoms of chronic depression for almost the entire duration he has been in Australia as a student. In oral evidence, the Applicant attributes his depression to study pressure and home sickness.

[ 24 ]The Applicant’s depression has clearly affected his ability to study in Australia. The Applicant has successfully achieved very little by way of the attainment of a formal educational qualification since he has been here. The Applicant stated in evidence that he has been in Australia as a student since 2014 or 2015. In that time, he said he has only managed to successfully complete a general English course and a Diploma of Management. He stated that he had enrolled in other courses but did not complete them. The Applicant emphasised to the Tribunal that his lack of achievement is due to his chronic depression.

[ 25 ]The Tribunal recognises that mental health conditions, such as those suffered by the Applicant, are not attributable to conscious decision-making processes. No blame or fault can be attributed to the Applicant for suffering depression. The Tribunal accepts that, in these circumstances, his breach of Condition 8202 was largely out of his personal control.

Purpose of Applicant’s Stay in Australia

[ 26 ]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. Regrettably, that purpose has effectively been defeated as a result of the Applicant’s chronic mental health condition.

[ 27 ]The Tribunal has turned its mind to the possibility that the Applicant’s inability to pursue his studies in Australia may have been only temporarily set back by the state of his mental health. While the Tribunal accepts that the Applicant appears to have made some attempts to manage his chronic mental illness, those attempts appear not to have resulted in the Applicant getting back on track to make successful progress in relation to his studies.

[ 28 ]The Tribunal notes that Dr Dharmage’s letter of 12 August 2019 stated that the Applicant needs ‘at least 3 months to recover’ for the purposes of attending a hearing. Dr Dharmage did not venture so far as to say that the Applicant will be in a position to resume his studies as a full-time international student following that 3 month period. Indeed, based on the current evidence available, given that the Applicant appears to have been suffering recurrent episodes of major depressive disorder for some 4 years since he has been in Australia as a student, the Tribunal doubts that the Applicant will be in a position to resume his studies in the foreseeable future.

[ 29 ]While the Tribunal accepts that the Applicant is suffering a chronic mental health condition through no fault of his own, the Tribunal must give consideration to the extent to which the Applicant is capable of using the visa for the express purpose it was designed to serve. The Regulations are clear in that student visa holders must continue to remain enrolled and make satisfactory progress towards the attainment of an Australian qualification for the currency of their visa. The Regulations make no provision for the maintenance of a student visa in circumstances where the visa holder is unable to fulfil study requirements due to long-term incapacitation arising from mental health conditions such as those suffered by the Applicant.

[ 30 ]Objectively, it is a sad and unfortunate situation that the Applicant finds himself in. However, the Tribunal cannot overlook the primary purpose for which the student visa was granted. It appears that the Applicant has been unable to maintain consistent compliance with the primary conditions attaching to his student visa for some time. On the available material, the Tribunal does not consider this to be a temporary set-back. Rather, it is a long-term issue that the Applicant continues to have trouble in grappling with. There is no utility in prolonging the Applicant’s entitlement to stay in Australia as a student when there appears to be little prospect in the Applicant being able to effectively function as a student in the foreseeable future, even though he may not be at fault for his difficult predicament. This consideration has weighed significantly in the Tribunal coming to the determination that the visa ought to be cancelled.

Extent of Applicant’s Compliance with Visa Conditions

[ 31 ]Apart from the Applicant’s non-compliance with Condition 8202, the Tribunal is not aware of any other breaches of his visa conditions.

Hardship

[ 32 ]The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia and complete his education. The Tribunal accepts that it would be difficult for him were he not allowed to complete successfully a further Australian qualification. The psychological impact would also be significant having regard to the Applicant’s current state of mental health. The Tribunal has given this significant consideration, although the Tribunal does not consider this consideration should be given primacy over the purpose for which the visa is designed to serve.

Applicant’s Behaviour towards Department

[ 33 ]The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. There is nothing unfavourable before the Tribunal in that regard.

Other Visa Holders

[ 34 ]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

[ 35 ]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.

[ 36 ]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 Pakistan 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

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

Conclusion

[ 38 ]In all the circumstances, the Tribunal is of view that the Applicant’s visa ought to be cancelled.

DECISION

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

Dr Jason Harkess
Member