Sandhu (Migration)

[2022] AATA 3651

Sandhu (Migration) [2022] AATA 3651 (2 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chandandeep Singh Sandhu

REPRESENTATIVE:  Mr Ajay Bansal (MARN: 1569359)

CASE NUMBER:  2205775

HOME AFFAIRS REFERENCE(S):          BCC2022/19079

MEMBER:Vanessa Plain

DATE:2 September 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 02 September 2022 at 4:25pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa –breached condition 8202(2)(b) – applicant has not maintained enrolment in a registered course– depression and anxiety – medical report provided – has taken substantive steps to attempt to re-enrol – decision under review set aside

LEGISLATION
Migration Act 1958, s 116
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 11 April 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 4 August 2022 to give evidence and present arguments.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicant was represented in relation to the review. 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 (Cth) (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 full time registered course: 8202(2)(a)

   ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered courses.

10. An examination of the Delegate’s Decision Record reveals that the applicant was granted a Student (Temporary) (class TU) subclass 500 visa on 18 January 2019 for the purpose of undertaking registered courses of study in Australia.

11. PRISMS indicated that the applicant has not been enrolled in a registered course of study since 22 March 2019.   A Notice of Intention to Consider Cancellation (NOICC) of the visa was issued to the applicant on 3 March 2022.  No response was received from the applicant.

12. At the hearing, the Tribunal explained to the applicant that it was contended by the delegate in the Decision Record that he was not enrolled in a course of study from 22 March 2019.  The Tribunal further explained that it is a breach of a visa condition for a visa holder to fail to maintain enrolment in a registered course.  The Tribunal further explained that if the applicant had breached this visa condition, the question for the Tribunal then becomes whether or not the applicant’s visa should be cancelled. 

13. The applicant understood and stated to the Tribunal that he was not enrolled in a course of study from 22 March 2019 but re-enrolled on 1 August 2022 for a course which commences on 15 August 2022 (Diploma of Business).        

14. On the evidence before the Tribunal as set out above, the Tribunal is satisfied that the applicant did not maintain enrolment in a registered course of study from 22 March 2019 until 1 August 2022 and on that basis, he has not complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

15. 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.

16. 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’.

17. The Tribunal invited the applicant to provide reasons for his period of non enrolment if he wished.  In his sworn evidence at the hearing, the applicant provided the following evidence:

    ·He was not enrolled during the time alleged but the reason for that was due to depression and anxiety that he consulted a doctor about in June 2019.  He said further that he was very young (19 years old) when he came to Australia and he had a difficult time adjusting to life in Australia.  He has suffered from depression in the was given a referral to see a physician to treat his medical condition. 

    ·In mid 2019 he moved to Melbourne from Brisbane.  He saw the doctor several times over the course of 2019 and 2020 to assist mange his illness.  He was prescribed drugs to assist with the management of his depression.  He found 2020 particularly difficult when COVID started, but since he has now made more community connections and feels stronger to recommence his studies and he re-enrolled in a business course in Melbourne.  He said it took longer than he expected to re-enrol, because he had difficulty with his former college which would not give him a release.  He believes this is the reason he found it difficult to re-enrol, because he was told by another education provider that it would not enrol him without a release from the applicant’s former college.

    ·He does not want to return home to his family and have nothing to show his parents after his time in Australia, it will cause him distress to return home in these circumstances.     

18. In support of his application, the applicant submitted the following documents:

    ·COE for a Diploma of Business and a Graduate Diploma of Management  

    ·Medical report dated 16 June 2019 confirming a diagnosis of depression and anxiety.

    ·Personal statement

    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      

19. The applicant was granted a Student (Temporary) (class TU) subclass 500 visa on 18 January 2019 for the purpose of undertaking registered courses of study in Australia.  His COE was cancelled due to non-commencement of studies.  He did not re-enrol in a course until 1 August 2022. 

20. The Tribunal places significant weight upon the medical report dated 12 June 2019 which provides that the applicant was suffering from depression and anxiety (of which he has a history) and that he proposes to move to Melbourne for his studies.  The Tribunal further places weight upon the evidence of the applicant that he was being treated for depression and anxiety in the subsequent years after his arrival.  He has re-enrolled when he had felt up to the task of recommencing his studies.  Therefore, the Tribunal finds that on account of the fact the applicant has re-enrolled after a period of non enrolment due to circumstances not reasonably within his control, the purpose of the applicant’s stay is now in line with the purpose for which his Student visa was granted.   

21. The Tribunal gives these considerations some weight towards the visa not being cancelled.     

    The extent of compliance with visa conditions

22. The applicant has not complied with condition 8202(2)(a).  The applicant has provided reasons for the breach which are set out above.  The Tribunal acknowledges that there is no other evidence before it of breaches of other visa conditions.  The duration of the non compliance with condition 8202(2)(a) is significant, but in view of the medical evidence referred to above, the Tribunal is satisfied that the reason for the breach was due to factors (serious mental health conditions) not reasonably within the control of the applicant. 

23. The Tribunal gives these considerations some weight in favour of the visa not being cancelled.

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

25. The Tribunal acknowledges the applicant’s statement that he will not be able to complete his studies which will cause him hardship and he dies not wish to disappoint his parents.  The Tribunal further takes into account the fact that the applicant has clearly endured emotional trauma associated with battling depression and anxiety.

26. Based on the matters set out above, the Tribunal accepts that the cancellation has led to some personal detriment for the applicant which would be compounded by the continuation of the cancellation of the visa and the Tribunal gives this a little weight towards the visa not being cancelled. 

    Circumstances in which ground of cancellation arose

27. The ground for cancellation arose because the applicant did not maintain enrolment in a registered course of study from 22 March 2019 until 1 August 2022.

28. The Tribunal acknowledges and takes into account all the reasons as set out above that the applicant has provided in writing and in his oral evidence that speak to why he was not enrolled.  It is clear that the applicant’s non enrolment was occasioned by the fact that for a significant period of time, he was battling depression and anxiety which is evidenced by the medical report produced in mid 2019.    Therefore, the Tribunal is satisfied that the circumstances which led to the period of non-enrolment were outside of the control of the applicant

29. The Tribunal gives this consideration significant weight in favour of not cancelling the visa. 

    Past and present behaviour of the visa holder towards the Department

30. The applicant has conducted himself in good faith in his dealings with the Department and its staff.  He did not respond to the NOICC as it was not received in the applicant’s email.    

31. The Tribunal gives this some weight in favour of the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

32. There is no evidence before the Tribunal of any consequential cancellations as a result of the applicant’s visa being cancelled.  The Tribunal therefore gives this factor no weight for or against cancelling the visa for this consideration.   

    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

33. If the visa were to be cancelled, the applicant would be excluded from making applications for certain types of visas and may be liable to detention and/or deportation if he does not depart the country or apply for a bridging visa pending the outcome of his partner visa application.  However, these are mandatory consequences of the legislation and in view of the fact that the Tribunal has found that the reason for the breach of the visa condition was not reasonably within the control of the applicant, the Tribunal gives this little weight in favour of the visa not being cancelled.   

    Whether 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   

34. Relevant Departmental policy instructions (Procedural Advice Manual 3) relating to family separations states (at [76]) as follows:

    “Obligations apply to persons within Australia’s territory and also to persons within Australia’s jurisdiction. The obligations that are most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement (this latter term refers to an obligation that people should not be removed to frontiers/territories where they face certain types of harm)...”

35. Australia is a signatory to the Convention on the Rights of the Child (CROC) and the International Covenant on Civil and Political Rights (ICCPR).  Article 3.1 of the CROC provides as follows:

    “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.”

36. Australia is also a signatory to the International Covenant on Civil and Political Rights (ICCPR).  Article 23.1 of ICCPR provides as follows:

    “The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State...”

37. There is no evidence before the Tribunal of any children of the applicant.  The Tribunal therefore gives this factor no weight for or against cancelling the visa for this consideration.    

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

38. Not applicable.

    Any other relevant matters

39. There are no other relevant matters for consideration.   

40. The matters set out above do not reveal any bad faith on the part of the applicant, it is clear based on the evidence that the reason for the breach of the visa was not reasonably within the control of the applicant.

41. It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa not being cancelled and I so find.

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

    DECISION

43. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Vanessa Plain
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.